Carol Shapiro Complainant
and
Ontario Human Rights Commission Commission
v.
Regional Municipality of Peel, Michael Garrett, Peter Cole and Elma Lobo Respondents
Date of Complaint: November 21, 1990
Date of Decision: February 3, 1997
Before: Ontario Board of Inquiry, Heather M. MacNaughton
Decision No.: 97-002-I
Appearances by:
Anthony Griffin, Counsel for the Commission
Paul Henry Shapiro, Counsel for the Complainant
Michael Garrett, Peter Cole, Elma Lobo, Counsel for the Respondent
COMPLAINTS — PARTIES — HUMAN RIGHTS COMMISSIONS — complainant's status in proceeding — right to proceed with complaint without human rights commission — SETTLEMENT — complainant not party to settlement agreement — HUMAN RIGHTS — nature and purpose of human rights legislation
Summary: This is an interim decision by a Board of Inquiry on a motion by the respondent municipality to dismiss the complaint of Carol Shapiro.
The Ontario Human Rights Commission and the Regional Municipality of Peel reached a settlement in the matter of the complaint of Carol Shapiro. Because of this, the Commission will not call evidence, make argument or seek a remedy before the Board of Inquiry. The Municipality argues that because the Commission has carriage of the complaint, the settlement between the Commission and the Municipality brings the matter to an end. The Commission has control of all aspects of complaints. Consequently, when the Commission reaches a settlement with a respondent that should conclude all proceedings.
However, Ms. Shapiro and the Commission argue that s. 29 of the Code grants separate party status to the complainant, and that, as a party the complainant has the right to call evidence, examine witnesses and make arguments. They further submit that, if the position of the Municipality were accepted, the Commission could force complainants to accept otherwise unacceptable settlements.
The Board of Inquiry finds that an interpretation of the Code which would give the Commission authority to force acceptance of a settlement on a complainant, is inconsistent with the fundamental, quasi-constitutional nature of human rights legislation. The Commission can settle with respondents on the basis that a public interest remedy has been achieved. For example, the Commission may wish to settle with an employer who amends a discriminatory policy prospectively to comply with the Code if the policy change satisfies the public interest and public education mandate with which the Commission is charged. The settlement may not, however, provide for damages which are acceptable to the complainant whose personal interests have been affected.
Without specific wording in the Code, the Board of Inquiry declines to find that where the Commission has settled with the respondent, the complainant is unable to pursue her right to an individual remedy. To do so would be to ignore the party status specifically granted by the statute.
Boards of Inquiry have historically recognized the complainant as a separate party. The independent party status accorded the complainant entails the full rights accorded any party in a proceeding. Those include the right to call evidence, examine and cross-examine witnesses and to make arguments. To refuse to recognize the complainant's party status in this case would be to force her to accept a settlement which is clearly not acceptable to her.
The Board of Inquiry concludes that, if granted, the order sought in this case would have grave, far-reaching consequences for the processing of human rights complaints. The Commission would be reluctant to settle, knowing the complainant could not proceed without them and complainants could be unduly pressured into accepting settlements that they did not wish to, by the threat that the Commission and the respondent would settle leaving them no right to continue.
For these reasons, the motion brought by Peel is dismissed.
Cases Cited
Barclay v. Royal Canadian Legion, Branch 12 (October 11, 1995), (Ont. Bd.Inq., Leighton) [unreported]: 5
Burney v. University of Toronto (1995), 1995 CanLII 18156 (ON HRT), 23 C.H.R.R. D/90 (Ont. Bd.Inq.): 10
Guthro v. Westinghouse Canada Inc. (No. 2) (1991), 1991 CanLII 13135 (ON HRT), 15 C.H.R.R. D/388 (Ont. Bd.Inq.): 5
Insurance Corp. of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145, 3 C.H.R.R. D/1163: 7
Naraine v. Ford Motor Co. of Canada (No. 3) (1995), C.H.R.R. NP/96-49 (Ont. Bd.Inq.): 10
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: 7
Strauss v. Ontario (Liquor Licence Board) (1994), 1994 CanLII 18415 (ON HRT), 22 C.H.R.R. D/169 (Ont. Bd.Inq.): 5
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 32(1): 3
s. 33: 3
s. 34: 3
s. 36: 3
s. 37: 3
s. 39: 4
s. 39(1): 6
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 4.1: 6
THE BACKGROUND
1The respondent, the Regional Municipality of Peel ("Peel"), seeks to have Carol Shapiro's complaint dismissed. Peel and the Ontario Human Rights Commission (the "Commission") have reached a settlement, to which Ms. Shapiro is not a party. As a result of the settlement the Commission will call no evidence, make no submissions, and seek no remedy against Peel in the hearing before the Board of Inquiry.
THE ISSUE
2I am asked to find that Ms. Shapiro cannot proceed with her complaint before the Board of Inquiry in the absence of the Commission. Counsel on behalf of Peel argues that because the Commission has carriage of Ms. Shapiro's complaint, a settlement reached between it and the respondent concludes the process before me.
