Payne v. Otsuka Pharmaceutical Co.

1999-09-10

Ontario Board of Inquiry

Alicia Payne Complainant

and

Ontario Human Rights Commission Commission

v.

Otsuka Pharmaceutical Co. Ltd. and Okada Respondents

and

Metro Toronto Convention Centre, XXVIIth International Congress of Ophthalmology, Canadian Ophthalmological Society, Intertask Group of Companies, Paul Akehurst (Sr.) and Leanne Akehurst Respondents on the Motion

Date of Decision: September 10, 1999

Before: Ontario Board of Inquiry, Matthew D. Garfield

Decision No.: 99-011-I

Appearances by: Lisa Cirillo, Counsel for the Commission Alicia Payne, on her own behalf Kristian Bonn, Counsel for the Respondents Otsuka Pharmaceutical Co. Ltd. and Okada Clifford J. Hart, Counsel for the Respondent Metro Toronto Convention Centre Francois Baril, Counsel for the Respondents XXVIIth International Congress of Ophthalamology, Canadian Ophthalmological Society, Intertask Group of Companies, Paul Akehurst (Sr.) and Leanne Akehurst

PARTIES — authority of board/tribunal to order added parties — adding respondents — COMPLAINTS — amendment to add respondent — BOARD OF INQUIRY / TRIBUNALS — authority to order added party — authority to review human rights commission's decision to dismiss complaint — JURISDICTION — jurisdiction to order added parties

HUMAN RIGHTS — survey of human rights legislation — INTERPRETATION OF STATUTES — legislative intent — HUMAN RIGHTS COMMISSIONS — authority to reconsider decision not to proceed with complaint — discretion to dismiss complaint — fairness in investigation of complaint — SETTLEMENT — settlement agreement coerced by human rights commission

Summary: Alicia Payne brings a preliminary motion before an Ontario Board of Inquiry appointed to hear and decide her complaint seeking the addition of eight party respondents. The Board of Inquiry dismisses this motion.

Ms. Payne alleges that she was discriminated against in employment because of her race, colour, ancestry and ethnic origin by the following respondents: Otsuka Pharmaceutical Company Limited ("Otsuka"); Mr. Okada ("Okada"); Metro Toronto Convention Centre; the International Congress of Opthamology; Canadian Ophthalmological Society; Intertask Group of Companies; Paul Akehurst; Leanne Akehurst; Herbert Drouin; and Manpower Inc. She claims that Otsuka and Okada refused to employ her at Otsuka's exhibit booth at the 27th International Congress of Ophthalmology in Toronto in June 1994 because she is black. She claims further that the other named respondents condoned the discrimination.

The Ontario Human Rights Commission decided to refer Ms. Payne's complaint against Otsuka and Okada to a Board of Inquiry for hearing. However, it declined to refer the complaint against the other named parties. Ms. Payne requested reconsideration of this decision pursuant to s. 37 of the Ontario Human Rights Code. The Commission reconfirmed its initial decision not to refer against the other named parties.

The principal issue before the Board of Inquiry is whether it has jurisdiction pursuant to ss. 39(2)(d) and 39(3) of the Code to add a respondent where the Commission has expressly decided not to refer the complaint against that respondent.

The Board of Inquiry concludes that it did not have that jurisdiction. Though s. 39(2)(d) provides that the parties to a proceeding before a Board of Inquiry are, inter alia, "any person appearing to a board of inquiry to have infringed the right" and s. 30(3) permits the board of inquiry to add a party at any stage of the proceeding, the Board of Inquiry finds that s. 39(2)(d) does not operate when the Commission put its mind to the matter and decided not to refer as against a particular respondent named in the complaint. Rather the clause could be invoked at the hearing stage where the evidence seemed to indicate that a person not considered by the Commission at the referral stage had infringed a right.

Further, the Board of Inquiry concludes that the complainant was requesting the Board of Inquiry to act as a reviewing court with respect to the Commission's actions. However, the only legal forum for reviewing a decision of the Commission is the Divisional Court. A Board of Inquiry does not have supervisory powers over the Commission.

The motion is dismissed.

