Barber v. Sears Canada Inc. (No. 4), 1995 CanLII 18163

Barber v. Sears Canada Inc. (No. 4)

1995-06-23

Ontario Board of Inquiry

Patricia Barber Complainant

v.

Sears Canada Inc. Respondent

Date of Complaint: December 6, 1988

Date of Decision: June 23, 1995

Before: Ontario Board of Inquiry, H.A. Bassford

Comm. Decision No.: 95-029

Appearances by: Susan Philpott, Counsel for the Commission

Mary Beth Currie, Counsel for the Respondent

COSTS — costs arising from human rights commission acting irresponsibly in pursuing complaint — costs arising from undue hardship experienced by respondent — COMPLAINTS — dismissal of complaint — complaint is trivial, frivolous, vexatious or made in bad faith — INTERPRETATION OF STATUTES — definition of "bad faith," "frivolous," "trivial" and "vexatious"

Summary: This is a decision on a motion by the respondent, Sears Canada Inc., that it be awarded costs against the Ontario Human Rights Commission in the matter of a complaint alleging discrimination because of disability.

The complainant Patricia Barber complained that the Sears store in the Pen Centre Mall in St. Catherine's, Ontario, was not accessible for persons who use wheelchairs. The original complaint was made in 1988. Between 1988 and 1992 renovations to the premises and changes to services were made in order to make the store more accessible. Ms. Barber contended that the discrimination continued even after these renovations because she still could not obtain independent access to the store, but was required to be reliant on employees of the store to assist her.

The Board of Inquiry found that while the lack of access to the Sears store constituted discrimination based on disability in 1988, and it required Sears to pay Ms. Barber $1,000 as compensation for this discrimination, the subsequent renovations were sufficient to cure the discrimination.

Costs can be awarded pursuant to s. 41(6) of the Ontario Human Rights Code where a complaint is dismissed, if that complaint is trivial, vexatious, or made in bad faith, or if in the particular circumstances undue hardship was caused to the person.

The Board of Inquiry concludes that the complaint was dismissed, though the complaint was upheld in part and an award was made. However, it also concludes that the complaint was not trivial, vexatious, or made in bad faith. Substantial evidence was required to determine whether on a balance of probabilities the renovations made to the Sears Canada store were sufficient to satisfy the Ontario Human Rights Code's prohibition against discrimination in access based on disability. In these circumstances, the Board of Inquiry cannot agree with the respondent's argument that the complaint was trivial, vexatious, or made in bad faith.

The motion for costs is dismissed.

[Ed. Note: See also decisions (1993), 1993 CanLII 16505 (ON HRT), 22 C.H.R.R. D/409 and (1994), 1994 CanLII 18417 (ON HRT), 22 C.H.R.R. D/415.]

Cases Cited

Barber v. Sears Canada Inc. (No. 2)(1993), 1993 CanLII 16505 (ON HRT), 22 C.H.R.R. D/409 (Ont. Bd.Inq.): 19

Barber v. Sears Canada Inc. (No. 3)(1994), 1994 CanLII 18417 (ON HRT), 22 C.H.R.R. D/415 (Ont. Bd.Inq.): 1

Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.): 22

Persaud v. Consumers Distributing Ltd. (No. 2) (1993), 1993 CanLII 16446 (ON HRT), 19 C.H.R.R. D/491 (Ont. Bd.Inq.): 11

Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Ont. Bd.Inq.): 11

Shreve v. Windsor (City) (No. 2) (1993), 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363 (Ont. Bd.Inq.): 22

Legislation Cited

Ontario

Human Rights Code, R.S.O. 1990, c. H.19, s. 41(4): 2

Authorities Cited

Black's Law Dictionary, 5th ed. (St. Paul, Minn.: West Publishing Co., 1979): 11

1I was appointed on October 19, 1992, by the Minister of Citizenship, the Honourable Elaine Ziemba, as a board of inquiry pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The Board was instructed to hear the matter of the complaint made by Patricia Barber on December 6, 1988, against Sears Canada Inc., alleging discrimination in facilities on the basis of handicap. There were fourteen hearing days, with the decision issued in April [sic] 1994 [1994 CanLII 18417 (ON HRT), 22 C.H.R.R. D/415]. At the end of the hearing concerning the merits of the matter, both counsel or the Commission and counsel for the respondent requested, and I agreed, that the question of costs could be argued, if necessary, after the decision was issued. A hearing concerning costs was requested, and took place on May 26, 1995. This is the decision on the matter of costs.

