Wellington v. Brampton (City) Community Services Dept. (No. 2)

1995-12-13

BOARD OF INQUIRY (Human Rights Code)

IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;

AND IN THE MATTER OF the complaint by Douglas Wellington dated September 10, 1990, alleging discrimination in employment on the basis of handicap.

BETWEEN:

Ontario Human Rights Commission

• and -

DOUGLAS WELLINGTON

Complainant

• and -

CORPORATION OF THE CITY OF BRAMPTON - COMMUNITY SERVICES DEPARTMENT VERRAL CLARK DONALD M. GORDON

Respondents

DECISION (COSTS) _____________________________

Adjudicator:

Morley R. Gorsky

Date:

December 13, 1995

Board File No.:

BI-0196-92

Decision No.:

95-052

A P P E A R A N C E S

Ontario Human Rights Commission

Fiona Campbell, Counsel

Douglas Wellington

On his own behalf

Corporation of the City of Brampton Verral Clark Donald M. Gordon

M. Hines, Counsel

ONTARIO HUMAN RIGHTS COMMISSION

IN THE MATTER OF the Human Rights Code S.O. 1990, c.H.19, as amended

AND IN THE MATTER OF the complaint dated September 10, 1990, by Douglas Wellington alleging discrimination in employment on the basis of handicap by the Corporation of the City of Brampton Community Services Dept.; Verral Clark, Deputy Fire Chief; Donald M. Gordon, Commissioner of Community Services

B E F O R E :

M.R. GORSKY

• Chairperson

For the Respondents

• M. Hines Counsel

For the Commission

• Fiona Campbell Counsel

HELD AT:

DATE:

Toronto, Ontario

August 28, 1995

DECISION Re: Costs

My decision regarding the original complaint in this matter is dated March 31, 1995, and it was issued after 17 days of hearings and two conference calls. In the complaint decision I concluded that the Respondents had not, in the consideration of Mr. Wellington's Code-recognized handicap, discriminated against him by failing to appoint him to a Fire Prevention Officer position that had been given instead to Mr. Kennedy (another applicant), and I dismissed the complaint.

Respondents' counsel, Mr. Hines, applied for costs to be awarded to the Respondent, Corporation of the City of Brampton Community Services Department ("Brampton"). The requested hearing took place on August 28, 1995, and this decision deals with costs.

Respondents' motion for costs was made pursuant to s . 41(4) of the Human Rights Code, which reads as follows:

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.

Submissions made by Mr. Hines on behalf of the Respondent Brampton:

1. Brampton took no issue with Mr. Wellington's "approach" to the case nor with his "bona fides."

Brampton noted that Mr. Wellington was not expected "to know the law" and acknowledged that he had no access to "investigative tools" available to the Commission.

2. Respondent premised its submission on my finding that on any kind of objective, balanced, impartial assessment by Brampton's representatives of the relative merits, skill and ability of Mr. Wellington vis-à-vis those of the successful candidate, Mr. Kennedy, this case should in any event never have gone forward to a Board of Inquiry.

3. Respondent particularly took issue with the conduct of Ms. A. Forghani, the Human Rights Officer in charge of the investigation, who prepared the salient Case Summary; it alleged no improper behaviour by the Commission. Its counsel said that that focus arose from the significance of the Case Summary forwarded to the Commission (the copy filed with me being undated); that that Summary was the critical document upon which the Commission relied in its decision-making process.

4. The Case Summary, being the Officer's report to the Commission, is supposed to be unbiased, and the Human Rights Officer, as the Commission's principal advisor, must exercise judgement while performing the unbiased assessment because the Commission "to a large measure relies on the judgement" of the Human Rights Officer. The Commission and the parties are entitled to assume that the Human Rights Officer has made a reasoned, objective assessment of the facts.

5. Respondent submitted that in this case the Officer's assessment was "anything but [reasoned and objective]," and that the "question" was, therefore, "whether costs can be awarded under the statute" given that, in the position taken on behalf of Brampton, there was a basis under s. 41(4) (a) to award costs to Brampton in this sort of case.

6. Mr. Hines indicated that he did not rely, on Brampton's behalf, on "undue hardship," dealt with under s. 41(4)(b) of the Code, and he accepted that for this Respondent, in a case such as this, any "hardship" represents a cost of doing business; he did not raise factors that would support an argument based on "undue hardship."

7. Mr. Hines noted that under s. 41(4)(a) the words "trivial, frivolous, vexatious or made in bad faith" are disjunctive, and that in order to succeed, he need prove only that any one of those terms might be said properly to describe the complaint.

8. Mr. Hines acknowledged that to establish bad faith he would have to meet a "high standard of proof." That would require establishing that the Commission was "ready to ascribe improper motivation" to Mr. Wellington "without compelling proof or sufficient proof." A claim of bad faith against the Commission would have to be founded on an "inference" drawn from a perceived lack of balance demonstrated by the Human Rights Officer's approach to evaluating evidence. In any event, Mr. Hines indicated that he did not intend to pursue a claim based on alleging the Commission's bad faith arising out of the aforementioned inference.

9. Mr. Hines then turned his attention to the three other words of s. 41(4)(a) -- "trivial," "frivolous" and "vexatious" -- and he again noted that if the complaint fell under any of those heads, the Board would have a foundation for ordering the Commission to pay Brampton's costs.

10. The meaning to be given to the noted words was said to be affected by their context. In that regard, Counsel made reference to a number of cases which relied on different aids to interpret the meanings of those words.

11. Reference was made to Glansaroop Persaud and Devinder Bhardwaj and Consumers Distributing et al. (1993), 1993 CanLII 16446 (ON HRT), 19 C.H.R.R. D/491 (Ont. Bd. Inq.) (Cumming), which is found at Tab 4 of the Book of Authorities; Lana N. Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Ont. Bd. Inq.) (Hubbard) which is found at Tab 10 of the Book of Authorities, and Jerome v. Dr. Paul DeMarco (1993), 1993 CanLII 16443 (ON HRT), 20 C.H.R.R. D/15, which is found at Tab 12 of the Book of Authorities.

12. In the Persaud and Jerome cases, definitions from Black's Law Dictionary were applied.

13. In the Pham case, at p. D/4021, the following definitions from Black's are quoted:

FRIVOLOUS. An answer is "frivolous" where it appears from bare inspection to be lacking in legal sufficiency, and, where in any view of the facts pleaded, it does not present a defense. Any pleading is called "frivolous" when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent.

"Frivolous pleas" are those which are so clearly and palpably bad as to require no argument to convince the court thereof, and which would be pronounced by the court indicative of bad faith in the pleader on a mere inspection.

A frivolous demurrer has been defined to be one which is so clearly untenable, or its insufficiency so manifest upon a bare inspection of the pleadings, that its character may be determined without argument or research.

A "frivolous appeal" is one presenting no justiciable question and so readily recognizable as devoid of merit on face of record that there is little prospect that it can ever succeed.

A sham plea is good on its face, but false in fact; it may, to all appearances, constitute a perfect defense, but is a pretense because false and because not pleaded in good faith. A frivolous plea may be perfectly true in its allegations, but yet is liable to be stricken out because totally insufficient in substance.

TRIVIAL. Trifling; inconsiderable; of small worth or importance. In equity, a demurrer will lie to a bill on the ground of the triviality of the matter in dispute, as being below the dignity of the court.

VEXATIOUS. Without reasonable or probable cause or excuse.

14. The Jerome Board, at pp. D/16 and D/17, also quotes from Black's Law Dictionary, this time regarding "bad faith":

Bad faith. The opposite of "good faith," generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfil some duty or some contractual obligation, not prompted by an honest mistake as to one' s rights or duties, but by some interested or sinister motive. Term "bad faith" is not simply bad judgement or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.

Good faith. Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is concept of his own mind and inner spirit and, therefore, may not conclusively be determined by his protestations alone. . . . Honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. An honest intention to abstain from taking any unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconscientious. In common usage this term is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation.

15. Mr. Hines averred that in relying on definitions from Black's Law Dictionary, especially those relating to the terms "frivolous," "trivial" and "vexatious," the decisions ignore the context of those words as they are found in s. 41(4) of the Code and the underlying purpose of that section.

16. Mr. Hines noted that the Pham Board, in § 31790 at p. D/4021, found that the meanings of "trivial, frivolous, vexatious or made in bad faith, " and causing "undue hardship, " in the context of s. 41(4) of the Code, are unclear. The Board noted, ibid., that "In general litigation these terms are used primarily in relation to pleadings, as the definitions found in standard law dictionaries show." There followed the definitions from Black's Law Dictionary, above quoted.

17. Mr. Hines further noted that at § 31791 of Pham, the Board concluded that ". . . [the complaint] would not appear to be some sort of pleading, and definitions and explanations that relate primarily to pleadings are not entirely apt." He said that the disapproval expressed, in Pham, for a definition more appropriate to cases relating to rules of pleadings was "overlooked in the other cases."

18. Respondent submitted that in a case of pleadings, one must decide "prospectively" whether a pleading is frivolous or vexatious. Section 41(4) of the Code, however, considers those words in a different context where they will be applied "retrospectively" as, the Respondent said, was clear from the way in which those words were dealt with in the cases cited.

19. In arriving at a decision as to whether a complaint was "trivial, frivolous, vexatious or made in bad faith" one must, the Respondent said, necessarily deal with "more than whether the case on paper has to be met." Rather, one must look at the matter retrospectively in order to answer the question, "Should the case ever have been brought to a hearing?" Therefore, one must do more than merely examine what was "set out on paper"; one must also necessarily consider what the Commission knew or ought to have known at the time it decided to proceed with the complaint by referring it to a Board of Inquiry. The Respondent referred to Alan Shreve and Corporation of the City of Windsor et al., an unreported decision of a Board of Inquiry chaired by Robert W. Kerr, dated May 25, 1993 [CHRR NP/96-48], with respect to a motion brought by the respondents in that case for costs (Tab 8) at pp. 4–5:

The Board in Pham draws on the definitions of trivial, frivolous, and vexatious found in Black's Law Dictionary. All of these terms connote lack of a substantial basis for pursuing a legal claim. Thus, these factors tend to relate more to the initiation of a complaint than to the subsequent handling of the complaint by the Commission. At the same time, it is conceivable that a complaint which on its face appears serious might, following investigation by the Commission, be recognized as lacking in foundation. In that event, further pursuit of the complaint by the Commission could be trivial, frivolous, or vexatious.

20. The Respondent acknowledged that there was insufficient evidence, on the basis solely of the Wellington complaint, to support an argument that the complaint was trivial, etc. Rather, in Mr. Hines's position, the actions of the Commission must be "re-evaluated from time to time" to see whether there is evidence indicating that the complaint was either trivial, frivolous, vexatious or made in bad faith. As authority for that, Respondent cited Sam Nimako v. Canadian National Hotels (1987), 1987 CanLII 8551 (ON HRT), 8 C.H.R.R. D/3985 (Hubbard) (Ont. Bd.Inq.) (Tab 9). Respondent asserted that that case emphasized the continuing obligation on the Commission "at all times" to evaluate and re-evaluate the status of a case. The Commission could withdraw the complaint once it clearly could not succeed. In the Respondent's view, the situation in a Code case for which a Board of Inquiry was appointed was far removed from cases involving issues relating to pleadings in conventional civil litigation. That latter context allowed for a "fair degree of irresponsibility." Mr. Hines characterized the civil-litigation-pleadings situation as allowing parties to frame their pleadings in such a way as to make "any type of claim" provided that the litigants were willing to accept the obligation to pay costs if unsuccessful. This situation was different, said the Respondent, in proceedings brought under the Code where one would not expect that the Commission would undertake "this kind of responsibility."

21. In the Nimako case, at p. D/4007, § 31711, the Board stated,

However, it seems to me possible that a point may be reached in the course of a hearing at which it is apparent to the Commission that the complaint is indeed trivial, frivolous, vexatious or pursued by the complainant in bad faith. If that were so (and I do not mean to suggest that it was so in this case), then I should think that it would be possible for the Commission to exercise its discretion under s. 33(1)(b) of the 1981 Code in such circumstances. Surely, the discretion "not to deal with the complaint" includes the discretion to withdraw at any stage subject to the complainant's right under s. 36 to have the decision reconsidered and subject to the approval of the Board appointed to hear and decide the matter. If, for instance, the complainant's bad faith becomes apparent to the Commission only after the hearing had commenced, surely the Commission is not required to proceed inexorably to pursue what it perceives to be a specious claim.

