Oliver v. Hamilton (City) (No. 1)

1994-06-20

Ontario Board of Inquiry

Joe Oliver Complainant

v.

Corporation of the City of Hamilton and Robert Morrow Respondents

Date of Complaint: January 10, 1992

Date of Decision: June 20, 1994

Before: Ontario Board of Inquiry, Elizabeth Beckett

Comm. Decision No.: 626

Appearances by: Susan Ursel, Counsel for the Complainant Kikee Malik, Counsel for the Commission Patrice Noe-Johnson, Counsel for the Respondent City Michael Riley, Counsel for the Respondent Robert Morrow

SETTLEMENT — responsibility of human rights commission for failure to reach a settlement — PARTIES — removing respondents — LIABILITY — liability of municipality — COMPLAINTS — limitation of action legislation applied to human rights complaint

Summary: This is a decision on preliminary motions made by the respondents, the Corporation of the City of Hamilton and the Mayor of Hamilton, Robert Morrow. At issue is a complaint filed by Joe Oliver alleging that Mayor Robert Morrow and the City of Hamilton discriminated contrary to the Ontario Human Rights Code when the Mayor refused to proclaim Gay and Lesbian Pride Week in Hamilton in 1991.

The City of Hamilton seeks to have the complaint against it dismissed on the grounds that the Commission failed to attempt to settle the complaint with the City. The Commission did attempt, and failed, to settle the complaint with the Mayor. The Board of Inquiry finds that the Commission attempted to settle the complaint in good faith, as required by the Code. The fact that the Commission did not make a separate attempt to settle with the City of Hamilton does not bar the Board of Inquiry from hearing and deciding the complaint. The Board of Inquiry now has jurisdiction to hear the complaint and decide on the liability of the named parties.

The Corporation of the City of Hamilton argues that it should not be a party to the complaint because it had no dealings with the complainant. It argues, in addition, that it is not vicariously liable for the actions of the Mayor. However, the Board of Inquiry finds that there is no reason to dismiss the complaint against the Corporation without a hearing. The Board of Inquiry may find, after a hearing, that the Corporation has not violated the Code and has no liability. However, that is still to be determined.

The Mayor, Robert Morrow, requests the Board of Inquiry to dismiss the complaint on the grounds that it is out of time, that is, it was filed more than six months after the alleged violation occurred. However, if the same criteria are applied to determine when the complainant filed his complaint and when the respondent made the refusal by accepting either the verbal or the written filing of the complaint and refusal of the proclamation, the Board of Inquiry finds that the complaint is not out of time. The complainant is only out of time if different criteria are applied to the two parties.

The Board of Inquiry dismisses the motions of the Corporation and the Mayor and orders that the matter proceed to a hearing on the merits.

[See also (1995), 1995 CanLII 18157 (ON HRT), 24 C.H.R.R. D/298 (Ont. Bd.Inq.).]

Cases Cited

Findlay v. Mike's Smoke and Gifts (No. 4) (1993), 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19 (Ont. Bd.Inq.): 7

West End Construction Ltd. v. Ontario (Ministry of Labour) (No. 1) (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 (Ont. Bd.Inq.): 18

Legislation Cited

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 32(1): 24

s. 33: 3, 6

s. 34(1)(d): 25

s. 39: 8

s. 39(2)(c): 17

s. 39(2)(d): 10, 17

s. 39(2)(e): 10, 17

Municipal Act, R.S.O. 1990, c. M.45, s. 70(c): 12

Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7: 4, 20, 28

Rules of Civil Procedure: 18, 24

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

s. 4: 17

s. 5: 17

Authorities Cited

Rogers, Ian MacF., The Law of Canadian Municipal Corporations, 2d ed. (Toronto: Carswell, 1980): 14, 27

1This matter arises from a request by the complainant to the Mayor of Hamilton to proclaim a Gay Pride Week in the city of Hamilton in 1991. This request was denied and it is the complainant's allegation that the denial was contrary to the Human Rights Code, R.S.O. 1990, c. H.19.

2This is an interim decision following two days of hearings on preliminary matters put before the Board by the corporate respondent and the respondent.

