McKenzie Forest Products Inc. v. Tilberg (No. 1), 1998 CanLII 29888

McKenzie Forest Products Inc. v. Tilberg (No. 1)

1998-10-02

Ontario Board of Inquiry

Adam Tilberg Complainant

and

Ontario Human Rights Commission Commission

v.

McKenzie Forest Products Inc. Respondents

Date of Complaint: March 25, 1993

Date of Decision: October 2, 1998

Before: Ontario Board of Inquiry, Katherine Laird

Appearances by: Raj Dhir, Counsel for the Commission Gerald Rayner, Counsel for Tim Tilberg Nigel Campbell, Counsel for the Respondent

COMPLAINTS — PARTIES — HUMAN RIGHTS COMMISSIONS — complainant's right to proceed without human rights commission — authority to withdraw from participation in hearing — JURISDICTION — jurisdiction to hear complaint when human rights commission withdraws as carrier of complaint — PUBLIC INTEREST — public interest component of complaint settled

Summary: This is a decision on a preliminary motion brought by McKenzie Forest Products Inc. seeking an order dismissing the complaint of Adam Tilberg on the grounds that the Board of Inquiry has lost jurisdiction to proceed.

Mr. Tilberg alleges that he was discriminated against because of a disability when he was refused employment with McKenzie Forest Products because he was born without thumbs.

McKenzie Forest Products argues that the Board of Inquiry has lost jurisdiction because, after referring the complaint to a Board of Inquiry, the Ontario Human Rights Commission withdrew from its usual role as carrier of the complaint before the Board of Inquiry. The respondent argues that if the Commission will not participate in the hearing process or tender any evidence, this can only mean that it has withdrawn the complaint from the Board of Inquiry. The respondent contends that if the hearing was allowed to continue, the Board would inappropriately convert itself into a civil court with jurisdiction to decide a dispute between two private parties. Since the Code is a statute for the enforcement of a public interest, McKenzie Forest Products argues that the legislation did not contemplate a two-party adversarial process without the safeguards and protections that are built into the civil justice process.

Mr. Tilberg argues that under the statute the Commission is not permitted to withdraw from a proceeding before a Board of Inquiry. Once a complaint is referred by the Commission, there is no express provision in the legislation for reconsideration or withdrawal. However, if the Commission is entitled to withdraw, Mr. Tilberg contends, this does not mean that the complaint is brought to an end. As the complainant, Mr. Tilberg has party status and this status would be meaningless if the Commission could bring the proceedings to an end at any point by withdrawing its participation.

The Commission argues that it can withdraw from representing a complainant before a Board of Inquiry where it has been able to negotiate a remedy in respect of the public interest component of a complaint. However, such a withdrawal does not bring a complaint to an end; the complainant is entitled to proceed.

The Commission argues further that, given the authority in s. 41(4) of the Code to order costs against the Commission, the Commission has no choice but to actively assess its participation in hearings in light of any settlement concessions made by the respondent in the course of the mediation process which precedes the hearing by the Board of Inquiry.

The Board of Inquiry finds that the Commission has taken steps to abandon carriage of the complaint. However, it cannot withdraw as a party to the complaint. The jurisdiction of the Board of Inquiry to order costs against the Commission upon dismissal of a complaint can only be exercised once the merits of the case have been decided, and the Commission cannot evade an order against it by withdrawing from the hearing process.

Finally, the Board of Inquiry rules that the Commission cannot withdraw a complaint once it has been referred to a Board of Inquiry. In the absence of the Commission, the complainant can rely on his status as a party to present evidence and argument in support of the merits of the complaint.

The motion is rejected.

CASES CITED

Burney v. University of Toronto (1995), 1995 CanLII 18156 (ON HRT), 23 C.H.R.R. D/90 (Ont. Bd.Inq.): 23

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: 21

Shapiro v. Peel (Regional Municipality) (No. 1) (1997), 1997 CanLII 24834 (ON HRT), 29 C.H.R.R. D/77 (Ont. Bd.Inq.): 16, 20

LEGISLATION CITED

Ontario

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

s. 5(1): 1

s. 36(1): 13, 15

s. 39(1): 19

s. 39(1)(a): 11

s. 39(2): 14, 16

s. 41(4): 17

Human Rights Board of Inquiry Rules of Practice: 6, 23

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

s. 4.1: 19

s. 7(1): 23

s. 23: 19

INTRODUCTION

1The complaint before the Board of Inquiry in this proceeding alleges discrimination in employment on the basis of handicap, pursuant to s. 5(1) of the Human Rights Code [R.S.O. 1990, c. H.19] ("Code"). The complainant, Adam Tilberg, alleges that he was refused employment with the respondent, McKenzie Forest Products Inc., because of the fact that he was born without thumbs.

