Grace v. Mercedes Homes Inc. (No. 2)

1996-01-31

Ontario Board of Inquiry

David Grace and Terry Belford Complainants

and

Ontario Human Rights Commission Commission

v.

149468 Canada Inc. (Mercedes Homes Inc.), Gaetano D'Addario and Robert Kopf Respondents

Date of Complaint: June 5, 1992

Date of Decision: January 31, 1996

Before: Ontario Board of Inquiry, H. Albert Hubbard

Decision No.: 96-005-C

Appearances by: Alan D'Silva, Counsel for the Commission Caroline Rowan, Counsel for the Respondents Gaetano D'Addario, on his own behalf

COSTS — costs arising from bad faith of complainant and human rights commission acting irresponsibly in pursuing complaint — costs arising from undue hardship experienced by respondent — costs awarded on a party-party basis — costs awarded on a solicitor-client basis — calculation of costs — JURISDICTION — jurisdiction to award costs — COMPLAINTS — complaint is trivial, frivolous, vexatious or made in bad faith — Interpretation of statutes — case law as an aid to interpretation — definition of "bad faith", "frivolous", "trivial", "undue hardship" and "discretion"

Summary: This is a decision regarding an award of costs to a respondent under s. 41(4) of the Ontario Human Rights Code. It follows the dismissal of a complaint in which David Grace and Terry Belford alleged that they were discriminated against by their landlord because of their sexual orientation.

Section 41(4) of the Code provides that when a complaint is dismissed, and the Board of Inquiry finds that the complaint was trivial, frivolous, vexatious or made in bad faith or that it caused undue hardship to the person complained against, the Board may order the Commission to pay to the respondent "such costs as are fixed by the Board."

The Board of Inquiry finds that pursuant to this section, costs can be awarded where a complaint is found to have been made in bad faith, whether it is the complainant or the Commission that has acted in bad faith. The Board of Inquiry rejects the Commission's argument that costs can only be awarded against the Commission when it has acted in bad faith, or been irresponsible in some way. Irrespective of the conduct of the Commission, an award can be made if a complainant acted in bad faith. If there is a finding of bad faith, nothing further is required to allow the Board to order costs.

The Board rules that the complaints in this case were made in bad faith by the complainants because they were untruthful regarding matters central to the case and they engaged in a campaign of publicity in order to hurt and embarrass the respondents. Since the complaints lacked reasonable or probable cause, they were also vexatious, and because of the lack of evidence necessary to prove the allegations, of which the Commission was, or ought to have been aware, they were also trivial and frivolous. Even if the complaints were not trivial, frivolous or vexatious, they caused an undue hardship to the respondent.

Finally, if costs can only be awarded against the Commission because the Commission acted in some way irresponsibly, the Board of Inquiry finds that the Commission was irresponsible because it pursued the allegation that the eviction notice issued to Grace and Belford was discriminatory even though there was a court judgment indicating that it was not, and it did not investigate properly an incident that was pivotal to the case.

The Board of Inquiry orders the Commission to pay to Mr. G. D'Addario his legal costs on a party and party basis, together with all legitimate disbursements in that regard. If the parties are unable to agree to the amount so ordered, the Board of Inquiry retains jurisdiction to receive submissions.

[Ed. Note: See also (1995), 1995 CanLII 18162 (ON HRT), 23 C.H.R.R. D/350 (Ont. Bd.Inq.).]

Cases Cited

Canada (Treasury Board) v. Robichaud, 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, 8 C.H.R.R. D/4326: 14

Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes, 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, 8 C.H.R.R. D/4210: 14

Findlay v. Mike's Smoke and Gifts (No. 5) (1994), 1994 CanLII 18437 (ON HRT), 21 C.H.R.R. D/42 (Ont. Bd.Inq.): 16

Grace v. Mercedes Homes Inc. (No. 1) (1995), 1995 CanLII 18162 (ON HRT), 23 C.H.R.R. D/350 (Ont. Bd.Inq.): 1, 37, 60

Hyman v. Southam Murray Printing (No. 3) (1984), 1984 CanLII 5039 (ON HRT), 5 C.H.R.R. D/2254 (Ont. Bd.Inq.): 22

Jerome v. DeMarco (No. 3) (1993), 1993 CanLII 16443 (ON HRT), 20 C.H.R.R. D/15 (Ont. Bd.Inq.): 6, 18, 21, 26, 34, 42, 62

Johnson v. East York Board of Education (No. 2) (1991), 1991 CanLII 13131 (ON HRT), 17 C.H.R.R. D/175 (Ont. Bd.Inq.): 14, 25, 29, 73, 76, 110, 114

Mercedes Homes v. Grace (November 3,1993), File Nos. 92-LT-42090 and 92-LT-43302 (Ont. Prov.Ct.): 39

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 14

Ontario (Liquor Control Board) v. Ontario (Human Rights Comm.) (1988), 1988 CanLII 8926 (ON HCJDC), 9 C.H.R.R. D/4868 (Ont. Div.Ct.): 15

Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.): 22, 65, 68

Parks v. Christian Horizons (No. 2) (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171 (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, 21, 33, 41

Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Ont. Bd.Inq.): 22, 26, 64, 70

Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, 124 D.L.R. (3d) 193, 2 C.H.R.R. D/468: 13

Shreve v. Windsor (City) (No. 2) (1993), 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363 (Ont. Bd.Inq.): 68

Skidmore v. Blackmore (1995), 1995 CanLII 1537 (BC CA), 122 D.L.R. (4th) 330, 2 B.C.L.R. 203, [1995] 4 W.W.R. 52, 55 B.C.A.C. 191 (C.A.): 75, 88, 90, 93

Wellington v. Brampton (City) Community Services Dept. (No. 2) (1995), C.H.R.R. NP/96-146 (Ont. Bd.Inq.): 16, 18, 26, 64, 67

Legislation Cited

Ontario

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

s. 2(1): 1

s. 2(2): 1, 35, 69, 92

s. 9: 1

s. 34(1): 4

s. 36(1): 4, 12, 43, 47, 50, 57, 91

s. 41: 13

s. 41(4): 4, 10, 17, 20, 24, 32, 65, 73, 78, 87, 96, 111, 117

s. 41(4)(a): 6, 21, 29, 61, 68, 71

s. 41(4)(b): 27, 70

Authorities Cited

Black's Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing Co., 1990): 12, 23, 64, 66, 70

Sullivan, Ruth, Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994): 16

1. INTRODUCTION

1The complainants, who were at all relevant times tenants in an apartment building owned by a company owned in turn by the respondent Mr. D'Addario, alleged in their complaints (as amended) that their rights to equal treatment with respect to the occupancy of accommodation without discrimination on the basis of sexual orientation and of handicap had been infringed in contravention of ss. 2(1) and 9 of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). They alleged that, having been the victims of a "gay bashing" in the lobby of that apartment building, the manner in which the respondents dealt with that incident was discriminatory in that because of the complainants' sexual orientation the respondents failed to take steps they ought to have taken (having refused to evict the alleged perpetrator's girlfriend who was also a tenant). They also alleged that the respondents discriminated against them for the same unlawful reason by serving upon them an eviction notice for non-payment of rent together with an accompanying homophobic letter. It was also contended by the complainants, but not by the Commission, that the conduct of the superintendent (the respondent Mr. Kopf) between the filing of these complaints and their moving away was harassment because of sexual orientation and they applied (unsuccessfully) to amend their complaints by adding this alleged contravention of s. 2(2) of the Code as a ground. Although the Commission did not join in that motion to so augment the complaints, counsel for the Commission maintained that the conduct of Mr. Kopf was relevant as evidence of a character similar to the conduct complained of as discriminatory. These allegations and my findings of fact in respect of them are fully dealt with in my decision of June 7, 1995 (the "earlier decision") [reported 1995 CanLII 18162 (ON HRT), 23 C.H.R.R. D/350] dismissing the complaint at the conclusion of which it is stated that [D/384, paras. 176–77]:

In view of the understanding reached with the parties in that regard, I will remain seized of this matter in order to hear evidence and argument as to whether each or any of the respondents ought to be awarded costs on the grounds either that the complaints were trivial, vexatious or made in bad faith, or that in the particular circumstances undue hardship was caused to such respondent, as provided for by s. 41(4) of the Code.

In the event that within one month of their having received this decision the respondents do not advise me of their intentions in this regard, the hearing into these matters shall be deemed to have ended. However, if within that time the respondents advise that they wish to proceed with the hearing of the issue as to costs, appropriate arrangements will be made in due course with respect to hearing dates.

2The Board of Inquiry having been advised accordingly by the respondents, it was agreed that the hearing would resume for such purposes on September 11, 1995. However, owing to a series of requests by counsel for the Ontario Human Rights Commission (the "Commission"), it was not until November 17, 1995, that the thrice-postponed hearing of evidence and argument regarding costs was finally held.

3Although amendments to the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code') made since the complaints herein were filed have altered their numbering, the form and substance of the provisions relevant to the matter of costs remain unchanged and for the sake of convenience were referred to by counsel, and so by me in this decision, in accordance with their present numbering.

4In addition to s. 41(4) of the Code, which confers a discretion upon a board of inquiry to award costs to a respondent in certain circumstances, references were made in the course of argument to ss. 34(1) and 36(1) as well. The provisions in question read in part as follows:

34(1) Where it appears to the Commission that,

(b) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith; ...

the Commission may, in its discretion, decide to not deal with the complaint.

36(1) Where the Commission [fails to] effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may [request the Minister to appoint a board of inquiry and] refer the subject-matter of the complaint to the board.

41(4) Where, upon dismissing a complaint, the board of inquiry finds that,

(a) the complaint was trivial, frivolous, vexatious or made in bad faith; or

(b) in the particular circumstances undue hardship was caused to the person complained against,

the board of inquiry may order the Commission to pay to the person complained against such costs as are fixed by the board.

5It was submitted on behalf of the respondents that the complaints herein were trivial, vexatious and frivolous, that they were made in bad faith, and that in the particular circumstances of the case undue hardship was caused to these respondents, and particularly to Mr. D'Addario who gave evidence both as to the fact of hardship and as to its financial consequences. Before dealing with that evidence, however, I will examine the arguments of the respondents and of the Commission regarding the bases upon which it is contended that my discretion to award costs rests and ought to be exercised.

2. THE DISCRETION TO AWARD COSTS

(a) Principal Arguments

6The respondents' arguments in relation to s. 41(4)(a) focussed primarily on the issue of bad faith, with which I will deal with before addressing the question whether the complaint was trivial, frivolous or vexatious. In this regard, it was submitted that if either a complainant or the Commission acted in bad faith in making or pursuing a complaint then that complaint should be found to have been made in bad faith within the meaning of the section, thereby giving rise to a discretion in the board of inquiry to award costs to the person complained against. In support of that position counsel for the respondents quoted the following passages from the decision of the Board of Inquiry in Jerome v. DeMarco (No. 3)(1993), 1993 CanLII 16443 (ON HRT), 20 C.H.R.R. D/15 at D/16, paras. 6 and 7:

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.

Support for this conclusion can be found in Pham v. Beach Industries Ltd.(1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Ont. Bd.Inq.) ([at D/4022] para. 31796), wherein the Board states:

... if the complaint contained allegations that were known to the complainant or the Commission to be false, then that complaint would certainly seem to have been made in bad faith.

Further, in deciding not to award costs in Hyman v. Southam Murray Printing (1984), 1984 CanLII 5039 (ON HRT), 5 C.H.R.R. D/2254 (Ont. Bd.Inq.), the Board states ([at D/2267] para. 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.

For the present purposes, the contrary of this is to be noted: that if the complaint had been brought forward in bad faith [by the complainant] an award of costs may be appropriate. [Parenthetical observation added.]

7After pointing out that the Board in Jerome had gone on to observe (at D/22, para. 63) that while "an untruth on some points need not point to bad faith, a lack of veracity on a central matter does constitute bad faith", counsel for the respondents listed a number of untruths on the part of the complainants relating to matters she asserted were central to the validity of their complaints. They were untruthful when they maintained that they did not know that the letter of May 7, 1992, that accompanied their eviction notice referred to inappropriate conduct on their part, and they were untruthful in their evidence regarding the superintendent, which evidence I was quoted as having said amounted to an accusation that Mr. Kopf was "a bribe-taking, homophobic gay basher who ... they claim to have assaulted them, to have threatened to kill them, to have followed them around, and to have hurled sexually derogatory names at them" (decision of June 7, p. 32 [D/359, para. 50]). Although not the sole basis upon which it was suggested by her that a discretion to order costs arises in this case, in counsel's submissions these untruths are of the kind referred to in Jerome and establish that the complaints were made in bad faith within the scope and meaning of s. 41(4)(a) of the Code.

8Counsel for the Commission disagreed. He took the position that a complaint cannot be found to have been made in bad faith unless the Commission acted in bad faith. He pointed out that, whereas in a civil action the successful party (whether plaintiff or defendant) is normally awarded costs to be paid by the other party, neither the respondents nor the complainants in a hearing under the Code are susceptible to having to pay costs. Since it is only the Commission that faces this risk, surely its liability must be linked to its own conduct exclusively. Thus, in his submission, the bad faith required to confer this discretion on a board must be that of the Commission, if not directly, then at least indirectly in that the Commission had actual or constructive knowledge of the bad faith of the complainants.

9Counsel for the Commission also maintained that, even if the bad faith of the complainants standing alone is sufficient to trigger the discretion accorded by the section, since in his view my preference for the evidence of the respondents over that of the complainants regarding these particular matters does not establish their lack of veracity regarding anything central to their complaints, such untruthfulness does not amount to bad faith sufficient to satisfy the provision. He submitted further that, were I to find that the complaints were made in bad faith because of such untruthfulness, I could still not order the Commission to pay costs unless I found that it had acted irresponsibly — which, in his view of course, it had not. In regard to these issues the following exchange occurred during the course of his argument (as can be heard on Side B of Tape No. 3 of the recording of the November 17 hearing, running from counter no. 302 to no. 325 as shown on my transcriber):

Chairperson: What if it were found as a fact that the complainant had acted in bad faith? Is the Commission exculpated because it did not know that there was bad faith so that costs don't have to be paid?

Mr. D'Silva: Yes, and it's a very good point Professor Hubbard. Most cases have looked at this issue from whether the Commission has acted in bad faith. In 1993, Professor Cumming in a case called Persaud v. Consumers Distributors [sic] (No. 2) [(1993), 1993 CanLII 16446 (ON HRT), 19 C.H.R.R. D/491], which is in the material — I'm going to take you to it — set out a test when the Commission has not acted in bad faith but the complainant has. The test was essentially, should the Commission have known or reasonably have known that the complainant was acting in bad faith. And I'm going to take you to that decision, but my submission on that point is that you should consider it from the Commission's point of view, as most boards have. It is the Commission who pays costs, and it's the Commission who have carriage of this matter, and if you don't accept that approach and if you also find bad faith on behalf of the complainant that you accepted the test adopted by Professor Cumming (now Justice Cumming) in the Persaud case and determined whether the Commission could reasonably have known that the complainants were acting in bad faith.