3The Corporation sought to have the complaint dismissed because the requirement of s. 33 of the Code was not met. The Corporation further argued that it was not a proper party because it had not discriminated against the complainant and in fact had no dealings with the complainant whatsoever in regard to the matters that are the subject of this complaint. The Corporation also argued that the doctrine of vicarious liability does not apply in this situation and that there is no liability on the part of the Corporation for actions of the Mayor in the issuance of proclamations. The documents filed prior to the hearing indicated that the Corporation would be making a request for disclosure of the Commission's file but this motion was not argued at the hearing.

4The individual respondent brought two motions requesting that the complaint be dismissed. The respondent argued that this Board was without jurisdiction because of the Commission's failure to adhere to s. 33 of the Code. The respondent also argued that s. 7 of the Public Authorities Protection Act, R.S.O. 1990, c. P.38 (hereinafter referred to as "PAPA") barred this hearing as the limitation period proscribed by that Act had run prior to the commencement of the action by the complaint.

5The Commission and the complainant both made submissions against the motions.

DECISION

Motion to Dismiss Regarding Section 33

6The Board finds this motion without merit for either of the moving parties. Section 33 reads:

33(1) Subject to section 34, the Commission shall investigate a complaint and endeavour to effect a settlement.

7Mr. Michael McKinnon, the officer assigned to this case, testified that he had phone calls and meetings with the counsel for the Mayor as well as an exchange of letters, all of which activity was with a view to settlement. These actions on the part of Mr. McKinnon clearly put this case outside of the fact situation of Findlay v. Mike's Smoke and Gifts (Ont. Bd.Inq., October 22, 1993, unreported [now reported 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19]) which was relied on by both movers. In that case there was no activity directed at settlement.

8It is my opinion that it is inappropriate for a board to assess the adequateness of actions of Commission staff. Section 39 empowers a board to hold a hearing to determine if a right under the Act has been infringed and this is where the energies of the board should be focused. A respondent may well want to challenge the officer's recommendation to have a board appointed when the respondent feels that there has been no attempt at settlement. This is particularly true when, as in the case before me, both respondents are fully represented by counsel from the outset of the proceedings. A letter was sent to each of the respondents dated February 1, 1993, indicating that the Commission was requesting that a board be appointed. No issue was raised by either party as to the appropriateness of this action until the notice of motion was received two weeks prior to the scheduled hearing.

9The corporate respondent argues that no settlement effort was directed at them at all. Indeed the evidence bears this out and also demonstrates the complicated issue before the Board. Mr. McKinnon was under the impression that in dealing with the Mayor he was in effect dealing with the City, much as one might assume that in dealing with a C.E.O. one is dealing with a corporation. In other words, the officer did not purposely ignore the corporate respondent — rather, he made a possibly misguided decision that he had in fact attempted settlement with the parties by dealing with the individual respondent named in the proceedings. It is telling that there was almost a whole day of legal argument in an attempt to establish the legal relationship between the mayor of a city, the council of a city and the corporate body of a city. This matter is further complicated by the nature of a proclamation which itself is ill-defined by either statute or common law.

10The requirement of the Code that settlement be attempted gives the Commission the jurisdiction to settle disputes as well as investigate them. Otherwise, every complaint may well require a hearing even when the officers of the Commission could settle the matter once the investigation revealed where avenues of settlement were indeed possible. This requirement was meant to be an enabling procedure to carry out the purposes of the Code, i.e., to address discrimination as it arises in our communities. It should not be used as a roadblock to that very purpose. The fact that parties can be added even after a board has been appointed (s. 39(2)(d) and (e)) indicates that settlement efforts are not a prerequisite to the jurisdiction of this Board to examine the complaint before it with regard to a particular respondent. The Code requires that there be an attempt to settle the complaint, and that was attempted. The Commission endea-voured to do what it believed in good faith it could do to settle this matter. It failed. The investigation led to a belief that the Code had been violated; settlement was not achieved; the Commission decided it was appropriate for a board of inquiry to be appointed. It is now the duty of this Board to inquire into the merits of the case before it as directed by the Honourable Minister. This motion is therefore denied to both the respondent and the corporate respondent.

