Ontario Board of Inquiry
Potocnik v. Thunder Bay (City) (No. 5)
1997-09-10
Dena Potocnik Complainant
and
Ontario Human Rights Commission Commission
v.
City of Thunder Bay Respondent
Date of Complaint: October 25, 1988
Date of Decision: September 10, 1997
Before: Ontario Board of Inquiry, Lorne Slotnick
Decision No.: 97-018-C
Appearances by: Kikee Malik, Counsel for the Commission Allan D. McKitrick, Counsel for the Respondent
COSTS — costs arising from human rights commission acting irresponsibly in pursuing complaint, poor investigation of complaint — reasons for awarding — reduction of costs awarded due to action of respondent — costs arising from undue hardship experienced by respondent — INTERPRETATION OF STATUTES — definition of "bad faith", "trivial" and "vexatious" — BOARDS OF INQUIRY / TRIBUNALS — authority to award costs limited by legislation
Summary: This is a decision on a request by the City of Thunder Bay that costs be ordered against the Ontario Human Rights Commission following the Board of Inquiry's decision to dismiss the complaint of Dena Potocnik. In her complaint, Ms. Potocnik alleged that there was a pattern and practice of discrimination against women at the City of Thunder Bay with respect to hiring for financial managerial positions, and that she, individually, was discriminated against because of her sex when she applied for the Treasurer's and Deputy Treasurer's positions.
This Board of Inquiry was asked by the Commission to require the City of Thunder Bay to produce a significant quantity of documents, which the City had withheld during the investigation phase of the complaint. Basing its case principally on these documents, the Commission argued that there was systemic discrimination in the practices of the City. Before hearing from the City of Thunder Bay, the Board of Inquiry dismissed the allegation of systemic discrimination, and the allegation that Ms. Potocnik was discriminated against because of her sex in the hiring for the Treasurer's position because it found that there was a lack of evidence to support these allegations.
The Board of Inquiry then heard evidence with respect to whether there was direct discrimination against Ms. Potocnik in the hiring for the Deputy Treasurer's position, and subsequently dismissed this allegation also.
There are two grounds on which costs can be ordered against the Commission under s. 41(4) of the Ontario Human Rights Code. If a complaint was trivial, frivolous, vexatious or made in bad faith; or if, in the particular circumstances, undue hardship was caused to the person complained against, costs may be ordered. The Board of Inquiry finds that this section clearly makes an order of costs the exception rather than the rule, even when the complaint is dismissed, and finds further that if the section were interpreted too broadly it might have a chilling effect on important human rights disputes reaching adjudication. Nonetheless, the Board of Inquiry concludes that once a case has been found to fit into one of the categories of the section, a Board of Inquiry should, normally, award costs.
In this case, the Board of Inquiry finds that the complaint was not trivial, frivolous, vexatious or made in bad faith. The allegations made were far from insignificant, a prima facie case of direct discrimination in the awarding of the Deputy Treasurer's position was made out, though it did not ultimately succeed, and the allegation of systemic discrimination was not so completely devoid of evidentiary backing that it can be called trivial or frivolous. The Board rejects the City of Thunder Bay's claim that the complaint was trivial and vexatious.
The Board of Inquiry finds that the complaint did cause undue hardship to the City of Thunder Bay because the Ontario Human Rights Commission did not responsibly carry out its obligation to investigate the complaint. Examining the Commission's Record of Investigation reveals that six and one-half years passed between the date when the complaint was filed in 1988 and the date when the Board of Inquiry was appointed in 1995.
This complaint, unlike most, was referred to a Board of Inquiry under s. 33(6) of the Code which permits the Commission to refer a complaint to a Board if a respondent refuses to comply with a request for production of documents. In this case, at the outset, the Commission informed the City of Thunder Bay of the complaint, and requested a number of documents relating to job competitions. The City replied without offering the requested materials, although it agreed that the Commission could look at Ms. Potocnik's personnel file. Years passed during which some correspondence passed between the Commission and the City, but little happened, except that the file passed through the hands of five different Commission investigators.
During this time, the City continued to withhold the requested documents, but the Board of Inquiry finds that the Commission did not undertake the investigation that it could have even in these circumstances. The Commission could have interviewed witnesses and examined the documents that were available to it. The Board of Inquiry finds that even though this was a complex complaint, the Commission's investigation consisted of only one or two meetings with Ms. Potocnik and two interviews with potential witnesses which took place more than five years after the complaint was filed. No effort was made to contact numerous people who could have given valuable information to the investigator. In 1995, the Commission decided to refer the complaint to a Board of Inquiry for hearing pursuant to s. 33(6).
The Board of Inquiry concludes that there really was no investigation before the Commission decided to have a Board of Inquiry appointed, nor was there any assessment of the merits of the complaint by Commission staff once the documents were produced. The effect of the Commission's failure to investigate, combined with its failure to assess the evidence once it had documentation, was to extend the hearing at least twenty days beyond what was needed.