22. In the course of his argument, Mr. Hines acknowledged that he did not pursue his claim based on "triviality" which, he recognized, did not apply in this case. He acknowledged that one must examine the nature of the allegations to determine whether a complaint is trivial, and he said that in this case he was not advancing such a position.

23. Mr. Hines also indicated that his position was not that the complaint was frivolous, but that it was vexatious.

24. Respondent made reference to the definition of "vexatious" in Black's Law Dictionary, as set out at p. D/4021 § 31790 of Pham: "Without reasonable or probable cause or excuse." Respondents submitted that in the case before me that part of the definition involving the word "excuse" was not relevant inasmuch as the context requires examination of the substance of a complaint and not its nature. In this regard, Mr. Hines suggested that one must assess the purpose of s. 41(4)(a), and that that purpose imposed an obligation on the Commission to act responsibly; failing such a level of conduct, the Commission was required to "indemnify" the "other party." Mr. Hines amplified by adding that in "this type of case" a section such as s. 41(4)(a) requires the Commission to "realistically and objectively assess the prospects of material success before proceeding to the hearing." That responsibility, he said, continued even after a decision was made to proceed with a hearing, and he referred to the Shreve and Nimako cases.

25. At p. 5 of Shreve, the Board indicates that

At whatever point this assessment is made, the finding that a complaint is trivial, frivolous, or vexatious necessarily involves making some conclusion with respect to the merits of the complaint.

26. In Nimako, at p. D/4007, § 31711, the Board states that

. . . a point may be reached in the course of a hearing at which it [becomes] apparent to the Commission that the complaint is indeed trivial, frivolous, vexatious or pursued by the complainant in bad faith . . . . If, for instance, the complainant's bad faith became apparent to the Commission only after the hearing had commenced, surely the Commission is not required to proceed inexorably to pursue what it perceives to be a specious claim.

27. The Commission is in a "privileged" situation compared to "most other litigants" in that, in conventional litigation, "costs follow the cause in most cases." The Commission, on the other hand, is "immune" from paying costs "in most cases." The purpose of s. 41(4) is to "ensure" that the Commission does not "abuse that immunity."

28. The Respondents quoted Persaud, at p. D/494, § 13:

In the present case, I make it clear in my decision that the complaint was made in bad faith, and this was known to the complainant, Persaud[,] all along. The question that must then be addressed is whether the Commission performed a complete and proper investigation of the facts of the case prior to the inquiry. If there is sufficient evidence proving that an unsatisfactory attempt was made by the Commission to determine the true facts and validity of the case, costs should be awarded.

29. The Respondent also quoted paragraphs 17 and 18 of Persaud at p. D/494:

[17] In Parks v. Christian Horizons (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171, Chairperson Errol P. Mendes declined to award the respondents their legal costs, having "concluded [that] the Commission has not [acted] irresponsibly in supporting the complaints . . ." (at D/174, § 30).

[18] In my opinion, s. 40(6) is properly interpreted as requiring two criteria to be met in determining whether a respondent should be awarded costs. First, the board must find that the complaint made was trivial, vexatious, frivolous or in bad faith; or that alternatively that [sic] there was undue hardship inflicted on the respondent in the given circumstances. Second, in exercising the board's discretion, it must be determined as to whether the Commission was aware, or should reasonably have been aware after an investigation with due diligence, that the complaint was trivial, vexatious, frivolous or in bad faith.

30. Respondent submitted that those Persaud statements are applicable to the case before me no matter which head might be chosen by them — that is, any of "trivial, frivolous, vexatious or . . . in bad faith" — and that the respondent in Persaud argued on the basis of bad faith is of no moment. Regardless of that, the Commission's responsibility was to investigate the complaint fully, and where it became clear that an investigation was unsatisfactory, costs should be awarded in accordance with s. 41(4).

31. Respondent noted that in Persaud the Board had found a lack of bona fides in the complainant; nevertheless, the Commission had performed its investigation with reasonable care.

32. Mr. Hines repeated that he took no issue with Mr. Wellington's assessment of his "case." In Persaud, the Board determined a lack of bona fides by the complainant but found no fault with the behaviour of the Commission. In the case before me, Mr. Hines submitted that the inaccuracy of Mr. Wellington's assessment of his complaint, which arose out of his subjective feelings, did not matter; one could understand how, because of his imperfect knowledge of the law and his imperfect understanding of the facts, Mr. Wellington might have concluded that he was discriminated against without his subsequent actions being found to be trivial, frivolous, vexatious or made in bad faith. That, however, did not relieve the Commission of its responsibility independently to make the "same type of assessment." Mr. Hines relied on the statement in § 31806 at p. D/4023 of Pham:

I feel bolstered in this view by the words of the preamble of the Code which indicate that the aim of public policy in Ontario is "the creation of a climate of understanding and mutual respect for the dignity and worth of each person" including, one supposes, respondents against whom harmful allegations have been made in bad faith. This point was, addressed by counsel for the respondents in these words:

I submit that there has to be some balance achieved between the rights of complainants under the Code and the rights that are given to respondents.

The Human Rights Commission has extensive public resources to bring these complaints forward, where they have properly done so. The only way to have any balance is through application of section [41(4)], so that at least the monetary costs suffered by the respondent are repaid.

33. With this background, and in the context of s. 41(4), I was asked to find that a complaint is "vexatious" where it is so lacking in merit that the Commission was "irresponsible" to proceed, "bearing in mind its obligation to consider the dignity and worth of the respondent and the Commission."

34. After making the above submissions, Mr. Hines proceeded to review the facts of this case to try to demonstrate irresponsible behaviour by the Commission in continuing to pursue the complaint after the allegations' complete lack of merit had been clearly established; the Commission, in continuing to prosecute the complaint to the end of final argument, acted notwithstanding that it knew or ought to have known that the complaint was vexatious within the meaning of s. 41(4)(a). Therefore, the Commission should be required to pay the salient costs.

35. Mr. Hines identified the critical issue before me as the "relative skill and ability of Mr. Wellington and the successful candidate, Mr. Kennedy, for the position of Fire Prevention Officer." Mr. Hines said that Mr. Wellington and the Commission had asserted that Mr. Wellington was the better of the two candidates — that, in any event, was the Commission's initial position. The City of Brampton had always maintained that Mr. Kennedy was "far and away" the better candidate, and that was all that had led to his being the successful candidate. Brampton never took the position that Mr. Wellington was incapable, physically or mentally, of performing the duties of the Fire Prevention Officer job.

36. Mr. Hines stated that that position was confirmed by what he had said at p. 19, vol. 1 of the Transcript, where he clearly took the same position. He said that the position of Brampton, throughout, was that Mr. Wellington did not get the job because he was not the best candidate. Mr. Hines highlighted his position by referring to his further statement, in the Transcript at p. 19 of vol. 1, quoted at p. 4 of my decision:

Does the Commission take the position that Mr. Wellington was entitled to the job of [Fire Prevention Officer] even if he was not the best qualified, simply because he suffers from a handicap?

When the matter was argued, the Commission no longer took the position that Mr. Wellington was the best-qualified candidate or that he was immediately qualified to perform the requisite duties given some period of orientation; the Commission's position had become that he could do the job with several months' training. The Commission's final position was not that Mr. Wellington was "better than" Mr. Kennedy; not, at least, if the Complainant was the beneficiary of additional training. In such circumstances, said the Respondent, the Commission should be found at fault for, in effect, demanding that Brampton sacrifice the principle of choosing the best candidate, particularly for such a vital position.

That demand, said Mr. Hines, was "very troubling," especially when made of a public employer in respect of a "public safety function." The Commission must have known that Brampton could not, "in good conscience," appoint anyone other than the "best available candidate" to the position of Fire Prevention Officer. Respondent also suggested that I would not have forced such a result on the "city and citizens of the City of Brampton."

Respondent submitted that the Commission either knew or ought to have known, had the Human Rights Officer performed her job properly, that no case sufficient to bring forward to a Board of Inquiry existed. Cases not resulting in decisions to award costs arose only because of absence of evidence concerning investigative processes by the Commission. In the case before me, the Board had the Case Summary which, according to the Respondents, shows that the Human Rights Officer failed adequately to investigate and assess the complaint. The Case Summary was the "critical document" upon which the Commission would rely in making its decision whether to pursue the case. As Brampton is responsible for the actions of chiefs Clark and Core, so the Commission is responsible for the actions of its officers (in this case, Officer A. Forghani).

Respondent submitted that Officer Forghani was required to come to a "reasoned and objective determination" of the relative skills and abilities of Mr. Wellington and Mr. Kennedy, based largely on Mr. Wellington's and Mr. Kennedy's applications, to be found at Tabs 20 and 23 in Document Book number 1. Mr. Hines suggested that conclusions following several days' evidence as to the applicants' relative skills and abilities ought to have been manifest from an examination of those applications.

Mr. Kennedy's application, according to the Respondent, shows that he had all the "proper" credentials for the Fire Prevention Officer position. His qualifications were very extensive and related specifically to that position. "Anyone who spent a half hour" reviewing the requirements for a Fire Prevention Officer's position in light of the applications would have concluded that Mr. Kennedy's credentials were "far and away superior to those of Mr. Wellington." Respondent directed me to pages 54–64 of the decision in this case where I refer to Mr. Kennedy's evidence about his skills and abilities in relation to the duties and responsibilities of the position.

37. Mr. Hines acknowledged that Human Rights Officer Forghani might not reasonably be expected to have known at least some details that arose during the hearing; for example, the Fire Department documents Mr. Wellington used to "study up" in preparation for the competition ("checklists and magazine articles"). In fact, some of those documents had been authored by Mr. Kennedy. The investigator might not have been aware that Mr. Wellington was trying to obtain a job for which Mr. Kennedy had prepared the training materials. Even so, facts such as those at pp. 56–64 of the decision, concerning Mr. Kennedy's skills and abilities, were "precisely" such facts as one might expect the Human Rights Officer to "unearth" in her investigation. For the Commission to have proceeded lacking such information was "grossly irresponsible" conduct unfair to Brampton.

38. Respondent again referred to Pham, at pp. D/4021–2, § 37195, which describes the following circumstances:

31795 The Commission's interpretation of the Agreement was in large measure (if not entirely) based on the biased report of an improperly appointed investigating officer. The "conciliation" process did not involve the meeting of counsel for both sides as requested by the respondents in order to discuss the legal implications of the Agreement. It is virtually self-evident that the Agreement could only be interpreted in the light of extrinsic evidence. There is no reason to suppose that the evidence that emerged at this hearing relating to the parties intentions would not have been uncovered by an unbiased and competent investigator and formed part of his report. Had a meeting of counsel been arranged so that the legal implications of the Agreement in light of that extrinsic evidence could have been discussed, it is difficult to see how a decision could have been taken to continue with the allegation that the terms of the settlement had been breached.

Mr. Hines suggested that on the facts before me, the relative merits of Wellington and Kennedy could not be appreciated unless the Commission learned more about Mr. Kennedy. Counsel submitted that I must found my analysis not merely on what material was placed before the Commission by the Officer but also on what material ought to have been so placed. Mr. Hines stated that questions like those he asked Mr. Kennedy at the hearing ought to have been asked on behalf of the Commission. He noted that my conclusions on the evidence "mirrored" those of the panel interviewing for the contested position. He referred to p. 71, § 11 of my decision:

Again, and I do not wish to take anything away from Mr. Wellington, given the nature of the competition, the requirements of the position and the relative skills and abilities of himself and Mr. Kennedy, there was no real contest. The facts were such that even if the representatives of the Employer had a discriminatory attitude towards a person with the medical background of Mr. Wellington, which I do not find to be the case, this was not an element in arriving at the decision to appoint Mr. Kennedy.