10I agree with counsel for the respondents that the bad faith of a complainant may be sufficient to confer the s. 41(4) discretion, and I find that these complainants acted in bad faith through their untruthfulness regarding a matter central to the case presented by the Commission. Moreover, while I do not subscribe to the view that a finding of irresponsibility on the part of the Commission is a necessary condition for the exercise of that discretion, for reasons to which I will come, I find as a fact that the Commission was not without fault in the pursuit of these complaints.

(b) Bad Faith: Analysis of Law

11As to the legal issue, before turning to the "test" laid down in Persaud [Persaud v. Consumers Distributing Ltd. (No. 2)(1993), 1993 CanLII 16446 (ON HRT), 19 C.H.R.R. D/491], I must say that I do not find particularly apt the drawing of analogies between proceedings under the Code and judicial proceedings for damages. Indeed, the two processes are sufficiently dissimilar as to suggest the need for different rationalizations regarding liability for costs associated with them.

12In a civil action, the awarding of costs is not made to depend on a finding that the plaintiff's claim (or the defendant's resistance to it) was trivial, frivolous or vexatious or made in bad faith, or that, alternatively, it wrought undue hardship in the circumstances. As a "pecuniary allowance made to the successful party (and recoverable from the losing party) for his expenses in prosecuting or defending a suit" (Black's Law Dictionary) costs are awarded virtually automatically in civil litigation. The absence in the Code of any financial disincentive by way of awards of costs against complainants not only removes barriers to the brining of legitimate claims but encourages the making of complaints in borderline situations by persons who have little if anything to lose from doing so, some of which complaints turn out to be false. Hopefully, most spurious claims are weeded out in the process of investigation and of serious assessment required to be undertaken before the Commission's own discretion to refer the subject-matter to the board of inquiry arises under s. 36(1). In any case, complaints that are so referred are then carried forward by the Commission in the public interest and with potentially ruinous consequences for respondents who often lack the resources to adequately defend themselves. And, although entitled to separate (and sometimes, as here, publicly funded) legal representation the result of which may be (as it was here) primarily to lengthen the proceedings at the respondent's but not the complainant's expense, the complainant's interests and claim for damages are usually left exclusively in the hands of the Commission to be pursued at public expense.

13The Commission represents the public for whose peculiar advantage the Code preempted the evolution of a common law right of an aggrieved individual to an action for damages (Board of Governors of Seneca College v. Bhadauria(1981), 1981 CanLII 29 (SCC), 124 D.L.R. (3d) 193 [2 C.H.R.R. D/468]), but who is thereby enabled to seek damages and other relief in a different process involving no risk as to costs. Indeed, while one who deliberately institutes a groundless criminal prosecution may be liable to pay damages (and not just costs) for the tort of malicious prosecution, a complainant who maliciously causes a human rights process to be carried forward faces no financial responsibility for such harmful misconduct. If as a matter of social policy, and in the persona of the Commission (which, ex hypothesi, is itself innocent of wrongdoing), the public absorbs costs generated by bad-faith complainants, would it be unbearably inconsistent with the premises upon which rests liability for the costs of civil litigation to suggest that the public, through that same persona, should pay the costs of innocent respondents victimized by the process it imposes on them? And, to the extent that the Commission is embarrassed, or its internal budgetary arrangements disrupted by having to pay costs, it will be encouraged to scrutinize complaints more closely and to exercise its own discretion under s. 36(1) with greater deliberation and care than I believe was shown in this case. In my view, the threshold conditions listed in s. 41 of the Code afford a reasonable prima facie limitation upon the Commission's liability to pay costs, and no further limitations ought to be imported from the arena of civil litigation to the frustration of the just expectation of respondents that they, too, will be treated fairly.

14It is clear that in general the Code is to be interpreted liberally and, one would have supposed, as much in relation to the rights and expectations of respondents as of complainants. Support for the taking of a broad view of the Code will be found in numerous human rights tribunal decisions, including the decision in Johnson v. East York Board of Education (No. 2)(1991), 1991 CanLII 13131 (ON HRT), 17 C.H.R.R. D/175, which clearly indicates that such an approach is to be taken for the benefit of respondents as well as of complainants; and it did so in the context of rejecting the narrow view of the range of costs that may be ordered that the Commission was urging upon it. The Supreme Court of Canada has expressed the same view in a number of important decisions that are also referred to in the Johnsoncase: Robichaud v. Canada (Treasury Board)(1987), 1987 CanLII 73 (SCC), 8 C.H.R.R. D/4326, Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. (1985), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102 at D/3105 (S.C.C.); Action travail des femmes v. CN (sub nom. Canadian National Railway Co. v. Canada (Canadian Human Rights Commission)) (1987), 1987 CanLII 109 (SCC), 8 C.H.R.R. D/4210. In O'Malley (supra, at D/3105), the Supreme Court said such legislation must be given "an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary — and it is for the courts to seek out its purpose and give it effect". And in Action travail des femmes Chief Justice Dickson said that (at D/4224, para. 33238):

Human rights legislation is intended to give rise, amongst other things, to individual rights of great importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize these rights and to enfeeble their proper impact.

15However, whether such statements made in relation to "rights capable of enforcement in a court of law" are applicable in the present context is doubtful in light of the following statement made by way of an obiter dictum in the decision of the Divisional Court of Ontario in Ontario (Liquor Control Board) v. Ontario (Human Rights Commission)(1988), 1988 CanLII 8926 (ON HCJDC), 9 C.H.R.R. D/4868 at D/4875, para. 37674:

The rules 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 questions of costs.

16That statement was referred to in Findlay v. Mike's Smoke and Gifts (No. 5)(1994), 1994 CanLII 18437 (ON HRT), 21 C.H.R.R. D/42, and again in Wellington v. City of Brampton (unreported; Ont. Bd. (M. Gorsky), December 13, 1995). In Wellington, after referring to Driedger on the Construction of Statutes (3d ed., R. Sullivan) as well as the L.C.B.O. case, the Board concluded (at p. 71, para. 74, under the heading "Discussion and Decision"), as follows:

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). [Note: the paragraph numbering in Wellington is not continuous but is done separately under the various headings.]

17Surely, when stating that "the rules of liberal interpretation to carry out the objects of the Code ... do not apply to ... questions of costs", the Divisional Court was not blowing hot and cold at the same time, and it would seem fair to assume that s. 41(4) is not to be interpreted narrowly when considering the interests of respondents, but broadly when contemplating those of the Commission. In my submission, reading into a statutory discretion conditions precedent either to its existence or to its exercise requires "overlooking the words used" in the section and constitutes an adventuresome indulgence in purposive interpretation. If a broad interpretation is permitted then, for reasons already expressed, I see no reason why it should lead to the conclusion that, regardless of the circumstances of the case, the "innocence" of the Commission confers upon it an immunity from liability for costs. And if a liberal construction is impermissible, then I suggest that the clear wording of the section leads to the conclusion that where any of the conditions set out in paras. (a) or (b) are met, then costs may be awarded against the Commission, however blameless it might have been. Whether a board will order an "innocent" Commission to pay costs, however, is another matter, and it is one that must be left to the board's discretion to be exercised in accordance with its own judgment and good conscience in the circumstances of the case.

18It may be noted in passing that the Board in Wellington, which case was not argued before me, appears to reject the view taken in Jerome that where a complaint was made in bad faith it is conceivable that the circumstances of the case may make it appropriate to order an "innocent" Commission to pay costs. After referring to para. 6 of the decision in Jerome (quoted, supra) the Board in Wellington said (at p. 55, para. 36, under the heading "Discussion and Decision") that:

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 was correct, then the Commission could behave completely responsibly, have done an impeccable job investigating and prosecuting 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, para. 7: "... if the complaint had been brought forward in bad faith, an award of costs may be appropriate". [Emphasis in original.]

19Of course, the Board in Jerome did not say, as this passage from Wellington seems to suggest, that even where the Commission's conduct was untainted it should have to pay costs "because of the behaviour of the complainant". Rather, the Board in Jerome simply states that where the complaint is made in bad faith the Commission may have to pay costs in an appropriate case. The section provides that "where ... the complaint was ... made in bad faith ... the board of inquiry may order the Commission" to pay costs; and if the complainant made the complaint in bad faith, then it is one that was made in bad faith and the Board has an undeniable discretion the exercise of which it must consider regardless of how unblemished the Commission's behaviour may have been. How it exercises it, whether affirmatively or negatively, is another matter. But, just as the Board in Jerome cannot be heard to say (and, indeed, did not say) that, regardless of the circumstances, an "innocent" Commission must always pay costs where the complaint was made in bad faith, so, too, the Board in Wellington cannot be heard to say (as it certainly appears to say) that, regardless of the circumstances, the Commission's "innocence" confers upon it an immunity from paying costs. Towards the end of its decision in Wellington the Board, which was concerned primarily with the meaning of the term "vexatious" in the context of s. 41(4), concludes that (at p. 72, para. 76, under the heading "Discussion and Decision"):

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.

20No authority for that view is to be found either in s. 41(4) itself or elsewhere in the Code, and the Board in Wellington appears to have been relying simply on a small number of board of inquiry decisions in which the point was not fully addressed and to which I will come presently.

21I agree entirely with the statement already quoted from Jerome that "... the language of the section is clear as written and does not refer only to bad faith on the part of the Commission", and there is nothing to the contrary in Persaud, supra. The Board in that case did not conclude that a complaint cannot be found to have been made in bad faith within the meaning of s. 41(4)(a) unless the Commission had acted in bad faith either directly or, through knowledge (actual or constructive) of the complainant's bad faith, indirectly. Quite the contrary. Professor Cumming's comments in Persaud have to do not so much with the circumstances required to be found in order to give rise to the discretion to award costs as with the circumstances which in his view warrant its exercise after it has been found to exist. What Professor Cumming said (at D/494, paras. 13 and 14) was that:

... I make it clear in my decision that the complaint was made in bad faith, and this was known to the complainant Persaud [but not the Commission] all along. The question that must then be addressed is whether the Commission performed a complete and proper investigation of the facts 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 [but that] should the Commission be found to have performed its investigation with reasonable care, costs should not be awarded.

The Commission should not be penalized for an unjustifiable claim advanced in bad faith by a complainant brought to the board of inquiry, where there is no fault on its part. [Parenthetical observations added.]

22Then, having dealt with two decisions in which costs were awarded against the Commission which was to have acted irresponsibly (Pham [Pham v. Beach Industries Ltd.(1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008] and Ouimette v. Lily Cups Ltd.(1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19) and two in which costs were denied because of the absence of such irresponsibility (Hyman [Hyman v. Southam Murray Printing (No. 3)(1984), 1984 CanLII 5039 (ON HRT), 5 C.H.R.R. D/2254] and Parks v. Christian Horizons (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171, Professor Cumming makes the following statement (D/494, para. 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 made in bad faith.

23With the greatest respect, I find nothing in the wording of the section that dictates any specific criterion upon which the discretion, once properly found to exist, is to be exercised, and Professor Cumming offers no analysis of that provision in explanation as to why he so interprets it. In embarking upon such an analysis it is convenient to begin with the meaning of the term "discretion", the following definition and explanation of which is found in Black's Law Dictionary :

Discretion: Power or privilege of the court to act unhampered by legal rule ... When applied to public functionaries, discretion means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment and conscience of others. This discretion undoubtedly is to some extent regulated by usage, or, if the term is preferred by fixed principles. But by this is to be understood nothing more than that the same court cannot, consistently with its own dignity and with its character and duty of administering impartial justice, decide in different ways two cases in every respect exactly alike. The question of fact whether the two cases are alike in every color, circumstance and feature is of necessity to be submitted to the judgment of some tribunal.

24The words "may order" indicate that a board's power under s. 41(4) to order costs is discretionary and that, therefore, it may or may not be exercised depending upon the circumstances of each case as it arises. But it does not follow, as the passages I have quoted from Persaud seem to suggest, that the discretion is not to be acted upon unless exceptional circumstances so require. In the absence of any statutory direction one way or the other, it would seem just as logical to suppose that the discretion is one that is expected to be exercised unless some exceptional circumstance (such as the respondent's own conduct during the course of the proceedings) suggests otherwise. In this regard, it must be stressed that respondents are not entitled to costs automatically upon the dismissal of a complaint but may only be awarded them if, as well, the complaint was trivial, frivolous, vexatious or made in bad faith, or they have suffered undue hardship in the particular circumstances of the case. Thus, it seems to me that we are not bereft of direction and that the purpose of the Code as found in its preamble and as interpreted by the courts, together with the very wording of the section in the context I have described when commenting on the dissimilarities between civil litigation and human rights proceedings, indicates that prima facie the discretion ought to be affirmatively exercised. Surely, when the respondent not only wins, but the circumstances bring the case within the scope of paras. (a) or (b), one should ask, not whether there is some additional wrongdoing or prejudice to the respondent to justify making the discretionary order, but whether there is some circumstance why it should not be made despite the iniquitous character of the complaint or other particular circumstances causing undue hardship.

25In assessing the meaning, purpose and scope of s. 41(4) it should be borne in mind that the exercise of the discretion does not involve simply a decision whether to award costs or not, but one as well as to the range of costs appropriately to be fixed. In my view, it is with respect to the latter aspect of the discretion that regard may properly be had to circumstances beyond those that by force of the section itself bring the discretion into existence. On the one hand, a respondent's reprehensible conduct may justify a refusal to fix costs even on a "party and party" basis so that, while the discretion's existence is not denied on a basis extraneous to the section (such as the Commission's lack of responsibility), there is a refusal to exercise it affirmatively. On the other hand, the conduct of the other parties (such as the Commission's irresponsibility, or the kind of erratic behaviour exhibited by the complainant in the Johnson case, supra) may justify awarding legal costs on a "solicitor and client" basis as well as other kinds of costs associated with the proceedings. But I am of the view that the "innocence" of the Commission is not per se a compelling reason to deny a totally blameless respondent costs on at least a party and party basis where a condition set out in s. 41(4) is established. With all respect, it seems to me that it would be improper to require innocent respondents to scale artificial barriers consisting of prejudicial circumstances in addition to those set out in the Code in order to reach a safe plateau from which to plead for the exercise of that discretion. Incidentally, it might be noted that in those cases that have referred to the Commission's irresponsible behaviour in support of a decision to make an order, costs were awarded on a solicitor and client basis and, in some, for other items as well. Thus, they may be read not as requiring irresponsible behaviour for the making of the order per se, but for fixing costs beyond those assessable on a party and party basis.

26It was found in both Pham and Jerome, supra, that the bad faith of the complainant is sufficient to impart the discretion; and, indeed, Professor Cumming found as a fact that the complaint in Persaud was made in bad faith precisely because the complainant was acting in bad faith. That finding would appear to have satisfied in his view the first of the two criteria he articulates, thereby conferring upon him the discretion in question. However, while he chose not to exercise that discretion because (as he indicates in paras. 14 and 17 there was no "fault" or "irresponsibility" on the part of the Commission, and while other boards (depending on the exact circumstances of the case before them) may be similarly disposed (as in Wellington, supra), the provision does not expressly proclaim, nor does it seem to me to require by necessary intendment, the second criterion to which he alludes — particularly as he then narrowly defines it by tying it to awareness "that the complaint was trivial, vexatious, frivolous or in bad faith".