2The respondent's motion for costs is made pursuant to s. 41(6) [now 41(4)] of the Human Rights Code. That section reads as follows.

41(6) 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.

3There 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 ss. (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. I shall examine each test in turn.

Was the Complaint Dismissed?

4The Sears Canada Inc. store located at the Pen Centre Mall in St. Catharines offers goods to the public on two stories. Those customers who are unable to use the escalator must gain access to the second floor by means of a freight elevator. Access to the elevator requires summoning an employee, by means of a call bell located in the foyer area, who then operates the elevator between floors. The complaint alleged discrimination because the wait for the employee, the need for the employee to operate the elevator, and the physical conditions of the elevator did not respect the dignity of the complainant and thus violated the complainant's right to equal treatment with respect to services.

5Subsequent to receiving the complaint, Sears undertook extensive renovations of the elevator and foyer area, with consideration to safety, ease of access and esthetics. Staff were trained to respond quickly to the call bell and to provide pleasant service. The Ministry of Consumer and Commercial Relations classified the elevator as able to carry disabled persons under attendant control. All of these changes had been made at the time that the Commission requested the Minister to appoint the present Board of Inquiry.

6The Commission presented evidence and argument with respect to the situation both at the time of the original complaint and after the renovations were completed, requesting the Board to order the installation of a passenger elevator which did not require attendant control. The respondent did not contest the complainant's claims with respect to access by means of the freight elevator at the time that the complaint was made in 1988. However, it presented extensive evidence and argument to show that the renovations it undertook did accommodate the needs of the mobility impaired. Most of the extensive testimony and argument of the present case dealt with the question of whether the renovations did or did not accommodate the needs of the complainant which were occasioned by her disability.

7The decision was in two parts. First, I held that at the time of the original complaint the respondent did infringe the complainant's right to equal treatment with respect to services, and ordered general damages of $1,000 to be paid. Second, I held that the renovations had accommodated the complainant's needs, and that the respondent was in compliance with the Code.

8Ms. Currie argued that the focus of the case was upon the question of accommodation, and that the main question of the case was around the continued use of the elevator as it was after the renovations and the training of employees. The finding in the main part of the case was in favour [of] the respondent, and should be seen as a dismissal of the complaint.

9Ms. Philpott argued that there was only one question before the Board, which was whether or not the complainant had suffered unequal treatment in access and that the question begged a two-part answer because of the steps taken by Sears. In giving a two-part answer the Board did not dismiss the complaint, but rather it upheld a portion and dismissed a portion.

10On the whole I believe the reasoning of the respondent is preferable to that of the Commission with respect to the current question. The facts concerning access to the second floor of the Sears store at Pen Centre were very different in 1988 and in 1992. The course of the testimony shows that the complainant believed that the conditions in 1988 violated her right to equal treatment with respect to services, and that the different conditions of 1992 forward also violated her right to equal treatment with respect to services. In effect there are two complaints, one of which was upheld (and uncontested), and one of which was dismissed. With respect to the question of the main part of the case, it is therefore appropriate to ask whether ss. 41(6)(a) or (b) apply.

Was the Complaint Trivial, Frivolous, Vexatious, or Made in Bad Faith?

11It has become generally accepted that the definitions of "trivial," "frivolous" and "vexatious" as found in Black's Law Dictionary should be applied in interpreting the meaning and purpose of s. 41(6) (Pham v. Beach Industries Ltd.(1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008; Persaud v. Consumers Distributing Ltd. (1993), 1993 CanLII 16446 (ON HRT), 19 C.H.R.R. D/491). I shall also use the definition of "bad faith" in Black's in my determination of the question. Those definitions are as follows:

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 . . .

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.

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 a 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.

12Ms. Currie argued that Sears had cooperated throughout the Commission's initial investigation of the complaint. It acted in an open manner with the Commission and met on several occasions with the representative of the Commission. As is shown in the agreed statement of facts, representatives of Sears met with representatives of the Commission to discuss the outstanding complaint. At that meeting Sears proposed to obtain the cost of renovating the freight elevator in order to obtain a licence to carry passengers, and if the proposed renovations were viable, to proceed with the renovation. The parties agreed they would communicate with respect to the process of the renovations. This was done. At no time did anyone from the Commission indicate that the steps taken would not achieve compliance. The decision of the Board on the substance of the matter confirms that the steps taken by Sears did achieve compliance.

13When the Commission decided to refer the complaint to the tribunal it had before it the case summary of the human rights officer who investigated the present complaint. In that summary, the officer states, "The evidence suggests that the respondent has made the necessary changes to accommodate the complainant." The Commission also had a letter of April 20, 1992, from Sears supporting the officer's conclusion. So far as the respondent knows, these were the only two documents before the Commission.

