Ontario (Human Rights Comm.) v. Ontario (No. 1)
1994-09-13
Ontario Board of Inquiry
CHRR Doc. 96-067
Connie Wight Complainant
v.
Ontario Respondent
Before: Ontario Board of Inquiry, Loretta Mikus
Comm. Decision No.: 649
Appearances by: Sharon Ffolkes-Abrahams, Counsel for the Commission William Hayter, Counsel for the Respondent
PARTIES — authority of board/tribunal to order added parties — BOARDS OF INQUIRY/TRIBUNALS — authority to order amendment of complaint and added party — COMPLAINTS — amendment to include additional allegation — JURISDICTION — jurisdiction to hear amended complaint
Summary: This is a decision on preliminary motions in the matter of a complaint against the Office of the Legislative Assembly of Ontario in which Connie Wight alleges that she was discriminated against because of pregnancy.
The Board of Inquiry grants a Commission motion to amend the complaint form to add an allegation of sexual harassment, finding that this allegation arises from the same set of facts and involves the same parties. The Board of Inquiry rejects the respondents' argument that the Board has no jurisdiction to amend the complaint form in this way, or that it is an abuse of process if it does so.
The Board of Inquiry rules that it has jurisdiction to determine whether the respondents infringed the complainant's right to equal treatment without discrimination based on sex. The complaint form is not like a pleading or information in a civil or criminal trial. There is no process for discovery prior to the hearing. The Board of Inquiry is intended to determine whether a right has been infringed, and not to treat the complaint form as a restriction on the inquiry.
The Board of Inquiry also declines to remove the Speaker of the House and the Board of Internal Economy as named respondents in the complaint.
Cases Cited
Bremer v. Sooke School Dist. No. 62 (June 10, 1977), (B.C. Bd.Inq., German) [unreported]: 17
Canada (Attorney General) v. Canada (Human Rights Comm.) and Pitawanakwat (1991), 36 C.C.E.L. 83 (F.C.T.D.): 23, 33
Cousens v. Canadian Nurses Assn. (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365 (Ont. Bd.Inq.): 13, 27
Prudential Insurance Co. of America v. Ontario (Human Rights Comm.) (November 15, 1989), (Ont. Div.Ct.) [unreported]: 23
Styres v. Paiken (1982), 1982 CanLII 4871 (ON HRT), 3 C.H.R.R. D/926 (Ont. Bd.Inq.): 14
Legislation Cited
Ontario
Employment Standards Act, R.S.O. 1990, c. E.14: 8
Human Rights Code, R.S.O. 1990, c. H.19
s. 7(2): 5, 12, 28, 30, 41
s. 17(4): 20
s. 32: 20
s. 32(1): 20
s. 33: 20
s. 34(1)(d): 20
s. 39: 12, 27, 31, 32
s. 39(3): 27
Public Service Act, R.S.O. 1990, c. P.47: 8
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22: 19
1On March 16, 1987, the complainant commenced her employment at the Office of the Legislative Assembly in the Legislative Research Service department as a researcher.
2During her first year of employment the complainant became pregnant. From approximately January 1988 until her delivery on March 10, 1988, the grievor was unable to attend at work due to complications. During that period of time she was denied sick leave benefits and maternity leave benefits.
3By complaint dated September 28, 1988, she filed a complaint under the Ontario Human Rights Code [S.O. 1981, c. 53, now] R.S.O. 1990, c. H-19, alleging discrimination in employment on the basis of sex, family status and handicap. Her complaint involves, in part, issues concerning allegations that the sick leave plan and maternity leave provisions of the Office of the Legislative Assembly discriminates on the basis of sex and are therefore invalid.
4On January 6, 1994, I was appointed by the Minister of Citizenship to convene a hearing into this matter. It was agreed amongst the parties that the hearings would commence in September and October 1994. At the request of the parties, a hearing was scheduled for August 23, 1994, to deal with several preliminary matters prior to those hearing dates.
5The first preliminary issue arose from the Commission's motion to include, in the original complaint, a further complaint of harassment in the workplace because of sex as set out in s. 7(2) of the Human Rights Code.
6Mr. Bill Hayter, counsel for the Office of the Legislative Assembly, objected to that motion on the grounds that it would be an abuse of process to add a new complaint at this stage of the proceedings.