The Board of Inquiry orders the Ontario Human Rights Commission to pay to the City of Thunder Bay the City's counsel fees on a party and party basis for twenty hearing days. However, the Board reduces this amount by thirty percent because the City was in part the author of its own undue hardship. It stalled and refused to provide documents to the Commission. Had it co-operated, events might have taken a different turn.
(Ed. Note: See also (No. 1) (1995), 1995 CanLII 18171 (ON HRT), 29 C.H.R.R. D/325, (No. 2) (1995), C.H.R.R. NP/96-85, (No. 3), (1996), 1996 CanLII 20066 (ON HRT), 29 C.H.R.R. D/333 and (No. 4) (1997), 29 C.H.R.R. D343 (Ont. Bd.Inq.).)
Cases Cited
Grace v. Mercedes Homes Inc. (No. 2) (1996), 1996 CanLII 20106 (ON HRT), 27 C.H.R.R. D/381 (Ont. Bd.Inq.): 15
Naraine v. Ford Motor Co. of Canada (No. 6) (1997), 1997 CanLII 24811 (ON HRT), 28 C.H.R.R. D/275 (Ont. Bd.Inq.): 11
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.): 8
Persaud v. Consumers Distributing Ltd. (No. 2) (1993), 1993 CanLII 16446 (ON HRT), 19 C.H.R.R. D/491 (Ont. Bd.Inq.): 10
Potocnik v. Thunder Bay (City) (No. 1)(1995), 1995 CanLII 18171 (ON HRT), 29 C.H.R.R. D/325 (Ont. Bd.Inq.): 3
Potocnik v. Thunder Bay (City) (No. 2) (1996), 1996 CanLII 20066 (ON HRT), 29 C.H.R.R. D/333 (Ont. Bd.Inq.): 5, 20, 29, 49, 54
Potocnik v. Thunder Bay (City) (No. 3) (1996), C.H.R.R. NP/96-85 (Ont. Bd.Inq.): 4
Potocnik v. Thunder Bay (City) (No. 4) (1997), 1997 CanLII 24839 (ON HRT), 29 C.H.R.R. D/343 (Ont. Bd.Inq.): 6
Shreve v. Windsor (City) (No. 3) (1993), C.H.R.R. NP/96-48 (Ont. Bd.Inq.): 17, 19
Wellington v. Brampton (City) Community Services Dept. (No. 2) (1995), C.H.R.R. NP/96-146 (Ont. Bd.Inq.): 13, 17
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 11: 2
s. 33(6): 26, 33, 39, 44, 56
s. 36(1): 26, 39, 56
s. 41(4): 7, 9, 11, 14
s. 41(4)(a): 20, 25
s. 41(4)(b): 19, 26, 65
Authorities Cited
Black's Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing Co., 1990): 16, 18
1This complaint by Dena Potocnik was dismissed, and the respondent, the City of Thunder Bay, has asked this Board to order that costs be paid by the Ontario Human Rights Commission. I heard argument on this issue on May 7 and 8, 1997, and also received written submissions.
2The complaint by Dena Potocnik was filed in late 1988, and alleged that the City of Thunder Bay discriminated against her on the basis of sex when it denied her the jobs of City Treasurer and, subsequently, Deputy City Treasurer. The complaint alleged direct discrimination in the awarding of the jobs, as well as systemic or constructive discrimination under what is now s. 11 of the Human Rights Code [R.S.O. 1990, c. H.19]. The Board of Inquiry was appointed in March 1995, about six and a half years after the complaint was filed.
3The hearing began in September 1995. After two days of hearings on preliminary matters, I ordered the disclosure by the City of Thunder Bay of a large number of documents related to numerous job competitions between 1983 and 1994 (Decision No. 95-047-I, October 27, 1995 [reported 1995 CanLII 18171 (ON HRT), 29 C.H.R.R. D/325]).
4There followed twenty-two days of hearings during which the Commission presented its case, consisting of hundreds of documents and fifteen witnesses. At the end of the Commission's case, the City asked me to dismiss the complaint for lack of evidence. I ruled that I would hear the motion to dismiss without calling on the City to make an election as to whether it intended to call evidence (Decision No. 96-016-I, June 5, 1996 [C.H.R.R. NP/96-85]).
5After three days of hearings on the motion to dismiss, I ordered the complaint dismissed as it related to direct and systemic discrimination in the awarding of the Treasurer job, and as it related to systemic discrimination in the awarding of the Deputy Treasurer position (Decision No. 96-029-I, August 30, 1996 [reported 1996 CanLII 20066 (ON HRT), 29 C.H.R.R. D/333]). I ruled that the hearing should continue on the portion of the complaint relating to direct discrimination in the choosing of the Deputy Treasurer.
6After another three days of hearings, I ruled that the Commission had not made its case of direct discrimination in the Deputy Treasurer competition, and thus I ordered the remainder of the complaint dismissed (Decision No. 97-004, February 7, 1997 [reported 1997 CanLII 24839 (ON HRT), 29 C.H.R.R. D/343]).