2This decision deals with a preliminary motion brought on behalf of the respondent. The motion seeks an order dismissing the complaint on the basis that the Board of Inquiry has lost jurisdiction. It is the position of the respondent that the Ontario Human Rights Commission ("Commission") has taken certain steps in respect of this proceeding which have the necessary effect of terminating the right of the complainant to have his complaint adjudicated by the Board of Inquiry. The factual and legal nature of the steps taken by the Commission are at issue in this motion, but there is no dispute that the Commission has, at minimum, advised the other parties and the Board that it was withdrawing as a participant in the hearing on the merits.

3The motion brought by the respondent raises issues with respect to the status of the statutory parties before the Board of Inquiry. The introduction of mediation conferences as part of the pre-hearing process at the Board of Inquiry has resulted in a high rate of settlement, but has also raised procedural, substantive and jurisdictional issues not fully anticipated in the legislation. These issues could be addressed by legislative amendments clarifying, at minimum, the role and status of the various parties to human rights proceedings. However, for the reasons set out below, I have determined that, notwithstanding the steps taken by the Commission, the Board of Inquiry retains jurisdiction to hear and decide the complaint filed by Adam Tilberg.

4The preliminary motion of the respondent is dismissed. The hearing will reconvene on October 19, 1998, in Thunder Bay, commencing at 12:30 in the afternoon. Further, the time period set for additional disclosure by the respondent, as ordered at the hearing on June 29, 1998, is hereby abridged to seven days from the date of this decision, that is to October 9, 1998.

FACTUAL BACKGROUND TO MOTION

5On March 23, 1993, Adam Tilberg filed his complaint against McKenzie Forest Products with Commission. The complaint was received by the Board on February 17, 1997, by referral from the Commission.

6The hearing commenced by telephone conference call held on March 13, 1997. In accordance with the Rules of Practice of the Board of Inquiry, the parties agreed to a schedule for filing pleadings, and disclosure of documents. A mediation date was set for June 9, 1997, and a pre-hearing conference set for June 23, 1997. In fact, following the first mediation, a second session was scheduled, but prior to that date, counsel for the Commission wrote to the Board to advise that the Commission had decided that it would no longer participate in the hearing before the Board. The text of this letter, dated October 14, 1997, is as follows:

As already discussed with Mr. Fricot [in-house counsel for respondent] and Mr. Tilberg, the Ontario Human Rights Commission has decided to no longer participate in the Board of Inquiry process, and will not be pursuing the complaint filed by Mr. Tilberg.

As such, the Commission does not intend to tender any evidence at a Board of Inquiry hearing should this matter proceed, nor will the Commission be participating in any further mediation sessions which may be scheduled.

The complainant, Tilberg, is aware of his right to proceed with this matter on his own. I understand that he is considering this option, and wishes to consult with his own legal counsel. It is probable that he will not be able to do so before the next scheduled mediation date. Therefore, the Commission suggests that the Complainant and the Respondent Party be consulted as to the suitability of the mediation date set for October 27, 1997 in Thunder Bay.

7As a result of this letter, the scheduled mediation was cancelled by the Registrar. In order to allow Mr. Tilberg sufficient time to retain counsel, a conference call to set further dates in this matter was scheduled for December 23, 1997 . On that date, the Registrar of the Board, at the request of the parties, set a further mediation date of February 27, 1998, and a pre-hearing date of March 26, 1998. On March 16, 1998, Mr. Tilberg wrote to the Registrar advising that, at the pre-hearing conference on March 26, he would be seeking a disclosure order as against the Commission. On March 18, 1998, Mr. Tilberg wrote again to the Board to advise that he had retained his own counsel, Gerard Raynor, and that Mr. Raynor would be available to represent him at the pre-hearing. However, on March 23, 1998, Mr. Raynor wrote to the Registrar requesting a one-month adjournment of the pre-hearing conference in order to have more time to become familiar with the file. Counsel for the respondent consented to the adjournment.

8In the circumstances, the Registrar brought the adjournment request to my attention, and I determined that the pre-hearing conference should proceed by telephone on March 26, 1998, and that the Commission should receive notice. The Commission did participate in the call, and responded to my questions with respect to disclosure of the Commission's file to the complainant. In addition, Commission counsel advised the Board again that it was withdrawing from the hearing and suggested that it would no longer be a party at the hearing. I acknowledged that the Commission was taking the position that it could or had withdrawn, but reminded the parties that I had made no determinations with respect to the continuing status, if any, of the Commission. At this point, counsel for the Commission exited from the call.