CASES CITED

Anselm v. Ontario (Human Rights Comm.) (1998), 1998 CanLII 29800 (ON CTGDDC), 33 C.H.R.R. D/477, [1998] O.J. No. 2577 (QL) (Gen.Div.): 82

Brillinger v. Brockie (1999), C.H.R.R. NP/99-119, [1999] O.H.R.B.I.D. No. 6 (QL) (Bd.Inq.): 23, 61

Drummond v. Tempo Paint and Varnish Co. (No. 1) (1994), 1994 CanLII 18423 (ON HRT), 24 C.H.R.R. D/341 (Ont. Bd.Inq.): 32

Findlay v. Mike's Smoke and Gifts (No. 4) (1993), 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19 (Ont. Bd.Inq.): 31, 38

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 1) (1994), 1994 CanLII 18436 (ON HRT), 24 C.H.R.R. D/457 (Ont. Bd.Inq.): 32

Gale v. Miracle Food Mart (No. 1) (1992), 1992 CanLII 14228 (ON HRT), 17 C.H.R.R. D/162 (Ont. Bd.Inq.): 33

Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Comm.) (No. 3) (1993), 1993 CanLII 16525 (ON CTGDDC), 18 C.H.R.R. D/97 (Ont. Ct. (Gen.Div.)): 33

Humphreys v. 582945 Ontario Ltd. (1993), C.H.R.R. NP/94-60 (Ont. Bd.Inq.): 79

Jazairi v. Ontario (Human Rights Comm.) (1997), 1997 CanLII 12445 (ON CTGD), 29 C.H.R.R. D/428 (Ont. Ct. (Gen.Div.)): 81

Jazairi v. Ontario (Human Rights Comm.) (No. 1) (1999), 1999 CanLII 3744 (ON CA), 36 C.H.R.R. D/1, [1999] O.J. No. 2474 (QL) (C.A.): 81

Joe v. University of Toronto (No. 1) (1995), 1995 CanLII 18192 (ON HRT), 25 C.H.R.R. D/472 (Ont. Bd.Inq.): 32

Johnson v. Hamilton (City) (1991), 1991 CanLII 13126 (ON CTGDDC), 15 C.H.R.R. D/254 (Ont. Div.Ct.): 21

McKenzie Forest Products Inc. v. Tilberg (1999), 1999 CanLII 35213 (ON SCDC), 35 C.H.R.R. D/27, [1999] O.J. No. 2813 (QL) (Gen.Div.): 25, 37, 48

Moffatt v. Kinark Child and Family Services (No. 3) (1996), C.H.R.R. NP/97-34, [1996] O.H.R.B.I.D. No. 36 (QL) (Bd.Inq.): 35, 59

Musty v. Meridian Magnesium Products Ltd. (No. 3) (1998), 1998 CanLII 29886 (ON HRT), 35 C.H.R.R. D/237, [1998] O.H.R.B.I.D. No. 20 (QL) (Bd.Inq.): 35, 58

Ontario (Human Rights Comm.) v. North American Life Assurance Co. (No. 1) (1991), 1991 CanLII 13125 (ON HRT), 16 C.H.R.R. D/162 (Ont. Bd.Inq.): 73

Sinclair v. Peel Non-Profit Housing Corp. (No. 1) (1989), 1989 CanLII 9075 (ON HRT), 11 C.H.R.R. D/341 (Ont. Bd.Inq.): 32, 80

Toronto (City) Board of Education v. Quereshi (No. 1) (1987), 1987 CanLII 8495 (ON HRT), 9 C.H.R.R. D/4527 (Ont. Bd.Inq.): 20, 27, 56, 60

Toronto (Metro) Commissioners of Police v. Ontario (Human Rights Comm.) (1979), 1979 CanLII 1840 (ON HCJ), 27 O.R. (2d) 48 (Div.Ct.): 68

West End Construction Ltd. v. Ontario (Ministry of Labour) (No. 1) (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 (Ont. Bd.Inq.): 33

West End Construction Ltd. v. Ontario (Ministry of Labour) (1986), 1986 CanLII 2541 (ON HCJ), 9 C.H.R.R. D/4537 (Ont. Div.Ct.): 33

West End Construction Ltd. v. Ontario (Ministry of Labour) (1989), 1989 CanLII 4088 (ON CA), 10 C.H.R.R. D/6491 (Ont. C.A.): 33

LEGISLATION CITED

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53: 46

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

s. 27(2): 47

s. 29(i): 47

s. 32(1): 49

s. 33: 52

s. 33(1): 49

s. 34: 5, 18, 51

s. 34(1): 50

s. 36: 6

s. 36(1): 16, 19, 36, 49, 51, 54

s. 36(2): 7, 16, 19, 54

s. 37: 29, 41, 51, 63

s. 37(3): 63

s. 39: 28

s. 39(1): 8

s. 39(2)(d): 2, 22, 36, 40, 56, 65

s. 39(3): 2, 22, 56, 65

s. 41(4): 39

Ontario Human Rights Code, S.O. 1961–62, c. 93: 45

Ontario Human Rights Code, R.S.O. 1970, c. 318

s. 11(d): 47

s. 14b(1): 66

Rules of Civil Procedure, r. 49: 39

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 23: 17

I. INTRODUCTION

1The following are my reasons for decision on a preliminary motion brought by the complainant, Alicia Payne, to add eight party respondents in the human rights complaint referred to the Board of Inquiry (the "Board") by the Ontario Human Rights Commission (the "Commission"). The case itself deals with alleged acts of discrimination in employment on the prohibited grounds of race, colour, ancestry and ethnic origin that took place in Toronto in 1994 contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code").

