Ontario Board of Inquiry
Pat Findlay and Marty McKay
Complainants
v.
Four Star Variety, Mike's Smoke and Gifts and Soon Hwan Kim, Jug Mart
Respondents
Dates of Complaint:
April 15, 1988, and April 13, 1988
Date of Decision:
April 5, 1994
Before:
Ontario Board of Inquiry, Ruth Hartman, Loretta Mikus and Frederick Zemans
Reasons by:
F.H. Zemans and R. Hartman
Dissenting reasons by:
L. Mikus
Comm. Decision No.:
513D
Appearances by:
J. Scott, Counsel for the Ontario Human Rights Commission
Peter Israel, Counsel for the Respondent Four Star Variety
Walter Fox, Counsel for the Respondent Mike's Smoke and Gifts
Aubrey Golden, for Playboy Enterprises Inc.
COSTS — jurisdiction of board/tribunal to award costs — costs related to board/tribunal's finding of loss of jurisdiction
Summary: This is a decision regarding a motion made by the respondent Four Star Variety that costs be awarded to the respondents.
In an earlier decision the majority of the Board of Inquiry determined that it had no jurisdiction to hear the complaints before it because the Commission did not fulfill a condition precedent to the appointment of the Board of Inquiry, namely making satisfactory efforts at settlement.
The majority decision of the Board of Inquiry, however, did not dismiss the complaints, but determined that the Tribunal lacked jurisdiction to commence to hear the complaints. Here the majority of the Board of Inquiry finds that the capacity to award costs is limited specifically by the Code to those circumstances where complaints are dismissed. It declines therefore to award costs.
[Ed. Note: See also interim decisions 1993 CanLII 16430 (ON HRT), 21 C.H.R.R. D/11, 1993 CanLII 16454 (ON HRT), 21 C.H.R.R. D/15 and 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19.]
CASES CITED
Findlay v. Mike's Smoke and Gifts (No. 4), 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19 (Ont. Bd.Inq.): 2
Ontario (Liquor Control Board) v. Ontario (Human Rights Comm.) (1988), 1988 CanLII 8926 (ON HCJDC), 9 C.H.R.R. D/4868 (Ont. Div.Ct.): 11
Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Ont. Bd.Inq.): 10
Shreve v. Windsor (City) (No. 2) (1993), 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363 (Ont. Bd.Inq.): 6
LEGISLATION CITED
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53: 1
s. 40(6): 12
s. 40(6)(a): 10
s. 40(6)(b): 10
Human Rights Code, R.S.O. 1990, c. H.19: 1
s. 41(4): 15
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 23(1): 8
AUTHORITIES CITED
Black's Law Dictionary, 5th ed. (St. Paul, Minn.: West Publishing Co., 1979): 17
1This Board of Inquiry was appointed in January 1993, by the Minister of Citizenship, the Honourable Elaine Ziemba, to inquire into the complaints of Ms. Pat Findlay and Dr. M. McKay against three variety stores, namely Mike's Smoke and Gifts, Jug Mart and Four Star Variety. The complaints allege that the respondents contravened the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, as amended [now R.S.O. 1990, c. H.19] (hereinafter the "Code") by displaying and selling certain magazines in their convenience stores, that offer a general service to the public and thereby create a hostile environment to and discriminate against women. The complainants further allege that their right to equal treatment with respect to services, goods and facilities was infringed because of their sex, in violation of ss. 1 and 8 of the Code.
2At the outset of this Inquiry, an application was made to either dismiss the complaints of Ms. Findlay and Dr. McKay, filed on April 15, 1988 and April 13, 1988, or to declare that this Board lacked jurisdiction to hear these complaints. The application by the respondent Four Star Variety raised three distinct issues and although this Board denied the application on two of the issues raised, a majority granted the application on one issue [reported 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19]. The majority found that this Board of Inquiry lacked jurisdiction to proceed to hear the complaints. (Ms. Hartman dissented from this decision.) The final paragraph [para. 169] of my decision of October 22, 1993, accurately states the conclusion reached by Ms. Mikus and myself:
By virtue of the Commission not having complied with its statutory obligations pursuant to ss. 33(1) and 36(1) of the Code, I conclude that a mandatory condition precedent to our appointment has been ignored. I accept the application of the respondent Four Star that as the Commission has not fulfilled its statutory obligations, we lack jurisdiction to proceed with this inquiry into the complaint against the respondent Four Star.