9In the absence of Commission counsel, it was determined that, given the Commission's non-participation in the hearing, revised pleadings should be filed. A schedule was set for the exchange and filing of pleadings, for additional disclosure and for the exchange of witness lists. At this point in the conference call, respondent counsel advised the Board that it would be bringing a preliminary motion for dismissal on the basis that the complainant was unable to proceed without the Commission's participation in the hearing. In addition to relying on the October 14, 1997, letter, set out above, counsel advised the Board that it would be relying on a further letter, also dated October 14, 1997, in which Commission counsel confirmed that the respondent was to provide a "letter of assurance" to the Commission "as a condition of withdrawing".

10The respondent's motion for dismissal was scheduled for argument on June 29, 1998, after the exchange of revised pleadings and after the parties had an opportunity to consider if further mediation efforts would be useful. The Commission was notified of the motion and attended to make submissions.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

11Counsel for the respondent took the position that the jurisdiction of the Board of Inquiry was contingent on the Commission's participation in the hearing. Pursuant to the legislation, only the Commission can refer a human rights complaint to the Board for a hearing and the Commission is identified as the party with carriage of the complaint before the Board. Counsel argued that, by necessary implication, if the Commission, as in this case, advises the Board that it will "no longer participate in the Board of Inquiry process" and that it will not be tendering evidence at the hearing, the correct interpretation is that the Commission has withdrawn the complaint from the Board itself. Counsel argued that in these circumstances, the Board no longer had jurisdiction to fulfill its statutory duty under s. 39(1)(a) to determine whether or not a right of the complainant under the Code has been infringed.

12Respondent counsel noted that the letter of assurance was provided as a condition for the Commission's withdrawal. Although the respondent knew, at the time the letter was provided, that the Commission took the position that the hearing could continue in its absence, it was argued that there was prejudice to the respondent given that such an interpretation was inconsistent with the overall scheme of the Code. In particular, counsel submitted that, if the hearing was allowed to continue, the Board would inappropriately convert itself into a civil court with jurisdiction to decide a dispute between two private parties. Characterizing the Code as a statute for the enforcement of a public interest, it was argued that the legislation did not contemplate a two-party adversarial process without the safeguards and protections which are built into the civil justice process.

SUBMISSIONS ON BEHALF OF THE COMPLAINANT

13Counsel for the complainant argued that the legislation did not allow the Commission to withdraw from a proceeding before the Board of Inquiry. Once the Commission refers a complaint to the Board under s. 36(1), there is no express provision in the legislation for withdrawal or reconsideration of the referral. In the alternative, counsel argued that, if the Commission was entitled to withdraw, there would be no prejudice to the respondent from the continuation of the hearing. The respondent realized, before providing the letter of assurance, that the complainant had not abandoned his claim. In fact, it was argued that the only prejudice was to the complainant, who had received no personal benefit from the letter of assurance, and was at this late stage, expected to pick up the costs of legal representation at the hearing.

14On the question of jurisdiction, counsel argued that it could not have been intended that the Board's continuing jurisdiction depended on the on-going participation of the Commission in the proceedings, given that, at the hearing stage, the Commission is only one of three or more parties before the Board. The party status of the complainant under s. 39(2) of the Code would be meaningless if the Commission could bring the proceedings to an end at any point by withdrawing from participation in the hearing.

SUBMISSIONS OF THE COMMISSION

15Counsel for the Commission took the position that, after referral of a complaint to the Board of Inquiry, the Commission has no authority to withdraw the complaint from the Board. Pursuant to s. 36(1) of the Code, the Commission refers "the subject-matter of the complaint" for a hearing and becomes a party before the Board, relinquishing, in the words of counsel, its prior "jurisdiction over the complaint".

16Although the Commission cannot withdraw a complaint, counsel argued that the Commission could withdraw itself from the complaint, and from the hearing, without affecting the jurisdiction of the Board to hear and decide the complaint in its absence. Counsel noted that the Commission has in the past withdrawn from hearings in circumstances where it has been able to negotiate a remedy in respect of the public interest aspect of a complaint. In every case in which the Commission has withdrawn, the Board has allowed the complainant to continue to present his/her case at the hearing, although the jurisdictional issue has only been fully argued in one decision: Shapiro v. Peel (Regional Municipality)(1997), 1997 CanLII 24834 (ON HRT), 29 C.H.R.R. D/77. In that decision, relied upon by the Commission, the Board of Inquiry found inter alia that the party status of the complainant under s. 39(2) of the Code, necessarily gave her the right to continue before the Board in the absence of the Commission.

17Counsel argued further that, given the authority in s.41(4) of the Code to order costs against the Commission, and the developing jurisprudence exercising that authority, the Commission has no choice but to actively assess and reassess its participation in hearings in light of any settlement concessions made by the respondent in the course of the mediation process at the Board of Inquiry.