Motion to Dismiss Regarding Appropriateness of Named Party

11The Corporation argued that it had no part in the decision of the Mayor regarding the issuance of the requested proclamations; that the Council did not ever take part in such decisions and that therefore the Mayor, when issuing proclamations, was not acting in his capacity as the head of Council, and thus that this action or failure thereof did not attract any liability to Council as a body or to the Corporation. It is the decision of the Board that although this analysis may at the end of the day be a defence for the Corporation it is not a jurisdictional question that can be decided at a preliminary hearing.

12There has been no evidence called as to what exactly a proclamation is. It may be a privilege that the Mayor enjoys because of ancient tradition, or it may be captured by the Municipal Act, R.S.O. 1990, c. M.45, under s. 70(c) wherein the head of Council must communicate to the Council "measures as may tend to the improvement of the finances, health, security, cleanliness, comfort and ornament of the municipality" if one accepts that the Municipal Act is a complete codification of the duties of the Mayor and the Council. It may be that when the Mayor acts as a mayor that general principles of "apparent" authority applicable to C.E.O.s apply despite any actual statutory or common law or traditional authority to do the act. These matters were not thoroughly explored at the preliminary hearing as no evidence was called as to the nature of proclamations.

13Affidavit evidence indicated that after the complainant made the request of the Mayor, a meeting was held by the complainant with other aldermen of the city. The involvement of the aldermen indicate[s] that at least the complainant was under the impression that the other members of Council had some role to play in this process. No evidence was heard as to what transpired at this meeting or if the complainant was given any information by these men that they had nothing to do with these procedures or, if they did, what appropriate course of action the complainant should follow to put his request properly before them. Argument at the hearing seemed to suggest that when the Mayor decided not to grant the request, he suggested that the request might be made to the Council although no direction was given as to how this should be done. Exhibit 3, a letter from Mr. Oliver to Mr. McKinnon, quotes statements made by the Mayor to the Hamilton Spectator on June 10, 1991. In the statement to the paper the Mayor says that he believed that most Council members would not support the proclamation. Again this statement was not fully explored and the Mayor was not called to give evidence about this statement, but taken at its narrowest would suggest that, in the mind of the Mayor, Council would be consulted if only on an informal basis.

14Exhibit 13 is a copy of a motion passed on June 29, 1993, wherein Council agreed to indemnify the Mayor for "reasonable legal fees incurred in his defense of a complaint to the Human Rights Commission, Commission file no. 80-461-T, and Board of Inquiry file NO. 920185." This action indicates that it is at least arguable that the Council feels some responsibility for the Mayor's position. Rogers in The Law of Canadian Municipal Corporations at p. 306, para. 61.2 states:

It has been said that the law protects and fully indemnifies a public officer in all lawful acts by him in the discharge of his duties. A council has no authority, apart from statute, to indemnify an employee for an act for which the corporation is in no way liable and the fact that it has agreed to indemnify an official for lawful acts done by him does not entitle him to look to them for indemnity for unlawful acts.

15I do not quote this section or resolution as conclusive on the question of the corporate respondent's liability, rather it is an indication of the lack of clarity on this issue. It is clear that the Mayor was not asked to grant this proclamation because of who he is personally, but rather because of the office he holds. Until there is a complete hearing as to the significance of the actions of the various players in this matter, the Board believes that to grant the Corporation's request is premature.

16Counsel for the respondent Corporation went to considerable trouble to supply the Board with cases involving liability of councils for actions of mayors. All of these cases dealt with matters of tort or contract. I do not find these cases as useful as they might be because a proceeding under the Human Rights Code has a special nature that may well put it outside reasoning used in those cases. Cases of tort and contract are matters of private law. A hearing under the Code has distinct flavour of public policy that requires a broader context to fulfil its purpose.

17Section 39(2)(c) of the Code states that the parties to a proceeding before a board of inquiry are "any person who the Commission alleges has infringed the right." The Corporation fits that description. Section 39(2)(d) and (e) give a board jurisdiction to add parties to the hearing. There is, however, no specific jurisdiction given to dismiss parties named without a hearing. The board is governed in its procedures by the Code itself and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Section 5 of this latter Act defines parties as follows:

5. The parties to a proceeding shall be the persons specified as parties by or under the statute under which the proceedings arises or, if not so specified, persons entitled by law to be parties to the proceeding.