AWARDS OF COSTS UNDER THE HUMAN RIGHTS CODE
7The relevant subsection of the Human Rights Code reads as follows:
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.
8The section clearly makes an order of costs the exception rather than the rule, even when the complaint is dismissed. The courts have ruled that the Board of Inquiry has no power to award costs beyond those specifically authorized in the subsection of the Human Rights Code reproduced above (see Liquor Control Board of Ontario v. Ontario Human Rights Commission (1988), 1988 CanLII 8926 (ON HCJDC), 9 C.H.R.R. D/4868). Thus, there is no power to award costs against the complainant, nor is there power to award costs unless the complaint is either trivial, frivolous, vexatious, or made in bad faith, or if in the particular circumstances undue hardship has been caused to the respondent. Furthermore, even where one of the necessary conditions for a cost award has been established, the section says only that the Board "may" award costs.
9The burden of proving that the case fits into one of the categories in subsection 41(4) is on the respondent in the complaint, the City of Thunder Bay in this case.
10This limited jurisdiction to award costs is in stark contrast to the practice in civil actions, where an order for costs follows the event almost as a matter of course. Even in the human rights field, the Board of Inquiry in Ontario apparently has the narrowest scope to award costs of any similar body in Canada (see Persaud v. Consumers Distributing Ltd. (No. 2)(1993), 1993 CanLII 16446 (ON HRT), 19 C.H.R.R. D/491).
11This has provoked some debate among adjudicators over whether the section should be construed liberally, making it easier for respondents to claim costs when a complaint is dismissed. Most of the recent cases appear to support a restrictive interpretation of subsection 41(4). One reason that has been cited is the need for the Commission to pursue apparent violations of the Human Rights Code without fear of an expensive cost award if the complaint is dismissed. As Adjudicator Constance Backhouse put it in Naraine v. Ford Motor Co. of Canada Ltd., March 11, 1997 (at 8 [reported 1997 CanLII 24811 (ON HRT), 28 C.H.R.R. D/275 at D/279, para. 19]), "the chilling effect that an expansive interpretation of s. 41(4) would create might winnow out some of the most important human rights disputes from ever reaching public adjudication".
12I agree that every award of costs carries with it a danger of a "chilling effect". This, though, must be balanced against the costs, monetary and otherwise, to a respondent who is put through a lengthy human rights process in circumstances where a hearing could have been avoided had the Commission conducted itself properly and responsibly.
13In my view, the legislation contemplates an award of costs only in an extraordinary situation. I agree with the statement in Wellington v. City of Brampton Community Services Dept., Ont. Bd.Inq., December 13, 1995 [C.H.R.R. NP/96-146], that "the Commission, if it behaves honestly and professionally, will very rarely be met with a cost order under s. 41(4)".
14At the same time, subsection 41(4) is a crucial protection for all respondents and potential respondents against incompetence or abuse by the Human Rights Commission.
15For this reason, I believe that while the words of the subsection should be applied strictly, I am also of the view that once a case has been found to fit into one of the categories in the section, the Board's discretion should normally be exercised in favour of awarding costs. As the Board said in Grace v. Mercedes Homes Inc., unreported, Ont. Bd.Inq., January 31, 1996 [now reported 1996 CanLII 20106 (ON HRT), 27 C.H.R.R. D/381 at D/387, para. 24] January 31, 1996 (at 16 [now reported 27 C.H.R.R. D/381 at D/387, para. 24]),
Surely, when the respondent not only wins, but the circumstances bring the case within the scope of paragraphs (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 circumstance causing undue hardship.
16The cases interpreting subsection 41(4) also have debated the meaning of the words "trivial", "frivolous" and "vexatious". Many of the decisions cite the definitions of those words in Black's Law Dictionary, which tend to emphasize their meaning in relation to pleadings in a civil case. This, in turn, has provoked debate over the meaning of the word complaint in the phrase "the complaint was trivial, frivolous, vexatious or made in bad faith". On the one hand, if the word refers to the "complaint" as a type of pleading, the issue becomes whether the actual complaint document is trivial, etc. If the "complaint" means the substance of the allegations and the issues that emerge in the hearing, the issue is different.
17Given that the section is not even triggered until after the complaint is dismissed, I think the legislation contemplates the Board of Inquiry making an assessment of the issues raised in the entire process, rather than just the complaint document, to determine whether the complaint was trivial, etc. This approach has been used in other cases (see Shreve v. City of Windsor, Ont. Bd.Inq., May 25, 1993, at 4 [C.H.R.R. NP/96-48], and the Wellington v. City of Brampton case, supra, at 65.
18I also favour using the ordinary meaning of the words "trivial", "frivolous", and "vexatious", rather than the more esoteric definitions contained in Black's Law Dictionary. Thus, for the complaint to be trivial or frivolous, the issues must be unimportant, petty, silly, or insignificant enough to be a waste of the tribunal's time. In addition, a complaint completely without factual or legal basis might be considered trivial or frivolous. A vexatious complaint is one that aims to harass, annoy or drain the resources of the person complained against. A complaint made in bad faith is one pursued for improper reasons — a vexatious complaint is an example of one made in bad faith.