39. Counsel also quoted § 19, at p. 74 of my decision:

This is not a case where I have to consider a responsibility to accommodate Mr. Wellington in the Fire Prevention Officer job. The issue before me as presented by the Complaint and based on the theory of the Commission's case reasonably known to the Respondents, was that the Respondents had discriminated against Mr. Wellington in failing to appoint him to the Fire Prevention Officer job given to Mr. Kennedy, because of Mr. Wellington's handicap recognized under the Code. Although Mr. Wellington's perceptions were real and his having them quite understandable, the reality based on my review of the evidence is that he did not get the job simply because his qualifications were nowhere near as good as those of Mr. Kennedy. Furthermore, the equivocal evidence relied upon as supporting the conclusion was explained and I was left with the clear impression that Chiefs Clark and Core had never intended to and did not manifest a discriminatory attitude based on handicap nor did they act in a discriminatory manner against Mr. Wellington because of handicap. Accordingly, the Complaint must be dismissed.

40. Respondent submitted that that was the "only possible conclusion a reasonably informed and objective observer could have come to." I concluded, as did the interview panel, that the matter was, in Mr. Hines's words, "inarguable, and there was no other rational conclusion based on the evidence that ought to have been available to the Human Rights Officer." Counsel asserted the importance of answering, "How did the Officer assess the relative skill and ability of the two candidates?"

41. Counsel quoted portions of the officer's assessment, at p. 3 of the Case Summary:

There were three internal candidates who applied for the position of Fire Prevention Officer and attended a job interview.

During the interviews conducted by the Officer with the members of the panel, all of them stated that it was a unanimous decision to assign the position of Fire Prevention Officer to Mr. Kennedy because he was the most qualified candidate. [T]he most relevant qualifications cited were his College courses in Fire Prevention and his job experience in fire alarms systems and sprinklers.

In review of the resumes of all candidates in terms of qualifications indicates the following [sic]:

1. Mr. Kennedy (the successful candidate) [was a candidate] who had attained a Third Class Firefighter's position and worked for the Respondent since 1988. His most extensive work experience between 1981–1988 was on the fire alarm systems as a technical service representative. He also indicated in his resume that he attended a 1 year architectural/design drafting course at Humber College, and he was 1 credit short of receiving the fire fighter emergency services and rescue certificate and 2 credits short of receiving a fire protection certificate from Seneca College.

2. The complainant, a candidate who has grade 12 education, with First Class firefighter's classification, has more than 12 years's [sic] work experience in the Fire and Communications Department. He has been a qualified C.P.R. Instructor for the Brampton Fire Department since June, 1983, and he also has computer experience.

3. [One] candidate [. . .] attained a First Class firefighter's classification and [. . .] had completed the Fire Fighter's courses at the Ontario Fire Fighter College at Gravenhurst. He also had 18 years' experience in the Fire Department.

The evidence has shown that the complainant was not less qualified to obtain the Fire Prevention Officer position than the other candidates. In fact, he was a First Class firefighter with several years of work experience as a Firefighter and Communications Operator, whereas the successful candidate was only a Third Class Firefighter and had not completed his college courses, which were part of the requirements stated on the supplementary qualifications of the job posting.

42. Mr. Hines found the assessment "horrifying and extremely troubling." He suggested that a "neutral, objective" person could not have reached such conclusions.

43. In context, the Human Rights Officer must have meant that her conclusion was based on a comparison of Mr. Wellington with the other two candidates. Mr. Hines found the Officer's conclusion that Mr. Wellington was not less qualified for the position than the other two candidates to be "so lacking in responsible analysis" as to make the complaint issuing from it "vexatious."

44. Respondents invited me to review the comparison of skills and abilities of Mr. Wellington and Mr. Kennedy. Such a review would demonstrate that Mr. Kennedy was a qualified CPR instructor. The Commission must have regarded that as relevant, yet if it did so, that was not demonstrated "according to any of the evidence heard" by me.

Ms. Forghani referred in her Case Summary to certain fire-prevention courses not completed by Mr. Kennedy, yet failed to make the "obvious point" that Mr. Wellington had never taken any such courses and that he has only a grade-12 education. Nor did she note the obvious fact that, given the clear evidence of Mr. Kennedy's education and experience in fire prevention, his failure to complete the courses was understandable. They were courses involving information he had clearly already acquired through education and experience, and his failure to complete them could very easily be attributed to boredom at repeating material with which he was so familiar.

45. Mr. Hines again emphasized that the Commission had proceeded on the basis of a Case Summary "presumed" to be "objective and comprehensive." In reality, the conclusion reached in the Case Summary was "indefensible and potentially unreasonable," one that "no officer acting responsibly and with due regard for all of the parties could have reached".

46. Respondent suggested that the Officer's conclusions in the Case Summary, being so unconnected with actual facts of the case, demonstrate a "desire" in the Officer to get the case on to a hearing before a Board of Inquiry "irrespective of the responsibility that the 'statute' placed on her".

47. In the circumstances, this was, said the Respondent, "clearly a case where the Commission has abused its favoured status" so that "costs should be awarded."

48. Respondent submitted that I should award costs against the Commission "in principle" but need not, at this time, quantify them. Mr. Hines asserted that cases where costs are awarded choose the solicitor-and-client scale, the choice being not to award costs at all or, where they are awarded, to award them on a solicitor-and-client basis as "such costs as are considered appropriate." Solicitor-and-client costs, said the Respondent, reflect situations where the conduct of the Commission was "most egregious." In the case before me, said Counsel, not all the conduct of the Commission fell to such a low standard as to warrant solicitor-and-client costs.

49. Mr. Hines also submitted that I might conclude that a certain part of the hearing — that which occurred after Mr. Kennedy testified — was unnecessary inasmuch as it was at that point, at the latest, that the Commission should have recognized that it "couldn't succeed on the fundamental factual issue." Based on this argument, Counsel submitted that the Commission should be liable for party-and-party costs to the point where Mr. Kennedy's evidence was concluded, and solicitor-and-client costs after that point. Mr. Hines again quoted Nimako, at p. D/4007, §31711:

While the benefit of hindsight makes it seem not unlikely that the investigation into the complaint was inadequate, and that a thorough investigation might have made this hearing unnecessary, there was no evidence led to that effect, and it may be that only some pre-hearing adversarial process would have revealed that the complainant was untruthful and his witnesses unreliable. However, it seems to me possible that a point may be reached in the course of a hearing at which it is apparent to the Commission that the complaint is indeed trivial, frivolous, vexatious or pursued by the complainant in bad faith. If that were so (and I do not mean to suggest that it was so in this case), then I should think that it would be possible for the Commission to exercise its discretion under section 33(1)(b) the 1981 Code [now s. 41(4)] in such circumstances. Surely, the discretion "not to deal with the complaint" includes the discretion to withdraw it at any stage, subject to the complainant's right under section 36 [now s. 37] to have that decision reconsidered, and subject to the approval of the Board appointed to hear and decide the matter. if, for instance, the complainant's bad faith became apparent to the Commission only after the hearing had commenced, surely the Commission is not required to proceed inexorably to pursue what it perceives to be a specious claim.

50. Respondent also asked me to bear in mind that several issues raised by the Commission and argued over considerable time, as events disclosed, formed no part of its case. An example was the issue of accommodation which occupied a good deal of time unnecessarily. In addition, a good deal of evidence had been about the alleged behaviour of the Respondents toward Mr. Wellington after the completion of the job competition. Mr. Hines had objected to the eliciting of this evidence on behalf of the Respondents, but the objection failed on the basis that admission would be permitted for the purpose of demonstrating ongoing animus against Mr. Wellington, especially by Chief Clark. Mr. Hines further referred to my finding that the Brampton Fire Department had accommodated handicapped firefighters in an exemplary manner, and he asked me to consider unnecessary the time spent on those issues when I came to fashioning a costs award. He also referred to considerable evidence tendered by the Commission about Mr. Wellington's mental and physical fitness as they related to performance of the work of a Fire Prevention Officer, and the evidence relating to the level of stress associated with that position. The Commission dealt with that evidence notwithstanding Brampton's contentions that it had never contested Mr. Wellington's physical and mental attributes as they related to the position, and that its (Brampton's) decision had nothing to do with those attributes but was related entirely to its assessment of the relative skills and abilities of the candidates. After assessing the skills and abilities of the candidates, Brampton did what it could do, which was to hire the "best applicant." Mr. Hines alluded to time unnecessarily spent following a decision of the Commission to call a member of the Fire Prevention Unit (Lieutenant Wood) in order to review the physical and mental health a person doing that work would need.

In addition, the Commission unnecessarily prolonged the hearing by calling one of Mr. Wellington's doctors as well as an expert in ergonomics to deal with issues of mental and physical health which were said to be "highly peripheral."

51. Mr. Hines concluded, as he began, with a basic proposition that no one acting responsibly would ever suggest that the Complaint go forward in light of the evidence that Mr. Kennedy was "so clearly the best candidate."

52. The parties agreed that in the event that I order payment of costs, I should remain seized of the matter should they be unable to arrive at agreement as to the amount.

Submissions Made by Ms. Campbell on behalf of the Commission:

1. In Ms. Campbell's position, the first principle governing a Board of Inquiry making an order for costs against the Commission is a requirement for evidence to show that the Complaint was "without foundation." If the Complaint was founded, then it could not be vexatious. In Kathleen Pattison v. Board of Commissioners of Police for the Town of Fort Frances et al. (1987), 1987 CanLII 8553 (ON HRT), 8 C.H.R.R. D/3884 (Baum) (Ont. Bd. Inq.), the Board, at p. D/3900, §30919, held that

To say that a complaint is without foundation is not to compel a finding that it was made in a vexatious manner or that it was done in bad faith. The amended complaint was one without foundation. But, I will make no finding that it was made in a vexatious manner or in bad faith.

2. At §30918 (ibid.), the Board noted that in ordering costs, a first necessity was to find "for example, that the complaint brought was vexatious . . . ". Ms. Campbell submitted that even after a Respondent demonstrated that a complaint was vexatious, a Board still had discretion, on the clear language of s. 41 (4) (a) , because after a Board finds that a complaint was trivial, etc., it "may order the Commission to pay the person complained against such costs as are fixed by the board."

3. Commission Counsel cited Persaud at p. D/494, §18:

In my opinion, s. 40(6) [now s. 41(4)] is properly interpreted as requiring two criteria to be met in determining whether a respondent should be awarded costs. First, the board must find that the complaint made was trivial, vexatious, frivolous or in bad faith; or that alternatively that [sic] there was undue hardship inflicted on the respondent in the given circumstances. Second, in exercising the board's discretion, it must be determined as to whether the Commission was aware, or should reasonably have been aware after an investigation with due diligence, that the complaint was trivial, vexatious, frivolous or in bad faith.

4. (Counsel for the Employer did not take issue with the above quotation.)

5. Counsel for the Commission averred that §18 of Persaud demonstrated that a Board would exercise its discretion to award costs only when vexatiousness during that portion of proceeding where "disclosure" took place was clearly shown. She submitted that the provisions of s. 41(4)(a), being procedural, should not be given a "large and liberal" interpretation. She quoted a statement made in obiter in L.C.B.O. and E.A. Parker v. Ontario Human Rights Commission et al. (1988), 1988 CanLII 8926 (ON HCJDC), 9 C.H.R.R. D/4868 (Ont. Div. Ct.). At D/4875, §37674, the Court said:

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.

6. Ms. Campbell also cited Pat Findlay and Marty McKay v. Four Star Variety et al. (1994) 1994 CanLII 18437 (ON HRT), 21 C.H.R.R. D/42 at p. D/44, §11:

The 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 Commission.)) (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 (at §37672]

There is no inherent jurisdiction in a court nor in any other statutory body, to award costs . .

At §12, the Board said as follows:

Rosenberg 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) [now s. 41(4)] 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 §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 [41(4)] of the Code, the legislature has excluded jurisdiction to award costs otherwise under the Code.

7. Ms. Campbell submitted that a Board of Inquiry should award costs under the provisions of s. 41(4)(a) only "sparingly."

8. She disputed the definition of the word "vexatious" which Mr. Hines asked me to accept, and she argued that no case law supporting such a definition had been referred to me. It was her position that the case law supported her conclusion that a complaint could only be found to be vexatious if it was in some way tainted by an improper motivation which, she submitted, had not been demonstrated in the case before me. If the Complaint was not established as vexatious, there was no basis for my going further into the matter; that is, for me to exercise my discretion for or against awarding costs.

9. In the event that I should "accept or find" that Brampton need not demonstrate improper motivation, even were the investigation found to be "imperfect or seriously flawed," that would not warrant my awarding costs against the Commission.