7As well, Mr. Hayter raised several preliminary matters on behalf of the Office of the Legislative Assembly. The respondents took the position that Mr. Hugh Edighoffer, in his capacity as speaker, and Head of the Office of the Legislative Assembly and the Board of Internal Economy should be removed as named respondents from the complaint. The second issue arises from the allegation that an employee at the Office of the Legislative Assembly advised the complainant that she could "bank" her sick leave credits so as to extend her employment beyond the eligibility dates required for maternity leave benefits. The respondents took the position that, if there was such an agreement, that was a private matter between the complainant and an employee of the Legislative Assembly. As such, it is not subject to review under the Human Rights Code. The respondents asked for a ruling that the complaint, insofar as it relates to that issue, should be dismissed.
8The respondents also took the position that, since the Commission intended to challenge the validity of the eligibility requirements of the maternity leave provisions at the Office of the Legislative Assembly, it would also be challenging the validity of the Employment Standards Act, R.S.O. 1990, c. E.14 and the Public Service Act, R.S.O. 1990, c. P.47, upon which the benefits available to the employees of the Office of the Legislative Assembly are based and which contain similar eligibility requirements. For that reason, the respondents took the position that the Office of the Attorney General ought to be notified that there is a statute under challenge and be given an opportunity to intervene.
9Finally, the respondents took the position that the issue of the denial of sick leave benefits is moot in that the complainant was paid sick leave benefits from January 1988 until March 10, 1988, that is, up to her delivery. It was the position of the respondents that the Commission is attempting to get a ruling that the Legislative Assembly committed an unlawful act based on provisions that, at the time, were legally valid. The respondents took the position that the complaint, insofar as it alleges discrimination on the basis of the sick leave policy, is moot and, therefore, should be dismissed.
10During the hearing the respondents argued that there had been an excessive delay in processing this complaint and, as a result of that delay, the respondents have suffered prejudice. At the hearing, Mr. Hayter advised me that the respondents intended to reserve their right to argue the issue of delay at the conclusion of the inquiry and, therefore, for purposes of this preliminary hearing, did not intend to raise it as a preliminary issue.
11As well, during the hearing, Ms. Ffolkes-Abrahams, counsel for the Commission, agreed that, as a matter of caution, she would undertake to provide notice to the Attorney General's office of the potential challenge to the Employment Standards Act and Public Service Act so that it might decide whether or not it intended to intervene.
12Dealing first with the motion from the Commission, Ms. Ffolkes-Abrahams argued that, according to s. 39 of the Code, a board of inquiry is required to hold a hearing to determine whether a right of a complainant has been infringed. That requirement is not to determine how a complaint has been framed. In this case, the complainant has alleged that she was discriminated against on several grounds. The issue of harassment in the workplace because of sex is raised in that initial complaint, although admittedly not expressly. Ms. Ffolkes-Abrahams took the position that, in adding a further ground to the complainant's allegations, the issue is not whether it should be added but rather how much notice is necessary in [the] circumstances. Ms. Ffolkes-Abrahams advised the respondents in July of this year that she intended to include an allegation under s. 7(2) and the respondents have had sufficient time to prepare to answer that allegation.
13Ms. Ffolkes-Abrahams relied on several cases in support of her position. The first of [which] is the case of Cousens v. Canadian Nurses Association (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365. In that case, Mr. Cousens had filed a complaint of discrimination on the basis of ancestry when he was dismissed from his job. At the commencement of the hearing, counsel for the Commission sought to add two additional grounds of discrimination, namely, nationality and place of origin. In considering that request, the Board stated that it was required not to simply decide the specific ground of discrimination that had been alleged, but rather to hear the circumstances of the complaint as presented by the parties. Mr. Ratushny stated in para. 3255 [p. D/365], "[t]he written complaint is not therefore, in the nature of an information or indictment in a criminal case. Rather, it serves as general notice to a party in an administrative hearing." Acknowledging that the respondents had received little notice of the additional grounds, he was prepared to grant an adjournment in order to enable counsel to respond. He specifically rejected the argument that only the ground indicated in the written complaint could be decided by him and that another ground of discrimination was a new complaint that could only be considered if the Minister of Labour appointed another board of inquiry to deal specifically with that additional ground. He relied on the ground that the Code allows a board of inquiry to add parties to a complaint prior to and during a hearing. Allowing a board of inquiry to add parties but not additional grounds would be anomalous. It was his view that the Code was worded sufficiently broadly to bear the practical interpretation that a board has a jurisdiction to amend the grounds of contravention specified in the complaint.
