Daniels v. Hamilton-Wentworth (Regional Municipality) Police Services Board (No. 3), 1997 CanLII 24777

BOARD OF INQUIRY (Human Rights Code)

IN THE MATTER OF the Ontario Human Rights Code, RS.O. 1990, c.H. 9, as amended;

AND IN THE MATTER OF the complaint by Mark Daniels dated April 26, 1991, alleging discrimination in employment on the basis of race, colour and harassment by the Regional Municipality of Hamilton-Wentworth Police Services Board.

BETWEEN:

Ontario Human Rights Commission

-and-

Mark Daniels

Complainant

• and -

Regional Municipality of Hamilton-Wentworth Police Services Board

Respondent

DECISION

Adjudicator: Paula Knopf

Date: September 30, 1997

Board File No.: 93-0013

Decision No.: 97-021

APPEARANCES

Ontario Human Rights Commission Peter Abrahams, Counsel

Mark Daniels, Complainant Paul J. Osier, Counsel

Regional Municipality of Hamilton-Wentworth Police Services Board, Respondent David Beck, Counsel

1On the 13th day of November 1996 this Board of Inquiry issued a decision dismissing the complaint filed on behalf of Mark Daniels. In the course of the hearing on the merits of this matter, the Respondent had sought to elicit evidence in support of its claim that it should receive costs against the Commission for the way it had investigated and pursued this complaint. However, rather than hear this evidence at that time, the Board of Inquiry ruled that evidence on that issue should be called only in the event that the Respondent decided to pursue such a claim after the decision on the merits had been issued. After the decision was issued to the parties in November, the Respondent gave notice of its desire to pursue its claim for costs against the Commission. Accordingly, a further hearing was convened on September 11, 1997 for consideration of the application for costs.

2This application is based upon Section 41.4 of the Code which provides:

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 the person complained against such costs as are fixed by the Board.

3Counsel for the Respondent argued that the Board of Inquiry should exercise a discretion to award costs in this case on two alternative bases. The first ground for the claim for costs is that the complaint was made and pursued to hearing by the Commission in bad faith. Specifically, it was said that the allegation of bad faith is based on the manner in which the Commission conducted the investigation of the complaint and allegedly disregarded relevant evidence. Alternatively, it was argued that the processing of the complaint has resulted in undue hardship to the Police Services Board in having to defend itself.

4In support of these allegations, the Respondent relied on the evidence of several witnesses. First, Staff Sargeant Watts testified. At all relevant times he was the Respondent's officer in charge of personnel and recruitment. He had access to all the personnel files and had personal knowledge about the recruits and probationary employees in positions similar to Mr. Daniels. He testified that the Respondent received a request for information, data, documentation and materials from the Human Rights Commission's investigating officer and that he was given the responsibility of fulfilling these requests. Staff Sargeant Watts also explained that the respondent had concerns about privacy and freedom of information with the release of some of this information to the Commission. However, ultimately it was determined that it was the Respondent's statutory duty and obligation to provide all the requested material to the Human Rights Commission. Staff Sargeant Watts explained that he used the Commission's request for information as a "template" and supplied all the material that was requested. This amounted to a bundle of documents approximately three inches thick. In cross-examination, Staff Sargeant Watts admitted that he understood that the Human Rights Commission was requesting the documentation because of the allegations which had been made. Further, he had "no qualms" about the fact that the Commission was requesting the material, other than those stated above concerning the Freedom of Information Act and his foreknowledge about how much work it would take to fulfil the request. Staff Sargeant Watts added that he may have disagreed about what was being asked for, but that he did not think of the request as being "malicious." He also testified that he was able to fulfil all the requests of the Commission.