27In my view, not only does the proper interpretation of s. 41(4) not require the apparently inflexible second criterion that has been suggested, but the specific formulation of it seems to me to be inconsistent with that provision. Paragraphs (a) and (b) of the section are alternative bases upon which the discretion rests. The board may order the Commission to pay such costs as it fixes provided either that the complaint was trivial, vexatious, frivolous or made in bad faith, or (which is to say, even if not trivial, vexatious, frivolous or made in bad faith) undue hardship was caused to the person complained against in the particular circumstances. While these "particular circumstances" must be such as to have caused undue hardship in the opinion of the board in order to evoke its discretion to make an order, para. (b) must be totally redundant unless it contemplates that the "particular circumstances" in question may be other than the trivial, vexatious, frivolous or bad faith character of the complaint. Yet, according to the second criterion set specifically by Professor Cumming, an award of costs could never be made unless, inter alia, not only was the complaint trivial, vexatious, frivolous or made in bad faith (in which event s. 41(4)(b) would be otiose), but was so affected to the knowledge, actual or constructive, of the Commission.

28Since it is but a restatement of the text of the provision, the first of the "two criteria" set out in this passage of Persaud reflects the alternative character of the jurisdictional bases for the discretion as clearly provided therein; but the "second criterion" relating to its exercise fails to do so. Whether its discretion arises out of para. (a) or para. (b), once so clothed the board would be required by Professor Cumming to move on to the second criterion, which is couched in terms purporting to make its application mandatory. Hence, even if the so-called first criterion were satisfied in that the jurisdiction to make the order arose exclusively from the application of para. (b), the second criterion must nevertheless be met as well, making it necessary to determine whether the complaint was trivial, vexatious, frivolous or made in bad faith (which clearly cannot be so where jurisdiction depends exclusively on para. (b) of the section), because "in exercising the board's discretion [whatever its foundation] it must be determine 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 made in bad faith". Thus, this curious criterion appears to deprive s. 41(4)(b) of any scope or purpose: it is unnecessary where the complaint is trivial, vexatious, frivolous or made in bad faith, and it cannot be applied where it is not!

29Johnson, supra, upon which the respondents heavily rely in connection with the range of costs that may be ordered, would seem to be a case in point. Had the second criterion suggested in Persaud as being required by a proper interpretation of the section been applied in Johnson it would seem that the order as to costs therein could not have been properly made. The complaint in that case was dismissed at the end of an eighteen-day hearing during which the complainant was the only witness to give evidence. His behaviour caused the Board to request his undertaking to refrain from further disruptive conduct and to answer questions directly, and his refusal to give that undertaking resulted in his dismissal as a witness. Both the Commission and the complainant declined to call any other evidence and the claim was dismissed for want of any evidence to support it. This was followed by a sixteen-day hearing into the matter of costs, at the start of the ninth day of which the Commission conceded that there was "sufficient evidence to warrant a finding now by this Board that the respondents were unduly disadvantaged within the meaning of s. 40(6)(b) [now s. 41(4)(b)] and incurred substantial legal costs:' but the Commission expressly denied that "the circumstances justifying an order under s. 40(6)(a) [now s. 41(4)(a)] of the Code [were] present in this case" (see at D/188 [para. 24]). The Commission then disclosed that it had reached a settlement with some of the respondents in respect of legal costs on a party and party basis, but had not been able to effect a settlement with the other respondents who not only sought legal costs on a solicitor and client basis but sought compensation for certain non-legal costs as well, which in the Commission's view, a board of inquiry had no jurisdiction to order it to pay. On the eleventh day of the costs hearing the Commission agreed to pay legal costs on a solicitor and client basis, but maintained its opposition to the payment of non-legal costs. The Board concluded that the term "costs" in the section is not restricted to legal costs and, in addition to other sums paid by it, the Commission was ordered to pay $10,027.60 to one of the respondents in compensation for his (as distinct from his lawyer's) time spent in preparing his defence "pursuant to s. 40(6) of the Code, being those costs of Mr. Groom, directly related to the Board of Inquiry proceedings" (D/197 [para. 43]).

30The point-form notation preceding the summary of the Johnson decision (at D/175) reads in part as follows:

COMPLAINTS — complaint is trivial, frivolous, vexatious and made in bad faith — COSTS — awarded against human rights commission for acting irresponsibly in pursuing complaint.

However, despite a painstaking review of that lengthy decision and of the various interim decisions set out therein, I could discover no clear finding of fact by the Board that the Commission had acted in any way irresponsibly, much less that it had done so in that it had pursued the complaint despite having had actual or constructive knowledge that it was trivial, frivolous, vexatious or made in bad faith. Indeed, the only basis for suggesting that the complaint was any of these things was that at the end of the hearing, for reasons apparently beyond the control or reasonable expectations of the Commission, there was no prima facie case to meet — a test that would give rise to the discretion automatically upon any successful motion for nonsuit, which appears [to] be an untenable proposition. It may well have been that a proper (but not necessarily successful) case could not be presented without the testimony of the complainant, whose conduct as a witness appears to have been somewhat irrational, and for that reason the Commission declined to prolong the process by calling further witnesses in what had been dramatically transformed into an unwinnable cause. Be that as it may, the Commission's decision not to continue with its case was taken to have foreclosed its opportunity to lead evidence during the costs hearing even for the purpose of establishing that the complaint did not fall within the ambit of para. (a) of the costs section.

31In the final analysis it certainly seems, as stated in the summary itself, that the Board relied for its discretion on its finding that "the respondents did incur undue hardship in the particular circumstances of the case", and that costs were awarded against a Commission that had not expressly been found to have acted irresponsibly. After all, if a complainant, without whose testimony the Commission's case could not be proved, were to die before completing his evidence in chief, resulting in the Commission's doing the right thing by declining to call further evidence rather than prolonging the hearing at everyone's expense, would it follow automatically that the complaint must be trivial, vexatious, frivolous or made in bad faith? Surely not. And if the complainant lost his mind instead of his life, would that make a difference in characterizing the complaint? Again, surely not. I fail to see how either the apparently unpredictable conduct of the complainant while giving evidence in Johnson, or the apparently reasonable decision of the Commission to withdraw the automatic conclusion that the complaint was in fact (and to the knowledge of the Commission) either trivial, or vexatious, or frivolous, or made in bad faith, or was defective in all or any combination of these.

32Counsel for the Commission sought to distinguish Johnson (in order particularly to avoid the view taken therein as to the range of costs that may be ordered) on the basis that it was a highly unusual case involving "unique" circumstances. But, in the present context, that is precisely the point! While the s. 41(4) discretion, as with any such discretion, must be exercised reasonably, and while the views of boards in past cases afford a valuable guide in that regard, and indeed may be difficult to dissent from where the precedent is "in every respect exactly alike" criteria such as those enunciated in Persaud cannot be imposed upon future boards as legal rules with which they are bound to comply regardless of the circumstances with which they are called upon to deal. In my respectful opinion, not only is the narrowly worded "second criterion" incompatible with the provision from which it is said to flow, but such a prohibition against the exercise of the discretion even when broadly expressed as a requirement of "irresponsibility" on the Commission's part is an unacceptable encroachment upon the statutory discretion. How can a board be said to have a discretion if it can be told how to exercise it? It would transform into a condition of its existence that which is but at best a guide to its exercise. In my view, the appropriate exercise of discretion turns on the circumstances of each case as it arises, and one must keep an open mind rather than seek to formulate broad rules that go beyond what is necessary for the disposition of the specific case.

33In any event, although I disagree with the interpretation of the section found in Persaud, supra, and am not prepared to say that I would never order the payment of costs unless the "second criterion" proposed in that case is met, for reasons to which I will come I find as a fact that the Commission acted irresponsibly in this case. As to whether the discretion arises here, however, I turn, first, to the assertion that the complainants' untruthfulness should not be taken to establish that their complaints were made in bad faith.

(c) Bad Faith: Application of Law to Facts

34It is one thing to say that the bad faith of the complainant is sufficient to clothe the board with the discretion to order costs; it is another to say that the complainants acted in bad faith. While I am unwilling to state categorically that a lack of veracity on a central matter is required in order to find such bad faith, I agree with the Board in Jerome, supra, that such untruthfulness does constitute bad faith, and I find that it occurred in this case.

35In determining whether the complaints were made in bad faith by reason of the untruthfulness of the complainants' evidence with respect to a matter central to the case, it is of course necessary to examine the scope of that case. In that regard, the respondents argued at the costs hearing that the Commission's case consisted simply of its allegation that the eviction notice and accompanying letter constituted discrimination in breach of the provisions of the Code, the matter of Mr. Kopf's subsequent conduct being relied upon by the Commission simply as "similar fact evidence" to substantiate that allegation. Although it was the complainants who alleged that Mr. Kopf's conduct amounted to harassment because of sexual orientation and whose counsel presented an argument under the Canadian Charter of Rights and Freedoms as to why such harassment should be read into s. 2(2) of the Code as prohibited conduct and the complaints amended accordingly, its interest in adducing that same evidence was expressed by the Commission at the start of these proceedings (p. 32 of Vol. 1 of the transcript):

In order to determine whether there is a discriminatory factor involved, it is often the case that you need to put in similar fact evidence. How did the parties, or the respondents in this case, react in other circumstances?

36Having found in fact that there was no harassment of any kind I declined to deal with the legal issue raised by the complainants, but the Commission relied heavily upon the testimony of the complainants in that regard in its arguments on the merits and it acknowledged at the costs hearing that its case rested on two allegedly discriminatory circumstances: the landlord's eviction notice and his accompanying letter. However, counsel sought to minimize the impact of my finding with respect to the first allegation by saying that it was never the Commission's contention that service of the eviction notice standing alone was discriminatory, but that its case all along had been that it was the letter that was discriminatory although, having been joined with it, the notice could be regarded as similarly tainted. With respect, that is simply not so, and the Commission cannot thus distance itself from the effects of its having pursued an allegation it knew or ought to have known to be false.

37In his opening statement at the hearing into the complaints, counsel for the Commission placed at the top of its list of the wrongs done by the respondents its allegation that the service of the eviction notice was "differential treatment". He stated (at p. 12 of Vol. 1 of transcript) that:

It is the Commission's position in this case that, first of all, the attempted eviction by [sic] the Complainants in the May, 1992 letter was discriminatory under the Code. You will hear evidence from other tenants of the building who will say that they were late with their rent cheques and they did not receive eviction notices.

This position was vigorously pursued not only through the calling of witnesses whose evidence backfired, but through an extensive cross-examination of Mr. D'Addario accompanied by demands that he produce various documents and analyses, which demands were made in a manner that seemed to insinuate that he was hiding information and indulging in obfuscation. With remarkable equanimity in the circumstances, Mr. D'Addario complied with these demands, devoting to that exercise a considerable amount of his own time and paying another to assist him in gathering, collating and analyzing records and computer printouts. And in the end, as stated in my earlier decision (at pp. 67 and 68 [D/372–D/373, paras. 111–12]):

It appears that the Commission knew or ought to have known from prior proceedings and its own investigations that that was the landlord's stated policy, and a proper prior interrogation of its own witnesses would have revealed that they had been dealt with in accordance with that policy. And when the respondents brought records for the purpose of establishing the conformity of the landlord's practice to his policy and his concern about growing vacancies, these were taken away to see if they might supply the evidence that had been wanting all along. Upon analysis a few dubious fresh cases were culled from several years of records to which the Commission had access before deciding to proceed with a hearing. However, for each of these cases as well incontrovertible evidence of compliance with the policy was provided, as it could have been to the investigating officer in the first place had the Commission thought to ask.

In final argument, being unable to refer to a single incident in support of such a contention, counsel for the Commission nonetheless tried to piggy-back the eviction notice on the accompanying letter as evidence of discrimination by saying that "the May 7th letter and the eviction notice clearly demonstrates them [the complainants] being singled out because of their sexual orientation" [emphasis added] (Vol. 13, p. 67). In my view, not only is it beyond question that the eviction notice was in no way discriminatory, but there was no reasonable basis for the Commission ever to have alleged that it was. That aspect of this case alone extended this hearing by a very substantial period.

38I must say that I was taken aback when the documentation provided by counsel for the Commission for the purposes of the costs hearing included the case summary of the human rights investigating officer similarly concluding that there was nothing untoward in the service of the eviction notice per se and that, therefore, the Commission had had actual knowledge all along that its allegation of differential treatment in the service of the notice was unfounded.

39I was also provided with a copy of the apparently unreported judgment of Mr. Justice Sutherland in respect of applications under the Landlord and Tenant Act made by Mr. D'Addario for an order declaring the complainants' lease terminated, and for payment of rent and other charges owing, and by the complainants for an abatement of rent in an amount exceeding $6,000 covering the entire period of their lease. It was held that there would be "an abatement of half a month's rent" only ($400.50) and that "the resulting judgment in favour of the landlord is stayed pending the outcome of the proceedings under the Human Rights Code". These applications involved most of the same events and allegations raised before me. (See: Mercedes Homes v. Grace; Grace v. Mercedes Homes, dated November 3,1993. See Court Files Nos. 92-LT-42090 and 92-LT-43302.)

40Although some of the evidence adduced at the landlord and tenant hearing was read into the record of these proceedings in order to prove the inconsistency of prior statements, I had not seen Sutherland J.'s decision itself until the costs hearing. In reading through that decision I discovered that he, too, had reached the very conclusion that I subsequently found to have been self-evident and which, in fact, its own officer had reported to the Commission. In the course of his judgment, Sutherland J. stated (at p. 34) that: "I find that in serving the notice of termination itself, the landlord was not discriminating but was treating these tenants in the same way that he treated all tenants in arrears of rent". That conclusion takes on significance because of the reliance said by its counsel to have been placed by the Commission on that landlord and tenant decision in reaching its own decision to refer the complaints to the board of inquiry.

41I was given a copy of Sutherland J.'s decision in the apparent expectation that it would lend support to the submission that in light of certain of its findings regarding Mr. Kopf's post-eviction notice conduct the Commission could not be faulted for having referred the subject-matter of the complaints to a board of inquiry. However, even if those findings concerning the superintendent might be taken to have justified the Commission in pursuing the allegation that the letter was discriminatory, nothing justified it in pursuing an allegation that both its own investigating officer and Mr. Justice Sutherland had indicated was untenable. Counsel for the Commission expressly attacked the manner and timing of the eviction notice served on the complainants with a view to establishing that they were treated differently in that respect than others, and considerable time and effort of the respondents and the Board was lost in the process. Had the Commission's contention throughout really been that the only factor tainting the eviction notice with an aura of discrimination was the accompanying letter there would have been no point in dealing with the manner and timing of its delivery. In my view, even were it necessary to satisfy the second criterion posited in Persaud, supra, this circumstance in itself brings home to the Commission a degree of irresponsibility sufficient to do so.