THE ARGUMENTS
3Counsel on behalf of Peel argues that, pursuant to the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"), the Commission controls all aspects of a human rights complaint up to, and including, referral of a complaint to the Board. Counsel submits that the Commission performs a number of roles under the Code including: intake of complaints (s. 32(1)), investigation and mediation (ss. 33, 34 and 37), and, ultimately, dismissal of the complaint or referral to the Board of Inquiry (s. 36). Once a panel of the Board of Inquiry has been appointed to inquire into the referred complaint, the Commission has carriage of the complaint at the hearing. Counsel for Peel submits that it would be surprising if the Commission did not continue to control the process at the Board of Inquiry after exercising such control up to that point. They argue that "carriage" of the complaint is the mechanism by which the Commission retains control over the continuation of the complaint.
4Counsel for both the Commission and Ms. Shapiro disagree. They submit that s. 39 of the Code specifically grants separate party status to the complainant at the hearing and that, as a party, the complainant has the right to call evidence, to examine witnesses, and to make arguments. They further submit that if I were to adopt the position of Peel, the Commission would be able to force complainants to accept otherwise unacceptable settlements. Counsel for Ms. Shapiro did not argue that the Commission should not have reached a settlement independent of the complainant and hence I am not required to deal with that issue.
5A review of the existing case law indicates that the issue before me has not been previously decided by a board of inquiry under the current statutory regime. In a number of cases a complainant has proceeded before the Board of Inquiry in the absence of the Commission, where the Commission has withdrawn after reaching a settlement with the respondent (Strauss v. Ontario (Liquor Licence Board)(1994), 1994 CanLII 18415 (ON HRT), 22 C.H.R.R. D/169 (Ont. Bd.Inq., Beckett); Guthro v. Westinghouse Canada Inc. (No. 2) (1991), 1991 CanLII 13135 (ON HRT), 15 C.H.R.R. D/388 (Ont. Bd.Inq., Gorsky); and Barclay v. Royal Canadian Legion, Branch 12 (unreported, October 11, 1995, Leighton)). It appears from the reasons given in those cases that the issue before me was not argued.
DECISION
6Section 39(1) of the Code requires me to hold a hearing for the specific purpose of determining whether a right of the complainant has been infringed. I can dispose of the matter without a hearing pursuant to s. 4.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended (the "S.P.P.A.") if all the parties consent to that disposition. It is clear that Ms. Shapiro does not consent. Therefore, unless the position of Peel is accepted, I must hold a hearing.
7Counsel for Peel referred me to a number of labour cases in which it has been consistently held that a grievor cannot proceed with a grievance in the absence of its union. Counsel submits that while these cases are not binding on me, the situation is analogous. I do not agree. Labour statutes have not been accorded the quasi-constitutional and fundamental status awarded the Code (O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102], Insurance Corp. of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145 [3 C.H.R.R. D/1163]). Further, there is a significant statutory difference in that the Code specifically gives the complainant party status. No such provision exists in labour statutes which, by contrast, accord unions exclusive representation rights on behalf of their members.
8In my view an interpretation of the Code, which would give the Commission authority to force acceptance of a settlement on a complainant, is inconsistent with the fundamental, quasi-constitutional nature of human rights legislation. The Commission can settle with respondents on the basis that a public interest remedy has been achieved. For example, the Commission may wish to settle with an employer who amends a discriminatory policy prospectively to comply with the Code if the policy change satisfies the public interest and public education mandate with which the Commission is charged. The settlement may not, however, provide for damages which are acceptable to the complainant whose personal interests have been affected.
9Without specific wording in the Code, I am not prepared to find that the complainant in such a situation is unable to pursue her/his right to an individual remedy. To do so would be, in my view, ignore the party status specifically granted by the statute.
10Further, the Board of Inquiry has historically recognized the complainant as a separate party (Naraine v. Ford Motor Company (unreported, Backhouse, September 14, 1995 [C.H.R.R. NP/96-49]) and Burney v. University of Toronto(1995), 1995 CanLII 18156 (ON HRT), 23 C.H.R.R. D/90).
11I am of the view that the independent party status accorded the complainant entails the full rights accorded any party in a proceeding. Those include the right to call evidence, examine and cross-examine witnesses and to make arguments. To decide otherwise in this case would be to force this complainant to accept a settlement which is clearly not acceptable to her. Had that been the intent of the legislation it could have been achieved by providing that the Commission is the "prosecutorial" party before the Board of Inquiry.
12If granted, the order sought in this case would have grave, far-reaching consequences for the processing of human rights complaints. The Commission would be reluctant to settle, knowing the complainant could not proceed without them and complainants could be unduly pressured into accepting settlements that they did not wish to, by the threat that the Commission and the respondent would settle leaving them no right to continue.
13For all of the above reasons the motion brought by Peel is dismissed.