Section 4 of the Statutory Powers Procedure Act allows a tribunal to dispose of a proceeding (my emphasis) without a hearing where the parties have waived such a hearing. This is not the case here. It would be extremely prejudicial to a complainant if the board released a party at a preliminary motion and then a full hearing disclosed that the released party would have been liable for damages if they were still a party to the proceedings.

18Counsel for the complainant submitted to this Board many cases dealing with joinder arising from Rules of Civil Procedure. I thank her for her efforts but am loath to adopt the reasoning found in them. The Code does not have complex rules of procedure. Proceedings before boards are to be expedient, straightforward and focused on the merits of the cases we are set up to hear. It was not, in my opinion, the intention of the drafters of the Code that our processes become bogged down in procedural wrangling that is both expensive to the parties and time-consuming. Professor Cumming made this point in an Ontario Board of Inquiry case, Tabar v. Scott (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 at D/1083, paras. 9531–32. He quotes from a[n] Ontario Court of Appeal decision [Re City of Toronto and C.U.P.E. Local 79 (1982), 1982 CanLII 2229 (ON CA), 35 O.R. (2d) 545 at 558 (Ont. C.A.)] wherein that Court decries the tendencies of Labour Boards to write long judgments on procedural questions:

At best these elaborate legal studies may be irrelevant because Boards are not bound in their procedure by technical rules of law and procedure. At worst, they can cause delay and unnecessary expense and, as the argument in this appeal demonstrated, they could obscure the real issues confronting an arbitration board and confuse it in the performance of its duty.

Professor Cumming then goes on to say:

In my view, this advice should be kept in mind by boards of inquiry deciding cases under the Ontario Human Rights Code. The rules of procedure that this board is bound by are those expressed in the Code and in the Statutory Powers Procedure Act. Both of these Acts give boards considerable discretion with respect to matters of procedure so that complaints can be dealt with truly on the merits. As the Ontario Court of Appeal said, supra, for the boards to adhere strictly to any other rules of procedure might amount to a jurisdictional error.

19The Commission does have the explicit jurisdiction to name parties and has named the Corporation. There has been no overwhelmingly obvious reason presented that this action was inappropriate at the outset although clearly it is within the jurisdiction of this Board to find after a hearing that the Corporation has not violated the Code and is in no way responsible to the complainant for any injury suffered. In conclusion I dismiss the Corporation's motion.

Motion Regarding Public Authorities Protection Act

20It was argued on behalf of the respondent that s. 7 of PAPA bars this proceeding because of the six-month limitation it imposes on the commencement of actions against public authorities. This was urged on the basis of an analysis that the cause of action arose on June 10, 1991, when the Mayor initially refused the request and that the date on the complaint issued by the Commission is January 10, 1992, seven months later. A history of the event is as follows:

May 9, 1991, a written request by the complainant was hand-delivered to City Hall (it was stated that this request was made "to City Hall") asking that a Gay and Lesbian Pride Week be proclaimed for June 13–16, 1991. (Complaint of Oliver)

June 3, 1991, complainant attended at City Hall as no reply had been received. He was informed no request had been received.

June 3, 1991, a second request was hand-delivered to a secretary in the Mayor's office.

June 4, 1991, complainant met with four City aldermen regarding his request and left copies of the letter of request for the remaining alderpersons.

June 10, 1991, a meeting was held with the Mayor wherein the Mayor denied the request. The complainant asked that the denial be made formal with written reasons.

September 23, 1991, another request was made to the Mayor to provide written reasons. (Exhibit [sic])

Mid-October 1991, the Mayor sent a letter to the complainant denying the request with written reasons. (Oliver complaint)

In October the complainant attended at the Human Rights Commission offices to lodge his complaint.