14Ms. Frazee, who was Chief Commissioner at the time that the Commission determined that the present case should be referred to a tribunal, testified in cross-examination that this case "was dealt with by the full Commission, because it raises significant policy questions for the Commission" (Transcript, Vol. 3, pp. 72–73).

15Ms. Currie concluded that given (a) the way the Commission had proceeded in working with Sears, (b) the facts in existence at the time of the Commission's decision, and (c) the officer's case summary, the case with which the Commission proceeded had absolutely no foundation in fact. After the changes [were] made there was no issue in dispute. Since there was no rational factual basis upon which the Commission could order that a tribunal be appointed, they would appear to have proceeded in a trivial, frivolous and vexatious manner.

16Furthermore, in the absence of any factual basis for proceeding, and in light of Ms. Frazee's testimony, Ms. Currie submitted that the Commission must have proceeded purely on public policy grounds. A bad faith decision is one based upon improper or ulterior motives, which is the case here. She therefore concluded that the Commission may have acted in bad faith.

17Ms. Philpott's argument in reply was that the Commission did not present an untenable case. She noted that the respondent felt it necessary to call evidence to answer the Commission's case. The Commission's evidence addressed each of the factors taken into account by the Board in the analysis of the facts with respect to unequal treatment. It presented evidence concerning the length of the wait, the physical nature of the elevator, and whether assisted access is dignified treatment. On each point the Board considered the evidence, and decided on balance of probability with respect to each point. The Board found that long waits were sufficiently unusual not to constitute unequal treatment. The Board found that witnesses were split with respect to the two other issues, and that on balance the Commission did not meet the burden of proof. All of this demonstrates that this was not a cut and dried case, and that there was not a consensus on evidence or legal argument.

18The 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.

19I do not in fact know just what materials the Commission had before it when it decided to request a tribunal. In his evidence-in-chief, for example, Mr. Barber could not recall whether Mrs. Barber had made a submission. He did testify, however, that she still had waits of five to ten minutes after the renovations were completed, and still felt like a second class citizen when she used the elevator. In any case, in my interim decision on preliminary motions of March 14, 1993 [1993 CanLII 16505 (ON HRT), 22 C.H.R.R. D/409], I noted that [at D/414, para. 27] the Code "does not suggest that the Commission must abide by the recommendation of its investigating officer; it may draw different conclusions from the report than does the officer." That observation is relevant here.

20If there were no grounds for the different conclusions drawn by the Commission, then there might well be a justified holding that they were proceeding in a trivial, frivolous or vexatious manner. But, as Ms. Philpott argued, the Commission was able to provide relevant and substantial evidence in support of its conclusion. 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.

21The basis for the respondent's conclusion that the Commission acted in bad faith is that the Commission acted purely on public policy grounds. The above reasoning shows that this proposition has not been made out, because the Commission did demonstrate factual grounds for its position. I therefore hold that the complaint has not been shown to have been made in bad faith.

Was Undue Hardship Caused to the Respondent?

22Ms. Currie based her argument for undue hardship upon Shreve v. Corporation of the City of Windsor (unreported Ont. Bd.Inq., May 25, 1993 [now reported 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363]) and Ouimette v. Lily Cups Ltd.(1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.). In Shreve the Board noted that while the costs of defending against a human rights complaint will not normally constitute undue hardship to a corporation, in certain circumstances it will do so. The Board noted that one of these times may be when the issues involve matters of first impression involving questions of public interest. The Board in Ouimette commented that if a case is a "test case," "it would seem that the facts incident to establishing the complaint would have been well developed" (D/22 [para. 10]). Ms. Currie went on to argue that private sector employers should not have to bear the costs of what are purely public policy matters, and that to force them to do so is undue hardship. She concluded that in this case there was no basis in fact for the Commission to proceed, so the respondent has been made to suffer undue hardship.

23The principle on which Ms. Currie is arguing here has some prima facie merit and would be worth exploring. However, my decision with respect to the second question above was that the Commission in the instant case has not been shown to have proceeded purely as a matter of public policy, and that there was a basis in fact for them to proceed. Accordingly, I hold that the question at hand should be answered in the negative, and that undue hardship has not been caused to the respondent.

DECISION

24The criteria for applying s. 41(6) of the Code have not been met in the present case. Accordingly, the motion of the respondent that costs be assessed against the Commission is denied.