19Clause (b) of subsection 41(4), giving the board discretion to award costs if "in the particular circumstances undue hardship was caused to the person complained against" appears to allow for potential cost orders in a wider variety of situations. Still, in its use of the words "particular circumstances" and "undue hardship", the legislation contemplates that costs may be ordered only where the respondent has suffered beyond what would be expected where a complaint was pursued by the Commission acting responsibly but unsuccessfully. In other words, there must be something special or extraordinary about the situation for the board to even acquire the discretion to award costs. As the Board put it in the Shreve case (at pp. 7–8):
... I think the legislation contemplates that potential involvement as a respondent to a human rights complaint is one of the risks of doing business in Ontario. I think the intent is that the normal legal costs of these proceedings be distributed as an expense of doing business, rather than awarded as costs under s. 41(4) ... At the same time, it is conceivable that even a corporate or business respondent may suffer undue financial hardship as a result of defending against a complaint under the Code because of the abnormal nature of the costs involved. An argument can be made that the costs in this case are abnormal. They relate, not to the usual presentation of a case with respect to the merits of a complaint, but to remedying the unfairness in the process resulting from the way in which the Commission proceeded.
"TRIVIAL, FRIVOLOUS, VEXATIOUS OR MADE IN BAD FAITH"
20Given the discussion above on interpreting clause (a) of subsection 41(4), I disagree with the City's contention that Ms. Potocnik's complaint was trivial or frivolous. The complaint made allegations that were far from insignificant, even if they turned out to be unproved. The core of the complaint was that a major Ontario municipality had structured its hiring and promotion process so that men were favoured in the awarding of financial managerial positions. I found that Ms. Potocnik and the Commission had made out a prima facie case of direct discrimination in the awarding of the Deputy Treasurer position, although they ultimately failed to prove the allegation on the balance of probabilities. This in itself indicates that there was some factual basis for the complaint. With respect to the systemic portion of the complaint, as I ruled in my decision of August 30, 1996, there were some facts about hiring decisions that were questionable but not enough to make out a prima facie case when the hiring and promotion history was examined in its entirety. While the allegation of systemic discrimination lacked a factual basis, I cannot say it was so completely devoid of evidentiary backing that it can be called trivial or frivolous. A stronger argument can be made that the allegation of direct discrimination in the awarding of the Treasurer's job was so lacking in factual basis that it should be considered trivial or frivolous. However, because this allegation is so closely tied to the rest of the complaint, I am reluctant to declare that this portion of the complaint was trivial or frivolous.
21The City also argued that the complaint was vexatious or made in bad faith. Counsel pointed to a number of credibility issues that emerged with respect to Ms. Potocnik, as well as some evidence which, according to the City, suggests that Ms. Potocnik planned the complaint years before she filed it and, in fact, structured her activities in order to gather evidence for the future.
22In my previous rulings, I have said little about Ms. Potocnik's credibility, since it was unnecessary. Much of what the City's counsel calls credibility issues were in reality opinions given by Ms. Potocnik, stated as facts, but often unsupported by the evidence. However, on at least one occasion, I believe Ms. Potocnik lied in her evidence: she stated clearly that no lawyers were involved in her departure from the accounting firm of Thorne Riddell, yet a witness later produced letters from her lawyer on exactly that issue. In another instance, she doctored a document to eliminate potentially damaging material, and later offered a flimsy explanation for her actions. On numerous other matters, I found her testimony to be improbable or exaggerated.
23Having said that, I do not believe that Ms. Potocnik's credibility issues flow from a desire to pursue the complaint for improper reasons but rather from her sincere belief that she was the target of discrimination. I cannot say that she lied about any of the central issues in the case, such that the complaint could be described vexatious or made in bad faith. Ms. Potocnik is simply someone who believed she was wronged and was prepared to warp the facts into this belief and to try to bury or ignore facts that did not fit.
24Neither am I convinced that Ms. Potocnik pursued the complaint for improper motives. It is clear she was gathering "evidence" and asking questions years before the complaint was filed, but this is probably explained as the actions of a woman who thought there might be a problem of discrimination and sought to document it.
25In summary, I do not think there is a basis for considering a cost award under clause (a) of subsection 41(4).
WAS UNDUE HARDSHIP CAUSED IN THE PARTICULAR CIRCUMSTANCES?
26Turning to clause (b) of subsection 41(4), it is worth examining in some detail the events of the six and a half years between when the complaint was filed and when this Board of Inquiry was appointed, particularly since this complaint did not proceed to a hearing in the normal way.
The normal route to the Board of Inquiry is under subsection 36(1) of the Human Rights Code, which reads as follows:
36(1) Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commissioner may refer the subject-matter of the complaint to the board of inquiry.