FINDINGS

18In the circumstances of this case, I find that the Commission has taken steps to abandon active carriage of the referred complaint before the Board of Inquiry. The Commission has advised the parties and the Board that it will not be participating in the hearing. Notwithstanding the position taken by counsel for the Commission on the March 26, 1998, conference call, it was not argued at the June 29, 1998, hearing that the Commission had withdrawn as a party before the Board. The Board has no express jurisdiction under the Code to remove the Commission as a statutory party. Further, I find that the Commission has not withdrawn, and cannot withdraw, as a party before the Board of Inquiry. The jurisdiction of the Board to order costs against the Commission upon dismissal of the complaint, can only mean that the Commission remains subject to the Board's jurisdiction until final disposition of the proceeding. The Board cannot be in a position to assess whether a costs order under s. 41(4) of the Code would be appropriate until it has made its final determinations.

19Further, I accept the submissions of the Commission counsel to the effect that the Commission itself lacks the authority to withdraw a complaint which has been referred for a hearing. After referral of a complaint to the Board, the Commission loses its status as "gatekeeper" to the hearing process and becomes a party to the hearing, albeit the party with statutory carriage of the complaint. From the point of referral, the Board is under a statutory duty to hear a complaint on its merits unless all the parties otherwise consent: s. 39(1) of the Code; s. 4.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("S.P.P.A."). Although there is some jurisprudence holding that the Board has authority to discontinue a proceeding to prevent abuse of its processes under s. 23 of the S.P.P.A., this was not at issue in this case. The Commission is only one of at least three parties before any board of inquiry, and cannot, on its own, have the ability to cause the tribunal to lose jurisdiction.

20Given that the Commission cannot withdraw a complaint, can the Commission withdraw from a complaint, or from the hearing into the complaint? Counsel for the Commission and the respondent both took the position that the Commission could, and had in fact, withdrawn from the complaint, differing, as we have seen, on whether there was a resulting impact on the Board's jurisdiction. In my view, the correct interpretation is that the Commission has merely declined to take carriage of the complaint at the hearing on the merits. In the absence of the Commission, the complainant can rely on his statutory status as a party to the proceeding to present the evidence and arguments in support of the merits of the complaint: Shapiro, supra. Specific statutory language would be required to support a finding that the complainant's party status, and the right to a hearing on the merits, could not survive a Commission decision to not participate in the hearing of a complaint.

21With reference to the respondent's argument that to continue the hearing would be to inappropriately take jurisdiction for adjudicating a private dispute, I note that human rights adjudication almost always involves a determination in respect of individual rights and remedies, in addition to the public interest aspects. Complainants who are successful before the Board of Inquiry are entitled to an order compensating them for their losses arising out of the infringement of their rights, including special damages. Given the decision of the Supreme Court of Canada in Seneca College of Applied Arts and Technology v. Bhadauria(1981), 1981 CanLII 29 (SCC), 124 D.L.R. (3d) 193 [2 C.H.R.R. D/468], human rights complainants will seldom have another forum for seeking redress.

22If, as in this case, the Commission decides that it will not take carriage of the complaint at the hearing, can the Board order the Commission to fulfill this aspect of its statutory role in the human rights enforcement process? What does the concept of carriage involve and what would it mean to require the Commission to retain active carriage of the complaint at the hearing on the merits? These issues were not fully argued before me. Counsel for the complainant took the position that the Commission should continue to have carriage, but did not specifically address the content of such a requirement or the authority of the Board to order participation by the Commission.

23Given that the Commission remains a party before the Board, I am satisfied that it is within my jurisdiction, in appropriate circumstances, to order the Commission to comply with the Board's Rules, for example with respect to disclosure. Further, in my view, it is appropriate for the Board to continue to give the Commission notice of the on-going proceedings, even though the Commission is not attending and accordingly is not entitled to notice under s. 7(1) of the S.P.P.A. In some situations, such as the present motion, the Board may advise the Commission that it would be helpful if it made submissions on a point of interpretation of the Code. As well, it is of course incumbent on the Board to give notice to the Commission, and an opportunity to make submissions, should there be a motion for costs at the end of a hearing in which the Commission chose not to participate. However, I also note that a decision-maker cannot require a party to present evidence or argument on a particular point in issue. In the absence of full argument, I am unwilling to make a determination as to whether the Board of Inquiry could, and should in the present case, order the Commission to retain, or take back, active carriage of this complaint. Even if the Board does have the authority to require the Commission to assume active carriage of the complaint at the hearing, there are negative public policy ramifications weighing against making such an order, as discussed in Burney v. University of Toronto(1995), 1995 CanLII 18156 (ON HRT), 23 C.H.R.R. D/90 at [D/97] para. 34 (Ont.Bd.Inq.).