14Similarly in the case of Styres v. Paiken(1982), 1982 CanLII 4871 (ON HRT), 3 C.H.R.R. D/926, Mr. Hunter allowed an application to amend a complaint on the grounds that the complaint form clearly disclosed the case the respondent had to meet and he was not prejudiced in preparing his defence.
15In the case of Sinclair v. Peel Non-Profit Housing Corp. (No. 1)(1989), 1989 CanLII 9075 (ON HRT), 11 C.H.R.R. D/341, the Board of Inquiry was asked to add an additional ground to the allegations. Approximately one year after the original complaint was filed, the complainant's counsel requested that the complaint be expanded to include sex as a contravened ground. Mr. Friedland stated that there was no doubt in his mind that a board of inquiry had jurisdiction to amend a complaint and, in para. 10 [p. D/342], stated:
It would be a mistake for boards of inquiry to be bogged down in procedural rules. It is unfair to the complainant and inconsistent with the spirit of the Code. If an amendment is not made, then a further inquiry to decide this issue would be required. Multiplicity of proceedings is not desirable. Respondents, however, have to be treated fairly. They have a lot at stake in the process.
He went on to allow the additional ground, reasoning that the respondents had known about it for a six-month period and that the additional ground arose out of the original fact situation. He was, however, prepared to allow additional time for the respondents to prepare an answer to that additional ground.
16Ms. Ffolkes-Abrahams argued that the same situation applies in this complaint. Throughout the complaint there has been an inference that the complainant felt she was being harassed for continuing to seek maternity and sick leave benefits. Ms. Ffolkes-Abrahams argued that the fact situation giving rise to the original complaint is the same fact situation giving rise to the allegation of harassment in the workplace because of sex. The respondents have had notice of this additional ground and have all the material before them they will need in order to answer that allegation. Therefore, argued Ms. Ffolkes-Abrahams, there is no prejudice to the respondents.
17As further support for her motion, Ms. Ffolkes-Abrahams referred to the cases of Tabar v. Scott and West End Construction Limited (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073, Bremer v. Board of School Trustees, School District No. 62 (Sooke) (June 10, 1977), unreported (Rod German) and Wong v. Ottawa Board of Education (October 18, 1993) unreported (H.A. Hubbard) [now reported 1993 CanLII 16434 (ON HRT), 23 C.H.R.R. D/37] which stand for the proposition that a board of inquiry has authority to add complaints up to and during the hearing and, in fact, has the jurisdiction to raise those additional complaints itself.
18It was Ms. Ffolkes-Abrahams' submissions that the case law is settled and that a board of inquiry has jurisdiction to amend a complaint so long as the respondents are not prejudiced and have adequate opportunity to respond to the additional complaint.
19Mr. Hayter took the position that a board of inquiry has no jurisdiction to entertain a new complaint that was not subject to the statutory scheme set out in the Code for the processing of complaints. In the alternative, he argued, if a board of inquiry does accept the argument that it has jurisdiction to amend a complaint, it also has discretion under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 to prevent an amendment to a complaint that would result in an abuse of process.
20Mr. Hayter relied on ss. 32(1) and 33 of the Code which read as follows:
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.
(2) The Commission may initiate a complaint by itself or at the request of any person.
(3) Where two or more complaints,
(a) bring into question a practice of infringement engaged in by the same person; or
(b) have questions of law or fact in common,
the Commission may combine the complaints and deal with them in the same proceeding.
33(1) Subject to section 34, the Commission shall investigate a complaint and endeavour to effect a settlement.
33(2) An investigation by the Commission may be made by a member or employee of the Commission who is authorized by the Commission for the purpose.
Mr. Hayter argued that s. 33 places a positive obligation on the Commission to investigate a complaint and to attempt to effect a settlement during those investigations. For that purpose the Commission has been granted wide investigatory powers that are intended to allow them to determine whether a complaint has enough merit to warrant a hearing. Section 34(1)(d) of the Code gives the Commission the authority to refuse to proceed with a complaint that arose more than six months before the complaint was filed. Mr. Hayter argued that timeliness protection is significant in that it gives the Commission discretion to determine whether the delay in filing the complaint should be sufficient cause not to proceed. This protection in the Code is intended to give the respondents relief from frivolous, vexatious or untimely complaints. Section 17(4) of the Code confirms that the jurisdiction of the Commission is exhausted once the complaint has been forwarded to a board of inquiry. The board of inquiry is then required to determine whether a right has been infringed. The "right" referred to is the same "right" found in s. 32, that is, the right articulated in the original complaint.