3The decision invited the Human Rights Commission (hereinafter the "Commission") to make submissions as to the potential impact of the decision on the respondents, other than Four Star. At the hearing on November 11, 1993, the Commission through its counsel indicated that it was taking the position that the majority decision of this Board of Inquiry, dated October 22, 1993, applied to all respondents before this Inquiry and that the Commission did not intend to distinguish between them.
4At the November 11, 1993, hearing, counsel for Four Star applied to the Board of Inquiry to have costs awarded to his client pursuant to the provisions of s. 41(4) of the Code:
41(4) Where, upon dismissing a complaint, the board of inquiry finds that,
a) the complaint was trivial, frivolous, vexatious or made in bad faith; or
b) in the particular circumstances undue hardship was caused to the person complained against,
the board of inquiry may order the Commission to pay to the person complained against such costs as are fixed by the board.
Counsel for Four Star argued that s. 41(4) of the Code applied to its preliminary application and that Four Star was entitled to receive its costs arising from the October 22, 1993, decision in this matter. Counsel for Four Star argued that both the wording and the impact of the interim decision brought it within the provision of s. 41(4).
5Commission counsel submitted that this Board of Inquiry lacked jurisdiction to award costs, on the ground that there had been no "dismissal of a complaint" as required by the Code. Commission counsel argued that the majority holding that this Board lacked jurisdiction to proceed with the complaint, also meant that we lacked jurisdiction to dispose of the complaint by dismissing them [sic]. Alternatively, the Commission argued that there could be no entitlement to costs in this case as the respondent Four Star Variety had, in fact, incurred no costs. In support of the latter submission, Commission counsel submitted an affidavit to establish that the respondent Four Star's costs were "being footed by the Periodical Marketers of Canada." Counsel for the respondent Four Star responded that the Commission's alternative argument went to quantum, and not to whether costs should be awarded on the interim application.
6Counsel for the respondent Four Star relied upon the Ontario Board of Inquiry decision (unreported) in Shreve v. Corporation of the City of Windsor [now reported (sub nom. Shreve v. Windsor (City) (No. 2)) (1993), 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363]. The Board of Inquiry decided not to proceed to hear evidence with respect to a complaint after determining that the investigating officer had demonstrated bias. The finding of bias combined with the lack of disclosure and delay by the Commission convinced Professor Kerr not to proceed. He wrote in his decision of March 3, 1993 [at paras. 102–3]:
The evidence persuades me that, while the bias of the officer in preparing the record does not in itself preclude a fair hearing before me, it resulted, in the absence of other disclosure, in the respondents not receiving reasonable information of the allegations respecting its conduct. If matters had proceeded promptly, as I believe is contemplated by the legislation, even this deficiency could be cured at the board of inquiry. But the fact is that matters did not proceed promptly.
In other words, taken separately, bias of the investigating officer, lapse of time, and restricted disclosure by the Commission would not necessarily, nor on the facts of this case, deprive the respondents of a fair hearing at the board of inquiry stage. In combination, however, these circumstances seriously prejudiced the ability of the respondents to prepare their case in a timely fashion. This violates the principle of fairness. It causes a prejudice that cannot really be cured at the board of inquiry stage since one power a board definitely lacks is that to turn back the clock.
7In the conclusion of his decision, Professor Kerr addressed the question of whether he was dismissing the proceedings or making a permanent stay. His comments are relevant [at paras. 107–8]:
The exact disposition of the proceedings in light of my conclusions needs to be addressed. While there would be no practical difference in terms of the proceedings themselves between a dismissal and some sort of a permanent stay, there is a potential legal difference in that dismissal of a complaint is one condition of the power of a board of inquiry to order costs under s. 41(4) of the Code. The respondent Hancock indicated a desire for such costs, but asked that I reserve on this question since no submissions had been made with respect thereto.
