HRTO 1999

The Board of Inquiry reconvened to address outstanding issues regarding the implementation of its previous orders concerning workplace harassment and discrimination.

The complainant alleged further acts of reprisal and a continued poisoned environment.

The Board ruled that compensation must include a gross-up for income tax purposes to satisfy the principle of restitutio in integrum.

Furthermore, the Board determined it retained jurisdiction to hear evidence of continued discrimination and reprisals related to the implementation of its orders, distinguishing its remedial role from disciplinary proceedings.

The complainants, Ray Brillinger and the Canadian Lesbian and Gay Archives, alleged discrimination in the provision of services on the basis of sexual orientation after the respondents, Scott Brockie and Imaging Excellence Inc., refused to provide printing services for the Archives.

The respondent Brockie refused the services due to his sincerely held religious beliefs regarding homosexuality.

The Board of Inquiry found that the Archives is a 'person' under the Human Rights Code and that the respondents directly discriminated against the Archives and indirectly discriminated against Brillinger on the basis of sexual orientation and association.

The corporate respondent was held liable for the actions of its president.

The complainant brought a preliminary motion before the Board of Inquiry to add eight party respondents to her human rights complaint.

The Ontario Human Rights Commission had previously decided to refer the complaint against only two respondents, explicitly declining to refer it against the others.

The complainant argued the Board had jurisdiction to add the remaining respondents under s. 39(2)(d) of the Human Rights Code.

The Board dismissed the motion, finding it lacked jurisdiction to add respondents where the Commission had already considered and expressly decided not to refer the complaint against them.

The Board held that reviewing the Commission's referral decision falls within the exclusive supervisory jurisdiction of the Divisional Court.

The complainant brought a motion to reconvene a Board of Inquiry hearing to add a new allegation of reprisal against the respondent's Dominion Command.

The Board had previously ordered the respondent to reinstate the complainant's membership.

Although there was an initial refusal and delay, the membership was eventually reinstated.

The Board dismissed the motion, finding that once the original order was complied with, the Board's jurisdiction ended and it was functus officio.

The Board also found it had no jurisdiction to entertain the respondent's motion for costs.

The respondent school board applied for an order of costs against the Ontario Human Rights Commission after several allegations in a human rights complaint were dismissed.

The Board of Inquiry found that while a partial dismissal of a complaint satisfies the jurisdictional pre-condition for awarding costs under s. 41(4) of the Human Rights Code, the dismissed allegations were not trivial, frivolous, vexatious, or made in bad faith.

Furthermore, the Commission's conduct of the case did not cause undue hardship to the respondent.

The application for costs was dismissed.

The complainant alleged that her employer sexually harassed her, subjected her to sexual solicitations, and created a poisoned work environment.

After she filed a human rights complaint, the employer served her with a $1.5 million civil claim and sent threatening letters to her and her witnesses.

The Board of Inquiry found that the employer's conduct violated multiple sections of the Human Rights Code, including the rights to be free from gender discrimination, sexual harassment, sexual solicitation, and reprisal.

The corporate respondent was also held liable for the employer's actions as its directing mind.

The Board retained jurisdiction to determine remedies.

The Ontario Board of Inquiry determined the appropriate remedies following a finding that Kinark Child and Family Services and its manager, Harry Oswin, infringed James Moffatt's human rights.

Moffatt, a gay man, was subjected to a poisoned work environment due to discriminatory rumours, and later faced a retaliatory child abuse report to the Children's Aid Society.

The Board awarded Moffatt $10,000 in general damages and $10,000 for mental anguish for the discrimination, plus $6,000 in general damages and $10,000 for mental anguish for the reprisal.

The Board also awarded $13,800 for lost earnings, finding that Kinark's failure to address the rumours hindered Moffatt's re-employment.

Additional remedies included an order for Kinark to provide a positive reference, offer interview opportunities, and implement a human rights complaint procedure.

This is a remedy decision following a finding that the complainant was sexually harassed by co-workers and that management's failure to address the harassment led to her dismissal.

The Board of Inquiry awarded special damages for wage loss, applying a common sense test to limit recovery to the period before intervening events broke the chain of causality.

The Board also awarded $10,000 in general damages for the loss of the right to be free from discrimination and $5,000 for mental anguish, noting the respondents' reckless disregard for the complainant's rights.

A request for legal costs was denied for lack of jurisdiction.