10. Ms. Campbell quoted Pattison, at p. D/3900, §30914–17:

30914 Yet, can the same be said of the second, or amended complaint? This was a matter raised for the first time at the hearing itself. It was a matter about which the Commission was aware long before the hearing. Why should the respondents have been put to the stress of responding to new charges in a situation where extremely limited time had been allocated for hearing all the issues?

30915 It might have been that Ms. Pattison believed herself discriminated [against] in violation of the Code as to those matters incident to the second pregnancy. In this regard, I refer specifically to the facts surrounding preparation for and attendance [at] the Advanced Training Course at the Police College. She said as much in her testimony.

30916 However, the Commission certainly did not think Ms. Pattison was treated in an improper way as to the requirements relating to preparation for and attendance at the Police College. And, it said as much in its Submissions on Fact.

30917 In the result, there was scant direct evidence to support the amended complaint. It related to the testimony of Ms. Pattison concerning a meeting she had with the Chief. Yet, this was certainly was [sic] overcome by the written statement of the Chief following the meeting.

Notwithstanding, at §30919, the Board denied the respondent's request for costs:

To say that a complaint is without foundation is not to compel a finding that it was made in a vexatious manner or that it was done in bad faith. The amended complaint was one without foundation. But, I will make no finding that it was made in a vexatious manner or in bad faith.

11. Ms. Campbell also relied on Robert Bruce Adams v. Bata Retail, a Division of Bata Industries Limited at al. (1988), 1988 CanLII 8868 (ON HRT), 10 C.H.R.R. D/5954 (Mercer) (Ont. Bd.Inq.), where the Board stated, at p. D/5962, §43147–50,

43147 Counsel for the respondents also pointed to the fact that Mr. Edwards frequently stepped outside his role as investigator. He referred specifically to the circumstances surrounding Mr. Edwards' submission of data which appeared to have been arbitrarily organized and, in the case of the graph which omitted six of twenty-two employees, carelessly and inaccurately presented. Mr. Edwards, when given the opportunity to respond to the graph prepared by Mr. Tenenbaum based on the same information, initially indicated that he would be prepared to do so after reviewing the graph but, after having had the opportunity of doing so, refused to comment on the basis that he was not a statistician and did not understand what counsel for the respondents was attempting to prove by introducing the graph. Mr. Edwards further appeared, in the submission of counsel for the respondents[,] to have drawn his own inferences about the reliability of certain evidence given by persons whom he interviewed. For example, it was only on cross-examination and after a ruling by the Board that he revealed that he had interviewed seven employees who were associated with Mr. Adams while he was assistant manager of the warehouse, that six of them had negative views of Mr. Adams' performance and that none were of the view that Mr. Adams had been terminated because of discrimination on the basis of age. Mr. Edwards also appeared to take the view that Mr. Vrana's conclusion that neither he nor Mr. Adams had been discriminated against on the basis of age was tainted because Mr. Vrana had reached a settlement with Bata Retail after his own termination. Furthermore, Mr. Edwards stated in cross-examination that he did not investigate the reasons for the dismissal of Mr. Vrana, nor did he investigate his competence.

43148 In my view, there is some considerable basis for the concern expressed by counsel for the respondents, as it is surely for the investigator to adduce evidence both favourable and unfavourable to the respondent and to allow the board of inquiry to draw the appropriate inferences. It is inappropriate for an investigator to assume the adjudicative functions which are properly to be exercised by a board of inquiry, particularly when this involves drawing inferences that lead to an arbitrary limitation on the scope of the investigation.

43149 Counsel for the respondents also noted that the Commission appeared to take the view in putting forward its case that the complainant could have run the new warehouse operation in Trenton. There does not seem to have been any basis in evidence for that view. Finally, I have already discussed the fact the Commission asked for an inference of discrimination to be drawn from memoranda which they did not cross-examine Mr. Erhart upon. In view of the importance that the Commission attached to these memoranda, it would have been highly desirable to have conducted such cross-examination after Mr. Erhart was questioned on the matter by his own counsel.

43150 Consequently, I wish to express concern that the investigation of this complaint by the Commission appears in some respects to have been rather selective. However, based on the language of s. [41(4)] and the authorities discussed by Professor Hubbard in the Pham case, I have concluded that this is not an appropriate case in which to award costs to the respondents. I consider that this case could have been better conducted by the Commission, but I am not prepared to find that the circumstances were so clear-cut that the complaint could be said to be trivial, frivolous, vexatious or made in bad faith. I reiterate, however, that the circumstances are such that no prima facie case has been established. . . . (Emphasis in original)

12. Commission Counsel also cited Shreve (supra). There was some suggestion that that case was one where the Commission had agreed to pay costs. My own examination indicates that it was in Johnson v. East York Board of Education (Ont. Bd.Inq.), unreported, July 5, 1991 [1991 CanLII 13131 (ON HRT), 17 C.H.R.R. D/175] (referred to at pp. 3–4 of Shreve) that some agreement between the Commission and the Respondent, relating to "the justification for an award of costs", had been made (at p. 4 of Shreve).

13. In Shreve, at p. 5, the Board concluded that:

The advocacy role adopted by the Commission's investigating officer, which was one of the findings in my decision of March 3, probably caused her, and in all likelihood the Commissioners acting on the basis of her investigation, to overestimate the strength of the case against the Respondents. This is quite a different thing, however, from a finding that the complaint was lacking in foundation to the extent that it was trivial, frivolous, or vexatious.

14. Ms. Campbell said that Mr. Hines had argued that the only issue for me to decide was who was the more qualified candidate. In contrast, she characterized the issue as "whether there was discrimination in the hiring process" by Brampton.

15. Ms. Campbell submitted that evidence of such discrimination existed and could be found in the letter telling Mr. Wellington that he was denied the position, which letter asserted having taken his handicap into account. She also claimed discrimination evidence in the disparate lengths of interview given to Mr. Wellington and Mr. Kennedy and in the great emphasis on medical issues in Mr. Wellington's interview. Those factors were said to be evidence of "negative animus" in the Respondent.

16. As matters actually unfolded, after considering the evidence and argument I decided to accept the Respondent's explanation in finding that there had been no discrimination under the Code against Mr. Wellington in the course of the hiring process for the Fire Prevention Officer position which he sought. Ms. Campbell referred to portions of my decision found at pp. 72–74:

16. Once again, it is easy to see how Mr. Wellington interpreted the incidents relied upon by the Commission and himself as indicating a negative animus against him because of his numerous health problems. When viewed in isolation, the evidence of negative animus is equivocal. It was only during the course of the hearing that there was an opportunity to explore, at very great length, a number of circumstances that were said to be manifestations of a discriminatory attitude and discriminatory behaviour. Both Chief Core and Chief Clark, although members of the old school of fire-fighting, recognized that fire departments are evolving institutions and must be responsive to changing times. Both have a very down-to-earth quality and some of their behaviour could be easily misinterpreted by Mr. Wellington. Unfortunately, although they were aware of Mr. Wellington's various medical problems, they did not fully appreciate the inner torment he was experiencing and were not as sensitive as they might have been to his perception of unfolding events.

17. I am satisfied from the evidence given by Chiefs Core and Clark that their equivocal expressions which convinced Mr. Wellington of their discriminatory attitude and behaviour, had plausible explanations. They were skilled in the area of the work of the Brampton Fire Department relating to fighting fires and fire prevention; they were definitely not skilled in the area of conducting competitions and they were frank in acknowledging their deficiencies in this area. They also experienced certain difficulties in communication which created a number of situations which were ambiguous and required explanation.

18. My review of the evidence satisfies me that the panel did not consider Mr. Wellington's medical history relating to handicap recognized under the Code in arriving at its decision. He was regarded as being physically and emotionally able to carry out the responsibilities of a Fire Prevention Officer. His failure to be awarded the position was entirely based on the clear disparity between his qualifications and the objectively superior ones of Mr. Kennedy, and was untainted by any illegal act of discrimination based on handicap.

19. This is not a case where I have to consider a responsibility to accommodate Mr. Wellington in the Fire Prevention Officer job. The issue before me as presented by the Complaint and based on the theory of the Commission's case reasonably known to the Respondents, was that the Respondents had discriminated against Mr. Wellington in failing to appoint him to the Fire Prevention Officer job given to Mr. Kennedy, because of Mr. Wellington's handicap recognized under the Code. Although Mr. Wellington's perceptions were real and his having them quite understandable, the reality based on my review of the evidence is that he did not get the job simply because his qualifications were nowhere near as good as those of Mr. Kennedy. Furthermore, the equivocal evidence relied upon as supporting the conclusion was explained and I was left with the clear impression that Chiefs Clark and Core had never intended to and did not manifest a discriminatory attitude based on handicap nor did they act in a discriminatory manner against Mr. Wellington because of handicap. Accordingly, the Complaint must be dismissed. . .

17. Although the Officer could more thoroughly have examined the qualifications required for the position and may not have analyzed it properly, evidence existed, as noted in the report, that there may have been discrimination contrary to the Code by virtue of the way in which Mr. Wellington's interview was conducted. In the circumstances, said Ms. Campbell, the Commission appropriately recommended appointment of a Board of Inquiry to assess whether the Respondents had discriminated against Mr. Wellington in the hiring process. Such appointment was the only way that that could be done. There was only so much the Human Rights Officer could do in assessing credibility, and on the facts, a real credibility issue existed, necessitating the attention of a Board.

18. Ms. Campbell submitted that the relative qualifications of Mr. Kennedy and Mr. Wellington, as focused on by Mr. Hines, were relevant only as they related to remedy; that is, I could, if I found that Respondent had been guilty of discriminatory conduct contrary to the Code against Mr. Wellington, award general damages. In the actual event, evidence showed that Mr. Wellington was not sufficiently qualified to be put into the Fire Prevention Officer position in preference to Mr. Kennedy. At most, the Human Rights Officer "overstated" the strength of the case. Based on the cases relied on by Ms. Campbell, the Commission's conduct, although imperfect, should not attract an award of costs.

19. Counsel further submitted that if I did award costs, they should not be awarded on a solicitor-and-client basis. In cases where costs were awarded, there had to be evidence of bad faith; vide Pham, supra.

20. Ms. Campbell further submitted that if I did award costs, I should not do so on the basis of "second guessing" the Commission's decision as to whether it should have proceeded with the matter after Mr. Kennedy gave his evidence.

Reply Submissions on behalf of the City of Brampton.

1. Through Mr. Hines, Brampton submitted that I should "not make too much" of the statements in Pattison relied on by Ms. Campbell, to the effect that a complaint need not be found vexatious merely because it was "without foundation." Mr. Hines did not take issue with such statements, but he argued that, at some point, evidence relating to a complaint might disclose it to be "so lacking in a foundation that it was irresponsible for the Commission to proceed with it."

2. Mr. Hines acknowledged that a provision relating to costs should not be given a "liberal" interpretation merely because it appears in the Code, and that such a provision should be used "sparingly." However, he also submitted that I should not "read down the language of the cost provision unnecessarily." Rather, I should apply its "ordinary accepted legal meaning." Although the Commission may not have meant to behave vexatiously, where it has done so based on objective analysis of the evidence, then its conduct should cause a Board to direct payment of costs. Mr. Hines repeated his earlier observations that the word "vexatious" does "not necessarily connote a subjective element," and that one need not necessarily show an improper motive suggesting bad faith.

3. Mr. Hines argued that "vexatious," which is found together with "trivial" and "frivolous," must have a different meaning from the latter two terms, and he averred that that difference was based on defining a vexatious proceeding as one that lacks "substantive" merits. He referred to Shreve at pp. 4–5 where, he said, the Board focused on the merits of the complaint. He referred specifically to the first sentence of the first full paragraph at p. 5:

Since these three factors ("trivial", "frivolous" or "vexatious"] all raise the question of whether there is a substantial foundation for a complaint, at whatever point this assessment is made, a finding that a complaint is trivial, frivolous, or vexatious necessarily involves making some conclusion with respect to the merits of the complaint. . . .

Mr. Hines again stated that the focus in determining whether a complaint was vexatious should be on objective rather than subjective criteria. It was Mr. Hines's position that the Shreve Board did not discuss the "subjective mind state" that would be relevant to a determination of whether the complaint was trivial or frivolous; such determination would require some discussion of the merits, which was not what happened in Shreve. He repeated his position that it was necessary to determine whether the Commission was irresponsible in having proceeded, given facts that it knew of or ought to have known when it recommended the appointment of a Board.