42I come at last to the question whether in fact the complaints were made in bad faith within the scope of the statement made in Jerome, supra. It is in respect of the allegation that the letter discriminated against them in the matter of accommodation because of their sexual orientation that the veracity of the complainants in a matter central to the Commission's case arises. The pertinent facts as I have found them are that, contrary to their testimony, the complainants knew that the reference in the May 7 letter was to their conduct and they knew precisely of what that conduct consisted. While they conceded that, upon receipt of the respondents' questionnaires some time after their complaints had been filed, they knew that the reference was to certain alleged "kissing" episodes, they denied having any prior understanding that the reference was to misconduct and they denied that the kissing episodes had ever occurred. However, I found that prior to the filing of the complaints they had admitted in a telephone call to Mr. D'Addario and in a conversation related by a Commission witness that they knew the reference was to "sexual advances", and I found that the alleged kissing episodes had in fact taken place.

43The complainants also knew that their vilifying accusations of misconduct hurled at Mr. Kopf were untrue. Their evidence repeating those accusations at the landlord and tenant hearing was accepted by Sutherland J. with evident misgivings because Mr. D'Addario, in a misguided decision to do without legal counsel, badly bungled the prosecution of his application and his defence to the cross-application by failing both to cross-examine the complainants and to question Mr. Kopf in that regard. Counsel for the Commission contended that, despite the dubious character of their evidence which was accepted by Sutherland J. apparently for want of contradiction (although, unbeknownst to him, the case summary was replete with counter-indicative information of which the Commission was aware), it was this very finding that was instrumental in "tilting" the Commission's decision in favour of referring the matter to a board. I was to look upon this as a sufficient discharge of its obligations to relieve the Commission of responsibility for what subsequently transpired. It was a matter of credibility I was told and, as such, apparently not something that the Commission should try to resolve in its own mind in order properly to exercise its own discretion under s. 36(1) of the Code. However, implicit in his argument was that, although the Commission had not joined in the making of the harassment complaint against Mr. Kopf "even though we had a judicial finding of sorts" (Tape 3, Side B, Counter No. 99), it was relying on that evidence regarding a matter central to its case.

44In the end, counsel for the Commission appeared to concede not only that the eviction notice standing alone could not be validly put forward as discriminatory, but that the letter could not be found discriminatory either, if it were found that the kissing episodes had in fact occurred. Counsel's point was that, until my decision to the contrary, the Commission was entitled to believe the complainants and that therefore it was not acting irresponsibly in referring to a board of inquiry what was at bottom an issue of credibility. As will be seen, I do not accept that contention; but more to the present point is that my findings of fact establish that the complainants were untruthful about the kissing episodes, which counsel acknowledged (and even without such admission I would find) to be a matter central to the Commission's case. And they were untruthful in their evidence about Mr. Kopf's conduct, which evidence, as I have shown, was an integral part of the Commission's case, having been led in order (inter alia) to attack the respondent's credibility in a matter central to that case.

45In relation to the issue of fault or irresponsibility on the part of the Commission, it was also submitted by counsel for the respondents that in failing to properly assess the import of its own investigating officer's report the Commission had made baseless allegations vital to its case and had continued to press other vital allegations long after it knew them to be without foundation. After interviewing forty-one tenants of the building, that officer reported as follows (Case Summary, p. 4):

All of the tenants were aware of the lobby incident as well as the eviction letter dated May 7, 1992 because the incident was published in the community newspaper and copies of the eviction letter were circulated [by the complainants] in the Respondent-apartment building. Evidence indicates that all of the tenants both past and present respect Bob Kopf. Tenants whether heterosexual or homosexual have indicated to the Investigating Officer that he has never shown differential treatment to tenants based upon their sexual orientation. He is considered to be pleasant, friendly, responsive, generous and open-minded. The tenants have never heard Bob Kopf make derogatory comments regarding homosexuals.

46The case summary includes more detailed information from twelve of these witnesses, some of them homosexuals, uniformly praising Mr. Kopf and indicating incredulity at the allegations against him, one such homosexual tenant being reported to have been "of the opinion that he is incapable of discriminating against anyone on the basis of sexual orientation". That summary deals as well with the letter and eviction notice, concluding as follows (at p. 4):

The evidence also indicates that eviction and written notices were given to both heterosexual and homosexual tenants who were more than five days late in paying their rent and that the Complainants were the only tenants to receive a letter which went beyond the issue of non-payment of rent.

The Respondent's letter dated May 7, 1992 sent to the complainants was not restricted to the issue of non-payment or late rent but contained comments which are homophobic. However, statements provided by tenants of the Respondent-apartment building indicate that this was an isolated incident. [Emphasis added.]

47In stating that the letter "contained comments which are homophobic" the summary might be taken to be expressing a conclusion of fact. However, whether the comments referred to are homophobic is a matter of judgment that is for the Commission rather than its investigating officer to make for the purposes of fulfilling its responsibilities under s. 36(1) of the Code. In my June 7 decision will be found a paragraph-by-paragraph analysis of that letter indicating why in my view, though "intemperate", it could not reasonably be read on its face as homophobic. And to the extent that the Commission relied on the case summary rather than the exercise of its own judgment, the Supplementary Case Summary corrects the wrong impression that the officer found the letter to be homophobic. It points out that the complainants so considered it, and it provides the respondents reasons for those comments together with the complainants' denial of the misconduct thus alluded to. That supplementary summary reads as follows:

The Respondent indicated that the comments made in the May 7, 1992 letter were the result of the following gestures made by one of the Complainants:

1. The Complainant, David Grace took the Personal Respondent, Bob Kopf's hand and kissed it;

2. On another occasion, the complainant, David Grace blew a kiss in the direction of Bob Kopf.

Both incidents took place in February 1992. The Respondent indicated that on each occasion, Bob Kopf advised David Grace that the behaviour was unwelcome.

The Complainant denies that the incidents took place.

As was stated in their submission dated August 19,1993, the Complainants consider the comments made in the May 7, 1992 letter as homophobic.

48It is simply beyond doubt that the letter cannot reasonably be read as discriminatory, as treating the complainants differently because of their sexual orientation, and a failure to see this would seem tantamount to culpable ignorance. But, according to counsel (who led no evidence in this regard), the Commission had the advantage of other eyes with which to see it, namely, the eyes of an experienced judge whose decision dealing with many of the same issues involved in this hearing the Commission was said to have had before it, and whose findings were said to have "tilted" its decision in favour of referring the subject-matter of the complaint to the board of inquiry. Assuming that that decision may properly be regarded as part of the "evidence" to which alone the Commission must have regard as the basis of its authority to make such a reference, so that looking at the circumstances through his eyes is a legitimate exercise, what it was that Mr. Justice Sutherland saw is, of course, best described by him. Towards the very end of his judgment he concludes (beginning at p. 62) that:

Early on they [the complainants] wished to inflict harm on the landlord. At the latest, this began when D'Addario refused to try to evict Kirby's fiancée [which the court described elsewhere as something he had no right to do]. Being openly gay and being ill they had little to lose by circulating Exhibit 2 [the letter] throughout the building. That act [referred to as a "self-inflicted wound" insofar as it reflects badly upon them] was calculated to hurt the landlord. Exhibit 2 was sent as a private message. The sending of it may have been unwise [because, as explained at p. 36, "the statement of legal liability in the second paragraph is inaccurate"] and the statements expressed in it may be seen as derogatory but it can also be regarded as a call by D'Addario for restraint on the part of Grace and Belford. It is not without significant [sic] that the circulation of Exhibit 2 and of D'Addario's follow up letter (Exhibit 6) appears not to have resulted in a rush of support from [sic] Grace and Belford from other tenants in the building, although there was evidence that some of them [indeed, 80 percent, according to the investigating officer's report] were known to be gay. There was no evidence of support for them from other tenants.

I am therefore unable to accept the characterization of Grace and Belford as always and only victims, as submitted on their behalf. The true situation is quite different from that asserted by them.

I do not find D'Addario to have harassed these tenants or to have exhibited sexual orientation discrimination, even in the sending of the private message admitted as Exhibit 2. He was responding not to sexual orientation but to conduct.

With respect to Bob Kopf, however, the situation is different. Although I can attach little weight to the accusations of "menacing vacuum cleaning", and although I do not fault him for giving evidence in court proceedings involving Kirby [who was acquitted of a charge of assault brought by the complainants] and do not believe that he sabotaged the rear door or menaced Grace or Belford with hedge shears, certain of his conduct near the main entrance to the building involved homophobic vilification and harassment of these tenants. I take into account that Grace and Belford were not merely victims and that they were at times carrying the fight to Kopf ... Although it, too, was part of a dynamic relationship of antagonism, the acts of Kopf in my view constitute sexual orientation discrimination and harassment and, as they were not an isolated instance, also constitute acts for which the landlord is in law responsible. [Parenthetical observations added.]

49Sutherland J.'s view that "the acts of Kopf ... constitute sexual orientation discrimination and harassment" is not a considered opinion expressed in and for the purposes of the Code, and the Commission, which at all times regarded Mr. Kopf's alleged misconduct as harassment and not as discrimination, declined to deal with it as a breach of the Code. However, the basis upon which it is said that the Commission concluded that there was a viable case against the respondents was that parts of the May 7 letter were couched in what was described in my earlier decision as "crude rhetoric and [an] offensive tone" which the complainants found homophobic and which, if their denial of the kissing episodes was to be believed, would cause its delivery to them to amount in the Commission's view to discriminatory treatment contrary to the provisions of the Code. Thus, with respect to this aspect of the argument made on behalf of the Commission, it is only the finding that the conduct occurred, and not its characterization "as sexual orientation discrimination and harassment", upon which the Commission could be said to have relied.

50It was conceded that when considering whether to exercise its discretion under s. 36(1) to refer the subject-matter of these complaints to a board of inquiry the Commission had no basis for deciding to do so other than the May 7 letter. Except insofar as it might shed light on that letter, Mr. Kopf's subsequent conduct was considered by the Commission to be irrelevant. Thus, if indeed it sought guidance from Sutherland J.'s decision, one might have thought that these concluding passages ought to have propelled the Commission away from referring the matter to a board. However, it was put to me, in effect, that even conceding that it was not discriminatory on its face the letter might be found discriminatory in the light of extrinsic matters. If the kissing episodes had not occurred, then the reference to misconduct of a homosexual character was a fabrication, the making of which might be regarded as discriminatory treatment on the basis of sexual orientation. Since the complainants deny that these episodes occurred, there is an issue of credibility that should be referred to a board of inquiry for resolution.

51Before the subject-matter of any complaint can properly be referred to a board for a hearing, the Commission must without exception reach the considered conclusion that the evidence it has gathered and reviewed warrants such action: s. 36(1). Nowhere is it stated that issues of credibility constitute an exception, that the Commission is not permitted to assess the credibility of its own witnesses in order to satisfy itself that it is more likely than not to be able to establish a case on a balance of probabilities. Yet that appears to have been counsel's position when in discussing this point (beginning at Counter No. 354 of Tape 3, Side A) he said that:

... where, as in this case, you've got two completely different versions of the events from the parties, pure questions of credibility, the only appropriate forum to deal with the matter as long as it is not frivolous, vexatious or trivial, is to come to these hearings and to have the matter dealt with by way of evidence, cross-examination, and to leave it to you and to other members of the board of inquiry to make those determinations of credibility ... [And, starting at Counter No. 439] From the very initial stages of this complaint we can see that there is conflicting versions of events; what happened with respect to the fight in the lobby, and what the landlord said he did and what the complainants say the landlord did and what was said between the two of them. The complainants say Kopf verbally abused them. He denies this. Kopf says the May 7 letter related to the complainants' unacceptable conduct. They deny it.

52The respondents had nothing to do with the incident in the lobby and, while Mr. Kirby's version thereof conflicted with that of the complainants, nothing could turn on finding the truth of that matter save the damage to the complainants' credibility should they be disbelieved in that regard. Thus, the resolution of that dispute was not required in order to determine whether the evidence warranted referring the matter to a board. There was no material discrepancy n the parties' versions as to what the landlord did in consequence of that incident. The dispute in that regard was solely as to whether the landlord had a duty to which ought to have been obvious to the Commission even without the benefit of the landlord and tenant decision — which in this respect, as in all others adverse to the complainants' position, it apparently chose to ignore. In this regard, Sutherland J. states that (at pp. 32 and 51–52):

The tenants felt picked on from the time the landlord refused to comply with their request that he evict the tenant in Apartment 708. The request for such eviction and the loudly expressed complaints of betrayal in that regard are evidence of unduly high expectations and of self-righteous lack of perspective. From relatively early on there were elements of a crusade about the way the tenants related to the building's management. Their involvement of "Extra" [sic] magazine, including the posing for staged photographs, is evidence of secondary intent.

The original incident was an altercation with third parties. The initial responses of D'Addario and of Kopf were sympathetic to these tenants. D'Addario risked the anger of the female tenant in Apartment 708 when he asked her to keep her fiancée, Kirby, away from the building. D'Addario attracted the anger of Grace and Belford when he refused to attempt to evict the female tenant in Apartment 708. The tenants were asking him to do an unlawful act. He refused to do it, citing reasons. From then on relations between Grace and Belford on one hand and D'Addario and, mainly, Kopf on the other hand, deteriorated seriously. Grace and Belford portray themselves as always and only victims, but in my view, that is not a correct characterization. [Emphasis added.]

53Thus, the only issues of credibility were, first, as to whether the kissing episodes had occurred, that being arguably central to the case the Commission decided to bring, and, second, Mr. Kopf's conduct subsequent to the May 7 letter, which was arguably relevant as to whether he should be believed concerning those episodes. Sutherland J. did not deal with the former, and his findings regarding the latter must be read in the light of his judgment as a whole. As I have already indicated, he chided the landlord for having undertaken to present his own case in a context that required legal counsel, and he bemoaned the lack of adequate cross-examination of the complainants involving a failure to test the veracity of their allegations. While for the purposes before him he made the findings set out earlier regarding Mr. Kopf's conduct, the context in which he did so was as follows (at p. 39):

On June 2 Grace and Belford were leaving the building and at or near the entrance they saw Kopf who had Kirby with him. Kirby was by then released on a bond one term of which was that he was to stay away from the building. Kopf must have known of the provision, and yet he was fraternizing with Kirby at the building. According to Grace, Kopf, on seeing Grace and Belford, drew them to Kirby's attention describing them in foul language. Grace reported Kirby's breach of his bond to the police. Grace's account of the incident was supported by Belford. There was no cross-examination of either of them as to these allegations. Kopf did not refer to this incident in his direct evidence but on his cross-examination he denied calling Grace and Belford names. On this point I accept the evidence of Grace and Belford that they were pointed out and were described in foul language referring to their sexual orientation.

54Not only were the complainants not cross-examined regarding these two allegations, but Mr. Kopf was not questioned about consorting with Mr. Kirby who, in turn, was not called as a witness. Having accepted the uncontroverted evidence of the complainants regarding the presence of Mr. Kirby in front of the building on June 2, it is not particularly surprising that Sutherland J. would accept their evidence as to the language allegedly used on that occasion and reject Mr. Kopf's denial in cross-examination that he had ever used such language. However, invariably where their evidence was inconsistent with that of Mr. D'Addario his was preferred, and in virtually every other circumstance in which their evidence was at odds with that of Mr. Kopf, the complainants' "version of events" was either disbelieved or found to be empty exaggerations. Mr. Grace, who was found to have stated to Mr. D'Addario in a telephone call concerning the May 7 letter that "it had given them what they needed" and that he "had fallen into their trap", was said to have "tailored" one piece of his evidence "for maximum effect" (a "tripping" incident) and to have lied about another (the laundry incident). And, in addition to those already quoted, a great many other extremely negative comments about the complainants are to be found in Sutherland J.'s decision.