There is a possible argument over my jurisdiction to actually dismiss a complaint without a hearing on the merits. The jurisdiction to order a permanent stay, which is procedural in nature, would seem obvious under s. 23(1) of the Statutory Powers Procedure Act.
8In a subsequent decision in the same Inquiry, dated May 25, 1993, Professor Kerr determined that although he had not dismissed the complaint on its merits, he nonetheless had authority under s. 41 to order costs. The basis for his decision was that boards of inquiry have the right to dispose of a complaint without hearing on the merits if such a disposition is appropriate under s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Professor Kerr determined that although the power of boards of inquiry to award costs is allowed in only limited circumstances under s. 41(4) of the Code, once the right to costs is established the section is remedial in nature for the purpose of compensating the respondent where a complaint is trivial, frivolous, vexatious, made in bad faith or causes undue hardship. Kerr was of the opinion that for the purpose of awarding costs, it would defeat the remedial purpose of s. 41(4) to read into it further limitations such as a requirement that there be a hearing on the merits before a complaint is dismissed:
If the disposition is that the complaint should not be further proceeded with, this is in effect a dismissal of the complaint. I concluded that such a disposition is sufficient to satisfy the condition precedent of dismissal for the purposes of a costs order under s. 41(4) of the Code. Having effectively dismissed the complaint on the basis of s. 23(1) of the Statutory Powers Procedure Act, I believe I have the jurisdiction to award costs under s. 41(4) of the Code.
9The issue before this Tribunal with respect to costs is distinguishable from Professor Kerr's decision in Shreve, supra, on several grounds. The preliminary decision of this Tribunal of October 22, 1992, neither dismisses the complaints on the merits nor does it dismiss the complainants [sic] pursuant to the provisions of s. 23 of the Statutory Powers Procedure Act. To the contrary; it is clear from reading the majority decision that we took the position that in our opinion the inquiry should not proceed as the Tribunal lacked jurisdiction, because of the Commission's failure to comply with a mandatory condition precedent. In my opinion, the majority preliminary decision of this Tribunal does not come within the provisions of s. 23 of the Statutory Powers Procedure Act as was found in Shreve. There has not been a "dismissal" of the complaint on any basis and the respondent Four Star is therefore not entitled to its costs with respect to the preliminary application.
10The respondent Four Star also relied on the decision of Pham v. Beach Industries Ltd.(1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008, where Professor Hubbard dismissed a second complaint, brought by the same complainant with respect to an alleged breach of the settlement provisions regarding the first complaint. The Pham decision does not address the cost issue facing this Tribunal, but deals exclusively with the question of whether the respondent's claim for costs fell within the provisions of what was then s. 40(6)(a) or (b) of the Code. As it is my opinion that the question of costs herein turns exclusively on the question of whether there has been a dismissal of the complaint, I do not find this decision helpful to our deliberations.
DECISION
11The wording of the Human Rights Code with respect to costs is both specific and restricted. The limited provision for costs under the Code has been discussed by the Ontario Divisional Court in Liquor Control Board of Ontario v. Ontario Human Rights Commission (sub nom. Ontario (Liquor Control Board) v. Ontario (Human Rights Comm.)) (1988), 1988 CanLII 8926 (ON HCJDC), 9 C.H.R.R. D/4868 where the Court found that the Board of Inquiry had erred in awarding costs as they were not, in the circumstances, authorized by the Code. Rosenberg J. wrote for the Court [at para. 37672]:
There is no inherent jurisdiction in a court nor in any other statutory body, to award costs . . .
The Board of Inquiry is created by the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. As a statutory body it can only have jurisdiction to award costs if such jurisdiction is expressly given to it either by the Code or some other Act.
