IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;
AND IN THE MATTER OF the complaint by Ena Drummond February 27, 1990, alleging discrimination in employment on the basis of sex, harassment and sexual solicitation.
B E T W E E N :
Ontario Human Rights Commission
- and -
Ray Brillinger and the Canadian Lesbian and Gay Archives
Complainants
- and -
Scott Brockie and Imaging Excellence
Respondents
INTERIM DECISION
Adjudicator: Heather M. MacNaughton
Date: June 7, 1999
Board File No: BI-0179-98
Decision No: 99-006-I
A P P E A R A N C E S
Ontario Human Rights Commission ) ) Jennifer Scott )
Ray Brillinger and Canadian Lesbian and Gay Archives, Complainants ) ) Chris Bondy )
Scott Brockie and Imaging Excellence, Respondents ) ) Philip B. McMullen )
Mr. Brillinger filed a complaint with the Ontario Human Rights Commission (the "Commission") on June 3, 1996. The Commission referred the complaint to the Board of Inquiry on October 6, 1998 and the hearing commenced, by way of a conference call, on October 28, 1998. The parties agreed to a schedule for the exchange of pleadings and, thereafter, preliminary motions were heard on February 19, 1999.
The Preliminary Motion In Issue
Counsel for the Commission sought an order adding the Canadian Lesbian and Gay Archives (the "Archives") as a party complainant. Counsel for Brillinger supported the Commission's motion. In a ruling delivered orally on February 19, 1999, I corrected a technical deficiency in the complaint, which is not a pleading and ordinarily not prepared by counsel, to reflect the fact that, based on the submissions and the content of the original complaint, the Archives were always a party complainant. The full text of my ruling follows:
- Having heard the submissions of all parties on this matter, I am prepared to add the Canadian Lesbian and Gay Archives as a party complainant. I do this, however, not on the basis submitted by the Commission that they should be now added as a complainant, but on the basis that they have always been a complainant.
- I agree with Mr. McMullen?s (sic) submissions that the language of s. 39(3) of the Ontario Human Rights Code does not permit me to add a complainant. In that regard, I adopt the finding of my colleague in the Leonis decision (Leonis v. Metro Toronto Condominium Corporation [Unreported Ont. Bd of Inquiry, June 30, 1998, No. 98-012]). However, on the facts of this case, and based on the complaint that has been filed, it is apparent that the Archives have always been a party to this complaint. In effect, I am simply amending the complaint to correct a technical error in drafting, not exercising a jurisdiction to add a complainant who is a stranger to these proceedings.
- With respect to the arguments regarding whether or not the Archives, as a corporate entity, can and did experience discrimination, I leave that determination to be dealt with as a part of closing submissions, after hearing the evidence and argument.
In April, the Respondents Scott Brockie and Imaging Excellence applied for judicial review of that decision, and by Notice of Motion dated May 10 seek an adjournment sine die, or a stay, of the Board of Inquiry proceedings until the Divisional Court has rendered its decision.
The Motion for a Stay
The motion for an adjournment, or stay, was argued on June 4, 1999. The hearing is scheduled to proceed on June 16 and 18, 1999, and all counsel agree that the evidence on the primary aspects of this complaint will be completed in those two days. The Respondents have raised a Charter challenge to the Ontario Human Rights Code (the "Code") which may require some additional days for expert evidence. I was advised that there is no date set for hearing the judicial review, but that the Court has dates available in November 1999.
The Rules of the Board of Inquiry
The Rules of Practice of the Board of Inquiry state that an application for judicial review does not operate as a stay of the decision of the Board unless the Board, or a court, rules otherwise. Whether proceedings are stayed is in the discretion of the member assigned to adjudicate the case. A stay of proceedings is an extraordinary remedy.