4. Mr. Hines submitted that the Pattison, Bata and Shreve cases all turned on their own peculiar facts, and that in each case a basis for not awarding costs existed because insufficient fault existed in the Commission's ignorance of certain facts prior to adjudication. In this case, he said, I have the benefit of an adjudication and am in a position to determine not only the facts of which the Commission was aware but also the facts of which it ought to have been aware; he said that I "must call it as [I] see it."

5. In Shreve, the Board had not heard the issue on its merits. Mr. Hines stated that Mr. Kerr, the Board of Inquiry in Shreve, was "in an awkward position because he had not heard the merits." In contrast, I was in a better position, having heard all the evidence, and I have a basis for not endorsing the "deficiencies in the Commission's investigation." Mr. Hines submitted that the Human Rights Officer should have informed the Commission that Mr. Kennedy was the "clearly superior candidate" in the competition. Failure to so inform precluded the Commission's making a "proper, informed decision."

6. Mr. Hines submitted that the Commission ought to have been aware of the reasons for the disparate lengths of interview accorded Mr. Kennedy and Mr. Wellington, and that if the Commission had been so aware, it would have known that the difference had nothing to do with Mr. Wellington's handicap. The Commission would have understood the difference when it examined the documented skills and abilities of the two candidates. Mr. Wellington had very few of the necessary attributes, and Mr. Kennedy had them all. Had the Human Rights Officer turned her mind to the skills and abilities required for the position and those possessed by Mr. Wellington and Mr. Kennedy, she would have clearly seen why the length of the two interviews were so different. Mr. Hines said that the difference "would be self-evident." Spending additional time with Mr. Wellington would be of "no value" and would not "make any difference."

7. Mr. Hines commented similarly with respect to the Officer's concern about discussions relating to Mr. Wellington's health, which had nothing to do with animus but, as the evidence disclosed, were unrelated to any discriminatory intent. He noted that the Officer, when testifying, agreed that it was not inappropriate to raise Mr. Wellington's medical condition in context of the interview when raising it was not for the purpose of ruling him out or in any other way adversely affecting his candidacy. Mr. Wellington had been away from work for a very long time with a number of serious medical problems. In the circumstances, to ask him if he could perform the duties of the position was not "untoward."

8. Mr. Hines again referred to the second paragraph under the heading "Summary" of the Case Summary, where the officer raised a concern about discussion of Mr. Wellington's medical condition. If the Officer had properly carried out her investigation, she would have known that raising the subject of Wellington's health had nothing to do with any discriminatory behaviour. The critical issue was whether the Complainant's handicap was a factor in the decision to deny him the position. That is, was the subject of his handicap raised in a manner that amounted to discrimination under the Code? The Commission believed that it was.

9. Mr. Hines stated that the Human Rights Code does not "legislate attitudes." Rather, it "regulates behaviour." He stated that it was not possible to "eliminate bigotry by legislation," and that it was not "illegal to be a bigot in Ontario." In saying this, Mr. Hines was not saying that the Respondents or any of their representatives were bigots or that they held discriminatory attitudes towards persons with handicaps. In fact, I had found that the Respondents had a history of dealing fairly with employees of the Brampton Fire Department who were handicapped. Mr. Hines said he made his statement merely to highlight that the Code prohibits discriminatory behaviour. If the Commission was able to demonstrate animus in the Respondents with respect to persons with disabilities, that would not necessarily mean that that animus was a factor in making a decision not to hire a person with a handicap. To say that animus was a factor in the decision would have to mean that absent that animus, the decision would have been different. "Absent the worst possible animus, would Mr. Wellington have received the job?" In that sense, and only in that sense, could animus be a factor.

10. In this case, when the Commission learned or was clearly in position to learn that Mr. Wellington did not have superior skills and abilities compared with those of Mr. Kennedy, it chose to proceed on the basis of the Respondent's "attitude and not behaviour." As soon as it was clearly evident that Mr. Wellington, even if the Respondents had the "best animus," could not have received the job, nothing was left to argue and no effective "remedy" could be available to Mr. Wellington. A declaration of an improper animus, even "if possible," would be all that this case was about, and I should not be bound by such a "perception." The highest level at which the Commission could conceivably place this case was one where a declaration could be made relating to animus. In this case, the Human Rights Officer failed in her duty to conduct a proper investigation, and that led the Commission to fail in its duty not to proceed with a vexatious complaint.

Discussion and Decision:

Counsel for the parties did not refer to all the 14 cases listed in the Book of Authorities filed by counsel for the Commission on this motion. Those cases represent a considerable body of the jurisprudence that relates to interpretation of the words used in s. 41(4) of the Code. I have reviewed each case in search of assistance in interpreting "vexatious." I have learned the following:

1. In the Hyman case, which was decided on June 21, 1984, the Board appears to have focused, at least in part, on the bona fides of the complainant. At p. D/2267, §19126, after noting that the evidence of the complainant was materially unreliable and after finding inconsistencies conflicting with evidence of other credible witnesses, the Board states that it was not satisfied that the complainant was completely insincere in his belief that he had been unjustly treated by the respondents and that that treatment had been motivated, in part at least, by discriminatory attitudes. The Board, therefore, states that it was "persuaded that the proceedings [were] not frivolous or vexatious from the point of view of the complainant".

2. Inasmuch as it is the Commission against whom costs may be sought, that the Complainant brought proceedings for frivolous or vexatious reasons might not matter. In any event, the Board concludes that absent evidence as to how the Commission discharged its responsibilities, it was (at D/2267 §19127) "reluctant to conclude . .. that the Commission discharged its responsibilities in an unsatisfactory manner." I infer that by "unsatisfactory manner," the Board meant either frivolously or vexatiously inasmuch as the mere performance of responsibilities in an unsatisfactory manner is not sufficient for a finding that a complaint was frivolous or vexatious.

3. In the Pattison case, although neither the complainant or the Commission "acted in a vexatious manner or in bad faith in bringing the first complaint," the Board considered whether it should similarly hold in the second complaint. The Board notes that the complainant might have

. . . believed herself discriminated [sic] in violation of the Code as to those matters incident to the second pregnancy. . . . However, the Commission certainly did not think Ms. Pattison was treated in an improper way as to the requirements relating to the preparation for an attendance at the Police College. And it said as much in its Submission on Fact. In the result, there was scant direct evidence to support the amended complaint. . . . Section 40(6), [now s. 41(4)] in my view, affords discretion in the Board of Inquiry in ordering costs once it finds, for example that the complaint brought was vexatious or made in bad faith. . . . To say that a complaint is without foundation is not to compel a finding that it was made in a vexatious manner or that it was done in bad faith. The amended complaint was without foundation. But, I will make no finding that it was made in a vexatious manner or in bad faith.

(See Pattison at p. D/3900, § 30915–30919.)

4. Without clearly stating what "vexatious" means, the Pattison Board apparently recognizes that "vexatious" relates only in part to a complaint's being without a necessary substantive foundation. No inconsistency arises out of the legislature's having provided for costs where a complaint is "trivial, frivolous, vexatious or made in bad faith." There are forms of bad faith other than those based on triviality or vexatiousness. Certainly, the Pattison Board appears to have known when a complaint was vexatious, having decided that the first ones before it were not, even if it made no attempt to define the term.

5. The Nimako case was decided on February 2, 1987. The Board states at p. D/4007, § 31710, dealing with whether the complaints were trivial, frivolous or vexatious, that the Commission had not acted in bad faith in giving its support to the complaint. The Board also notes that the respondent withdrew its proposed motion of non-suit rather than elect not to call evidence, "thus revealing its own uncertainty as to the strength of the Commission's prima facie case."

6. After referring to the "benefit of hindsight," which would make it seem "not unlikely that the investigation into the complaint was inadequate" (at § 31711, p. D/4007), on the facts of the case the Board concludes that "there was no evidence led to that effect." The Board also notes (ibid.) that it was "possible that a point may be reached in the course of a hearing at which it is apparent to the Commission that the complaint is indeed trivial, frivolous, vexatious or pursued by the complainant in bad faith." The Board adds that if that were so, then it "would be possible for the Commission to exercise its discretion under s. 33(1)(b) of the 1981 Code", which includes the "discretion to withdraw it at any stage . . . . If for instance, the complainant's bad faith became apparent to the Commission only after the hearing had commenced, surely the Commission is not required to proceed inexorably to pursue what it perceives to be a specious claim." (Ibid.)

7. Again, the Board does not note that a bad-faith aspect attaches to claims that are trivial or vexatious. However, the Board holds that for s. 41(4) to have any meaning, a Board of Inquiry must be able to examine the conduct of the Commission throughout the hearing to find if it violated any provision of s. 41(4). I would add that if a claim were knowingly or recklessly made without a legal foundation, it would not be only trivial or vexatious; it would also be in bad faith.

8. Although Nimako advances understanding of the meaning of s. 41(4), it still does not define what is vexatious (or, for that matter, frivolous or trivial).

9. In the Pham case, decided on February 12, 1987, Mr. Hubbard, who also decided Nimako, notes, at p. D/4010, § 31721, that the initial complaint had never been investigated "in the sense of the Commission pursuing inquiries into the truth of the complainant's allegation of fact and the formulation of an objective view as to whether there had been a discrimination."

10. What the Pham Board finds particularly distressing, as set out at p. D/4011, § 31731, is that allegations of harassment through warnings and reprimands supposedly amounting to reprisals appeared to have been "inscribed in the complaint" without the knowledge of the complainant.

11. The Pham Board, at p. D/4011, § 31732, recognizes that there may have been, confusion on the part of the investigator, but notes that "counsel for the Commission did not adduce any evidence to that effect. . . ." The Board goes on to say that "If, indeed, confusion is the explanation, it can hardly be an excuse." The Board finds that the investigator behaved recklessly, knowing about the extremely serious nature of the charges and about the difficulty he had had in communicating with the complainant, being uncertain as to what her position really was.

12. At p. D/4013, § 31741, the Pham Board notes that the Commission, in raising an allegation of on-the-job harassment, had not previously investigated them, and they could not be regarded as trivial, frivolous or in bad faith without further information. The allegation was said to be false, and the Commission "ought to have known" that it was false. "[U]nless the complainant was untruthful both to him and in her evidence at this hearing, the Commission's investigating officer did not receive any information that could conceivably justify these damaging allegations which were inserted into the complaint in words of [the investigator's] choosing. "

13. Another matter of great concern to the Pham Board was that an officer was appointed to investigate a complaint relating to a matter in which he had been closely involved as an active participant (p. D/4014, § 31744).

14. At p. D/4014, §: 31748, the Pham Board also refers to "an astoundingly damaging accusation" where the investigator sought to blame the respondents for his own shortcomings.

15. And at p. D/4016, § 31757, the Board notes that the investigator allowed allegations to be made of dishonourable conduct, allegations that he ought to have known to be spurious and that he did not really investigate.

16. In endeavouring to interpret the provisions of s. 41(4) of the Code, the Board notes that there was no authority cited with respect to the meanings of "trivial, frivolous, vexatious or made in bad faith," or causing "undue hardship."

17. The Board concludes, at p. D/4021–2, § 31795, that the conclusions arrived at by the Commission were based on the biased report of an improperly appointed investigating officer. In the result, the Board concludes that even if no conclusion could be drawn from an examination of the complaint that it was "frivolous or vexatious", ". . . if [it] contained allegations that were known to the complainant or the Commission to be false, then that complaint would certainly seem to be made in bad faith" (p. D/4022, § 31796). At p. D/4022, § 31800, the Board holds that if. the evidence had established that the false allegations in the complaint were the result of the investigating officer being merely incompetent and irresponsible in his questioning of the complainant he would not have found the complaint to have been made in bad faith. The Board finds that there was not merely confusion, but that the bias of the investigating officer and his placing himself in the role of a protagonist tipped the "balance of probabilities" so that "these false allegations were made in bad faith."

18. In the Liquor Control Board of Ontario case, decided February 23, 1988, by the Ontario Divisional Court, the Court holds that there is no inherent jurisdiction in a court or a statutory body to award costs. There must be jurisdiction expressly given by either the Code or some other Act: p. D/4875, § 3673. The Court notes, at p. D/4875, § 37674, that the rule of liberal interpretation to carry out the objects of the Code does not apply to procedural matters or the question of costs.