This complaint, however, reached the Board of Inquiry after a referral under subsection 33(6) of the Human Rights Code, which states that:
33(6) If a person refuses to comply with a request for production of documents or things, the Commission may refer the matter to the board of inquiry or may authorize an employee or member to apply to a justice of the peace for a search warrant under subsection (7).
The reasons behind this procedure, apparently rarely used by the Commission, will be discussed below. However, the fact that the complaint was referred to the Board of Inquiry under subsection 33(6) will affect my assessment of the "particular circumstances" and whether undue hardship was caused.
27In order to examine the course of the complaint and how it proceeded to a hearing, the most important document I reviewed is the Commission's Record of Investigation. This is a point-by-point notation of every action taken on the file, including the date and the time spent. Whenever any action was taken, it was noted at the time in the Record of Investigation. Most of the correspondence referred to in this document was also filed with the Board, so I believe I have a fairly comprehensive picture of the actions taken by the Commission, except of course for internal discussions. I might add that at no time during the thirty-two days of hearings did any official from the Commission testify, so that I was not offered any explanation of the Commission's actions.
28In November 1988, the complaint was filed and served on the City, with the Commission pointing out its obligation under the Human Rights Code to investigate all complaints. A letter asked the City to respond to the complaint before the Commission began its investigation. The complaint was relatively long and complex, with thirty-four paragraphs and reference to numerous job competitions. At this time, the Commission requested documentation relating to all competitions mentioned in the complaint, as well as Ms. Potocnik's personnel file and some other material.
29The City, through its counsel, immediately denied any contravention of the Human Rights Code and filed a full response in February 1989. At this time, the City forwarded a copy of its 1985–86 Employment Equity Report (referred to in my ruling of August 30, 1996) and offered to have the Commission examine Ms. Potocnik's personnel file, provided she consented. The City's response does not refuse to provide the requested documentation on the job competitions, but neither does it offer the material, saying merely that "we cannot confirm that all the relevant records are available", noting that some of the events cited in the complaint went as far back as 1983 and involve people who were no longer employed by the City.
30Some further correspondence was exchanged until May 1989, with nothing resolved at that point, and then the file seems to sit dormant for about nine months, at which point the Commission officer advises the City that "we are now commencing our investigation". The officer adds that because the complaint is complex, the investigation will focus on one aspect, namely the Treasurer competition. The Commission requests documents and information related to this competition, and says it will conduct interviews after receiving the documentation.
31A handwritten note from the Commission file dated March 27, 1990, refers to a telephone conversation with the City's counsel and says "Anttila [the City's personnel manager] is preparing documents as per letter and will fwd".
32But then the file disappears into a bureaucratic black hole for more than two and a half years. The Commission officer advises the parties in June 1990 that she is moving to another job and the file is to be reassigned. The new officer declares a conflict of interest and the Record of Investigation notes, "File banked until Officer available". In early 1991, the file is assigned to the Commission's Special Task Force that was designed to relieve a backlog of cases. The letter advising the City of this shuffle says "an officer of the task force will be in contact with you in the immediate future to commence investigation of the complaint". Despite assignment to the task force, there is no evidence of any investigation being done on the complaint, aside from some brief contact between a new officer, the third, and Ms. Potocnik, and apparently some contact between the officer and the City's counsel (which is not noted in the Record of Investigation but referred to in some correspondence).
33Then in October 1992 — more than a year and a half after any previous correspondence between the Commission and the City — a fourth officer appears on the scene and makes a comprehensive request to the City for documents related to all the job competitions referred to in the complaint. The City responds the next month by saying the complaint can no longer be validly processed because of the delay. The Commission follows by pointing out to the City that the Commission has the right (under subsection 33(6)), where a request for documents is refused, to request a search warrant or to ask that a board of inquiry be appointed. However, despite making this threat, the Commission takes no action and the file is reassigned from the task force to a new officer, the fifth. Another delay of more than half a year ensues.
34The new officer, Katherine Fraser-Hominick, starts work on the file in May 1993 by sending the file to the Commission's systemic unit for review and input. The systemic unit, I was told at this hearing by Commission counsel, provided support to the investigative unit, and files such as Ms. Potocnik's, which alleged systemic discrimination and were by their very nature complex, were to be reviewed by this unit.
35However, a note in the Record of Investigation dated July 6, 1993, says, "Received file back from systemic unit. Unable to review prior to officer's departure from that unit. Suggests review at another time".
36Then in August 1993, Ms. Fraser-Hominick repeats the request for documentation and tells the City that if the material is not received, "I intend to complete the investigation without the documentation and to prepare my report". A reply the next month from the City does not offer any documents and repeats the City's contention that the complaint cannot proceed because of the delay. The Commission follows the next month with another request for documentation on eight job competitions. The City said it would look at what documents existed, but still maintained the complaint could not proceed.
37At the same time, Ms. Fraser-Hominick began preparing a Case Analysis, the document which is put before the commissioners of the Human Rights Commission for a decision on further action.