The Test to be Applied
All counsel submitted that the test to be applied by me in deciding whether to exercise my discretion to grant an adjournment, or stay, is the test set out by Mr. Justice Richard in Bell Canada v. Communications, Energy and Paperworkers Union 1997 CanLII 4851 (FC), [1997] F.C.J. No.207. In that case, Bell sought judicial review of the Canadian Human Rights Commission's decision to request the President to appoint a Tribunal to inquire into the pay equity complaint of the Bell employees. Bell asked the President to refrain from appointing a tribunal, pending a judicial review of the Commission decision to request the appointment. The President refused, and indicated that the Tribunal intended to proceed with its inquiry into the complaints regardless of the pending judicial review. Bell brought a further judicial review application of the President's decision, and asked the Tribunal to adjourn its proceedings pending the outcome of its judicial review applications. The Tribunal refused to adjourn its proceedings. Bell then sought judicial review of the Tribunal's refusal of an adjournment. Bell sought a stay of the proceedings in each of its judicial review applications. In deciding whether to grant the requested stay, Mr. Justice Richard considered the same three factors as are applied when deciding whether to grant interlocutory injunctions. Those three factors require the applicant seeking the stay to:
- demonstrate that there is a serious issue to be tried;
- convince the court that it will suffer irreparable harm if the relief is not granted. Irreparable harm is harm which either cannot be quantified in monetary terms or is uncollectable; and
- persuade that the balance of convenience favours the granting of the stay.
A similar test was applied by this Board in Fiorini v. DiPoce Management Ltd [1997] O.H.R.B.I.D. No. 4 in which the adjudicator held:
There is no automatic stay of the Board of Inquiry's proceedings when a judicial review application is made. Whether the proceedings are stayed is a discretionary matter for the member hearing the case to decide. A stay is an extraordinary remedy, and in my view the party requesting it must clearly demonstrate that the balance of convenience overwhelmingly favours the granting of it.
While the adjudicator in Fiorini did not specifically address the granting of a stay based on the three part test set out by Mr. Justice Richard, it is clear from a review of her decision that the analysis she applies incorporates the elements of the Bell test. I accept that the factors set out in the Bell decision are the appropriate factors for me to consider when deciding whether or not to grant the requested adjournment or stay.
Is There a Serious Issue to be Decided?
All counsel acknowledged, for the purpose of the argument on this motion, that whether or not I had jurisdiction to grant the relief making the Archives a complainant, is a serious issue to be decided by the Divisional Court. They framed the issue as follows:
If the order merely corrected a technical error in the Complaint, then it was within the jurisdiction of the Board. If it was an order adding a complainant then it was outside the jurisdiction.
The Respondents submit it was the latter, and the Commission and Complainant, the former. I accept, for the purposes of this motion for a stay that the issue as framed by the Respondents raises a serious question to be decided.
Will the Respondents Suffer Irreparable Harm?
Counsel for the Respondents argued that to proceed to a hearing in June, not knowing whether they were properly facing one or two complainants, would cause them irreparable harm. He submitted that the Respondent's arguments would be framed differently depending on whether or not the Archives were a complainant. He argued that the Respondents admitted that the Archives were denied a service, but that they were never a party to the proceeding. He submitted that, in light of that admission, to treat them as a party now causes the Respondents irreparable harm.
Counsel for the Respondents further argued that if the hearing proceeds with the Archives as a complainant, and a decision issues in favour of them, a successful judicial review application would result in an automatic appeal. This, he argued, would bring the administration of justice into disrepute and cost the Respondents additional time and money for which there could be no recovery under the Code.
Counsel for the Commission submitted that the mere fact of having to attend a hearing, spend money and suffer disruption of business interests does not amount to irreparable harm. Irreparable harm is not, she submits, economic harm. Counsel for the Complainants supported that submission and said that inconvenience is not irreparable harm.
