Barclay v. Royal Canadian Legion, Branch 12 (No. 3)
1999-06-28
Ontario Board of Inquiry
Lynn Barclay Complainant
v.
Royal Canadian Legion, Branch 12, Tom Markham and Linda Paul Respondents
Before: Ontario Board of Inquiry, D.J.D. Leighton
Decision No.: 99-007-IM
Appearances by: Betsy Lundborg, Agent for the Complainant Fred Moden, Agent for the Respondent Royal Canadian Legion Linda Paul, on her own behalf Tom Markham, on his own behalf
BOARDS OF INQUIRY / TRIBUNALS — PROCEDURE — reconvening hearing — JURISDICTION — retained jurisdiction — RETALIATION — refusal to implement order as retaliation — COMPLAINTS — complaint is trivial, vexatious and made in bad faith
Summary: This is a decision on a motion by Lynn Barclay to reconvene the hearing of the Board of Inquiry that heard her complaint and determined that she was discriminated against by Royal Canadian Legion, Branch 12. The complainant also sought to amend her complaint to add a new allegation of reprisal.
This motion arises because, as an element of a remedy for discrimination against Ms. Barclay, the Board of Inquiry in September 1997 ordered the Royal Canadian Legion, Branch 12 to reinstate her membership in the Legion. Branch 12 of the Legion, to comply with this part of the Board's order, requested Dominion Command to reinstate Ms. Barclay's membership. However, Dominion Command initially did not do so, replying that a "legitimate" expulsion cannot be revoked.
Finally, in March 1998 Dominion Command did reinstate Ms. Barclay's membership. Nonetheless, Ms. Barclay wishes to pursue her motion, alleging that Dominion Command's initial refusal and delay in reinstating her membership constituted a reprisal against her for filing a human rights complaint.
The Board of Inquiry dismisses the motion, finding that once the order of the Board of Inquiry is complied with, it no longer has jurisdiction and cannot deal with an amended complaint.
[Ed. Note: See also (No. 2) (1997), 1997 CanLII 24838 (ON HRT), 31 C.H.R.R. D/486 (Ont. Bd.Inq.).]
CASES CITED
Barclay v. Royal Canadian Legion, Branch 12 (No. 2) (1997), 1997 CanLII 24838 (ON HRT), 31 C.H.R.R. D/486 (Ont. Bd.Inq.): 1
LEGISLATION CITED
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 1: 1
s. 8: 1, 5
s. 12: 1
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 23(1): 6
1A decision on the merits of Ms. Barclay's complaint was issued by the Board on September 24, 1997 [reported 1997 CanLII 24838 (ON HRT), 31 C.H.R.R. D/486]. The Board found the corporate respondent, the Royal Canadian Legion, Branch 12, and the personal respondent to have breached ss. 1 and 12 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"), and the corporate respondents also to be in breach of s. 8 of the Code. The Board ordered, amongst other things [p. D/499, para. 99]:
- That the Corporate Respondent send a letter by registered mail with return receipt to the Presidents of both Provincial and Dominion Command of the Royal Canadian Legion requesting that the expulsion of Lynn Barclay be rescinded and that her membership in Branch 12 be reinstated immediately. A copy of this decision is to be included with the letter so requesting her reinstatement.
There were also specific orders against the corporate and personal respondents to pay general damages. By October 22, 1997, the Branch paid the damages for the Corporation and for the personal respondents. The Branch also sent a letter to the Dominion President, Joe Kobolak, dated October 21, 1997, quoting the above order and stating:
To comply with this order, would you please consider rescinding the revocation of L. Barclay's membership, by our command on June 17, 1995, and reinstate her in Branch 12 as an associate voting member.
Ten days later, the Dominion President responded to Mr. Moden that Ms. Barclay's expulsion could not be revoked and by way of clarification, amongst other things, pointed out that: "expulsion is a legitimate sanction (subsection 307(i)(g)). Expulsion is a withdrawal of membership after the appeal has expired". Dominion took the position that there was no procedure or power to rescind a legitimate expulsion under their existing bylaws. Branch 12 thus took it that it had complied with the Board's order and confirmed this in writing to the Board. Ms. Barclay was not copied on Dominion Command's October 21, 1997, letter.
2Shortly thereafter, Ms. Barclay made a motion to reconvene the hearing because of the difficulty the parties were having implementing the order and to have the Dominion and Provincial Command of the Royal Canadian Legion added as parties. The complainant also sought to amend her complaint to add a new ground of reprisal. She alleged that Dominion Command has discriminated against her when it did not restore her membership immediately in compliance with the Board order. The Board notified the respondent and both Dominion and Provincial Command of the Legion to get their response to Ms. Barclay's request.