This is a decision on remedies following a finding that the respondent school boards discriminated against the complainant and subjected him to reprisals in two job competitions.

The Board of Inquiry ordered the successor school boards to pay special damages for wage loss and relocation expenses, general damages for loss of the right to freedom from discrimination, and damages for mental anguish.

The Board also ordered public interest remedies, including the posting of the decision, the development of recruitment policies incorporating reprisal protection, and notice to the complainant of future vacancies.

During a remedy hearing following a finding of discrimination, counsel for the Ontario Human Rights Commission withdrew after reaching a settlement with the respondents that the complainant rejected.

The respondents argued that the Board of Inquiry lost jurisdiction to continue based on the Divisional Court's ruling in Tilberg.

The Board distinguished Tilberg, noting the Commission had carried the complaint through the liability phase and made a purposive decision to allow the complainant to seek greater compensation.

The Board ruled it retained jurisdiction and ordered the hearing to proceed, with Commission counsel agreeing to attend the remainder of the hearing.

Dofasco brought a motion for the production of the complainant's medical files, WSIB file, CPP file, and income tax returns in a human rights proceeding.

The Commission opposed the motion, arguing it was overly broad and a fishing expedition.

The adjudicator granted the motion in part, finding that the documents were arguably relevant to Dofasco's accommodation defence under section 17 of the Code and to the quantum of damages.

The complainant was ordered to provide consents for the release of the requested files and to produce edited income tax returns.

The Ontario Human Rights Commission brought a motion to validate service of documents on several respondents at a restaurant address.

The Adjudicator validated service on Phoebe Lee and Joseph Lee, finding it probable that documents delivered there would come to their attention.

However, the Adjudicator declined to validate service on Yu Sheung Tony Kong and the corporate respondent at that address, as there was insufficient evidence they would receive actual notice, though deemed delivery by mail to the last registered corporate address was accepted.

Following the dismissal of human rights complaints against him, the respondent sought costs against the Ontario Human Rights Commission under s. 41(4) of the Human Rights Code.

The Board found it had jurisdiction to award costs where the complaint against one of multiple respondents was dismissed in its entirety.

However, the Board declined to award costs, finding that the complaint was not made in bad faith, was not trivial or vexatious, and did not cause the respondent undue hardship.

In an ongoing human rights hearing regarding allegations of sexual harassment, the Commission brought motions to add a corporate respondent, add an allegation of reprisal, and obtain a cease and desist order against the personal respondent.

The adjudicator granted the motions to add the corporate respondent and the reprisal allegation.

Finding that the personal respondent had engaged in intimidating conduct, including serving a civil claim on the complainant in the hearing room and sending threatening correspondence, the adjudicator issued an order under the Statutory Powers Procedure Act directing him to cease direct contact with the complainant, the Commission, and witnesses, and to refrain from using threatening or insulting language.

The adjudicator declined to rule on the respondents' motions for a stay and production of documents due to the personal respondent's unexcused absence.

The complainant, a wheelchair user, alleged that the respondents operated inaccessible motion picture theatres, violating his rights under the Human Rights Code.

The respondents acknowledged the breach of the complainant's rights, noting that the theatre in question had been closed.

The Board of Inquiry issued a consent order declaring the infringement, prohibiting the future operation or subletting of the theatre, and awarding the complainant $6,000 in general damages.

The Ontario Human Rights Commission brought a motion to amend a sexual harassment and reprisal complaint to add sections 7(3)(a) and (b) of the Human Rights Code.

The self-represented respondents failed to comply with procedural rules, including failing to file responses or properly serve their own motion to remove certain respondents.

The adjudicator granted the Commission's motion to amend the complaint, noting no prejudice to the respondents as no new factual allegations were added.

The adjudicator ordered the respondents to comply with filing deadlines and strongly cautioned them about their cavalier approach to the litigation.

The respondents sought an adjournment or stay of the Board of Inquiry proceedings pending their application for judicial review of an interim decision that recognized the Canadian Lesbian and Gay Archives as a party complainant.

Applying the three-part test for a stay, the adjudicator found that while there was a serious issue to be tried, the respondents would not suffer irreparable harm from proceeding.

The balance of convenience favoured continuing the hearing to avoid fragmentation and delay, particularly given the full right of appeal available under the Human Rights Code.

The motion for a stay was denied.