Muhammad Saleem Quereshi v. Board of Education for the City of Toronto and Central High School of Commerce, 1999 CanLII 35160

1999-10-01

Ontario Board of Inquiry

Muhammad Saleem Quereshi Complainant

and

Ontario Human Rights Commission Commission

Board of Education for the City of Toronto and Central High School of Commerce Respondents

Date of Complaint: November 12, 1982

Date of Decision: October 1, 1999

Before: Ontario Board of Inquiry, Ed Ratushny

Decision No.: 99-014

Appearances by: Brian Eyolfson and Dora Nipp, Counsel for the Commission Charles C. Roach, Counsel for the Complainant Paul R. Howard, Counsel for the Respondents

HUMAN RIGHTS COMMISSIONS — withdrawal from carriage of complaint — role of human rights commission — BOARDS OF INQUIRY / TRIBUNALS — authority to proceed in absence of human rights commission — COMPLAINTS — complainant's right to proceed without human rights commission

Summary: A Board of Inquiry ruled in 1989 that Mohammed Saleem Quereshi was discriminated against because of his race and place of origin by the Board of Education of the City of Toronto when he applied for a teaching position. The hearing on remedy was postponed in order to allow appeals to be heard. The Ontario Court of Appeal upheld the decision of the Board of Inquiry and in October 1998, the Board of Inquiry resumed. At that time, Counsel for the Ontario Human Rights Commission informed the Board of Inquiry that it had reached a settlement with the Board of Education, with which Mr. Quereshi did not agree, and that the Commission was stepping aside to allow Mr. Quereshi to seek greater compensation.

Counsel for the Board of Education then took the position that the Board of Inquiry could not resume because of the ruling of the Ontario Divisional Court in Tilberg that a human rights hearing cannot proceed without the participation of the Commission.

The Board of Inquiry distinguished McKenzie Forest Products Inc. v. Tilberg, however, finding that in Tilberg the Commission withdrew before there had been any hearing on the merits. Here the Commission carried the complaint until the liability of the Board of Education was established and, indeed, it made the decision to permit the complainant to proceed on his own to adduce evidence of the personal cost to him and his family of the infringement.

The Board of Inquiry concluded that the decision of the Commission to withdraw at this stage was understandable. It prevented the Commission from becoming an adversary to the complainant as he sought greater compensation. The Board of Inquiry found that any jurisdictional problems created by Tilberg cannot be fatal. It is inconceivable that the courts would rule that this hearing should be terminated or recommenced before another Board of Inquiry at this point in its history. Nonetheless, out of deference to the Tilberg decision, the Board of Inquiry sought and obtained the agreement of counsel for the Commission to continue to attend the remainder of the hearing.

The Board of Inquiry ordered that the hearing proceed.

[Ed. Note: See also (1997), 1997 CanLII 14492 (ON CA), 29 C.H.R.R. D/5 (Ont. C.A.); rev'g (1991), 1991 CanLII 13130 (ON CTGDDC), 14 C.H.R.R. D/243 (Ont. Div.Ct.); rev'g (sub nom. Quereshi v. Central High School of Commerce (No. 3)) (1989, 1989 CanLII 9079 (ON HRT), 12 C.H.R.R. D/394 (Ont. Bd.Inq.) and (No. 2) (1999), 1999 CanLII 15061 (ON SCDC), 37 C.H.R.R. D/115 (Ont. Div.Ct.).]

McKenzie Forest Products Inc. v. Tilberg (1999), 1999 CanLII 35213 (ON SCDC), 35 C.H.R.R. D/27 (Ont. Ct. (Gen.Div.)): 4, 7, 10

McKenzie Forest Products Inc. v. Tilberg (2000), 2000 CanLII 5702 (ON CA), 37 C.H.R.R. D/316 (Ont. C.A.): 4

Ontario

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

s. 39(1): 5

s. 41: 2

s. 41(1)(b): 7

1At the conclusion of a long and strongly contested hearing involving counsel for the Ontario Human Rights Commission, counsel for the complainant and counsel for the respondents, the Board of Inquiry determined that a right of the complainant under the Human Rights Code [R.S.O. 1990, c. H.19] had been infringed by the respondents. The decision as to an appropriate order was not made as it was agreed that a separate hearing would be conducted on this issue. Such a hearing was postponed to allow a series of appeals to run their course, which has occurred.

2Since the Board's finding of discrimination was upheld by the courts, the hearing to decide upon an appropriate order under s. 41 was scheduled. When the hearing resumed on October 15, 1998, counsel for all of the parties attended. At the outset, counsel for the Commission stated that since he had reached agreement with the respondents as to an appropriate order and there were no further public interest issues to be addressed, he would be withdrawing. In effect, the complainant did not accept the agreement which had been reached by the Commission and the Commission was stepping aside to allow the complainant to present his case for (presumably) greater compensation.