21It was Mr. Hayter's submission that the statutory framework for the processing of a complaint is specific and mandatory. To the extent that the Commission wants to add a new and substantive ground to that complaint, it is contrary to the procedures set out in the Code. In particular, this new complaint was never processed through the investigatory or mediation aspects of the Commission's process. An alleged violation under the Code, argued Mr. Hayter, cannot be forwarded to a board of inquiry until it has been properly processed through the mandatory scheme set out in the Code. Otherwise, the respondents will have been deprived of the benefit of the protection set out in the Code. The respondents have a right to expect the same thorough investigation and mediation attempts for this complaint that the original complaint was subject to. Otherwise, argued Mr. Hayter, the Commission could be forever amending and altering the original complaint and expanding the grounds upon which the original complaint was filed.
22On that basis, argued Mr. Hayter, the new complaint of harassment is either untimely or has never been processed properly as required by the Code. For those reasons, Mr. Hayter argued that a board of inquiry would be acting in excess of its jurisdiction if it allowed the Commission to amend the complaint.
23In support of his position, Mr. Hayter referred to the case of Findlay v. Mike's Smoke and Gifts (October 22, 1993), unreported (Ont. Bd.Inq.) [now reported 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19]. In that case the complaint was dismissed because there had been no attempts made by the Commission to settle the matter. The requirement to attempt to settle the matter was found to be a condition precedent and a failure to comply with that condition precedent rendered the appointment of the Board of Inquiry invalid. As well he relied on the case of Naraine v. Ford Motor Company of Canada Ltd. (April [21], 1994), unreported (Ont. Bd.Inq.) [now reported 1994 CanLII 18436 (ON HRT), 24 C.H.R.R. D/457] and Prudential Insurance Co. of America v. Ontario Human Rights Commission (endorsement, Ont. Div.Ct., November 15, 1989) and Attorney General of Canada v. Canadian Human Rights Commission (1991), 36 C.C.E.L. 83 (F.C.T.D.).
24In the Attorney General case, supra, the complainant had been terminated from her position of social development officer in 1985. The grounds for the termination were incompetence. She appealed to the Public Service Commission Appeal Board and, at the same time, filed a complaint with the Canadian Human Rights Commission alleging discrimination on the basis of race. The Commission postponed dealing with that complaint pending the decision of the Public Service Commission Appeal Board. That decision was released in March 1986 and it dismissed the appeal and upheld the recommendation that she be terminated. Although the Public Service Commission Appeal Board did address the issue of racial discrimination, the focus of its decision [was] the allegations of incompetence. In November 1986 the Commission decided not to deal with her complaint of discrimination because it had been dealt with by the Public Service Commission Appeal Board. The complainant challenged that refusal and, in September 1987, the Federal Court of Appeal ruled that the Commission had to proceed with the complaint. The Commission appointed an investigator the following April and the investigator's report recommended that a Human Rights Commission be appointed to inquire into the complaint. Based on the investigator's findings, the complainant amended her complaint to alleged sexual harassment. The applicants applied to quash the decision to appoint a tribunal and a prohibition against any proceedings.
25The Court found that the Commission had acted improperly or illegally in allowing the complaint to be amended in such a fashion. It noted, in para. 26, "it is not too technical to expect the Commission to abide by the laws and provisions in fairness to the person or the body against which any complaint is lodged." In considering the Commission's obligation to appoint an investigator, the Court determined that meant the investigator was to investigate an existing complaint. It stated that the investigator should have proceeded on the basis of a complaint which was known and was to be investigated. The investigator was not, it stated, "to go about dredging up complaints which have not yet been articulated by a Complainant." It went on to say, in para. 27:
Since the investigator is not empowered to go about dredging up complaints not articulated by the Complainant, the complaint to which the report relates means an already articulated complaint under the C.H.R.A.
In considering the criteria of a year's limitation within which to file a complaint, the Court stated that it "did so in order seriously to confer a benefit and not just to complicate the C.H.R.A." and that it "appears to be of direct benefit to a Respondent employer." It then went on to state, in para. 43, the following:
The consequence of the Commission's error in law, its failure to exercise its power, resulting in its loss of jurisdiction regarding the late filed complaint of sexual harassment — is acting unfairly and contrary to law in this regard must be exactly that which the Attorney General for Canada seeks in the Notice of Motion by which these proceedings were instituted on behalf of the Employer.