19. In the Bata case, decided on October 7, 1988, the Board concludes (at p. D/5962, § 43150), basing its decision on the language of s. 41(4) and the authorities discussed in Pham, that although:

. . . this case could have been better conducted by the Commission, . . . I am not prepared to find that the circumstances were so clear cut that the complaint could be said to be trivial, frivolous, vexatious, or made in bad faith; I reiterate, however, that the circumstances are such that no prima facie case has been established.

20. Thus, the Bata Board finds that something more than a meritless complaint must be shown to allow a board to find that the complaint was trivial, frivolous, vexatious or made in bad faith. The Board does not indicate what more would have to be shown.

21. In the Lily Cups case, which was decided on March 14, 1990, the basis for awarding costs is set out at p. D/34, § 72:

This matter, in my view, fully warrants that I exercise my discretion and award costs. For the reasons stated above, there was an absence of facts necessary to prove the allegations of the complaint. And, the Commission was aware of this void at the time of hearing. Further, the complaint, itself, was materially deficient in law. While the complaint cannot be found to have been made in bad faith, or to have been vexatious, it was trivial and frivolous (Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 at D/4024].

22. In deciding that the complaint was not made in bad faith or vexatiously but that it was trivial and frivolous, the Board seems not to have held that a frivolous claim would also have to be in bad faith. At the same time, the Board recognizes that it was not enough that there was "an absence of facts necessary to prove the allegations of the complaint" to establish that the complaint was either trivial, frivolous, vexatious or made in bad faith. If there were insufficient facts to prove an allegation, that in itself would not be sufficient to render the matter trivial. A trivial complaint is one that, while it may have the elements necessary to prove the complaint, is so minor that pursuing it is beneath the Board's dignity. A frivolous complaint, on the other hand, like a vexatious complaint, is groundless in law, although, as noted, groundlessness is not enough to find the complaint frivolous or vexatious.

23. As in the other cases noted, no real attempt is made in Lily Cups to define the words used in s. 41(4).

24. The Lily Cups Board must have accepted the conclusions of other Boards that lack of legal foundation is not enough automatically to support a violation of s. 41(4), inasmuch as it adds that ". . the Commission was aware of the void at the time of the hearing." The Lily Cups decision rests on the dual basis that the complaint was lacking a legal foundation and that the Commission had behaved in an unacceptable way with knowledge of the situation so as to warrant an award of costs.

25. In the Persaud case, decided on May 18, 1993, the Board notes, at p. D/493, § 3, that "It is difficult to interpret the intended scope of . . . [s. 41(4)] as little has been written about the issue of costs in this regard." Also, after quoting the excerpts from Black's Law Dictionary also quoted in Pham, the Board states, ibid., § 4, that "These definitions should be applied in interpreting the meaning and purpose of [s. 41(4)]." The Board seems unconcerned with the context in which the defined terms may have been used in Black's. The Board also notes, (ibid., § 7) that there is such a difference between the Ontario Code and legislation in other Canadian jurisdictions that "the case law in such other jurisdictions is not helpful in resolving the issue at hand."

26. At p. D/494, § 11, the Persaud Board quotes the statement in Hyman (p. D/2267, § 19128):

In the absence of evidence that the complainant has brought forward a complaint in bad faith or frivolously and in the absence of evidence that the Commission has discharged its mandate irresponsibly, it is my view that it would be inappropriate to make an award of costs.

27. The Board seems to accept the validity of this statement, which creates a number of problems in ascertaining the meaning of s. 41(4). What if, as in this case, the Complainant has not made a complaint "in bad faith or frivolously"? The excerpt seems to indicate that there must be conduct by the complainant that is affected by conduct subsumed in the language of s. 41(4)(a) before there is a consideration of the conduct of the Commission: has it "discharged its mandate irresponsibly"?

28. The other cases in the Book of Authorities seem not to require that the complainant must have filed a complaint that was trivial, frivolous, vexatious: or made in bad faith, before the conduct of the Commission can be considered. What Hyman seems to be saying, albeit in obiter, is that if a complainant has made a complaint "in bad faith or frivolously," and I infer that such conduct of the complainant that was vexatious or trivial would also be included, then the Commission, if it has behaved "irresponsibly" in allowing the complaint to go forward, would have to pay costs. Such an interpretation seems inconsistent with the purpose of s. 41(4). Because it is the party that has to pay costs, the conduct of the Commission must be examined, and whether the Complainant made a complaint that was trivial, frivolous, vexatious or in bad faith should not matter. Nevertheless, an analysis which looks first at the complaint to see if it lacks legal foundation, and then at the conduct of the Commission to see whether that conduct was irresponsible, has some attraction.

29. That the Board in Persaud would require that the complaint itself be found to be trivial, frivolous, vexatious or made in bad faith is clear from the Persaud Board's view of the Bata case to which it refers at p. D/494, § 12. That is also the Persaud Board's reading of the Lily Cups case, to which the Persaud Board refers at p. D/494, § 16.

30. The Persaud Board, in § 18 at p. D/494, reiterates its position that there first must be a finding that the complaint was trivial, vexatious, frivolous, or in bad faith. After such a finding is made, ". . . it must be determined as to whether the Commission was aware, or should reasonably have been aware after an investigation with due diligence, that the complaint was trivial, vexatious, frivolous or in bad faith."

31. In Persaud, the Board, at p. D/494, § 19, finds that the complaint was made in bad faith by the complainant, and that, in its view, means that ". . .. the first criterion is met." At the same time, though, the investigator for the Commission had ". . . made an 'impressionistic snapshot' on her part in investigating the alleged race relations problems at Consumers," and "[h]er contribution to the overall investigation was somewhat superficial," the Board concludes that the facts were so complex that it was not likely that she would have

. . . discerned the truth even after an extensive investigation. The factual situation was complex and much turned upon findings of credibility under oath. From the Commission's standpoint, a Board of Inquiry was the only reasonable means to find the truth in respect of complaint [sic] (p. D/495, § 21).

32. At p. D/495, § 20, the Persaud Board notes that it was ". . . understandable that the Commission would have concerns about the racial overtones that were thrown up in the history and by the complainants. . . ."

33. In the Jerome and DeMarco case decided on May 21, 1993, the Board states that one of its "general considerations" applicable to examining a claim under s. 41(4) is that ". . . the board has discretionary powers even after a finding under [ s . 41(4)(a)] and must in that situation still consider the general circumstances of the case in deciding whether or not to award costs."

34. The Jerome and DeMarco Board also considered whose conduct must be examined in determining whether to award costs. The Board refers to Keene, Human Rights in Ontario, (2nd ed.) Toronto: Thomson Canada Limited, 1992, 381, where the author states, " . . . An award of costs under the first test in ss. [41(4)] will be made only when the Commission has acted in a way that is completely unjustified in bringing a complaint."

35. The Jerome and DeMarco Board states, at p. D/16, § 6,

I am persuaded that the language of the section is clear as written and does not refer only to bad faith on the part of the Commission. The complainant makes the complaint and provides evidence with respect to it during the investigation. The Commission investigates the complaint and has carriage of it before a board of inquiry. Bad faith can occur, on the part of the Commission or the complainant during this process, in which case the board may find the complaint was made in bad faith and may then exercise its discretion to order the Commission to pay costs as fixed by the board.

36. Given the purpose of s. 41(4), I do not agree that the Commission should have to pay costs where its conduct was untainted by elements found in s. 41(4). If the conclusion in the Jerome and DeMarco case were correct, then the Commission could behave completely responsibly, have done an impeccable job investigating and prosecutiong the case, and still have to pay costs because of the behaviour of the complainant. The position of the Jerome and DeMarco Board is made clear from its statement at p. D/16, § 7: ". . . if the complaint had been brought forward in bad faith, an award of costs may be appropriate."

37. At pp. D/16–17, the Board appears to accept the definitions in Black's Law Dictionary of bad faith and good faith (already quoted above but reproduced here for clarity):

Bad faith. The opposite of "good faith," generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfil some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. Term "bad faith" is not simply bad judgement or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.

Good faith. Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is [sic] concept of his own mind and inner spirit and, therefore, may not conclusively be determined by his protestations alone. . . Honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. An honest intention to abstain from taking any unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconscientious. In common usage this term is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation.

38. In its decision in Jerome and DeMarco, the Board, consistent with its position described above, concludes, at p. D/21, in § 59, that the complainant had ". . . a reasonable belief . . . that a delay, even if only to the end of the day, would be discriminatory, this is the substance of the second prong of the Commission's case. Accordingly, I agree with the counsel for the Commission on this point, and found that the complaint was not without reasonable cause, and so not vexatious."

39. The Jerome and DeMarco Board, for the purpose determining vexatiousness, appears to have fixed its attention on the state of mind of the complainant at the time of making the complaint, rather than on the subsequent conduct of the Commission when it ought to have known that there was no real substantive basis for making the claim.

40. Dealing with "bad faith," the Jerome and DeMarco Board looked to subsequent conduct of the complainant and the extent to which such conduct was encouraged by inadequate actions of the Commission (p. D/22, § 69.). Nevertheless, the Board does not find bad faith in that the Commission was not shown to have acted "in that state of mind contemplated by the term 'bad faith' namely one 'affirmatively operating with furtive design or ill will'." Although critical of the Commission's behaviour, the Board does not find that the Commission acted in bad faith. The award of costs is based on "undue hardship," which issue is not before me.

41. In the Shreve case, dated May 25, 1993, the Board, at pp. 4–5, notes that the terms trivial, frivolous and vexatious, as defined in Black's Law Dictionary, connote a "lack of a substantial basis for pursuing a legal claim," and, therefore, "tend to relate more to the initiation of a complaint than to the subsequent handling of the complaint by the Commission." Nevertheless, ". . . it is conceivable that a complaint which on face appears serious might following investigation by the Commission be recognized as lacking in foundation. In that event, further pursuit of the complaint by the Commission could be trivial, frivolous or vexatious."

42. What the Shreve Board appears to be saying is that there are two elements of a finding that a complaint is trivial, frivolous or vexatious. One is a finding that the complaint is lacking necessary legal foundation. If there is a legal foundation, then the claim cannot be trivial, frivolous or vexatious. I agree with this analysis, certainly when dealing with the terms frivolous and vexatious. An apt analogy is a claim that a pleading is scandalous, where the courts have held that if there is a proper legal foundation for a claim, then it cannot be scandalous. It is only upon finding a complaint's lack of legal foundation that a Board must examine the facts to see whether the Commission's behaviour was such as to be found trivial, frivolous or vexatious.

43. Again, the Shreve Board does not endeavour to define "vexatious" nor to consider whether it is a species of bad faith. In fact, the Board goes on to state, at p. 5, that "Bad faith raises different considerations. It involves some ulterior or improper motivation on the part of those involved in forwarding the complaint." In stating, ibid., that the advocacy role adopted by the Commission's investigating Officer "probably caused her, and in all likelihood the Commissioners acting on the basis of her investigation, to overestimate the strength of the case against the Respondents," the Board noted that this is "quite a different thing .. . from a finding that the complaint was lacking in foundation to the extent that it was trivial, frivolous or vexatious." The Board does not explore what factors take a claim from being "lacking in foundation," to one that "is trivial, frivolous or vexatious."

44. The Shreve Board does not consider that it is a complainant who usually files a complaint, although the Commission may initiate a complaint by itself or at the request of any person. The Shreve Board would treat a complaint as trivial, frivolous, vexatious or made in bad faith even if none of these terms could apply to the complainant: "If a question of bad faith arises, it relates solely to the processing of the complaint by the Commission" (Ibid.). What the Board does is to treat the complaint as made in bad faith even though the person filing the complaint did not make it in bad faith. Therefore, the Board would read "the complaint was . . . made in bad faith" to mean that even if not made in bad faith, the complaint should be deemed in bad faith if there was some bad faith on the part of the Commission involved in its processing. After considering the question of bad faith further, the Board concludes that it could not infer bad faith "from a mere lack of evidence" (at p. 6) .

45. The Board in the Four Star Variety case (Findlay v. Mike's Smoke and Gifts (1994), 1994 CanLII 18437 (ON HRT), 21 C.H.R.R. D/42) finds at p. D/44 that "The wording of the Human Rights Code with respect to costs is both specific and restricted," referring to the LCBO case above cited. The majority of the Board also approves the statement of Rosenberg J., in LCBO (see Four Star Variety at p. D/45, § 12), that "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."