3While still a party of record, Commission counsel withdrew from the hearing and a number of days of evidence and argument ensued. A number of preliminary rulings were made, including the unavailability of monetary compensation for mental anguish since the criteria of "wilfully or recklessly" had not been established. The Board also ruled that it did not have authority to award costs for legal counsel, but this factor could be taken into account in assessing monetary compensation by way of restitution. Other rulings also were made in an attempt to narrow the issues to be addressed in the appropriate order.

4Counsel for the respondents now take the position that, in light of the decision of the Divisional Court in McKenzie Forest Products Inc. v. Tilberg (May 31, 1999) [reported 1999 CanLII 35213 (ON SCDC), 35 C.H.R.R. D/27],* this Board has lost jurisdiction to continue because of the withdrawal of Commission counsel from the hearing.

5In the Tilberg case, counsel for the Commission withdrew prior to the commencement of the hearing on the merits in relation to any of the purposes specified in s. 39(1) of the Ontario Human Rights Code, namely:

39(1) (a) to determine whether a right of the complainant under this Act has been infringed;

(b) to determine who infringed the right; and

6In the case before us, Commission counsel certainly had carriage of the complaint in relation to both (a) and (b). Commission counsel also engaged in discussions and reached an agreement in relation to (c), attended at the hearing and, in effect, took the position that he was content to let the complainant adduce the evidence and make submissions in favour of an award more favourable to the complainant than that to which Commission counsel had agreed.

7The Tilberg case can be distinguished on the basis that here Commission counsel had carriage of the complaint at every stage, including the decision to allow the complainant to adduce the evidence and present submissions as to the personal consequences for the infringement of his rights. The complainant alleges that not only the infringement of his rights but also these proceedings, themselves, have had tragic consequences for him and his family. While the complainant has raised a number of unfortunate personal circumstances, he faces the burden of establishing causation between the consequences of the discriminatory act and those circumstances in his personal life (which may have been the result of other influences). He also faces the burden of establishing the scope of "restitution" outside of the category of "mental anguish" in s. 41(1)(b) which is not available to him. Finally, he must seek his "monetary com-pensation" within the limited framework of the precedents established by past decisions.

8The decision of Commission counsel to withdraw at the final stage of these proceedings in such circumstances is understandable. It demonstrates some deference to the dignity and personal choice of the complainant. Indeed, the practice of the Commission in this respect may be one which the Courts should take into account in interpreting its legislation. It prevents Commission counsel from becoming an adversary of the complainant after acting together to establish discrimination. Presumably, Commission counsel has given the complainant his best advice on the reasonableness of the settlement, including the possibility that the Board's order could be lower as well as higher. If Commission counsel were to continue to participate, would he argue in favour of the order to which he had agreed and against a higher award sought by the complainant?

9It seems to fall properly within the purpose of the Human Rights Code and the Commission's role in administering it, to interpret "carriage of the complaint" to include the decision of Commission counsel not to participate in the final hearing but to allow the complainant to present the remainder of the case. Would it make any difference if the complainant were allowed to do the same thing but with Commission counsel remaining in the hearing room? The practice established by the Commission is reasonable, practical, purposive and can be tolerated without doing violence to the wording of the Act.

10In any event, any jurisdictional problems which may have been created by the Tilberg case cannot be treated as fatal. Human rights legislation is remedial and it is inconceivable that the courts would rule that the hearing in this case should terminate or re-commence before another Board, particularly, in light of its past history. However, out of deference to the Tilberg decision, the Commission should be represented by counsel for the remainder of the hearings, which have been scheduled to resume on October 6, 7 and 8, 1999. The availability of transcripts for the evidence which already had been taken will facilitate Commission counsel's participation. Counsel has agreed to attend.

11The ruling, then, is that the Tilberg case appears to be distinguishable from the circumstances before us, but even if it is directly applicable, its effect can be remedied by Commission counsel attending for the remainder of the hearing. Presumably, Commission counsel will have to assess the role he will play and position he will take on the "appropriate order" in light of the reasons in Tilberg.

12The Board appreciates the detailed and helpful submissions of all counsel and regrets that the need for an immediate ruling precluded a response to each of the specific arguments and issues which were raised.

13The Board has noted the generous offer of the respondents to pay the costs of a mediator to be selected by mutual consent with a view to making one last effort to reach a settlement. While a mutually acceptable settlement would be the most desirable resolution of this case, in the absence of any further notification from the parties, the hearing will resume next Wednesday, October 6, as scheduled.

Ed. Note: Reversed by the Ontario Court of Appeal April 18, 2000. See (2000), 2000 CanLII 5702 (ON CA), 37 C.H.R.R. D/316.