It went on to quash the decision of the Canadian Human Rights Commission to request the appointment of the tribunal.
26Mr. Hayter took the position that the respondents in this case have a right to know specifically the allegations made against them. Adding a complaint at this stage of the proceeding would deprive them of their rights in that regard and, therefore, this Board should not grant the Commission's motion.
27With respect to the Cousens case, supra, Mr. Hayter took the position that it is simply wrong. First, he argued that the argument that the Board of Inquiry would be acting in excess of its jurisdiction if it allowed a complaint to proceed to hearing without having been processed through the statutory scheme was not considered by the Board in the Cousens case. As well, Mr. Hayter argued that the Board in that case misconstrued the provisions of the Code. Section 39 requires that a board of inquiry hold a hearing to determine whether a right has been infringed. The "right" referred to in s. 39 is the same right referred to in s. 32 of the Code. That original complaint defines the issues that are to go before a board of inquiry. Section 39(3) allows the board of inquiry to add a party to the proceedings at any stage of the proceedings and upon such terms as it considers proper. The Board, in the Cousens case, determined that, if it had the authority to add a party at any stage of the proceedings, it must, therefore, have the right to amend a complaint. Mr. Hayter took the position that because the Code specifically allows a board of inquiry to add a party at any stage of the proceedings, its failure to give a board of inquiry explicit authority to add a new complaint at any stage of the proceeding is evidence of its intention.
28In the alternative, argued Mr. Hayter, if this Board should accept that it has the jurisdiction to amend a complaint, it should refuse to do so on the grounds that it would be an abuse of process. The respondents did not investigate the allegation of harassment in the workplace based on sex raised in the amendment. It was not included in the original complaint and the respondents made no efforts to investigate that allegation. A complaint under s. 7(2) of the Code is separate and distinct from the complaints and allegations raised in the original complaint. The respondents have been prejudiced by the delay in raising this additional complaint. It would be an abuse of process to require them to answer to that allegation at this stage.
29In the further alternative, Mr. Hayter argued that if the Board was inclined to allow the amendment to the complaint, the respondents would be seeking an order for particulars identifying, with precision, the scope of the allegations. The Commission has taken the position that the facts giving rise to the allegation are to be found in the original complaint. The respondents requested an order that the portions of the complaint that the Commission will be referring to be disclosed prior to the hearing.
30Based on the submissions of the parties, I am of the view that the motion of the Commission should be granted. The facts giving rise to the allegations of harassment based on sex (i.e. gender) are the same facts that give rise to the original complaint. The parties involved in the original complaint are the same parties involved in the complaint of harassment for sex under s. 7(2). Broadly speaking, the complainant has alleged that her right to be free of discrimination in the workplace due to her pregnancy was infringed. The allegations of harassment for sex are sufficiently subsumed by the original complaint to persuade me that the amendment should be allowed.
31Once a board of inquiry is established, it is required, by statute, to determine if a right of the complainant has been infringed. I cannot accept Mr. Hayter's argument that the board is restricted to inquiring into the specific allegations raised in the complaint. The written complaint is not similar to the pleadings or information in a civil or criminal proceeding. There is no process of discovery prior to the hearing. If it was intended that a board of inquiry be restricted to the actual and precise allegations set out in the complaint, the legislature would have taken steps to insure that all of the procedural safeguards present in the court proceeding would apply as well. It did not because it intended the board to hear the matter de novo. If the legislature intended to restrict the inquiry to the allegations in the original complaint, it could have expressly stated so when drafting s. 39. It did not state that the board of inquiry was to determine whether the right claimed in the complaint had been infringed. It framed s. 39 broadly, in my view, because it intended to give a board of inquiry the authority to determine, based on the facts before it, whether a protected right had been infringed. If, during a hearing, it became clear that a right, other than the one articulated in the hearing, had been infringed, it would be inconsistent with the aims of the Code and the obligations of the board, to ignore that infringement simply because it was not part of the original complaint. It would make no sense to refuse to allow the amendment if the result is that another hearing requiring the attendance of the same parties and the tendering of the same evidence would be required.