12Rosenberg J. continues that there is not an express provision in the Code to award costs to complainants and that the Legislature had provided for costs only "to the person complained against" under s. 40(6) and finds that the rule of liberal interpretation to carry out the objections of the Code did not apply with respect to the question of costs [at para. 37674]:
The rule of liberal interpretation to carry out the objects of the Code to, as far as possible, remedy the effects of and prevent discrimination do not apply to procedural matters or the question of costs.
Under the principle of statutory interpretation, expressio unius exclusio alterius, by expressly providing boards of inquiry with authority to award costs only in section 40(6) of the Code, the legislature has excluded jurisdiction to award costs otherwise under the Code.
13It is therefore our conclusion that the interim decision in this matter does not constitute a "dismissal" of the complaint within the provisions of s. 41(4) of the Code. The majority decision did not dismiss the complaint here but rather determined that the Tribunal lacked jurisdiction to commence to hear the complaints. Our capacity to award costs is specifically limited by the provisions of s. 41 of the Code, the provisions of which must be interpreted strictly. We concur with the submissions of Commission counsel, that the majority decision that determined that this Board lacked jurisdiction to proceed with complaint implied that the Board lacked jurisdiction to dismiss the compliant. We would therefore deny the respondent Four Star's application for costs as well as any application by the other respondents for their costs of the preliminary applications herein.
DISSENT BY LORETTA MIKUS
14While I concur in the result of the decision of my Co-Chairs, it is for different reasons. Professor Zemans and Ms. Hartman rejected the respondent Four Star Variety's application for costs on the basis that the requirements of s. 41(4) of the Code had not been met. The majority declined the application for costs on the basis that the original complaint was not dismissed but rather that the Board lacked jurisdiction to proceed with the complaint because of the Commission's failure to satisfy a condition precedent.
15Section 41(4) reads as follows:
41(4) Where, upon dismissing a complaint, the board of inquiry finds that,
a) the complaint was trivial, frivolous, vexatious or made in bad faith; or
b) in the particular circumstances undue hardship was caused to the person complained against,
the board of inquiry may order the Commission to pay to the person complained against such costs as are fixed by the board.
Professor Zemans and Ms. Hartman have adopted a "specific and restricted" approach to interpreting s. 41(4) and have denied the claim for costs on that basis. That approach, in my view, is not consistent with the purpose of this section, which is to allow for a remedy for those respondents who are unnecessarily or unfairly required to defend themselves before a board of inquiry.
16In the decision on the original complaint, the majority found that the Commission, in its zeal to pursue this matter, did not fulfil its statutory mandate to attempt to settle the complaint. As a direct result of that failure, the respondents became parties to a protracted and public inquiry involving several days of hearing. The decision of the majority on this issue leaves the respondent Four Star Variety without any redress for the time and expense they incurred unnecessarily. That, in my view, defeats the objective of s. 41(4).
17Black's Law Dictionary (fifth edition) 1979, defines "dismiss" as follows:
To send away; to discharge; to discontinue; to dispose of; to cause to be removed temporarily or permanently; to relieve from duty. To dismiss an action or suit without further consideration or hearing.
I would have adopted a less restrictive interpretation of the word "dismiss." The majority decision on the preliminary motion was to dismiss the complaint before it on the basis that it lacked the jurisdiction to proceed with a hearing on the merits. While it did not dismiss the complaint on its merits, it did decide that, insofar as that Board of Inquiry was concerned, the proceedings with respect to that complaint was terminated. That decision, in my respectful opinion, was enough to satisfy the requirements of s. 41(4).
18I would have rejected the respondent's claim for costs on the basis that, in these particular circumstances, they have not demonstrated undue hardship as a result of these proceedings. Mr. Israel candidly admitted that the legal expenses for these proceedings have been borne by the Periodical Marketers of Canada. Their offer to bear these costs derives from their direct economic interest in the outcome. Their payments were offered gratuitously and without any promise of recovery. In these circumstances, I am not persuaded that the respondents themselves are entitled to be compensated for the costs of these proceedings.