38The Case Analysis, dated November 18, 1993, says "an investigation of the complaint has not been completed. The respondents have failed to provide relevant documents requested by the Commission for the purposes of investigation". The analysis enumerates all the requests for documentation the Commission has made, and adds that "it is highly unlikely that the respondent, having failed to provide the requested documents over the past 5 years, intends to".
39The Case Analysis also notes that "at this time no determination as to the merits of this case have been made". It concludes by requesting that the commissioners have a board of inquiry appointed pursuant to subsection 33(6) for the purpose of obtaining an order that the City produce the documents. (The normal route to the Board of Inquiry, as mentioned above, is under subsection 36(1). That subsection, with its use of the words "where ... the evidence warrants an inquiry" presumes that an investigation has been done and that the Commission has made some assessment of the evidence gathered.)
40It is worth noting that at this point the Commission had not examined Ms. Potocnik's personnel file, even though this was one of the few documents to which the City had freely agreed to provide access. Nor had the Commission evidently made any attempt to speak to anyone who had any knowledge of the allegations, except of course Ms. Potocnik. For example, Barbara Mason, who was one of two interviewers for the Deputy Treasurer position and who had left her job with the City in 1991, was never contacted, even though she later became one of the key witnesses at the hearing. It was obvious from the start that her evidence would be important, and this would have been known to Ms. Potocnik and, through her, to the Commission. Nor was any attempt made to contact Christine Bates, a member of the City's human resources staff who had some knowledge of human rights issues and who had had extensive discussions with Ms. Potocnik.
41When the Case Analysis and the City's response to it were put before the commissioners in early 1994, the commissioners made no decision on what to do with the complaint, pending a request for further submissions from the City. In the meantime, Ms. Fraser-Hominick wrote to the City in April 1994, saying, "I have received direction from the Regional Manager to attend at the City of Thunder Bay for the purpose of obtaining a copy of Ms. Dahl [sic] Potocnik's personnel file and to proceed with the investigation to the extent possible given the information submitted to date by both parties. Following conclusion of the investigation, a case analysis will be prepared ..."
42At the same time, in the spring of 1994, Ms. Fraser-Hominick conducted interviews with two potential witnesses, apparently the first contact with anyone aside from Ms. Potocnik. This occurred roughly five and a half years after the complaint was filed. Neither of the women interviewed, Susan Soldan and Delia Gray-Liddle, was called as a witness at the hearing on the complaint.
43At this point, with the matter back in the hands of the local Commission office, the City applied to the Divisional Court to have the Commission prohibited from proceeding in any way with the complaint, an action which it had previously threatened. In the alternative, the City asked the Court to order the commissioners to deal with the complaint, either by deciding to abandon it, or by appointing a board of inquiry. The court action did not proceed, as a result of a settlement which sent the file again to the commissioners for a decision based on a revised case analysis.
44This second case analysis, also written by Ms. Fraser-Hominick, says,
At this time, an investigation and subsequently [sic] analysis of the complaint is unable to be completed, and no determination as to the merits of this case have been made. The respondent has failed to comply with requests for the production of relevant documents which would enable the Commission to conduct its investigation into this matter.
The officer recommends that the Commission exercise its discretion under subsection 33(6) to have a board of inquiry appointed to obtain an order producing documentation. The commissioners referred this matter for hearing and, by letter dated March 10, 1995, I was appointed by the then Minister of Citizenship "to form a Board of Inquiry to hear and determine" this complaint.
45From the above summary I make the following observations, which are relevant to whether the particular circumstances of this case caused undue hardship to the City:
More than six years after the complaint was filed, the Commission in its own document says it had made no assessment of the merits of the case. Given that it did not have the documents at this time, it is quite proper for the Commission not to have made an assessment of the case. However, in the fall of 1995, when the hearing began, I ordered the disclosure of the documents that had been sought for so long by the Commission. The disclosure enabled the Commission to assess the case. However, at the time of the hearing the Commission [was] represented by a lawyer not on its staff and I have no indication that anyone on the Commission's staff ever made an assessment of the merits of the case.
Even though this was a complex complaint involving allegations of systemic discrimination in a large municipal public service over a period of a number of years, the Commission's "investigation" consisted only [of] one or two meetings with Ms. Potocnik and two one-and-a-half-hour interviews with potential witnesses; those interviews took place five and a half years after the complaint was filed, and did not produce anything in the form of evidence at the hearing that supported Ms. Potocnik's complaint. (Both names were given to the Commission by Ms. Potocnik, who apparently felt the two women would confirm discriminatory practices by the City. The notes of the Soldan interview found their way into the documents that were put into evidence at the hearing, and they do not show Ms. Soldan saying anything that would reflect poorly on the City, and in fact record her contradicting one of Ms. Potocnik's examples of alleged favouritism toward men. Ms. Soldan was no longer employed by the City at the time of the interview.) Aside from these interviews, the Record of Investigation shows only the requests for documents, various other correspondence with the complainant and the City's counsel, preparation of the case analyses and other documents, and much internal movement of the file within the Commission. No effort was made to contact numerous people who could have given valuable information to an investigator. The two interviews that were done were not conducted until after the first case analysis, and long after the Commission had — quite properly — said it would perform as much of the investigation as it could before deciding whether to proceed.