5The Respondent also called Donald Cobb, the Human Rights Commission's investigator assigned to the Daniels complaint, as a witness. Mr. Cobb was asked why specific information was requested and gave explanations for each request. To summarize, he explained that the Commission was looking for information about past practices for comparison purposes to take a "systemic look to see how the Respondent looked at other employees." After having received all the information from the Respondent that had been requested, and after having considered the documentation and evidence that he had gathered, Mr. Cobb wrote a summary of his investigation which was passed on to the Human Rights Commission for purposes of determining whether it would recommend the appointment of a Board of Inquiry. Mr. Beck, counsel for the Respondent, took Mr. Cobb through the case summary that had been prepared and pointed out several conclusions which Mr. Cobb admitted had not been corroborated. Some of these conclusions have since been shown to be untrue and unfounded. For example, the case summary states that Mr. Daniels "is the first police constable of the Respondent in 20 years who has been terminated for this type of behaviour." While it is open to argument that "this type of behaviour" could be given a broad meaning, the evidence made available to this Board of Inquiry establishes that the statement is not reliable. Mr. Cobb accepted the validity of the statement because it was made by the Police Association representative with 20 years' experience in the Region. But the statement was never verified with the Respondent. The Respondent expressed grave concern over the Commission making such an assertion without asking for verification.

6Another matter of concern is that the case summary states that:

A number of white probationary constables have failed their fitness test more than once and yet been allowed to retest. There is further evidence that in at least one case a white recruit who had failed his fitness test was not retested and nevertheless made a permanent member of the Respondent Police Force.

However, this is not correct. Evidence led at the Board of Inquiry established that Mr. Cobb was simply mistaken or lacked enough evidence or sufficient understanding of the situation to have made such an assertion.

7The examination of Mr. Cobb also revealed that on several occasions he accepted the word of Mr. Daniels or his advocate to reach several conclusions without having investigated further. Examples of this were situations with regard to the treatment of other probationary officers, and an issue such as the motivation of Ms. Doe's father. Lastly, the case summary and the Commission's own disclosure to the Respondent reveal that the Commission's analysis of probationary officers in a similar position to

8Mr. Daniels failed to take into consideration a number of officers whose files were contained in the documentation produced to the Commission.

9On cross-examination by the Commission, Mr. Cobb explained that his case summary was based on the conclusions he reached after having reviewed all the documentation that had been received and all the information that had been provided to him. His conclusion after this analysis was that there were several critical contradictions and unanswered questions raised by both the documentation and the positions being taken by the Hamilton-Wentworth Police Services Board. These inconsistencies and contradictions led Mr. Cobb to the conclusion that a Board of Inquiry should be convened.

10Documentary evidence that was filed by the parties included a Human Rights Commission procedures manual which contains the following instructions:

The principal vehicle for carrying out the objectives [of the Human Rights Code] is the complaint process. Processing of complaints is an exercise in law enforcement. It is therefore imperative that the Officer conduct all investigations thoroughly and impartially. The Officer is an advocate for neither party; rather, he/she is an advocate for compliance with the Code.

The Officer diligently pursues the relevant and material facts necessary to a proper resolution...

Officers are expected to conduct the investigation thoroughly and professionally, without bias and within the constraints established by Commission procedures and the Code.

As a law enforcement agency, the Commission has a duty to direct the investigation so that all complaints are investigated fairly and appropriately

The Submissions of the Parties

11The Respondent stressed that the Ontario Human Rights Commission has an important responsibility to discharge under the Human Rights Code. Therefore, it should conduct itself appropriately and impartially in an investigation of all complaints. It was alleged that this complaint was handled in bad faith or, in the alternative, that undue hardship has been caused by the processing of the complaint. With regard to the first allegation, the Respondent conceded that in order to establish bad faith, there must be evidence of an ulterior or sinister motive. In the case at hand, it was alleged that the investigation by Mr. Cobb was so flawed and so incomplete that it reveals a bias on the part of the Commission in that it took on the role of advocate for Mr. Daniels against the Respondent instead of following its own procedure manual and conducting an impartial investigation. Counsel for the Respondent was very critical of the investigation, citing the officer's failure to do an adequate comparison of police officers in similar circumstances even though the documentation was available for such comparison. The Commission was also criticized for failure to interview several key witnesses and instead relying upon statements by Mr. Daniels or his advocate. The Commission was also criticized for failure to conduct a thorough and objective analysis of the evidence before it, despite the fact that the Respondent had put the Commission on notice before the Board of Inquiry commenced that there may be flaws in the analysis. The Respondent expressed frustration that "our concerns fell on deaf ears." Despite the Respondent's thorough and detailed ten-page reply to the Commission's case summary, the Board of Inquiry was convened. It was alleged that this amounts to a bad faith investigation and process.