55The "credibility argument" made on behalf of the Commission is thus reduced to these alternative propositions: (1) Unless and until the complainants recanted as to the kissing episodes the Commission had no choice but to refer the subject-matter of the complaint to a board of inquiry as an issue of credibility. And, since they stuck to that assertion to the bitter end, the Commission had no choice but to pursue all of the allegations to the same bitter end despite the unfolding evidence. (2) The Commission properly exercised its discretion under the Code by relying on a finding regarding the credibility of Mr. Kopf made in another proceeding in which many of the same allegations were considered, but in an entirely different legal context, and notwith- standing that that proceeding was conducted without legal counsel, that key witnesses (including Mr. Kirby, Ms. Bawden and the police) were not called and that there was neither cross-examination nor reply evidence in respect of vital matters, all of which gave rise to misgivings in a court that went on to excoriate the complainants as manipulative, bullying evidence-tailors who set a trap as part of a "crusade to ”˜get' the landlord". (As to which, see the decision of Sutherland J. at p. 61.)

56At one point in his argument (Tape 3, Side A, Counter No. 470) counsel for the Commission said that:

... The case summary is one of the pieces of information, it's not the only piece of information, that the Commissioners have before them when they make a decision as to whether to appoint a board of inquiry or not. In addition to the case summary they would have other documents from the investigation, including such things as in this case the decision of the landlord and tenant proceeding. They seek advice from the investigators, they seek advice from legal counsel, and then they make their decision. And where you have cases like this case where you've got competing stories, the summary doesn't try to figure out who's telling the truth. In fact, it would be quite improper for the investigator to try to do that for a number of reasons, one of which is the investigator's not qualified to make findings of credibility.

57While it is only the tribunal that can make "findings" of credibility in the legal sense of that term, is no one in the Commission expected to try to find out who is telling the truth? Or is that regarded as irrelevant? Is there no one in the Commission qualified to make, not "findings", but value judgments as to credibility? In the end, the heavy reliance said to have been placed upon the landlord and tenant decision by the Commission would appear to concede that the answers to those questions are "yes", "no" and "yes", and that the exercise was carried out in this case in the light of three pieces of information: the case summary, other investigative reports and the court decision. In my view, the first and last of these cannot reasonably be taken to support the conclusion, required to be taken with due deliberation by s. 36(1), that the "evidence warrants an inquiry". As to the second, I must assume that all relevant information (such as investigating officer DeStefano's notes of interviews) was placed before me. Yet there is nothing in the evidence or exhibits to indicate that in investigating this matter the Commission questioned either Mr. Kirby, Ms. Bawden or the police about the alleged incident of June 2, despite knowing that Mr. Kirby at least was a vital witness to an alleged event that they considered crucial to the case.

58The Commission seems to have made no real attempt to assess the relative merits of the assertions of the complainants and the respondents in light of the evidence gathered by its own investigators, and, in the end, according to its counsel, its proffered justification is reliance on Sutherland J.'s decision in which it discovered a finding of misconduct on Mr. Kopf's part, which finding cried out for further investigation if any degree of objectively were to be preserved, and it appears to have turned a blind eye to that judge's far more damning condemnation of the complainants. Thus, I find not only that the Commission was irresponsible in bringing forward in the complaint an allegation that the eviction notice was discriminatory despite both its own officer's report and Sutherland J.'s express finding to the contrary, but I find to have been irresponsible as well the failure to properly investigate the incident of June 2 upon which, according to its counsel, depended both the Commission's assessment of the evidence as warranting the referral of the subject-matter to the board of inquiry and, ultimately, the viability of its case.

59I have dealt with the "credibility-requires-referral" argument at some length because it was the principal argument made by counsel for the Commission in reply to the respondents' allegation that the Commission had acted irresponsibly in referring the complaints to the Board of Inquiry. A critical aspect of that argument was the assertion that the Commission had relied on Sutherland J.'s decision in concluding that there was a credibility issue that required reference to the Board. However, there was no evidence before me that the Commissioners had in fact read the decision of Mr. Justice Sutherland, or as to what role (if any) it played in their deliberations. Counsel declined to testify formally in that regard but undertook to provide a letter attesting to his assertions. I agreed with the respondents that the Commission had had ample time to prepare for the costs hearing and to arrange to bring forward such evidence as might be required to support its submissions, and that the time to present that evidence was now past. Thus, I make no finding as to whether the Commission's deliberations unfolded as its counsel suggested.

60Finally, on the broad issue of bad faith, counsel for the respondents reiterated an argument that had been made at the end of the first hearing to the effect that the carriage of these complaints by the Commission was improperly motivated by external pressure. The evidence upon which that allegation was made is set out in my previous decision (at pp. 40–41 [D/364]), and the respondents' argument in that regard, made at the close of the hearing into these complaints, is summarized in that decision (at pp. 102–103 [D/383, para. 174] as follows:

... it was argued by the respondents, in effect, that not only ought the claims herein be dismissed, but that they are so clearly devoid of merit as to warrant an award to them of costs under s. 41(4) of the Code. In support of this contention it was submitted that the complainants' letter to the Commission with copies to the United Nations was a form of blackmail to which the Commission capitulated. And there was Mr. Belford's evidence in relation to yet another letter sent by the complainants to the Commission that they had found that dealing with the Commission was like "talking to a brick wall" until they threatened to go to the media, whereupon things changed.

61Although thus alerted to an argument that was repeated at the costs hearing, counsel for the Commission did not address it. If the complainants' insinuations were true, it would in my opinion constitute bad faith on the Commission's part within the meaning and scope of s. 41(4)(a) of the Code. However, as the complainants were simply expressing an opinion there is no basis for any finding in that regard.

62In her concluding argument regarding the bad faith of the complainants, counsel for the respondents referred to the Jerome case, supra, in support of her contention that the manner and purpose for which they caused publicity adversely affecting the landlord invested their complaints with bad faith. In Jerome, it was unsuccessfully claimed that one of the ways in which the complainant had acted in bad faith was by publicizing the complaint for politically motivated reasons. In that regard the Board held (at D/21, para. 61) that:

The mere fact of publicity is not evidence of bad faith. But should that publicity arise out of malice, a design to defraud or seek an unconscionable advantage, then it would indicate bad faith. In this case, the details of publicity are not known, so it is impossible to say whether or not the actual publicity engendered is indicative of bad faith.

63The facts as found in my earlier decision and as reviewed herein, together with the findings made by Sutherland J. in the landlord and tenant application, show that the complainants were (as he said) "trying to hurt the landlord" for whom they had "laid a trap", and that they kept up a barrage of harmful publicity through feeding misinformation to Xtra magazine. In my view, the circumstances of this publicity amount to bad faith in the sense contemplated in Jerome.

(d) As to Whether Trivial, Vexatious or Frivolous

64As the contentions made by counsel for the respondents that the complaints were trivial, vexatious and frivolous were based largely on the same considerations that pertained to the matter of bad faith, they can be dealt with relatively quickly. She began by referring to the definition of "vexatious" set out in Pham, supra, which in turn is simply taken from Black's Law Dictionary, viz: "without reasonable or probable cause or excuse". She submitted that the total absence of evidence regarding the allegation that the service of the eviction order was discriminatory (an allegation that flew in the face of their own officer's report) establishes that it was made "without reasonable or probable cause or excuse" and must be regarded as vexatious. However, even assuming that that is correct, the complaint as such could not be vexatious if it was otherwise made with reasonable or probable cause or excuse. While it is true that if any one of several allegations of breaches of the Code made in a complaint is included in bad faith, then the complaint is one that is made in bad faith (Pham, supra), even if all other allegations in a complaint were without foundation, should one of them be adequately founded there is clearly some reasonable or probable cause for making the complaint and it could not be said that the complaint per se is without reasonable or probable cause or excuse. It may be noted here that the Wellington case, supra, maintains that in order for a complaint to be characterized as vexatious it is necessary to find not only that it was unfounded, but that it was made in order to annoy the respondent, or was otherwise made in bad faith. Be that as it may, since the assessment I have made of the circumstances before me leads me to conclude that when the subject-matter of these complaints was referred to the Board none of the allegations of breaches of the Code set out therein could have been found to have been made with reasonable or probable cause or excuse, and since I have found that the complainants acted in bad faith and engaged in a campaign to annoy and entrap the respondents, it seems to me that these complaints were vexatious.

65As to her submission that the complaints were trivial and frivolous, counsel for the respondents relied on Ouimette, supra, in which the Board dealt with the costs issue in two short paragraphs, the first of which simply states that the respondents have asked for an award of costs, and then sets out the text of s. 40(6), now s. 41(4). The second (para. 72 at D/34] is as follows:

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 the 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.

66In dealing with this submission, it may be useful to begin by setting out the definitions of the terms "trivial" and "vexatious" found in Black's Law Dictionary because these definitions, which have been repeated in most of the cases dealing with this provision of the Code, suggest that a complaint must be ex facie frivolous or vexatious in order to be so characterized. Certainly, in the case before me the complaints were not of that character on their face. The definitions read as follows:

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.

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 ...

67In Wellington, supra, in outlining the submissions made by counsel for the respondent in that case, the Board observed (in para. 19 of that first part of its decision) that:

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. Kerrr, dated May 25, 1993, with respect to a motion brought by the respondents in that case for costs [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.

68Although in the end costs were not awarded in Wellington, that Board does not appear to reject this aspect of the Shreve [Shreve v. Windsor (City) (No. 2)(1993), 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363 (Ont. Bd.Inq.)] analysis. The circumstances of the present case are similar to those in Ouimette in that there was an absence of facts necessary to prove the allegations of the complaints of which the Commission was (or ought to have been) aware — and not only at the time of the hearing, but when referring the matter to the Board of Inquiry. Thus, according to both the Ouimette and Shreve cases, the facts as I have found them render the complaints herein trivial and vexatious and clothe me with a discretion pursuant to s. 41(4)(a) to award costs.

(e) The Matter of Undue Hardship

69It was suggested by counsel for the respondents that Mr. D'Addario had suffered not just the usual legal costs associated with defending against the charges levelled in these complaints, but that there were exceptional provable costs in doing so, amounting to undue hardship. It was also claimed that there were consequential financial losses (which he was unable to quantify) owing to the abnormal vacancy rate in his building, the impairment of his reputation in the business community (which allegation was purely speculative) and the diversion of his time from the conduct of his affairs. It was said as well that he has suffered emotionally and physically because of the prosecution of these complaints. While he claimed that the stress occasioned by these proceedings was a factor in the health problems for which he was hospitalized, there was no medical evidence of any causal link between them. He testified that his emotional suffering was largely tied to the extensive and repeated adverse publicity in Xtra magazine that was willfully instigated by the complainants. Reference was also made to the additional anxiety and stress occasioned by the participation of independent counsel whose employment by the complainants prolonged the hearing, not only through adding considerably to the volume (but not the cogency) of testimony and documentary evidence, but by adding an extra day to the hearing in order to deal with their factually baseless motion to augment their complaints to include an infringement of their rights under s. 2(2) of the Code to be free from harassment because of sexual orientation. Finally, there was the effort and expense required to comply with the Commission's demands for the production of documents and analysis regarding the termination of leases.

70Counsel for the respondents argued that these hardships were "undue" in that they were occasioned by the bad faith of the complainants, in support of which assertion she cited the Pham case (supra, at D/4024, para. 31812). Although, for reasons expressed previously, I do not regard the making of a complaint in bad faith (or a finding that it was trivial, vexatious or frivolous) as a necessary condition to the operation of s. 41(4)(b), I am of the view that bad faith is a sufficient condition to evoke its operation. That paragraph provides that where "in the particular circumstances undue hardship was caused to the person complained against" the board may make the order. I do not read the word "particular" in this context to mean anything other than "actual", so that what is required is simply that the hardship be undue and that it be caused by the circumstances of the case, whatever they may be. The unabridged edition of The Random House Dictionary of the English Language defines the term "undue" as follows: "1. unwarranted; excessive: [as in] undue hardship." The term is defined in Black's Law Dictionary as "more than necessary; not proper; illegal". Thus, s. 41(4)(b) would appear to be satisfied by showing either that in the circumstances of the case the hardship suffered went beyond what is normally expected to be encountered by respondents in proceedings under the Code, or that it was improperly imposed. Most of the hardships catalogued by counsel for the respondents were of a kind normally encountered in any human rights proceeding, and I am unwilling to make any finding as to the others since they were either speculative or not demonstrably caused by the circumstances of the case. However, since the complaints were made in bad faith by the complainants, I find in the particular circumstances of the case that the hardship caused was undue, thereby invoking my discretion under that branch of the section as well.

71Before turning to the issue of the quantum of costs, I want for the sake of clarity to summarize the alternative reasons as to why I am satisfied that I have in this case a discretion to order the Commission to pay costs. (1) In my view, the discretion arises under s. 41(4)(a) where upon its dismissal a complaint is found to have been made in bad faith, whether it is that of the complainant or of the Commission, and nothing further is required either to vest the discretion or to allow it to be exercised by ordering the payment of such costs as the board might fix. The complaints hearing were made in bad faith by the complainants in that they were untruthful regarding matters central to the case and engaged in a campaign of publicity out of malice in an effort to hurt and embarrass the respondents. (2) Since the complaints lacked reasonable or probable cause or excuse and were made in bad faith as part of a campaign to annoy and entrap the respondents, they were vexatious; moreover, the want of evidence necessary to prove the allegations of the complaints of which the Commission was (or ought to have been) aware prior to referring the matter to the Board of Inquiry renders them trivial and frivolous. In my view the discretion given by s. 41(4)(a) arises simply upon a finding that the complaint is defective in any of those three ways. (3) Even if these complaints were not trivial, nor frivolous, nor vexatious, and even if (as counsel argued) they could not be said to have been made in bad faith unless the Commission had acted in bad faith, my discretion to order costs arises under s. 41(4)(b) because I find that in the particular circumstances undue hardship was caused to the respondents, those circumstances including the bad faith of the complainants. (4) Finally, if the coming into existence of the discretion, or of the power to exercise it, requires a finding that the Commission in some way acted "irresponsibly", I find as a fact that it was irresponsible both in pursuing the allegation that the eviction notice was discriminatory and in failing to properly investigate the incident of June 2 that was pivotal to its case. It remains to consider how the discretion with which I am clothed ought to be exercised.