While the City did not provide the documentation the Commission requested, the Commission's characterization (in the Record of Investigation) of the City's actions as "obstruction" seems somewhat overstated. If it was obstruction, it was of a passive, rather than aggressive, nature. The City seemed to be taking the attitude that if it ignored the Commission, the complaint would go away. For large blocks of time, that is exactly what happened. Had the Commission been more firm in demanding the documents; had it begun talking to potential witnesses; had it followed up on the City's apparent commitment in March 1990 to provide the documents; or had it moved to apply for a search warrant as it had the right to do, the City might have been persuaded that this was something to take seriously. As it was, there seemed to be no impetus coming from the Commission.
The only material, aside from the employment equity report, that the City invited the Commission to view was Ms. Potocnik's personnel file. This invitation was not taken up for more than five years. I have never been given any indication why the Commission would not even bother to take such a basic step in an investigation of this sort.
46I conclude that there really was no investigation before the Commission decided to have a Board of Inquiry appointed, nor was there any assessment by Commission staff once the documents were available. While no investigation could possibly be completed on this type of complaint without at least some of the documents requested, the Commission failed to even attempt the many steps it could have taken without any documents. Once the documents were made available, I have no indication that anyone from the Commission staff even saw them, let alone examined them in order to assess whether the complaint was worth pursuing.
47The documents formed the bulk of the case the Commission put forward at the hearing, particularly with respect to the systemic portion of the complaint. Even though the Commission also called fifteen witnesses, those witnesses, including Ms. Potocnik — who testified for about a dozen hearing days — mainly amplified, explained and interpreted what was in the documents.
48What is likely to have happened had the Commission done as much of the investigation as it could without the documents? I can answer based only on what I heard in the testimony at the hearing. In my view, had the Commission talked to potential witnesses such as Ms. Mason and others, the investigator would have had serious questions about the merits of Ms. Potocnik's complaint. But I do not believe that an investigation without the documents would have been conclusive, except perhaps with respect to the portion of the complaint related to direct discrimination in the Treasurer position. An investigation likely would have increased the Commission's desire to analyze the documents thoroughly in order to check out Ms. Potocnik and her story. It might also have raised questions about Ms. Potocnik's integrity and capacity for analyzing situations accurately.
49What would have happened had the Commission made a proper assessment of the case once it received the documents? I am confident that had the Commission examined the documents and interviewed a few key witnesses, it would have decided not to pursue the complaint of direct discrimination as it related to the Treasurer job. With respect to the systemic complaint, there were only two reasonable responses: not pursue the matter, or to undertake more research and investigation. In other words, the documents by themselves, along with the statements of the key players in the job competitions, clearly did not provide enough evidence to make a case of systemic discrimination — as I ruled in my interim decision of August 30, 1996.
50The consequences of the Commission's failure to investigate to the extent possible during the six and a half years before the Board of Inquiry was appointed, combined with its failure to assess the case once the documents were disclosed, is that a hearing that should have lasted only a few days and should have dealt only with whether there was direct discrimination in the awarding of the Deputy Treasurer's job, was prolonged far more than necessary.
51Aside from the allegation of direct discrimination in the awarding of the Deputy Treasurer's job, I dismissed the rest of the case without asking the City for a response. These portions of the complaint consisted of the allegation of direct discrimination in the awarding of the Treasurer's job, and the systemic discrimination allegation in the awarding of the Treasurer's and Deputy Treasurer's job. By my estimation, these three elements consumed at least twenty days of the hearing.
52These twenty hearing days occurred because the Commission simply did not do its job. No investigation to the extent possible was done, and once the matter was sent to the Board of Inquiry, the complaint appeared to become an unstoppable force that was going to proceed no matter what the documents disclosed, and without the thorough research, investigation and analysis which is essential to proving a systemic complaint. Instead of doing the work necessary to strengthen the case — or simply deciding that the case could not be substantiated — the Commission relied only on Ms. Potocnik's research and analysis, which was at best incomplete and self-serving and at worst distorted and inaccurate.
53I have no way of knowing whether the Commission, with further investigation and research, could have made out a case of systemic discrimination. I do know that the Commission did not even make the effort it should have, with costly results for the City.
54One stark example of the Commission's failure to assess Ms. Potocnik's complaint was its apparent acquiescence in her view that the so-called "equivalency clauses" in job descriptions discriminated against women (see decision of August 30, 1996, at p. 18 [D/339]). The Commission was, in effect, arguing against a measure that attempted to, and did, assist historically disadvantaged groups such as women.
55I emphasize that I would not be making these comments had the Commission conducted itself in a reasonably effective manner as an investigative body. This Board should not attempt to second-guess the Commission if the Commission has made a reasonable and professional effort to fulfill its obligations. Nor should it be demanding perfection in hindsight. It is not the fact that the complaint was ultimately dismissed, but the dereliction of the Commission's duty to investigate and assess the case that prompt the concern.