12With regard to the allegation that this case has resulted in undue hardship to the Respondent, it was stressed that the hearing was so broad in scope and required such an enormous effort to respond, that it should be concluded that undue hardship has resulted. It was stressed that the Respondent has had to dedicate a great deal of expense, time and staff to the defence of this matter. A "Bill of Costs" of the Respondent was filed indicating total fees, costs and disbursements at $90,813.82. It was suggested that if the Commission had conducted the investigation properly and had not failed to examine significant evidence, this case would not have been pursued by the Commission or would not have evolved into the lengthy and difficult hearing that the Respondent had to defend. Accordingly, the Board of Inquiry was asked to award and fix costs in favour of the Respondent. In support of its motion, the Respondent relied on the following authorities: Pham v. Beach Industries Limited (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R., D/4008 (Ontario Board of Inquiry), Johnson v. East York Board of Education (No. 2) (1991), 1991 CanLII 13131 (ON HRT), 17 C.H.R.R, D/175 (Ontario Board of Inquiry), Shreve v. Windsor (City) (No. 2) (1993), 1993 CanLII 16462 (ON HRT), 18 C.H.R.R., D/363 (Ontario Board of Inquiry), Jerome v. DeMarco (No. 3) (1993), 1993 CanLII 16443 (ON HRT), 20 C.H.R.R., D/15 (Ontario Board of Inquiry), and Barber v. Sears Canada Inc. (No. 4) (1995), 1995 CanLII 18163 (ON HRT), 24 C.H.R.R., D/85 (Ontario Board of Inquiry).

13Counsel for the Human Rights Commission stressed that in order to award costs under Section 41(4) of the Code, the Board of Inquiry must be satisfied that the complaint was made or processed in bad faith or that undue hardship has resulted. In such cases, the burden of proof lies with the Respondent on the balance of probabilities. It was argued that the Respondent has failed to satisfy this burden of proof. Counsel for the Commission turned to the evidence of Mr. Cobb and argued that he did a thorough investigation and did everything that needed to be done, given the allegations of Mr. Daniels. The Commission asked for information that was necessary to do a comparative analysis of employees in a like situation. It was submitted that there was nothing sinister or unbalanced in the investigation that could lead to any conclusion that bad faith could be attributed to the Commission. Further, it was argued that there was no dishonest purpose or bias revealed in the way the investigation was conducted or the way the analysis was performed. On the contrary, it was argued that the investigation revealed cause for suspicion because of the contradictions and inconsistencies on the part of the Respondent. This led Mr. Cobb to the legitimate conclusion that a Board of Inquiry should be convened to determine whether or not Mr. Daniels' allegations were well founded. Counsel for the Commission then turned to the decision of this Board of Inquiry on the merits and submitted that the conclusions which were reached justify Mr. Cobb's suspicions and concerns. Accordingly, it was said that this is not an appropriate case to conclude that the Commission should be attributed with bad faith in the way the investigation was conducted.

14Turning to the question of undue hardship, it was submitted that this portion of the Code should not be interpreted in such a way that any respondent who has been vindicated on the merits should be entitled to costs. Instead, it should be read to allow costs only in cases where the defence is out of proportion to the nature of the complaint. It was argued that there was no evidence of undue hardship in this case.

15Counsel for the Commission cited the following cases and materials in support of its positions: Hyman v. Southam Murray Printing et al. (1984), Pham v. Beach Industries Ltd (1987), Aguiar v. Basonje Systems (1987), Adams v. Bata Retail (1989), Ouimette v. Lilycups (1990), Johnson v. East York Board of Education et al. (1991), Jerome v. Demarco (No. 3) (1993), Persaud v. Consumers Distributing (No. 2) (1993), Shreve v. City of Windsor et al. (1993), Elkas v. Blush Stop Inc. et al (1994), Barber v. Sears Canada Inc. (1995), Wellington v. City of Brampton et al. (1995), Grace and Belford v. Mercedes Homes Inc. et al. (1996), Jones v. Highmark Properties (1996), Precedent for "Costs" factum (1994) and essay entitled Cost Awards Against the Ontario Human Rights Commission: Subsection 41(4) (1996).