THE CALCULATION OF COSTS

(a) Allowable Range of Costs

72The "Summary of Costs Claimed" by the respondents (Exhibit C) includes not only legal fees, both paid ($19,598.79) and outstanding (awaiting final account), but the following "other costs" as well:

Cost of Transcript (LL &T proceedings)

$ 450

Assistance of B. Bruce (300 hours @ $17 per hour)

5,100

Attendance of B. Kopf at hearings (96 hours @ $15 per hour

1,400

Time spent by G. D'Addario (663 hours @ $109 per hour)

72,267

73In support of this claim counsel for the respondents relied on the decision in Johnson, supra, in which the Board considered at length the meaning in s. 41(4) of the words "such costs as are fixed by the board". After concluding (at D/194) that they "must be seen in a broader context than their strict legal meaning, as one would expect in court", the Board posed the question, "if it is not the strict legal definition, then what is the meaning of ”˜such costs'?" In answering that question it was pointed out that damages are not costs and that, "in the plain English definition, as opposed to the plain legal definition ... costs are referred to as expenditures, but also are referred to as estimates, and losses". The Board then concludes (at D/195 [para. 31]) as follows:

I, therefore, take the phrase "such costs as are fixed by the board", to mean those costs which are directly associated with the proceedings before a board of inquiry pursuant to s. 35 [now s. 36], up to and including the conclusion of the proceedings, and bearing in mind the nature of the [litigation of the] Human Rights Code.

74After excluding items claimed as costs that it regarded as damages (loss of reputation and mental anguish) the Board in Johnson went on to say (at D/195 [para. 31]):

That leaves items 3, 4 and 5, which are defined, briefly, as the costs of losses with respect to unpromotability [of the respondent teacher], loss of pay and cost of unpaid time in preparation for the hearing. My ruling would mean in this case that items 3, 4 and 5 can be considered by me and may involve the presentation of evidence to determine whether or not the amount claimed is reasonable and whether it bears a direct relationship to the Board of Inquiry proceedings. But there is no question in my mind that items 3, 4 and 5 in the case in front of me are matters upon which I can choose to exercise my discretion, and include in the matter of such costs pursuant to s. 40(6).

75Most of the items of costs claimed in the instant case are clearly "associated with" these proceedings, and if I adopt and apply the reasoning of the Board in Johnson then I may exercise my discretion by including them in such costs as I deem proper to fix pursuant to s. 41(4). It may be noted as well that "the time spent by G. D'Addario" for which costs are claimed includes time spent in acting on behalf of the respondents in the latter part of the hearing when for financial reasons they dispensed with the services of legal counsel. In that regard, reference was made to Skidmore v. Blackmore (an unreported decision of the Court of Appeal of British Columbia, dated February 16, 1995: Vancouver Reg. No. CA012548 [reported 1995 CanLII 1537 (BC CA), 122 D.L.R. (4th) 330, 2 B.C.L.R. (3d) 203]) which overturned the case law of British Columbia that had denied a self-represented lay person from recovering more than the disbursements involved in civil litigation. The unanimous decision of the five-member panel of the Court of Appeal allowing the plaintiffs to recover costs on the same party and party basis as would have been the case had they been represented by counsel concludes as follows:

This is a case dealing with a judge-made common law rule. The practice recognized in Kendall may arguably not have been in accord with fundamental principles as contended by the appellant, but in my opinion the removal of the distinction between self represented litigants and lawyer represented litigants is consonant with the principles underlying the Charter. I would allow the appeal.

76As indicated earlier, the Commission considers the circumstances of Johnson to have been so highly unusual as to virtually confine its application to exactly similar facts, its argument in that regard being as follows (Tape 3, Side B, beginning at Counter No. 394):

[Johnson] is unique under any circumstances. It's a case — and I would ask you — I don't know if you're familiar with the facts, but in the Johnson case the complainant was so disruptive, and he was insulting and abusing all counsel in the room, refused to give evidence, refused to abide by an undertaking to behave himself and basically brought the whole case to a standstill because he wouldn't cooperate because he wanted to give lectures and to insult everyone. In that case, the Commission didn't even argue the issue of costs. It conceded $120,000 in legal costs and agreed to pay it ...

[And, at Tape 4, Side A, Counter No. 270] I also urge you to consider the facts in the Johnson case as being a very unique case where the Commission itself conceded $120,000 costs. The conduct of the complainant was outrageous and it was considered outrageous by all the parties and I urge you to look at those facts and not apply that case to this case because it's not at all on fours [sic].

77That argument is both misleading and invalid. In Johnson, in a costs hearing involving sixteen days, the Commission vigorously argued: (1) that the Board had no discretion to order costs in the circumstances of the case; (2) that, if it had jurisdiction, its award must in law be limited to legal costs which ought to be fixed on a party and party basis; and (3) that its discretion as to the range of costs was limited to deciding whether to award costs on a solicitor and client basis instead. As indicated earlier, towards the end of the costs hearing the Commission entered into a settlement with some respondents to pay their costs on a party and party basis. Eight months later the Commission agreed that an order could be made for solicitor and client costs incurred in respect of the other respondents, but it conceded nothing as to the non-legal costs it was ultimately ordered to pay. Contrary to the impression sought to be conveyed, Johnson was not a case involving some sort of "consent judgment" devoid of precedential value. It was not conceded by the Commission that the complainant's behaviour was so outrageous that unprecedented and never-to-be-repeated costs should be awarded, nor did it "agree" that the order to be made should extend to the non-legal costs claimed.

78While it is not clear whether it is the Commission's position that except in a similarly "outrageous" case, one that is "on all fours" with Johnson, a board has no lawful discretion to award non-legal costs, or that it is only in such a case that it ought to exercise it, I find neither position tenable. There is nothing in s. 41(4) to suggest that the phrase "such costs as are fixed by the board" means different things in different fact situations. Either that phrase provides a discretion to award non-legal costs in any one of the circumstances described in paras. (a) and (b), or else the discretion can never extend to the awarding of costs of that kind. There is not the slightest suggestion in Johnson that the source of the discretion to award non-legal costs was the peculiar circumstances of the case. Rather, the view clearly taken is that the discretion that arises upon proof of any of the circumstances in the provision is to order the payment of any costs that are "directly associated" with the proceedings, including non-legal costs.

79I am not persuaded by the assertion that, conceding that there is a discretion to award non-legal costs, such an order ought to be made only in circumstances indistinguishable from those in Johnson. Clearly, a board will have regard to the circumstances of the case in determining what items of costs should be included in its order, but it is not bound to reserve the making of an award of non-legal costs to the sort of "worst case" scenario that Johnson is made out to be. And, in any case, in the context of tailoring the range of costs to fit the conduct (whether that of the Commission or of the complainant, or both), I find the circumstances that have led to this costs hearing even more suited to a wide order as to costs than those of Johnson, in which, unlike the present case, there was no apparent irresponsibility on the Commission's part. It is difficult to see how, for the purpose of determining the extent of the Commission's liability for costs, a complainant's unpredictably irrational behaviour at the hearing should be regarded as more egregious than a complainant's bad faith coupled with the Commission's failures to investigate the complaint fully and properly and to weigh the evidence with care and objectivity.

(b) Quantum of Costs to be Allowed

80The circumstances described in the preceding parts of this decision are such as to warrant in the costs to be fixed inclusion of the respondents' legal fees on a solicitor and client basis and (with some variation) certain of the items of non-legal costs claimed as well. However, I do not accept Mr. D'Addario's assessment as to the amount and value of the time allegedly spent in preparation for and attendance at these proceedings. Moreover, for reasons that must be fully explained, I find that those estimates were carelessly assembled, that they are remarkably unconvincing at best, and that they involve serious misrepresentations knowingly or recklessly made. Consequently, I am of the view that it would be improper for me to order the payment of costs in respect of any of these items with the exception of the transcript of evidence (Item 2 of the table) for which a proper receipt was produced. Moreover, having regard to these circumstances, I am unwilling to order the payment of legal costs on a solicitor and client basis.

81Counsel for the Commission did not suggest that any of items of non-legal costs claimed was not "associated with the hearing", nor did he in argument question the quantum of any item save that in respect of Mr. D'Addario's time, regarding which he made the following statement (at Tape 4, Side A, Counter No. 275):

With respect to the quantum of costs being sought by the respondents I may have further submissions on that as we deal with it later, but from what we've heard so far it's my submission that a party should not be entitled to come to these proceedings and in effect make money, and in this case Mr. D'Addario is seeking costs for the time he put into it — and in my submission there's some doubt about the hours, whether those are reasonable, whether he put in the time or not — and make an amount of money in excess of his annual salary.

82Nothing further was said in argument by counsel for the Commission regarding any of these items, for all of which explanatory notes and other documents were entered as exhibits. However, at the conclusion of his cross-examination of Mr. D'Addario counsel stated (Tape 2, Side A, Counter No. 481) that:

I feel a little disadvantaged with the summaries of the time because obviously from even what we've seen so far I don't know whether the hearing dates correspond or whether some days we only sit for a couple of hours. The only thing I'd like to do is just to reserve my right to make any further submissions if I go back and find ... [at which point I said "Certainly", thereby obscuring the recording of the last word of counsel's sentence].

83Following a number of questions I then put to Mr. D'Addario, and my expression of various concerns regarding his estimates, I commented as follows (supra, Counter No. 592):

There's the question of entitlement and there's the question of quantum. Your evidence is in relation to quantum, and I'm concerned about it in certain respects, but I would rather that we move on and hear argument which has to do with entitlement. And if I were to decide that you were entitled I would think that counsel could get together and look a little more closely at quantum and bear in mind some of the observations I've just made and, if they can't agree as to quantum, come back to me with it then. [To which counsel for the Commission said "Yes, I think that's what had essentially been agreed in any event."]

84In reviewing Mr. D'Addario's testimony and the various exhibits I discovered patent errors in his estimates of the time spent by him, Mr. Bruce and Mr. Kopf in preparation for and (or) attendance at these proceedings. These errors are such as to cast doubt on the method used by him to construct his estimates and, therefore, on the reliability of what remains of them when adjusted accordingly. Moreover, even after these errors are taken into account one wonders about the extent to which the accumulation of time may have been attributable to inefficiency or ascribed to discussions and ruminations not properly classifiable as "preparation for the proceedings". Finally, the hourly rate at which Mr. D'Addario seeks to be compensated for such of his own time as might be legitimately claimed appears to me to be grossly excessive.

85In anticipation of concerns as to whether the hourly rate claimed might be perceived as extravagant and whether Mr. D'Addario's time was spent inefficiently (at one point in his evidence he said: "I may have wasted too much time because I don't have the legal mentality"), counsel for the respondents suggested that he should receive the lesser of what he claims and the legal fees being paid to counsel for the Commission. She described the "cap" on the award that her client would find acceptable as an "upward total maximum of compensation for costs equivalent to what the Commission paid to proceed with this matter", and she said that "the cap we're prepared to live with on the total costs basis is the total costs paid by the Commission to its counsel" (see supra, Counter No. 280). I take it that this cap would mean that all of the items claimed, including legal fees on a solicitor and client basis, could not exceed the Commission's costs paid to its counsel. The reaction of counsel for the Commission to this "capping" suggestion was as follows (Tape 4, Side A, Counter No. 285):

With respect to this argument that there should be a cap equivalent to the Commission's legal fees, in my submission that would be sending a very wrong message having regard to the public policy of the Code, the way the costs provisions are written, what the precedent would be. The parties coming to these proceedings are entitled to get their costs based on some kind of lock-step with the Commission's counsel. And Commission's counsel can range from firms with higher rates, small firms, etc., and that there is simply no legal theory that could support that.

86While I do not suppose that respondents would arrange to be victimized in specious human rights proceedings so as to take advantage of the precedent I might thereby set, I certainly share counsel's general apprehension regarding this "capping" proposal. Be that as it may, as to the rate at which he seeks to be compensated for his time, Mr. D'Addario presented a document (Exhibit C) in which the following is given as the rationale for arriving at the figure of $109 per hour:

I hold a doctorate in engineering from University of Rome and an M.A. in Economics from York University. In the 70's I was a duly paying member of the Association of Professional Engineers of Ontario, which I quit when I became an entrepreneur. Professional Engineers rates run from $95 to $150/hour

I manage my 5 buildings which gross $3 M/year. Management fees are 6% of gross, which means $180,000/ year. My company hardly make a profit and therefore the fees I pay myself is much lower. Assuming that the # of hours worked/year is 1,650 (220 working days à— 7.5 hours) then = $109/hour, which falls in the above range.

However, the rate of compensation sought was lowered to $91 per hour in light of subsequent information received by Mr. D'Addario from Royal LePage indicating that its Real Estate Management Services now charges as its fee 5 percent of the annual gross revenue of the apartment buildings it manages (see Exhibit 1).

87Having concluded that the words "such costs" in s. 41(4) "could refer to all real and reasonable costs directly associated with a board of inquiry process" (supra, at D/197 [para. 39]), the Board in Johnson awarded the respondent school teacher compensation for "loss of pay due to the hearing" at an hourly rate of $28. That same rate was then used to determine the compensation to be awarded for his "unpaid time spent in preparing for hearing". Since the rate for loss of pay was fixed and clear and does not appear to be excessive, it was no doubt convenient in that case to use it in respect as well of "unpaid time spent in preparation" on various evenings and weekends. However, no theory or principle seems to have been advanced in that case for determining the reasonableness of compensating a person at the same hourly rate for two entirely different kinds of effort, and I have considerable difficulty in accepting the proposition that respondents should be compensated for time spent preparing for and attending a hearing at an hourly rate commensurate with either their professional qualifications or their actual income. If that were so, are unemployed respondents who have no professional credentials to be denied compensation? Is their time worth nothing even though they work as hard and as long in preparing for a hearing as do respondents who are to be compensated simply because they happen to have jobs? Mr. D'Addario has not practised the profession of engineering since the nineteen-seventies and, having "quit" the field and relinquished his membership in the Association, he no longer appears to be qualified to do so. In my opinion, his degree in engineering is no more relevant to the determination of an appropriate rate for trial preparation and attendance than would be a Ph.D. in philosophy held by a taxi driver whose passenger made a false accusation of discrimination. And if Mr. D'Addario owned and managed fifty buildings instead of five, would he then be entitled to $910 an hour instead of the $91 an hour claimed? Would the quality of effort have been ten times greater if he had owned ten times as many buildings? And since, despite not having to pay management fees to someone else, the buildings he does own "hardly make a profit and therefore the fees [he] pays [himself] are much lower", why should he be compensated at the presumably much higher rate of $91 an hour rather than at the rate at which he sees fit to remunerate himself?

88Compensation for lost income occasioned by being prevented from doing that which one can prove would actually have been done and compensated for at the rate in question seems appropriate. But there appears to be no reasonable basis upon which to compensate for lost leisure time at an income-matching rate regardless of what it happens to be. Indeed, the difficulty of determining an appropriate basis upon which to compensate self-represented lay litigants was one of the reasons why costs were at one time denied them. As pointed out in Skidmore (supra, para. 38):

The only justification found in the case law for denying costs to a successful self-represented lay litigant is because of the difficulty in valuing the efforts of that person in preparing the case.

89While not all of the time devoted by him to preparing for this hearing may have been captured from his evenings and weekends, Mr. D'Addario can provide no realistic estimate of the impact on his income of having to spend periods of time in connection with the hearing that would otherwise have been devoted to husbanding his present property and keeping an eye out for future investments. In my opinion, such totally speculative and unquantifiable losses cannot be used as a basis to calculate "loss of pay [or of income] due to the hearing", much less than as a means to determine compensation for "unpaid time spent in preparation"

90Mr. D'Addario did not establish any loss of income and his claim must be restricted to compensation for time spent in preparation and attendance. In that regard, some effort must be made to adapt the compensation for lost time to the character of the labour the undertaking of which occasioned that loss of time. For instance, it is indicated in the Skidmore case (supra, para. 40) that it may not be unreasonable in British Columbia to compensate a self-represented lay litigant for legal work normally undertaken by a lawyer because:

... in this province costs are assessed under a tariff in Appendix B of the Rules [it having been pointed out in para. 36 that "Costs are assessed by the Registrar according to how much time ought to have been spent by the solicitor on the litigation"]. Thus, the difficulty in valuing the time and effort which a self-represented lay litigant expends in the preparation of his or her case would be avoided by making an order that costs are to be assessed by the Registrar.