56I am also aware that the Commission was not dealing with a co-operative respondent in the City of Thunder Bay. As mentioned above, I agree the Commission was unable to complete an investigation without examining the documents. In these circumstances, with a referral under subsection 33(6), I cannot require the Commission to have done the kind of complete investigation it would have done before a referral under 36(1). But I believe the Commission had an obligation to investigate to the extent possible before it obtained the documents, and to assess the complaint once the documents were disclosed. No explanation was ever offered by the Commission for the long delays or the lack of action over several years. Nor was I given any indication as to why the Commission did not attempt to use its power to request a search warrant to obtain the documents. In the absence of any evidence, I have to assume the complaint was simply neglected; there is no indication of bad faith or purposeful misconduct.
57In defence of the Commission, Ms. Malik — who represented the Commission during this hearing on costs, but was not Commission counsel during the main part of the hearing — noted that the case was referred to the Board under subsection 33(6), which, she said, changes the circumstances. Once a matter is referred to the Board, she said, the Commission is a party to the proceeding and is in a prosecutorial role. As such, it cannot stop the process, although she conceded the Commission can decide not to call evidence on some or all the issues in the complaint. At the time of litigation, however, she said, the rules are different and a "high threshold" is required to back away from a complaint.
58I agree that the circumstances in this case are different because of the 33(6) referral. But it is hard to believe that any intelligent litigating party, except perhaps one that has no fear of being penalized — by an award of costs, for example — would have a policy of blindly pursuing any case once it reached the hearing stage, regardless of how weak it might be.
59It may be understandable for a party to continue with a case that once looked promising but was starting to unravel, but in this situation, the Commission had never made any assessment of the strength of the case before it got to the hearing stage. Surely, it is appropriate to ask, on behalf of the public which finances the Commission and on behalf of the respondents who are exposed to the monetary and emotional costs of a hearing, that the Commission at some point in the process look at the evidence and make an assessment.
60The Commission argued that the onus was on the City to show that any investigation that could have been done without the refused documents would have revealed that the complaint was unsubstantiated, and that the City failed to discharge this onus. I do not agree that this is the issue. First, the Commission did eventually have access to the documents, yet still made no assessment of the merits of the case. Second, as outlined above, the Commission had many avenues by which it could pursue the investigation in the absence of the documents, yet failed to do so. One can only speculate on what the Commission would have found had it actually investigated, and it would be impossible for anyone to prove one way or the other what an investigation would have revealed.
61The correct question is really whether the Commission did what it could and should have done under the circumstances, and if not, what consequences followed.
62The answer, in my view, is that the Commission failed in its duty to investigate and to assess the merits of the case, and as a consequence, the City was put to the expense of twenty days of hearings that in my assessment, in the balance of probabilities, would not have happened had the Commission acted responsibly.
63Is this "undue hardship" for a large municipality with an annual budget of $200 million and the power to raise money through taxes? It might be argued that hardship is "undue" only when the respondent is someone, such as a small business owner or small landlord, who simply cannot afford tens of thousands of dollars to defend a human rights complaint. I do not think the test in this kind of situation is whether the respondent can afford to pay, but whether the respondent has had to incur a burden beyond what would normally be expected where the Commission had acted responsibly but unsuccessfully. Every complaint entails a "hardship" for the respondent. That hardship is "undue" to the extent that it stems from the Commission neglecting its duties or acting in bad faith.
64In summary, I am of the view that in the particular circumstances of this case — namely the Commission's failure to act in a proper manner by investigating to the extent of [sic] possible and by assessing the case once it had all the material — the City has been caused undue hardship.
AWARD OF COSTS
65Having found that the requirements of clause (b) of s. 41(4) have been met, the next issue is whether I should exercise my discretion in favour of costs. In view of the law and circumstances as outlined above, I have decided to make an order for costs based on my estimate that the hearing was prolonged by twenty days through the fault of the Commission.
66However, I believe that by stalling and refusing the disclosure of documents, the City was the author of at least some of its own undue hardship. Had it co-operated from the beginning, or even after five years, it may well be that the Commission would have done a proper investigation and decided that most of the complaint was not worth pursuing, or that more information needed to be gathered. The City's conduct certainly does not absolve the Commission of its duties, but had the City co-operated, events might have taken a different turn.
67I therefore order the Commission to pay the City's counsel fees for twenty hearing days. However, this amount is to be reduced by 30 percent to take into account the City's conduct in not disclosing the documents. Each party should bear the costs of its own disbursements.
68I am awarding the costs on a party and party basis. I do not accept the City's request for solicitor and client costs; that would be punitive in a situation where there is no evidence of purposeful misconduct.
69If the parties cannot agree on the exact amount to be paid within thirty days of the date of this decision, they should provide brief written submissions to me on the issue within another thirty days.