46. The majority of the Four Star Variety Board also refers to the finding in Shreve (Four Star Variety at p. D/44, § 8) where the Shreve Board stated that even though the right 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." As noted, the decisions provide very little assistance in determining what is trivial, frivolous, vexatious or in bad faith in the context of a complaint that has no substantive basis. The Four Star Variety case does not deal further with the meaning of such words as "vexatious" because it finds that unnecessary because the complaint had not been dismissed.

47. In the, unreported case of Elkas vs. The Blush Stop. Inc. et al., decided on December 6, 1994 by W. Gunther Plaut, the Board finds, at pp. 1–2, that what is now s. 41(4)(a) was not applicable to the complaint ". since in the common understanding of these terms and their explication by precedents neither the actions of the complainant . . . nor of the Human Rights Commission . . . were tainted in this fashion." That cryptic expression of the ratio underlying the applicability of s. 41(4) does not assist me much in identifying what "vexatious" means or how I am to relate the actions of the complainant to those of the Commission.

48. In the Barber case, June 23, 1995, an unreported decision of H.A. Bassford [reported sub nom: Barber v. Sears Canada Inc. (No. 4) (1995), 1995 CanLII 18163 (ON HRT), 24 C.H.R.R. D/85], the Board states, at p. 2 [§ 3]:

There are two tests which must be met before a board may order costs to be paid by the Commission. First, the complaint must be dismissed. Second, one or more of the criteria of sections (a) or (b) must be found to have been met. Further, once the tests are shown to be met, the board still has discretion as to whether or not to order costs. . . .

49. At p. 4, the Board indicates its intention to use definitions of "trivial", "frivolous", "vexatious" and "bad faith" found in Black's Law Dictionary, relying on the Pham and Persaud cases.

50. At p. 6, the Board states:

The arguments presented persuade me that Sears proceeded openly and with good will in their attempt to resolve the complaint. Sears is to be congratulated with respect to this. The arguments also convince me that in terms of the process of working with Sears the Commission proceeded imperfectly. But the arguments do not show that the Commission proceeded in a trivial, frivolous, or vexatious manner, or that they acted in bad faith.

The Board continues, at pp. 6–7,

I was able to decide the substance of the matter only after an extensive consideration of the evidence of both sides. The Respondents were well advised to call evidence in answer to the Commission's case. Based on this, I hold that the complaint was not trivial, frivolous or vexatious.

51. Once again, Barber is not of much assistance in that it arrives at a conclusion that the complaint was not trivial, frivolous or vexatious without indicating how that conclusion relates to the definitions relied on. In any event, clearly more is required for a finding of vexatiousness than that a complaint was not based on adequate substantive foundation. The term "vexatious," in the context of legal proceedings, is found in provisions relating to the assessment of costs in civil proceedings and in context of the institution and conduct of vexatious proceedings. Courts considering the meaning of "vexatious" look to provisions in statutes or rules of court to see whether there is a basis for relying on previous interpretations of that word as a guide to its meaning in a particular context. Admittedly, where "vexatious" is used in a context unrelated to civil proceedings, its interpretation may be of less value; cf. A. v. Ruby's Food Services Ltd. (1992), 1992 CanLII 14245 (ON HRT), 16 C.H.R.R. D/394 (Ont. Bd. of Inquiry).

52. Following counsels' very able submissions on the approaches taken by other boards of inquiry, I indicated that I thought decisions from the courts addressing the definition of "vexatious" might also provide some assistance to me. Neither counsel objected to my reviewing that body of jurisprudence. As will be noted from the comments which follow, my review did not disclose any decisions which I consider determinative of the issue before me. Had it done so, I would have sought and considered additional submissions from counsel.

In Foy v. Foy (No. 2) (1979), 1979 CanLII 1631 (ON CA), 102 D.L.R. (3d) 342 (Ont. C. A.) the Ontario Court of Appeal, dealing with an appeal from an order of the Divisional Court dismissing an appeal from an order that no civil proceedings be instituted by the respondent without leave of the Court, pursuant to the Vexatious Proceedings Act, R.S.O., 1970 C. 481, holds per Howland, C.J.O. (Blair, J.A. dissenting), at p. 348:

The word "vexatious" has not been clearly defined. Under the Act the legal proceedings must be vexatious and must have been instituted without reasonable ground. In many of the reported decisions the legal proceedings have been held to be vexatious because they were instituted without any reasonable ground.

53. I emphasize that Howland, C.J.0. observed that the legal proceedings must both be vexatious and instituted without reasonable ground.

54. In referring to a case decided under English legislation (Re Vernazza, [1959] 2 All E.R. 200; affirmed [1960] 1 All E.R. 183), the Court notes that there the Divisional Court, under s. 51(1) of the English Act of 1925, considered that "in determining whether proceedings were vexatious, the Court must look at the whole history of the matter and not whether the pleadings had throughout disclosed the cause of action." Section 41(4) makes clear that determination of whether the complaint was vexatious, etc., requires examination of more than the complaint, and that the entire history of the proceeding must be examined to the point when the complaint was dismissed. That was argued by Mr. Hines, and I accept his position.

55. Referring to Logan v. Bank of Scotland et al. (2), [1906] 1 K.B. 141 at p. 151, the Court in Foy, at p. 349, states that

whether an action is. vexatious is a matter to be determined by objective rather than subjective standards.

56. The Court also examines cases involving the meaning of "vexatious" arising other than under the Vexatious Proceedings Act. In particular, the Court refers to then Rule 126 of the Rules of Practice, which asserts part of the inherent jurisdiction of a court to see that its process is not abused by a proceeding without reasonable grounds in such a way as to be vexatious and harassing. Rule 126, referred to in Foy reads as follows:

A judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case, or in case of the action or defense being shown to be frivolous or vexatious, may order the action to be stayed or dismissed, or judgment to be entered accordingly.

57. Earlier in this decision, I noted that a vexatious complaint will usually lack bona fides. At p. 350 of Foy, the Court notes,

In some cases the Courts have considered the lack of bona fides in classifying an action as vexatious, as where the plaintiff had no cause of action at all: Beardmore v. City of Toronto; Smith v. City of London (1909), 19 O.L.R. 139.

58. The Court also notes, ibid., that

A legal proceeding may be vexatious even though there were reasonable grounds for its institution if, for instance, the plaintiff is asking for relief in a way which necessarily involves injustice.

59. In Shreve, at pp. 2–3, the Board notes the power of a Board of Inquiry to dispose of a complaint without a hearing on the merits if such a disposition is appropriate under s. 23(1) of the Statutory Powers Procedure Act R.S.O., 1990 cap. S.22:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

60. Therefore, in certain circumstances, a complaint could have an adequate substantive basis but the manner of its conduct could amount to an abuse of the Board's processes.

61. In Mascan Corp. v. French (1988), 1988 CanLII 5747 (ON CA), 49 D.L.R. (4th) 434 (Ont. C.A.), the judgment of the Court was delivered by Blair, J.A., who was the dissenting judge in the Foy case. In Mascan, the Court dealt with an order made pursuant to s. 150(1) of the Courts of Justice Act, 1985, S.O. 1984, c. 11, which reads as follows:

150(1) Where a judge of the Supreme Court is satisfied, on application, that a person has persistently and without reasonable grounds,

(a)

instituted vexatious proceedings in any court; or

(b)

conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c)

no further proceeding be instituted by the person in any court; or

(d)

a proceeding previously instituted by the person in any court not be continued;

except by leave of a judge of the Supreme Court.

62. That is now s. 140(1) of the Courts of Justice Act and the Court is now the "Ontario Court (General Division)." The section was renumbered and revised by R.S.O. 1990. It is derived from the Vexatious Proceedings Act, and subsection (1) expands the grounds on which an order may be made against a vexatious litigant and includes conducting a proceeding in a vexatious manner.

63. Although Mascan overruled Foy, that was because of a change in the legislation, but it did not affect the Court's view of the meaning of "vexatious." At p. 43 of Mascan, the Court states,

The categories of vexation are never closed. Howland C.J.O. so held in Foy v. Foy where he listed examples of conduct which courts had found to be vexatious without attempting a comprehensive definition of the word. . . .

64. No good purpose would be served by listing all cases dealing with "frivolous," "vexatious" and "trivial" in order to show that the Courts have no difficulty in determining that a proceeding is either trivial, frivolous or vexatious. In many cases the finding is made and the basis for the finding identified on facts of the individual case, without any attempt to link to some coherent definition. For example, in Metropolitan Bank, Limited et al. and Alexander Gopsel Pooley (1985), 10 A.C. 219 (H.L.), the Court stated per Earl of Selborne L.C., at p. 219,

I think that what I have already said would have brought me, if there was nothing to be added to it, to the conclusion that this was not only a groundless statement of claim, but was also frivolous and vexatious.

This shows that a groundless statement will not necessarily be either frivolous or vexatious but certain additional facts must be examined in order to arrive at this conclusion.

65. In Andrew v. Wirral Rural Council (1916), 85 K.B. 853, Lush, J., at p. 859, states as following:

Now arises the question, Was the case one which the County Court Judge was justified in treating as frivolous and vexatious? In my opinion it was clearly such a case. In order to bring a case within the description it is not sufficient merely to say that the plaintiff has no cause of action. It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide; and contend that he had a grievance which he was entitled to bring before the court. Of course it is a question of degree, but I think this is a case which falls within that description.

66. Once again, the Court notes that the absence of a substantive basis on which to found a cause of action is insufficient, standing alone, to make a finding that the proceeding was vexatious. An examination of the bona fides of the individual is necessary.

67. The difficulty I face is that the definition of "vexatious" relied on in the Human Rights decisions above is clearly insufficient, and what I am left with is a large number of cases in which courts have been unable to formulate definitions but have been able to find certain proceedings frivolous and/or vexatious. I have a certain reluctance to continue reviewing facts and concluding that a complaint is or is not vexatious, and giving my reasons for doing so, without linking those reasons to a practical definition. I do not wish to appear to be like Humpty Dumpty in Carroll's Through the Looking Glass who said, "When I use a word it means just what I choose it to mean — neither more nor less." I believe the cases show that "vexatious" includes an absence of bona fides by the person whose conduct is being scrutinized. That lack of bona fides can be discerned from a number of factors possibly including the absence of a substantial legal basis for the proceeding, so that either there was knowledge or there ought to have been knowledge that the claim was baseless, leading to a conclusion that the proceeding began or continued solely to harass the other party. In Holmestead and Watson, the authors refer, in the case note under s. 140(1) of the Courts of Justice Act, to Winkler v. Winkler, 1991 CanLII 11793 (MB CA), [1992] 1 W.W.R. 631 (Man. C.A.), which deals with an equivalent provision and which holds that the provision should not be used except in the rarest of cases but that a litigant should not be able to harass another party "with little or no prospect of success. . . "; that is, where the proceedings are maintained for an ulterior purpose.

68. As I have tried to show above, s. 41(4)(a) ought not to be seen as differentiating a vexatious complaint from one made in bad faith. There are many kinds of bad faith that do not involve a "vexatiousness" claim. That does not mean that a vexatious complaint is not also a complaint made in bad faith. Where it is clear that the complaint is groundless and should have been seen to be groundless, what bona fide basis can there be for continuing with it? Continuing to pursue the claim in such circumstances is at least some basis for a Board's concluding that the claim abused the process of the Board.

69. In light of all the above, I must still deal with the meaning of the rest of the language in s. 41(4)(a) of the Code.

70. The Shreve Board, at p. 3, holds that the provisions of s. 41(4) of the Code represent:

. . . a remedial power for the purpose. of compensating the Respondent where a complaint is trivial, frivolous, vexatious, in bad faith or causing of [sic] undue hardship. I conclude that it would defeat the remedial purpose of this section to read into it a further limitations such as a condition precedent that there be a hearing of the merits before a complaint is dismissed for the purpose of an award of costs.

Other cases comment that the provision is not remedial: see LCBO at p. D/4875, § 37674, quoted above.

71. In Sullivan, Driedger on the Construction of Statutes 3rd. Ed. (1994), at p. 355, the author notes,

Although the distinction between penal and remedial legislation is well-established, its legitimacy is doubtful. Most statutes could be classified as both. Virtually all legislative initiatives that interfere with rights and freedoms do so either to suppress some mischief or to secure a public good. Conversely, few schemes for benefitting the public accomplish much without curtailing someone's freedom or interfering with someone's rights. The category to which enactments are assigned obviously depends on the focus of the classifying judge.