I was not persuaded that the economic losses and inconvenience submitted by the Respondents amounted to the kind of irreparable harm that is contemplated by the injunction test. Further, the evidence in this case will be completed in two days. In that circumstance the cost of proceeding will not be excessive. Further, I was not persuaded that the hearing would be significantly shorter without the Archives as a party. It is clear that the nature of the Archives organization and Mr. Brillinger's involvement in it would be evidence before me whether or not they are a complainant. I am comforted in my view that the Respondents' economic harm does not amount to irreparable harm, by the fact that, in what was a much more onerous situation, involving hundreds of days of hearing into a matter which might be declared a nullity, the Federal Court still did not see fit to grant the requested stay. (see Bell, supra)
The Balance of Convenience
Counsel for the Respondents argued that in considering the balance of convenience, I should take into account the almost certain likelihood of success on the judicial review, and that, in the result, the case will almost certainly have to be reheard. He further argued that the additional delay, when considered in light of the delay to date, will not cause prejudice to either the Complainant or to the Commission.
Counsel for the Commission and the Complainant argued that, when balancing the convenience, in addition to the interests of the parties to the complaint, I should consider the public interest in an efficient and expeditious determination of human rights matters. Further, they submit that a review of the jurisprudence of the Divisional Court on applications for judicial review of interim decisions of administrative tribunals indicates that the Divisional Court is unlikely to fragment the Board of Inquiry process by reviewing an interim decision now. They argue that such a review is premature. The resulting delay, with little likelihood of success, will not further the interest of the public. This is particularly the case, they submit, in a statutory scheme like the Code, which allows all of the parties a full right of appeal on issues of fact and law. (s. 42)
Conclusion
If a stay is granted pending the outcome of the judicial review application, it is conceivable that the hearing before the Board of Inquiry will not conclude before the year 2000 at the earliest. While I am advised that argument on the judicial review application is likely in November, that does not guarantee that date, or that a decision will be released immediately. The Divisional Court may well reserve its decision and any of the parties to this proceeding may decide that a further appeal is appropriate.
In any litigious proceeding, the length of time that elapses between the actionable events and the adjudication with respect to them, is a matter of concern as it may affect the quality of the evidence that is presented. Delay is particularly of great concern in proceedings before administrative tribunals, which are intended to afford parties a means of expeditiously resolving their disputes.
Further, in considering the balance of convenience, I am persuaded that it is reasonably likely that the Divisional Court will find the Respondents' judicial review application to be premature. In Ontario College of Art et.al. v. Ontario Human Rights Commission (1993), 1993 CanLII 3430 (ON CTGDDC), 11 O.R. (3d) 798, Chief Justice Callahan said that:
For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matter to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.
This position of the Divisional Court was recently repeated in Sears Canada Inc. v. Davis Inquest (Coroner of), [1997] O.J. No. 1424. Mr. Justice Adams said:
”¦. This Court has repeatedly said that it will not intervene during the course of proceedings of an inferior tribunal except in exceptional circumstances”¦. This approach is based on the reason that the work of these important bodies would otherwise become irreparably fragmented and delayed with both single and multiple trips "up the judicial ladder"”¦.
I concur in the view that parties to an administrative proceeding should respect the process, and should not be encouraged to bring applications for judicial review of interim decisions each time they are unhappy with the result. Encouraging such conduct will cause the type of fragmentation of our processes that is not in the public interest and has been held to be inappropriate by the Divisional Court. Further, I agree that this prematurity argument is particularly persuasive because of the full right of appeal afforded parties to a proceeding under the Code.
This Board has consistently held, when considering requests for adjournments and stays, that the public interest is best protected by a continuation of our proceedings; a determination of all of the rights and interests raised by the facts; and then pursuit, if desired, of the full appeal rights contained in section 42 of the Code.(Ontario (Human Rights Commission v. Vogue Shoes (1991), 1991 CanLII 13168 (ON HRT), 14 C.H.R.R. D/425, Tomen v. O.T.F. (No. 1) (1992), 1992 CanLII 14241 (ON HRT), 17 C.H.R.R. d/256, Shreve v. Windsor (City) (No. 1) 1992, 17 C.H.R.R. D/256).
In the result, I am of the view that the balance of convenience favours the continuation of the proceeding on June 16, 1999. The requested adjournment is denied.
Dated at Toronto this 7th day of June, 1999.
" Heather M. MacNaughton "
Heather M. MacNaughton Chair, Board of Inquiry