Riemer v. York Regional Police (No. 1)
BI-0120-97
1997-07-30
ONTARIO BOARD OF INQUIRY
B E T W E E N:
Ontario Human Rights Commission
COMMISSION
and
Susan Riemer
COMPLAINANT
A N D:
York Regional Police and Donald Kirk
RESPONDENTS
INTERIM DECISION
Adjudicator:
Heather M. MacNaughton
July 30, 1997
Board File No.:
BI-0120-97
Decision No.:
97-017
Counsel for the Commission:
Kikee Malik
On her own behalf:
Susan Riemer
Counsel for the Respondents:
Joy L. Hulton
Susan Riemer filed a complaint with the Ontario Human Rights Commission (the "Commission") in which she alleged that she had been discriminated against, and harassed, in her employment on the basis of sex in breach of sections 5(1), 5(2) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code").
On July 22, 1992, a day I set aside to deal with preliminary matters, I was advised that the Commission and Mrs. Riemer were not proceeding with the complaint against Police Chief Bryan Cousineau. The style of cause of this interim decision reflects that.
Thereafter, the Commission sought an amendment to the complaint to add reprisal, a breach of Section 8 of the Code, as a ground. Mrs. Riemer alleges that, in seeking to enforce her rights under the Code, she and her husband were the subject of acts of reprisal which consisted of transfers within the York Regional Police Force.
The Law
It is clear from the jurisprudence of the Ontario Board of Inquiry, and the Canadian Human Rights Tribunal, and was not disputed by counsel for the Respondent, that I have jurisdiction to amend a complaint. That jurisdiction arises from the mandate, accorded the Board of Inquiry in Section 39(1)(a) of the Code, to determine whether a right of the complainant has been infringed.
The principles which govern the exercise of that jurisdiction were originally set out in Cousens v. the Canadian Nurses Association (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365 (Ont. Bd.Inq.) and approved in Tabar and Lee v. David Scott and West End Construction Limited (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 (Ont. Bd.Inq.). In Cousens the Board held that it had a mandate to inquire into allegations of discrimination which extended beyond the specific ground of contravention alleged in the complaint. Further, the complaint form differed from an information or indictment in a criminal proceeding in that it served only as general notice to a party in an administrative proceeding. That principle bas been aff'd more recently by the Ontario Board of Inquiry in Entrop v. Imperial Oil Ltd (No. 3) (1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186 and Moffat v. Oswin and The Kinark Child and Family Services (unreported, October 31, 1996) [ CHRR Doc. 96-180].
In deciding whether to exercise my jurisdiction in this case, I must assess the prejudice to the Respondents. If I find that the Respondents are prejudices) I must consider whether that prejudice can be rectified by allowing the Respondents further time to prepare to meet the allegations.
Argument
- Counsel for the Respondent argued that the facts in this case are such that I should not exercise my jurisdiction to amend. She argued that the excess of 4 years between the alleged acts of reprisal, the filing of the complaint, and the notice by the Commission of its intention to seek to add reprisal as a ground, is such that the Respondents will be unable to properly defend themselves against the allegations. The acts of reprisal now sought to be added to die complaint occurred before the complaint was filed with the Commission. Counsel advised that the Respondent dealt with the allegations of punitive transfers internally, prior to the complaint being filed, and believed they had been resolved. That belief, she said, was reinforced by the fact that the alleged reprisal acts did not form pact of the complaint. In the result, she submits, the Respondents were prejudiced. They took no steps to interview witnesses on this issue and to preserve their evidence by way of witness statements. She submitted that this prejudice to the Respondents cannot now be corrected by the granting of additional time.
Conclusion
I agree that the f acts of this case are unusual. There was however no evidence before me on which I could make a finding of prejudice. It is not sufficient for counsel to say that prejudice existed, that prejudice must be demonstrated by evidence setting out the nature and extent of the prejudice.
It is one of the unfortunate realities of our current human rights processes that adjudicators are often asked to make findings of fact based on testimony about events which occurred many years before the hearing. In the course of the hearing it is expected that any lapses of memory will be exposed and tested. Moreover, it is always open to the Respondents to make submissions to me during the hearing regarding the weight that should be attached to evidence of this sort.
Further, the Respondents have been aware from the outset that Mrs. Riemer was alleging harassment in her employment. Many of the facts which will go to support a finding of 'harassment, should one be made, will overlap with those relied on to support a finding of reprisal.
I conclude that it is in the interests of the parties, and of the administration of the human rights process, to have all of these allegations dealt with in one hearing and to amend the complaint to add the allegation of reprisal against Mrs. Riemer.
With respect to die allegation regarding the reprisal against Michael Riemer, that is only relevant to the extent that the Commission and Mrs. Riemer are able to persuade me that Mr. Riemer's transfer was an act of reprisal against Mrs. Riemer and impacted on her.