72. Sullivan notes, at p. 356, the existence of provisions such as s. 12 of the Federal Interpretation Act:

12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

73. She also notes (ibid.) that that provision has not prevented courts from continuing to use the language of strict and liberal construction: ". . . the doctrine is applied more flexibly, less mechanically today. . . ."

74. At p. 360 of Driedger, the author notes,

In the clearest possible language, this statutory directive requires doubts and ambiguities in penal legislation to be resolved in a manner that promotes the purpose of the legislation. . . .

I cannot see why the fact that s. 41(4) is procedural in nature should interfere with examining the purpose of the enactment when the facts support such an approach. However, the purposive approach does not permit overlooking the words used in s. 41(4).

75. One must bear in mind that the complaint in this case is that of Mr. Wellington, the Complainant. The complaint was filed pursuant to the provisions of s. 32(1) of the Code:

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.

The complaint was not one provided for under s. 32(2) of the Code: "The Commission may initiate a complaint by itself or at the request of any person."

76. The purpose of s. 41(4)(a) is to make the Commission responsible for costs in certain limited circumstances. It is not enough that a complaint is found, after dismissal, to be trivial, frivolous, vexatious or made in bad faith. Even if such a finding is made, there does not follow an automatic award of costs against the Commission. First the complaint of the Complainant must be adjudged trivial, frivolous, vexatious or made in bad faith. If it is so adjudged, at that stage no order for costs will be made against the Commission. Something more must be demonstrated. That is, the Commission must be shown to have behaved irresponsibly. But assessment of the complaint in terms of the actions of the Commission is a mistake. That is made clear in Hyman at pp. D/2267–8:

In the absence of evidence that the complainant has brought forward a complaint in bad faith or frivolously and in the absence of evidence that the Commission has discharged its mandate irresponsibly, it is my view that it would be inappropriate to make an award of costs.

77. The above words are quoted with approval in Pham at p. D/4023, § 31810.

78. Most cases dealing with interpretation of s. 41(4)(a) go through certain stages that a Board must traverse before making an order:

79. The complaint must be dismissed.

80. The complaint must be trivial, frivolous, vexatious or made in bad faith, and

81. If the Board finds the complaint was trivial, frivolous, vexatious or made in bad faith, the Board must exercise discretion as to whether it will award costs, and a principal factor in the exercise of that discretion is whether the Commission behaved irresponsibly.

82. If the situation were otherwise, and whether the complaint was trivial, frivolous, vexatious or made in bad faith could be founded not only on the complaint's allegations, as later interpreted based on all evidence to the point of dismissal, but also on the Commission's conduct, then a finding that the complaint was trivial, etc., because of the Commission's behaviour in proceeding with it would end the matter:

83. What s. 41(4)(a) does is make the Commission responsible for costs when a Complainant has filed a complaint which a Board finds trivial, etc., where the Board concludes that pursuing the complaint to a hearing and continuing that hearing, based on the trivial, etc., complaint would not have continued beyond the time when it was clear that the complaint was trivial, etc., but for the irresponsible behaviour of the Commission.

84. It is not the actions of the Commission that must be judged to be trivial, etc., but the complaint of the complainant. To the extent that the Commission behaved irresponsibly in pursuing such a complaint, it must bear costs as awarded by the Board.

85. The Board must assess whether behaviour of the Commission was irresponsible in allowing a complaint that is trivial, etc., to go forward once it is clear that that is the complaint's nature.

86. First, the complaint must be found to be trivial, etc. In the case before me, the Respondent endeavours to examine the conduct of the Commission and to have me find that because of that conduct, the complaint was vexatious, even if it is acknowledged, as in this case, that the complaint made by the Complainant was not trivial, frivolous, vexatious or made in bad faith. That confuses the actions of the Commission with the nature of the complaint.

87. Failure to observe the distinction above would require the following evaluation by the Board:

88. Was the complaint dismissed?

89. After the complaint was dismissed, did evidence disclose that the complaint was trivial, frivolous, vexatious or made in bad faith? In making such a decision, the conduct of the Commission in processing the claim could be determinative.

90. Counsel for the Respondent was most impressive in the presentation of his position, nevertheless, in my view, his argument confuses assessment of whether a complaint is vexatious with conduct of the Commission in allegedly continuing to process the complaint once it is determined to be vexatious.

91. Where the complaint is not found trivial, etc., and, hence, cannot support an order for costs pursuant to s. 41(4)(a), even if the conduct of the Commission was irresponsible, that does not end the matter. As was observed in Pham, at p. D/4024, § 31812,

I would agree with counsel for the Commission that, for the purpose of section 40(6)(b) [now s. 41(4)(b)] of the Code, hardship caused to the person complained against is not "undue" simply because the complaint is dismissed. Otherwise, the discretion would arise in every case where the complaint is dismissed, and that is clearly contrary to the intention of the provision. However, hardship suffered through the making of false allegations in bad faith would appear to me to be undue. Such hardship occurred here. Thus, even if I am wrong in finding that I have jurisdiction under paragraph (a) of the provision to award costs to the respondents, I am satisfied that I have the requisite jurisdiction under paragraph (b). "The particular circumstances" to which I have regard include the finding of bad faith and the irresponsible way in which the Commission through its officers and agents discharged its mandate in respect of this matter. . . .

87. Even if I am wrong in finding that conduct of the Commission could not make the complaint "vexatious" within the meaning of s. 41(4)(a), I would find that that conduct was not vexatious in that the Human Rights Officer behaved honestly at all times with a genuine purpose of vindicating what she perceived to be a breach of the Code by the Respondents. Having had the opportunity to observe the Officer during the course of her giving evidence, and especially during Mr. Hines' extremely comprehensive and skillfull cross-examination, I conclude that she was trying to carry out her responsibilities honestly, whatever the technical shortcomings of her investigation exposed by Mr. Hines. As I have observed, above, it is not enough that the basis of the complaint be unsupported by the necessary legal foundation. The point that seems to have been missed by many Boards is that to be vexatious, the complaint must also be pursued in bad faith as it is a species of bad faith. Here, whatever the shortcomings of the investigation, it was pursued in good faith. Unfortunately, the addition of the provision relating to the complaint being made in bad faith tends to obscure the fact that a vexatious claim will also have been made in bad faith. It is difficult to see how the situation could be otherwise. A vexatious claim, in addition to being groundless, must have been made for a purpose other than genuinely to vindicate a complainant's rights under the Code. A claim may be so lacking in merit as to disclose that the only purpose for its being brought and maintained is to harass the respondents. With all its weaknesses, the complaint here was brought bona fides and with no intention of harassing the Respondents. There was an arguable case which the Respondents successfully answered. In the result, I found in favour of the Respondents in all material aspects. Such a finding does not require a finding that the complaint must then have been vexatious.

88. Similarly, the position of Counsel for the Respondents, that the Commission's continuing to prosecute the claim after being shown that there was no substantive basis should require a finding that the complaint was vexatious, would place too great a burden on Counsel for the Commission. Counsel for the Commission behaved professionally, competently and responsibly throughout. Her case may have been weak, but a responsible Commission and responsible Counsel behaved quite properly in requiring that the issues be determined by a Board of Inquiry. Section 41(4) was enacted to provide a basis for awarding costs to a respondent where certain special circumstances exist. That enactment did not place an unnecessary chill on the Commission in pursuing complaints before a Board of Inquiry to vindicate possible breaches of complainants' rights under the Code. Even if I could accept Mr. Hines's premise, Section 41(4)(a), as it relates to a vexatious complaint, was meant to discourage the Commission from pursuing a complaint for reasons that were substantially divorced from vindicating a complainant's rights under the Code. To impose a rule like that suggested by Counsel for the Respondents would be too heavy a burden on the Officer, on Counsel for Commission, and, through them, on the Commission.

89. Part of the claim of Counsel for the Respondent was that many steps in the proceeding were unnecessary in that they tended unnecessarily to lengthen the hearing. That is, the Commission should have known that there was no purpose in pursuing a groundless claim and that such actions were, in the circumstances, vexatious. Certainly, if the Commission persisted in the complaint when it knew or ought to have known that to do so was pointless, so that its actions could be regarded as vexatious, improper or unnecessary, there would be a basis for awarding costs under s. 41(4)(b). If that were the case, I would not be slow to award costs. My decision finds that the Commission did not pursue the complaint in a way that unnecessarily lengthened the hearing so as to impose a hardship on the Respondents, and there was no evidence of bad faith so as to show an ulterior purpose unrelated to the legitimate purposes of vindicating rights under the Code.

[90]. In denying this application, I wish to commend both Counsel. Their presentations were models of clarity and candour and, notwithstanding the sometimes highly charged atmosphere associated with this case, their behaviour was in accordance with the highest precepts of the profession.

9[1]. The length of this decision, while regrettable, is, I believe necessary in light of the less-than-clear decisions relating to the subject section. It was also necessary to deal with well presented and sophisticated arguments made by Counsel in a way that fully responded to their concerns.

9[2]. Part of the problem in dealing with s. 41(4) is that it somewhat obliquely deals with creating a regime for the award of costs in circumstances that appear to trouble the legislature. It would have been simpler and more illuminating to provide more explicit guidelines as is done in the enunciation of general principles relating to the exercise of discretion under s. 131 of the Courts of Justice Act to award costs as set out in s. 57.01(1) of the Rules of Practice. Some of those guidelines allow a court to take into account, in awarding costs, any party's conduct that was intended "to lengthen unnecessarily the duration of the proceeding" (s. 57.01(1)(e)). In addition, a court can consider "whether any step in the proceeding was, 'improper, vexatious or unnecessary,' or [was] (ii) taken through negligence, mistake or excessive caution" (s. 57.01 (1)(f)). The court can also consider "a party's denial of or refusal to admit anything that should have been admitted" (s. 57.01(1)(g)) . Such conduct would, perforce, impose undue hardship on a respondent if the conduct was that of the Commission. If the Commission's conduct calls for an award of costs against it in favour of a respondent, then whether the complaint was vexatious ought not to matter. Simply, the basis for awarding costs against the Commission is Commission's conduct. If I am wrong, then many highly regarded able Boards of Inquiry have apparently had more than their share of trouble trying to make sense of s . 41(4) . The extent to which they have had to do so absent adequate definitions of, for example, the meaning of "vexatious" means that examples abound, as cases are decided, of what is vexatious (or frivolous) without the touchstone of a definition. It is as if Boards were required to say, "I can not tell you what the word 'vexatious' means, but I know it when I see it." The result is that each Board, relying on admittedly unsatisfactory definitions, presumes that it is unnecessary to have a satisfactory one to identify what is "vexatious."

9[3]. That the problem is old can be seen from cases outside the Code. Law students, during training to think "like lawyers," soon stop worrying, when they study civil procedure, about the peculiar new meanings they are forced to adopt for such terms as "scandalous", "vexatious", "trivial" and "frivolous." A prime example is the word "vexatious" which is given an incomplete definition in Black's Law Dictionary: "without reasonable or probable cause or excuse." I have already shown that a claim or complaint that falls within the definition may nevertheless not be vexatious. The added element — the one that falls within the usual English definition of the word vexatious, which is essential for a finding that a proceeding or complaint is vexatious — is rarely identified as part of the definition although it may be defined, in a manner of speaking, by identifying certain conduct as "vexatious." Where a proceeding has been brought or continued and it lacks reasonable or probable cause, it will be vexatious when the evidence discloses that protagonists of the complaint did not act in good faith, but for an ulterior purpose like that identified in cases relating to vexatious proceedings in conventional civil litigation; in other words, that they acted to harass. Oddly enough, some conventional dictionaries have done a better job than Black's in defining "vexatious" even in relation to legal proceedings; here is but one example: "instituted without real grounds, chiefly to cause annoyance to the defendant": Webster's New World Dictionary - Third College Edition.

9[4]. In this case, none of the conduct identified by the Respondent was undertaken to cause annoyance to the Respondents. The Commission, if it behaves honestly and professionally, will very rarely be met with a cost order under s. 41(4).

Dated at Toronto this " 13th " day of " December " 1995.

" M.R. Gorsky " _____________________________ M.R. Gorsky -- Board of Inquiry