January 10, 1992, a formal complaint was issued by the Commission. (Exhibit 1)

21There are two ways of assessing the running of time in this matter. First, the Board could use "formal" events. The respondent argued that the time of action must run from when the complaint was issued by the Human Rights Commission. If this level of formal [sic] is to be the requirement for the complainant, I believe the same must apply to the Mayor. Although the complainant was told informally on June 10 that the Mayor would not issue the proclamation, it was not until four months later that the Mayor put his refusal and reasons for his refusal in writing. The official complaint was issued by the Commission three months after the receipt of the letter from the Mayor. Had the respondent replied more promptly to the request of the complainant, this matter may well have moved forward more quickly. It seems probable that the complainant was contemplating further action after the refusal and that is why he requested that the refusal and reasons for it be put in writing.

22Second, the situation could be assessed by using the dates of the less formal processes of the parties. The Mayor gave his verbal refusal on June 10, 1991, and in early October 1991, four months after the Mayor's refusal, the complainant presented himself at the offices of the Human Rights Commission to begin the legal process of having his complaint investigated.

23Either of these methods put the complainant within the six-month time period of PAPA. He is only out of time when different criteria are applied to the two parties.

24It was argued before me that reference to the Rules of Civil Procedure's differentiation between "institution of a proceeding" and "service of the originating document" would assist me in this matter. It was also argued that I should adopt the reasoning used to determine if a summary conviction offence matter is beyond the six months' limitation imposed by the Criminal Code. I resist both these arguments for reasons stated above by Professor Cumming. The procedures of this Board are neither civil nor criminal in nature and as far as possible the Code itself should be used to determine matters of a procedural nature. Under Part IV entitled ENFORCEMENT the Code states at s. 32(1):

32(1) Where a person believes that a right of the person under this Act has been infringed, the person may file with the Commission a complaint in a form approved by the Commission.

25At s. 34(1)(d) the Commission reserves the right not to deal with a complaint on a matter that has occurred more than six months before the complaint was filed. On plain reading of the statute, the Code considers the filing of the complaint the beginning of the action and dates further action from that date. If PAPA does apply to proceedings under the Code, it is the opinion of the Board that unless PAPA defines a word specifically, the wording of PAPA must be examined in the context of the Code. PAPA uses the expression "commenced" and does not define what this word means. The Code clearly envisions an action commencing with the filing of a complaint. This was done by the complainant within six months from the time his cause of action arose even if that is determined to be the verbal refusal that took place on June 10, 1991.

26Although the above reasoning denies the motion, I would like to address another point that makes the application of PAPA to this matter problematic. It was argued by the corporate respondent that, when the Mayor issues proclamations, he is not performing a public duty and the proclamation has no legal effect. This point was also raised by the Mayor in his questionnaire at para. 5(d) (Exhibit 6). The paragraph says:

The "Proclamation" of special events is not a power, or a right, or a duty conferred by law upon the Respondent in his capacity as Mayor. Nor is the proclamation of special events a procedural or substantive matter of law govern [sic] by the Municipal Act or any other laws or by-laws affecting the office of the Mayor or the Corporation of the City of Hamilton. [Emphasis in original.]

27If this is the eventual finding of this Board, it would appear that PAPA would not apply. Rogers in The Law of Canadian Municipal Corporations states at para. 53.3 (p. 280.18):

The head of council is entitled as a public officer to the protection afforded by the Public Authorities Protection Act where he is discharging a statutory duty. [Emphasis added.]

Again at para. 61.3 Rogers states:

A statutory officer exercising municipal powers is entitled to the protection afforded by Ontario's Public Authorities Protection Act while acting within the apparent scope of his duties as such but not when he is clearly outside the ambit of his statutory powers. [Emphasis added.]

This authority was used by both respondents as the accepted expert in this area. The respondent argued that PAPA would apply to the Mayor because he is a public official; however, the statute protection to public authorities appears to be limited.

28It was argued by the complainant and the Commission that the provisions of the Code override PAPA insofar as the latter allows a contravention of the former. Since PAPA does not in itself by s. 7 legislate an action that would be in contravention of the Code I am not persuaded by this argument.

29I find that if the Mayor is able to seek the protection of PAPA and if PAPA does apply to proceedings under the Code, its statutory requirements have been met and therefore I deny the motion of the respondent.

30Having found against the respondent and the corporate respondent on all motions, the Board orders that this matter proceed to a hearing on the merits.