91Even if Skidmore were applicable in respect of civil litigation in Ontario (and this was not argued before me), it seems of dubious relevance to proceedings under the Code. However, that the plaintiff who acted in that case on behalf of herself and Mr. Skidmore was a non-practising former lawyer who was said to have very ably presented the case both at trial and on appeal may not be entirely irrelevant in the context of these proceedings. Mr. D'Addario's skills in that regard are hardly comparable, as is evident from the disastrous consequences with which he represented himself in the landlord and tenant proceedings. Had he obtained the services of a lawyer on that occasion, as Sutherland J. says he ought to have done, the evidence might have unfolded differently and the Commission might have exercised its discretion under s. 36(1) differently. I do not think that the time spent by Mr. D'Addario as the respondents' representative ought to be compensated for automatically at lawyers' rates on the theory that it was lawyers' work he was performing. Clearly the work Mr. Bruce did in respect of these proceedings, for which he was paid $17 an hour, bore as much (or as little) resemblance to lawyer's work as did that of Mr. D'Addario. On that basis, then, ought he to be compensated at a higher rate than that at which he paid Mr. Bruce to act as the respondents' legal agent?

92It is necessary to consider the scope and extent of Mr. D'Addario's role as respondents' representative. He did not assume that mantle until after the sixth day of the hearing, and his function on the seventh to the tenth days, inclusively, was strictly that of a witness. On the eleventh day he personally cross-examined a police constable for twenty minutes, and he did not attend the last two days of the hearing. Mr. Bruce, who was listed in the transcripts of the last seven days of the proceedings as "Counsel for the Respondents" under the heading "Appearances", conducted all of the questioning of witnesses on their behalf (save for twenty minutes) and, in Mr. D'Addario's absence, read the respondents' final argument prepared by properly qualified legal counsel. It may be noted as well that on the penultimate day, which was devoted to hearing the complainants' motion to amend their complaints by adding as a ground harassment because of sexual orientation on the theory that it must be read into s. 2(2) of the Code by virtue of the effect of the Charter, Mr. Bruce showed up alone and declined to ask any questions of the complainants' expert witness and offered no submissions as to the merits of the motion.

93In the final analysis, only a very small part of the time claimed by Mr. D'Addario in respect of the hearing as to liability falls into the self-represented lay-litigant category, and I have serious reservations in any event as to tying the rate of compensation for self-represented respondents in human rights proceedings to lawyers' fees or practice tariffs. As to such remaining time for which costs might have been awarded, the Skidmore case is totally irrelevant in the context of compensating a party for meeting with his or her lawyer and showing up at the hearing, and I am unwilling to calculate the hourly rate of compensation for such efforts on either of the bases proposed by Mr. D'Addario. As it happens, it is unnecessary for me to attempt to fix an hourly rate of compensation for his time spent either in representing himself or in otherwise preparing himself for the hearing, because, in my view, he is disentitled to any such compensation in any case for the reasons explained below.

94Before turning to the specific errors I have uncovered in the estimates submitted by Mr. D'Addario, the following brief description given by him in direct evidence of the method used to prepare his estimates (Tape 1, Side B, Counter No. 85), and the subsequent exchange between him and counsel for the Commission in that regard (commencing at Tape 2, Side A, Counter No. 156), should be set out:

Mr. D'Addario [in direct examination]: This was prepared by the viewing the hearing dates, by the viewing the invoices which was sent to me for meetings, reference to meetings, and it was the guesswork of my habits [on?] hearing dates, how much time I spent in advance to prepare myself for the hearing. So then in my best estimates based on documentation I had from invoices from the lawyers, the hearing dates, and what is my practice at home before hearing and after ... It was prepared beginning of September of this year ...

Mr. D'Silva: ... You prepared that [Exhibit D] on October 4th? [Affirmative answer.] Did you have any notes that you kept which helped you to prepare this list, or were you going back more or less by memory.

Mr. D'Addario: What I did is, first of all, I did find all the hearing dates, like March the 28th hearing, April the 1st hearing, April the 5th hearing, April the 6th hearing, then I took the invoice sent by my lawyer referring to meetings we had. I do recall the meeting on March the 18th, Friday, we met the lawyer, Robert Kopf and I, we met with her. So what I did was, March 28th hearing, so I took that week March 21st to 25th, and the best estimated 20 hours spent during that week in preparation for the hearing and I believe it's a conservative estimate because I tend to spend a lot of hours to make sure that I've read again what we're going to talk about.

Mr. D'Silva: ... and with respect to hearing dates you allocated ten hours when you were at the hearing.

Mr. D'Addario: It was the day of the hearing plus the time I would spend in the evening to review it.

Mr. D'Silva: On a hearing date you decided ten hours.

Mr. D'Addario: Ten hours.

Mr. D'Silva: In June you've got a number of times, weeks, where you've got twenty hours per week. Can you tell us the theory how you came up with those twenty hours?

Mr. D'Addario: Because I did recall what we're preparing for a resumption of the hearings, and there were postponement, and I know that I was working on the issue because I was preparing myself to represent myself alone because at that point I no longer had legal representation ...

Mr. D'Silva: Now, with respect to Exhibit F, you prepared that on September 8th, is that correct? ... [There was an affirmative answer.] And this "time", I take it, relates to this costs hearing, to preparing for the costs hearing. You've got a number here, 123. I haven't added that up; is that 123 hours before the 4 hours?] i.e., in October of 1995, for a total of 127 hours. Again, there was an affirmative answer.]

There were no further questions posed by counsel for the Commission regarding the numbers of hours claimed in the various exhibits, nor did he question the authenticity of the exhibits themselves.

95It is useful in dealing with Mr. D'Addario's estimates to recast them in the following format (referred to hereafter as "the table") derived from the figures shown in the various exhibits, all the dates referred to being in 1994 with the exception of Items 5(c) and (d):

Item 1. Legal Fees

(a) Already Paid $19,598.79 (b) Outstanding and Awaiting Final Account

Item 2. Cost of Transcript (Exhibit G) 450.00

Item 3. Attendance of B. Kopf (Exhibits C & H) 1,400.00

Item 4. Assistance of B. Bruce @ $17.00 per hour (Exhibit E)*

(a) On Hearing Days (66 hours) (b) Apart from Hearing Days (237 hours, minus 3*) [*Total hours claimed: 300 rather than 303] 5,100.00

Item 5. Time spent by G. D'Addario $ $91.00 per hour

(a) March 14 to August 29 (Exhibit D)*

(i) On Hearing Days (53 hours)

(ii) Other Days (189 hours)

[*Total hours claimed: 240 rather than 242] 21,840.00

(b) August 29 October 14 (Exhibits D & E)*

(i) On Hearing Days (66 hours)

(ii) Other Days (237 hours, minus 3*)

[*Total hours claimed: 300 rather than 303] 27,300.00

(c) August 25, 1995, to September 8, 1995 (Exhibit F)

Total hours listed: 113* 10,283.00

[*A total of 123 was wrongly claimed through faulty addition]

(d) October 4 & 5, 1995 (4 hours, Exhibit F) 364.00

[Total of Items 5(a) to (e) $59,969.00]

96The first two items in this table require no analysis. As to the third item, in my view, Mr. D'Addario's claim for compensation as costs for the "leave with pay" time given to Mr. Kopf to attend at the hearing cannot be allowed. To begin with, that claim is based entirely on attendance, and the sitting hours for the twelve days when he was present totalled sixty-two and one-half, not ninety-six (i.e., 12 à— 8) hours, as Mr. D'Addario, who must have known that some hearing days were half days only, wrongfully claimed. Had the landlord not continued to pay him for his work as superintendent, Mr. Kopf would have been entitled to compensation as costs for his hours in attendance, but not at the rate claimed by Mr. D'Addario, which is inclusive of the substantial benefit of free accommodation in a two bedroom apartment the use of which he continued to enjoy. However, since his pay and benefits were not disrupted, Mr. Kopf is entitled to nothing for losses incurred on account of the proceedings. While this cannot be claimed by the landlord as a loss either, had he paid someone to replace Mr. Kopf during those hours that would have amounted to a recoverable expenditure. But he did not; nor did he establish that Mr. Kopf's absence affected him financially. Thus, Item 3 of the above table is not an expenditure, nor an estimate, nor a loss, and simply does not qualify as an item of costs within the scope of s. 41(4) of the Code. In sum, Mr. D'Addario misrepresented the number of hours lost by Mr. Kopf, the value of which he inflated, and then he claimed them as a financial loss he in fact did not suffer.

97Upon Ms. Rowan's withdrawal as counsel of record, Mr. D'Addario engaged Mr. Bruce to assist him in her stead. Exhibit D, allegedly prepared in September 1995, is the estimate of his time before employing Mr. Bruce, while Exhibit E shows the hours accumulated by Mr. Bruce who is said to have worked at all times in tandem with him thereby justifying incorporating by reference into Exhibit D as time spent by Mr. D'Addario the same number of hours as those for which Mr. Bruce was paid. Exhibit F contains the estimates of time spent by Mr. D'Addario in preparing for the costs hearing. All other hearing dates were in 1994. The dates and hours involved during the period in which the respondents were represented by Ms. Rowan were: March 28 (not March 20 as mistakenly stated on the transcript cover) — 7 hours; March 30 — 6 ¼ hours; April 1 — 5 hours; April 5 — 6 ¾ hours; April 6 — 7 ¼ hours; May 25 — 6 ¾ hours. The hearing dates and hours following Ms. Rowan's withdrawal were: September 7 — 7 hours; September 8 — 3 ½ hours; September 9 — 3 ½ hours; September 12 — 2 ½ hours; September 13 — 3 ½ hours; September 28 — 3 ½ hours; October 14 — 7 hours. Mr. D'Addario testified that he devoted ten hours to his cause each day of the hearing (except May 25), and he said that after Mr. Bruce was engaged they spent those ten hours together in relation to the conduct of the case. It is clear from the manner in which he assessed Mr. Kopf's time ("12 days of hearing for total hours of 96") that Mr. D'Addario based all of his "hearing day" calculations on sittings of eight hours per day. Thus his evening reviews of hearing day events, spent alone while represented by counsel but shared with Mr. Bruce thereafter, were of an estimated two hours duration.

98It may be noted at this point that Exhibit D indicates that, although it was a hearing date, Mr. D'Addario claims only three hours for May 25 for "review" work. The record of the proceedings shows that he did not attend the hearing that day for health reasons and I am unwilling to accept that he nevertheless spent three hours that day in meaningful review. Even if Mr. Kopf, who was that day's witness, went to see him to convey his impression as to how it went, that could not qualify as "preparation time". Their lawyer had attended and needed no second-hand input from the absent Mr. D'Addario as to what transpired at the hearing nor as to what she should do next. While I can appreciate that a respondent's preoccupation with proceedings concerning such serious accusations may generate endless discussion, particularly with a co-respondent, such agonizing, in the unlikely event that it assumes such proportions as to be compensable at all, is a matter of damages to which he is not entitled under the Code. However, since soul-searching cannot be compensated for under the rubric of costs, I cannot understand what it is that Mr. D'Addario could possibly have done in legitimate "preparation for the hearing" while represented by counsel, other than to meet with and to gather for her such information as she might require. Consequently, while Mr. D'Addario's time spent in such meetings and for such purposes is of a character that might attract an award of non-legal costs to the extent they were corroborated by counsel, I would in any event be unwilling to award costs for any of the other non-hearing day times claimed by Mr. D'Addario with respect to the period involved in Item 5(a) of the table. The burden of proving costs rests with the respondent claiming them, and Mr. D'Addario has simply failed to satisfy me on a balance of probabilities that the hours claimed in respect of these non-hearing days qualifies as true "preparation" time.

99As to the hearing days themselves, it happens that the record of proceedings also shows that (in addition to May 25) Mr. D'Addario did not attend the last two days of the hearing either and that, although he was scheduled to begin his testimony on the afternoon of September 8, he did not attend that morning's session but arrived at 1:00 p.m., said he was unwell and, after a half hour's discussion with counsel and myself was excused. However, Exhibit E indicates that he is claiming (in respect of both himself and Mr. Bruce) eight hours for the penultimate day and ten hours for the final day as well as for September 8. Moreover, whereas the final date of the hearing was October 14, Exhibit E states that it was October 13, and then shows another four hours for October 14, either on the assumption that he and Mr. Bruce are entitled to be paid to engage in a post-mortem of sorts the day after the case had been closed or because they were settling accounts; and unless the latter had been proved these four hours claimed in respect of them both would have had to have been disallowed. Thus, Mr. D'Addario is claiming in respect of his own time and that of Mr. Bruce serious sums of money for "sitting" times to which he must have known they are not entitled. As the reason given for his non-attendance on these two days, and for his half-hour's attendance on another, was ill-health, one may fairly assume that he and Mr. Bruce spent little if any time together on those dates and I am of the view that the claim for hearing day "get-together" time should be disallowed altogether. To repeat myself, the onus is on the respondents to prove the costs claimed and, in the absence of evidence from Mr. Bruce, I am not prepared to accept a claim as to any time spent together on those days.

100I am also concerned with Mr. D'Addario's claim to have spent ten hours on each of the days of the hearing at which he was present. That estimate was the result of adding two hours of "review time" to an assumed eight-hour per day sitting schedule, a simplistic approach that failed to take into account fluctuations in the sitting hours. Even allowing two additional hours for each of these days the 130 hours that Mr. D'Addario claims in relation to the hearing dates would be reduced to 65 ¼ hours.

101Quite frankly, it is difficult to accept that at the end of each (or of any) day of the hearings on which he was actually in attendance Mr. D'Addario "reviewed" the day's evidence for a couple of hours. And it is particularly hard to credit that assertion with respect to the period when he was legally represented. To what purpose did he return home, by his own account tired and demoralized, and then enter upon a "review" of the day's events? What did he do by way of meaningful review? He made no mention of having made any notes in that regard, or of having communicated that day's thoughts to counsel. He was not the respondents' strategist at that point. He could not even comment usefully on most of the evidence adduced during the first three days and much of the fourth, since he was not a witness to most of the events in question. Is he seeking compensation for simply sitting at home brooding? And at the close of those days following which the next scheduled date was relatively far away, is it reasonable to believe that he would arrive home in the state of mind and ill-health he described when speaking to the issue of undue hardship and plunge into a review of the day's proceedings? Would he not have said, as I am tempted to say, "give me a break"?