3The Board was notified on March 16, 1998, by letter from Manitoba and Northwestern Ontario Command that they had forwarded a letter to Dominion Command regarding Ms. Barclay as follows:
To comply with the Board of Inquiry (Human Rights Code) order, the Kenora Branch #12 is requesting that her membership be reinstated. We are submitting a copy of the correspondence and endorse this request.
Subsequently, on April 2, 1998, the Board was notified by solicitors for Dominion Command that Ms. Barclay had been reinstated into the Royal Canadian Legion. Branch 12 had notified her that as of March 31, 1998, her membership card was available to be picked up at the Legion office.
4The complainant still sought a motion to reconvene to add Dominion Command as a party and amend the complaint to add a new complaint of reprisal against Dominion Command for refusing to reinstate her immediately upon the Board's order to do so. Ms. Barclay's submission, in summary, was that a prima facia case had been made to the Board establishing that she had been expelled from the Legion in reprisal for filing a complaint with the Human Rights Commission. The Board had found that the use of the discipline procedures under the Legion bylaws had been used improperly to expel Ms. Barclay, contrary to the Code. However, Dominion Command President, Mr. Kobolac, in his response to Branch 12's request for Ms. Barclay to be reinstated said the expulsion of Ms. Barclay could not be rescinded because there was no provision in the bylaws to allow that. The complainant argued in her submission that:
believing itself to be beyond the reach of the Board of Inquiry, either because of an act of parliament or because it was not a respondent, it is evident that Dominion Command intended to block with impunity Barclay's reinstatement. Furthermore, by citing invalid excuses as to why Barclay could not or would not be reinstated, Dominion Command has made our case for us.
She seeks certain specific remedies, including punitive damages.
5Counsel for Dominion Command made a submission dated May 29, 1998, arguing that the Board had no jurisdiction to make an order affecting Dominion Command. Counsel argued that the complainant was seeking to have the Board reconvene for the purposes of considering her allegations that Dominion Command had committed an act of reprisal against her by refusing to reinstate her membership in the Royal Canadian Legion. The only provision in the Code referring to reprisal is found in s. 8 which he argued did not apply. Counsel argued further that a complaint raising a completely new issue and involving a third party can only be made to the Commission and not directly to a board of inquiry. Although the Board reserved jurisdiction to assist the parties if there were any difficulties in implementation of the order, once the order had been satisfied, the Board is functus officio. Counsel made a second extensive objection to the Board's jurisdiction based on principles of natural justice which I will not summarize, given my decision. Counsel for Dominion Command argued in conclusion that the Board should not allow the motion.
6Counsel also made a motion pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended, for an order dismissing the complainant's motion as an abuse of process. Counsel argued that the remedy ordered by the Board had been satisfied. He argued further that given the tenor of the complainant's submissions, her goal of having her membership reinstated was "only a guise in what is a matter of personal vengeance against the Royal Canadian Legion as a whole". In summary, Counsel argued that the submissions by the complainant were frivolous and vexatious and trivialize the role of the Board of Inquiry. Counsel submitted that the Board should exercise its power under s. 23(1) of the Statutory Powers Procedure Act to dismiss the motion and to assess costs against her personally.
7The complainant replied to Dominion Command's submission asking that the Board reject the motion to dismiss for abuse of process and not to award costs against the complainant personally.
DECISION
8Having carefully considered the submissions of the parties, I have decided that this Board has no jurisdiction to reconvene the hearing. The Board retained jurisdiction to assist the parties if there was difficulty in implementing the order made originally on September 24, 1997. The evidence at the original hearing was somewhat confused as to who had the real authority to reinstate the complainant's membership in the Legion. There was some evidence to suggest that as long as the Branch requested membership for an individual, the approval for the membership would be automatically approved by Dominion Command as long as the individual satisfied the requisites for membership. So, while Dominion Command ultimately had the responsibility of approving membership, it was the Branch's request that mattered.
9The Legion delayed in reinstating Ms. Barclay until the end of March 1998. Further, it is clear from the documents submitted to me that Dominion Command did not take the order of the Board seriously when, in its response to Mr. Moden's request to have Ms. Barclay reinstated, the President of Dominion Command said "it has always been the policy of the Royal Canadian Legion that if a member has been legitimately expelled from the organization, under the terms of the general bylaws, expulsion can not be revoked". Clearly in the Board's decision of September 24, 1997, there was a finding that the expulsion was not legitimate. The delay in reinstating Ms. Barclay's membership, without any clear indication from the Legion as to why, is what led to the complainant's motion. It was neither frivolous [n]or vexatious given the circumstances.
10However, when Ms. Barclay's membership in the Legion was reinstated, the Board's jurisdiction ended. Thus, I find that this Board has no jurisdiction to entertain a motion to reconvene to add a party to amend the complaint. For the same reasons, I am of the view that I am without jurisdiction to entertain Dominion Command's motion for costs.
11The motion is hereby dismissed.