The Decision

16The cases cited above give able and thorough analyses of when it is appropriate to award costs under Section 41(4) of the Human Rights Code. It is not in the parties' interests or necessary for this Board of Inquiry to give yet another analysis of the current state of jurisprudence in this area. Suffice to focus in on the two critical areas in this case. First, it is alleged that the conduct of the Human Rights Commission in the processing of this complaint amounts to bad faith. Previous Boards of Inquiry have adopted the Black's Law Dictionary concept of bad faith. It is defined as:

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

17Bad faith is a very serious allegation. It goes far beyond an allegation of neglect or dereliction of duty. It implies and alleges a sinister motive in conduct or a decision to embark upon a course of conduct because of a dishonest or improper purpose.

18Taken at its highest, the evidence adduced by the Respondent in support of its application for costs reveals that the investigation by the Human Rights Commission into the complaint of Mr. Daniels contains several flaws. The investigator failed to seek corroboration of some significant allegations, failed to analyze some very significant evidence and failed to consider some evidence which might have suggested that there should be some doubt as to the accuracy of some aspects of the complaint. The admitted obligation of the Human Rights Commission is to conduct an impartial and professional investigation. When an investigation is flawed, this can lead to criticism of the Human Rights Commission. But, there is no legal requirement that the investigation be ideally perfect. The Human Rights Code sets up a system of checks and balances. It allows for an investigation. It allows a party complained against to reply to the summary of the investigation. It then gives the Commission itself the opportunity to analyze the results of the investigation and determine, in its own discretion, whether a Board of Inquiry should be convened. Thereafter, the Board of Inquiry itself is empowered to analyze all the evidence that is made available to it. It cannot be ignored that after 18 days of hearing of detailed evidence and almost 100 exhibits, while the complaint was dismissed, several probing questions were raised by the complaint itself. To quote from the substantive decision of this Board of Inquiry at page 56:

There are some difficult questions that were not answered by the evidence.

Further, at page 57 it was stated:

There are a number of inconsistencies in the Respondent's case ..... The inconsistencies regarding the status of Mrs. Doe as a complainant permeate the Force's documentation.

At page 60, it was said:

Another aspect of the inconsistencies of the Respondent's case must be addressed to see what inferences can be drawn. The Respondent's documentation and its witnesses gave differing reasons why Mr. Daniels' services were terminated.

Finally, at page 72 it was concluded:

If the Respondent had been more forthright in attributing the relationship as the cause to release him from the Service, the record would have been less confusing. If the Police Services Board had answered the January 1991 specific allegations of discrimination raised after the fact, some confusion and suspicion could have been dispelled.

19Those citations from the decision on the merits are repeated in this decision on the motion for costs to indicate that even after 18 days of detailed evidence, the documentation and the evidence of the Respondent, while ultimately providing a satisfactory answer to the complaint, raised several serious issues that gave cause for suspicion. These were the same issues and concerns that were articulated by Mr. Cobb in his testimony. Under these circumstances, it would be inappropriate to ascribe bad faith to such an investigation. It is easy to see how the investigation could have been more effective and more thorough. But this does not lead to a conclusion that the Human Rights Commission has acted in bad faith. Accordingly, this aspect of the application for costs is dismissed.

20The Respondent argued alternatively that it has been subjected to undue hardship by the conduct of the Commission in this case. It is easy to see why the Respondent feels this way. Much of the evidence that was adduced at the hearing dealt with a comparison of other probationary officers who were alleged to have been treated differently than the complainant. However, the evidence did not sustain that allegation. The Respondent asserts that it was put to undue expense and difficulties to defend itself because of these unfounded allegations which could have been clarified if the investigation had been conducted more professionally. It must again be concluded that this aspect of the Respondent's motion cannot succeed. The citations from the decision on the merits above show that several critical and important questions were raised by the Respondent's defence. Its documentation was inconsistent and at some times very confusing. In a sense, the Respondent has been the author of its own misfortune in terms of the protracted nature of these proceedings. This is not to suggest that it is solely responsible. It is simply to suggest that it bears some part of the responsibility for the lengthy nature of this litigation. Accordingly, it has not been established that it was subjected to undue hardship in all these circumstances.

21For all these reasons, the application for costs is dismissed.