102Such a "day-of-the-hearing review" exercise seems to me unnecessary during the period when the respondents were represented by legal counsel and, given the serious sums of money in question, one would expect that its occurrence thereafter would have been corroborated by Mr. Bruce. While one can only be asked to accept on good faith those aspects of estimates such as Mr. D'Addario's that are not susceptible of proof, where proof or corroboration in whole or in part of any aspects of such estimates lies within the claimant's power to provide, the failure to do so raises serious doubts as to their validity. And when the estimates are riddled with errors and fail to correlate with the record, such doubts are considerably heightened. Thus, I am left with misgivings as to the number, duration and utility of these "review sessions" and, since Mr. D'Addario has failed to convince me on a balance of probabilities of the reasonableness of his estimates of hearing date hours, the compensable hearing day hours in respect of himself and Mr. Bruce would have to be limited to the actual hours in attendance. Incidentally, I have taken note of Mr. D'Addario's contention that on those days when he was not physically present he was "available, so [his] time was completely devoted to the case whether [he] was sitting in the courtroom or not". Unless he was merely relaxing, either he stayed home to look after his business affairs or else he was ill, and none of those reasons amounts to time spent in preparation for the proceedings.

103I turn now to some troubling questions regarding Exhibit E and the evidence in relation to it (Tape 1, Side B, beginning at Counter No. 122, and Tape 2, Side A, beginning at Counter No. 348). The exhibit purports to be an invoice submitted by Mr. Bruce in three parts: (1) A typed covering page in the form of an unsigned memorandum dated October 14, 1994, claiming $5,100 for 300 hours of work at $17 an hour; (2) A two-page handwritten schedule of dates and hours claimed to have been worked by Mr. Bruce, in whose hand it is said to have been written; (3) A photocopy of two 1994 T4 forms prepared by Mr. D'Addario's company, one of them in respect of Mr. Bruce and the other in respect of a Mr. Geta. There is a fourth part of the exhibit which Mr. D'Addario says he attached to it, namely, a computer printout of a page of the company's Employee Income Tax Report showing the records of two employees, one of whom is Mr. Bruce, who is shown as having received five payments of $900 between October 28 and December 23, 1994. While he answered in cross-examination that Mr. Bruce did not work for him in any other capacity during the time he assisted in these proceedings, Mr. D'Addario replied that "after October 14th the job was over but occasionally he did some services, work that I asked him to do, and the total compensation, if I'm not mistaken, came to $6,000. So he worked." When asked "So, this was on top of the $5,100" he answered, "Yes".

104While I had no opportunity to closely scrutinize the exhibits as they were filed at the costs hearing, I examined them all with considerable care in preparing this decision, in consequence of which I am convinced of the inaccuracy of the figures they contain and have some misgivings about the authenticity of Exhibit E. Neither the typed memorandum, which is the first page of that exhibit, nor any other part of the "invoice" is signed by Mr. Bruce. The pages setting out the hours allegedly spent by him (and which Mr. D'Addario incorporates by reference into Exhibit D as hours spent by himself as well) appear to me to be in the same handwriting, the same format and on the same lined paper as the other handwritten estimates in Exhibits D and F that were clearly prepared and written by Mr. D'Addario some time after the beginning of September 1995. However, while I am unable to detect any difference in the script, as I am not a handwriting expert I express no conclusion in that regard.

105It is to be noted as well that Exhibit E purports to have been made on October 14, for which date four hours of work is claimed in the handwritten portion. However, October 14 (and not October 13 as indicated therein) was the last day of the hearing. As it happens, the final day of hearings was originally scheduled for October 13 but had to be re-scheduled to the 14th, a fact that might have led someone looking at poorly-kept records a year later to assume that the final hearing date was the 13th and then to claim another four hours for a next-day meeting to settle accounts. That, of course, supposes the handwritten schedule to have been prepared by Mr. D'Addario. But am I instead to believe that Mr. Bruce not only inadvertently typed "October 14" on the memorandum, but that in preparing his handwritten schedule either on the day of, or on the day after, the hearing he inadvertently moved the hearing forward to October 13 and then carried the same inadvertence over to the next entry by inscribing October 14 as a post-hearing work day?

106Based on Mr. D'Addario's own evidence, the figures for Mr. Bruce (as the shared "day's-end reviews" claim shows) appear to be but estimates constructed from dubious recollection. Is it not a bit to convenient that in October 1994 Mr. Bruce billed for ten hours per hearing day and that a year later Mr. D'Addario does the same for the hearing dates both before and during Mr. Bruce's involvement? Since Mr. D'Addario has made no claim to recover their cost, it would appear that they lacked the transcripts of these proceedings against which to check the times at which we sat. However, they both knew that sittings did not run to ten hours. But, Mr. D'Addario says, they spent a couple of hours together in review. We have not heard from Mr. Bruce as to how it is that all of his hearing days worked out to exactly ten hours as well. Did he happen to make the same erroneous assumption on October 14 when the events must have been still fresh in his mind that the sittings lasted eight hours when in fact they varied considerably, and many were scheduled in advance as half days? If not, since Mr. Bruce was only said to have spent two hours "in review" with Mr. D'Addario on September 8, 9, 12, 13 and 28, having regard to the actual sitting times, how does he account for the remaining 4 ½ to 5 ½ hours claimed in respect of those days? Were "Mr. Bruce's" numbers in Exhibit E firm figures supported by daily notes of starting and finishing times, or were they, like Mr. D'Addario's simply estimates? It would be hard to believe that Mr. Bruce, who could not keep track of the hearing days, kept an accurate account of his other hours. But if he did, where are his records? And if "his" figures are only estimates, are we to believe that Mr. D'Addario accepted them without question on October 14, 1994, before knowing the outcome of the case and whether he might have a viable claim to costs? Mr. Bruce is a young man who did other work for Mr. D'Addario as well, and Mr. D'Addario strikes me as the sort of person who would tell rather than ask an "employee" how much he was going to get paid. And, finally, there is the circumstance that Exhibit E contains a photostat of the 1994 T4 forms issued to Mr. Bruce and another employee. Mr. D'Addario stated expressly that he had attached the "Employees Income Tax Report", but that the rest of the exhibit was provided by Mr. Bruce. If that were so, then why would Mr. D'Addario have given Mr. Bruce a copy of someone else's private T4 form, and why would Mr. Bruce make a photocopy of both forms to attach to "his" invoice" Does Mr. D'Addario make a habit of issuing T4 forms to his employees in the month of October? And, regardless of who attached them to Exhibit E, why does Mr. Bruce's T4 form indicate that he received $5,000 from Mr. D'Addario's company in 1994 when he was paid $5,100 for his assistance with the case and apparently did other work for him that year for which he was paid an additional $6,000? Why does the "Employees Income Tax Report" computer printout show Mr. Bruce's earnings at $4,500? Proper receipts and explanations are obviously wanting.

107Although the preceding analysis raises questions as to the authenticity of Exhibit E, there is insufficient evidence to conclude on a balance of probabilities that it is spurious in that it was fabricated by Mr. D'Addario. Such a conclusion could not be reached on the basis of my inexpert perception of the resemblance between the handwriting in different documents; nor could it be reached on the basis that a 1994 T4 slip could hardly have been attached to an October 1994 document, since Mr. D'Addario might have attached that photocopy with the "Employees Income Tax Report" and then simply have failed to point out that the two income tax documents were attached as one to that exhibit. While counsel for the Commission asked for and was given the right to make further submissions regarding the accuracy of the figures, and while he referred to an understanding that if costs were awarded an attempt to reach an agreement as to quantum to be submitted for my approval would be made, the hearing of evidence has been concluded and, in my view, it would be inappropriate to re-open it in order to determine the extent to which Exhibit E was prepared by Mr. D'Addario, rather than by Mr. Bruce.

108Be that as it may, more specifically as to Items 4(b) and 5(b) of the table, even if non-legal costs were to be awarded in this case, I would not be prepared either to accept or reject the estimates regarding Mr. Bruce's non-sitting day participation in the preparation of the case, and this would have affected Mr. D'Addario's claim for that aspect of his personal time as well. Rather, were I to have ordered the payment of costs in respect of either of these items, it would have been left to counsel to endeavour to reach an agreement in that regard, failing which I would have dealt with that matter in due course.

109I come now to the claim made by Mr. D'Addario in respect of time spent in preparation for the costs hearing (Item 5(c) of the table). It seems appropriate to begin by questioning what it was that he did in two weeks towards preparing that aspect of the case that could possibly have taken 113 hours of his time. Two matters had to be addressed by him in preparing his motion for costs: entitlement and quantum. The first is a complex legal question entirely beyond his capacity, as these reasons make plain. His input into the second was essential, and the manner in which he provided it has been described. Here we have an entrepreneur who claims to be entitled to compensation for his time at the rate of building managers receiving 5 percent of millions of dollars of gross revenues or, alternatively, and even better, at the rate of engineers in whose profession long ago he was once qualified. I find it astounding that such a person would come to a costs hearing claiming tens of thousands of dollars in non-legal costs in support of which he produces shabby, ill-prepared and inaccurate documents that he waited until late in the day to prepare, by his own account devoting a mere couple of hours to the task.

110Obviously, these estimates, involving such significant sums, ought to have been most carefully prepared in the light of counsel's instructions (based, presumably, on Johnson, supra) as to what kinds of items might be construed to be costs. Clearly, Mr. Bruce ought to have been consulted and to have been requested to give evidence. Records of meetings with counsel, and of oral and written briefings provided at her request, and of any other relevant communications, ought to have been obtained for use in constructing and validating these estimates. But nothing seems to have been done before October 4, 1995, nor was the opportunity taken in the following seven weeks leading up to the costs hearing on November 17 to improve these documents or to secure adequate support for their authenticity.

111Apparently, the accuracy of his estimates, the need for which he ought to have been aware long before, was of little interest to Mr. D'Addario who seems to have been satisfied with devoting a couple of hours to the casting back of his memory to events of which he kept no record so that, unfettered by any perceived need for marshalling validating evidence, he might prepare a list of working hours in accordance with guesswork. He did not even take a few moments to check his arithmetic, or so his failure to correctly add up the fifteen number column in Exhibit F would seem to suggest. Of seemingly more importance to him in preparing for the costs hearing was his preoccupation with the forensic efforts required of him in acting as his own representative. Since it was not until September 8, 1995, that he decided to engage counsel to represent him at the costs hearing, he says he spent the preceding two weeks preparing himself to conduct his own case. What, then, did that entail? Did he read law on the subject? Was he engaged in legal research regarding the scope and meaning of s. 41(4) of the Code so as to determine whether this Board could be persuaded to exercise its discretion and, if so, determine what items it might possibly accept within the rubric of costs? Of course not. He had a "consultant" to do that for him.

112Mr. D'Addario could not conceivably have performed any relevant tasks in relation to the costs hearing other than to assemble information in relation to categories of claims that someone with appropriate legal training could tell him might be accepted. Exhibit F indicates that he commenced his preparations for the costs hearing on August 25, 1995, with a five hour "review of material by Rowan". He then spent twelve hours over the weekend "reviewing" the previous decision herein and that of Sutherland J. in the landlord and tenant matter before spending nine hours on "analysis of case studies from Rowan". He then claims to have spent thirty-one hours considering the bad faith of the complainants, twenty-eight on the bad faith of the Commission, nineteen hours on "vexatious issues", and then eight hours on September 7 in conference and review with counsel, whom he then decided to engage to argue the motion.

113None of the arguments made by counsel on Mr. D'Addario's behalf as to the bad faith of the complainants or of the Commission, or as to the trivial, frivolous or vexatious character of the complaints, nor any of the arguments in relation to the meaning of "costs", could have been formulated by him. Although he might possibly have been asked by counsel to read my earlier decision and that of Sutherland J. with a view to flagging instances of possible bad faith and circumstances that might signal vexatiousness, I find it hard to believe that so many hours could be legitimately taken up in pursuing those matters. And it is to be remembered that at this stage he was no longer the beleagured landlord unable to afford counsel to shield him from scurrilous accusations. He was on the offensive. He wanted costs. Having had the means on September 8 to engage counsel it is obvious that he could have done so on August 25. But instead of securing counsel to champion his costs cause from the start, he decided, in a sort of do-it-yourself mentality, to undertake the work himself. After all, he might have reasoned: "If I lose it will cost me less, and if I win the Commission will have to pay me rather than my lawyer." In any case, two weeks and over 110 hours of role-playing later, he realized the futility of his efforts and engaged his "consultant" as his counsel. And now he wants to be paid for all this time wasted posing as a lawyer. Thus, as with Item 5(a), if any award of costs were to have been made with respect to Item 5(c) it would only have been in respect of Mr. D'Addario's hours spent meeting and briefing counsel to the extent that those hours were properly attested to by her.

4. CONCLUSION

114In my opinion, the preceding review and analysis of the evidence and exhibits makes it clear that, even if Mr. D'Addario did not himself write out the dates and hours purportedly claimed by Mr. Bruce in Exhibit E, those figures as well as the ones he admits to having provided in the other exhibits constitute a gross exaggeration of any fair entitlement to non-legal costs. In truth, these sorry statements look like they were thrown together at the last minute in light of the items allowed in Johnson and in reliance on guesswork inspired by the principle: "nothing ventured, nothing gained".

115Mr. D'Addario knew or ought to have known that many of the items for which he was claiming costs were not allowable and that the hours claimed in respect of himself and Mr. Bruce, as well as the rate at which he was seeking to be compensated for his own time, were grossly exaggerated. Moreover, I find it more probable than not that he knew that the sittings were not full eight-hour days, and that many of them were scheduled for afternoons only because of the need to accommodate counsel for the Commission, and that he knew full well that the "ten hour" sitting-day claims in respect of himself and Mr. Bruce, and the "eight hour" sitting-day claim in respect of Mr. Kopf, were spurious. Thus, I find as a fact that he deliberately misrepresented these aspects of his claim in the reckless expectation that the worst that could happen would be that the number of hours would be reduced if his estimates were successfully contested. In view of this deliberate padding and misrepresentation of those estimates I am unwilling to exercise my discretion in his favour by ordering the Commission to pay any of those non-legal costs, or any of the costs associated with the "costs hearing" itself.

116On the other hand, I have found that the complaints herein were trivial, frivolous and vexatious, that they were made in bad faith, and that in the particular circumstances undue hardship was caused the persons against whom they were made, and I have found as well that the Commission acted irresponsibly. Since Mr. D'Addario's padding and misrepresentation of his costs occurred after those facts, I am of the view that he ought not to be deprived of all relief from the hardships he has suffered by having been wrongfully put through these proceedings. In my view he should be entitled to an award of legal costs in respect of the hearing into the merits of these complaints, but on a party and party basis only, and that he should be entitled to be reimbursed for the cost of the transcript of the landlord and tenant hearing (Item 2 of the table) as a legitimate disbursement made in respect thereof.

ORDER

117Having concluded that in the circumstances of this case I have a discretion under s. 41(4) of the Code to do so, and for all of the foregoing reasons, it is hereby ordered that the Ontario Human Rights Commission pay to the respondent Mr. G. D'Addario as costs fixed by this Board of Inquiry his legal costs on a party and party basis in respect of the hearing into this matter up to and including October 14, 1994, together with all legitimate disbursements made in that regard, including the payment of the transcript of the landlord and tenant proceedings referred to in this decision. If the parties are unable to agree to the amount so ordered they should make brief written submissions to me as to those items upon which they cannot agree, such submissions to be made before March 4, 1996.