32A board of inquiry is charged with the responsibility of determining whether a right has been infringed. That includes a finding of discrimination on any prohibited ground, not simply the one specified in the original complaint. Mr. Hayter has suggested that the "right" referred to in s. 39 should be read in conjunction with s. 32 so that a restrictive and technical reading of the two would result. I disagree. If that were the case, the Code would have been drafted to insure that "the right of the complainant" instead of "a right of the complainant" would be the subject of the hearing. The authority to amend a complaint is a matter of discretion for a board of inquiry. Each case must be considered on its own merits and must involve a balancing of the interests of the parties consistent with the purpose of the Code.
33For that reason, the Attorney General of Canada case, supra, is distinguishable from the facts before me. In that case, the new ground the Commission was attempting to add was totally unrelated to the original ground. The fact situation giving rise to the claim of racial discrimination would have, no doubt, been different than the fact situations giving rise to the claim of sexual harassment. It is understandable that the Court found the Commission's failure to process the complaint through its investigatory scheme resulted in unfairness to the respondents. None of the allegations raised in the new complaint had ever been dealt with during the investigatory process. In this case, the parties have been aware since the filing of the complaint that the right the complainant was alleging had been infringed was her right to be free from discrimination on the basis of sex. The addition of the allegation that she suffered harassment because of her gender arises from the identical fact situation that will be dealt with in the original complaint and, therefore, I do not accept the respondent's argument that they have suffered prejudice in that regard.
34Therefore, the motion to amend the complaint is granted. The Commission will advise the respondent of the allegations sufficient to allow the respondents to know the case it has to meet.
35The respondents have asked for an order from the Board deleting the Speaker of the Office of the Legislative Assembly and the Board of Internal Economy as named respondents in the complaint. Mr. Hayter took the position that, with respect to the issue of the inclusion of the Speaker, as Head of the Office of the Legislative Assembly, he was the person who denied the complainant maternity leave. As far as he understands there are not specific allegations against the Speaker and, in that regard, he was only acting within his capacity as Head of the Office. It is sufficient that the Office of the Legislative Assembly be the named respondent.
36Ms. Ffolkes-Abrahams conceded that the Commission would be prepared to withdraw Mr. Edighoffer and the Board of Internal Economy from the complaint if the respondents were prepared to accept responsibility and/or liability for any findings made against them. The respondents refused to do so.
37Since I have decided to grant the Commission's motion to add the complaint of harassment for sex to the original complaint, I am unsure as to whether the allegations will include Mr. Edighoffer specifically. In any event, given the respondents' refusal to accept responsibility for any findings against Mr. Edighoffer as Speaker and as Head of the Office of the Legislative Assembly, I am unwilling at this time to remove him as a named respondent from a complaint. I am of the similar view with respect to the Board of Internal Economy.
38The respondents have argued that the issue with respect to sick leave is moot in that the complainant received sick pay for the time claimed in the original complaint. Ms. Ffolkes-Abrahams advised the Board that it intended to take the position that the sick leave provisions in general are contrary to the Code and that any restrictions on the eligibility of employees for sick leave based on gender should be stricken.
39For that reason, the respondents' motion with respect to this issue is denied.
40Finally, the respondents have argued that, if there was an agreement between the complainant and an employee of the Office of the Legislative Assembly regarding sick leave benefits, that agreement was a private agreement between the benefits/personnel officer and the complainant. As such, it was argued, it is not subject to the Code and should not properly be placed before a board of inquiry. Ms. Ffolkes-Abrahams argued that the issue as to whether or not there was a deal and, if there was, whether the person who advised the grievor that she could bank her sick leave credits are properly before the Board are a matter for evidence and argument. I agree with Ms. Ffolkes-Abrahams in this regard and, therefore, deny the respondents' motion.
41In summary, therefore, the motion of the Commission to include a complaint of sexual harassment under s. 7(2) of the Code is granted. The motion of the respondent that the complaint, insofar as it refers to a "deal" with an officer of the Office of the Legislative Assembly, is moot and should be struck from the complaint is denied. The motion of the respondent that the Speaker of the House and the Board of Internal Economy be removed as named respondents from the complaint is denied. The respondent's motion to dismiss the complaint on the basis of delay will be reserved for argument at the conclusion of the hearing.
42Finally, Ms. Ffolkes-Abrahams has agreed to inform the Ministry of the Attorney General of the potential challenge to the maternity leave provisions of the Employment Standards Act and the Public Service Act.
43The hearing will convene on the dates agreed to.