II. ISSUES

2 (1) Is it within the Board's jurisdiction pursuant to ss. 39(2)(d) and 39(3) of the Code to add a respondent to a hearing where the Commission has decided not to refer the subject-matter of the complaint as against that same respondent to the Board?

(2) If the Board does have the jurisdiction to make such an order, should it exercise its power to do so on the facts of this case?

III. DECISION

3 The motion is dismissed. The Board does not have the jurisdiction to make the order requested by the moving party. The only legal forum for such an order is a superior court of supervisory jurisdiction — namely the Divisional Court. As a result of the Board's determination of the first issue, there is no need to rule on the second issue. Accordingly, these reasons focus on the first issue only.

IV. BACKGROUND

4Ms. Payne alleges that she was discriminated against in employment on the prohibited grounds of race, colour, ancestry and ethnic origin by the following respondents: Otsuka Pharmaceutical Company Limited ("Otsuka"); Mr. Okada; Metro Toronto Convention Centre ("MTCC"); XXVIIth International Congress of Ophthalmology ("ICO"); Canadian Ophthalmological Society ("COS"); Intertask Group of Companies ("Intertask"); Paul Akehurst (Sr.); Leanne Akehurst; Herbert Drouin; and Manpower Inc. She claims that Otsuka and Okada refused to employ her at Otsuka's exhibit booth at the 27th International Congress of Ophthalmology in Toronto in June of 1994 because she is black and that the other individuals/entities listed above condoned the discriminatory treatment. As for MTCC, Ms. Payne contends that it bears some responsibility as the discriminatory treatment occurred on its premises.

5On May 8, 1995, Ms. Payne filed a complaint with the Commission. On November 19, 1996, she amended her complaint. The Commission went through a s. 34 case analysis and proceeded to investigate. The investigating officer in her Section 36 Case Analysis recommended a "no referral" as against any of the respondents. The following paragraphs are of interest:

52. The evidence indicates that the respondents MTCC, Intertask and the COS have made reasonable offers to settle this matter.

53. Moreover, this complaint raises issues regarding the merits of the Commission proceeding to the board of inquiry against foreign respondents who have no ongoing business in Ontario and do not have any branch office or subsidiary anywhere in Canada. Although the evidence supports the recommendation of a board of inquiry against Otsuka and Mr. Okada, it is unlikely that the Commission would be able to enforce any board of inquiry order, given that these respondents reside in Japan and outside the Commission's jurisdiction.

54. Therefore, staff recommends that the Commission decide to not refer the subject matter of the complaint to the board of inquiry pursuant to Section 36(2) of the Code.

6On or about November 17, 1998, the complainant's file went before the Commissioners for consideration pursuant to s. 36 of the Code. Commission counsel indicates in her motion materials that the commissioners had before them the amended complaint (naming the eight respondents), the respondents' various replies to the complaints, the Case Analysis (which recommended a "no-referral" as against any of the respondents), the complainant's response to the Case Analysis and filed replies by any of the respondents to the Case Analysis.

7The commissioners, speaking on behalf of the Commission, referred the subject-matter of the complaint to the Board as against Otsuka and Okada only. This was communicated to the complainant via letter dated November 28, 1998, along with the Commission's decision pursuant to s. 36(2) of the Code not to refer to the Board the subject-matter of the complaint as against the remaining six respondents — MTCC, ICO, COS, Intertask, Paul Akehurst and Leanne Akehurst (the "remainder respondents"). Mr. Drouin and Manpower Inc. were never named in the complaint and were not considered by the commissioners. The complainant requested that the commissioners reconsider the decision.

8Pursuant to s. 39(1) of the Code, the hearing before the Board was commenced via conference call on December 15, 1998. On consent, the Board agreed to reconvene at the end of January 1999 because the complainant was awaiting the Commission's decision on her reconsideration application filed earlier in December. A further adjournment was granted on consent to March 4, 1999, to await the February reconsideration decision of the Commission.

9On February 17, 1999, a panel of three commissioners deliberated on the complainant's application for reconsideration. Commission counsel's motion materials indicate that the panel had before them the complainant's complaint, her request for reconsideration, the reconsideration report and the complainant's response to the report. The panel rejected the reconsideration request and upheld its original decision not to refer the subject-matter of the complaint as against the six remainder respondents. Reasons were attached to the letter.

V. THE MOTION TO ADD RESPONDENTS

10The hearing before the Board was reconvened by way of conference call on March 4, 1999. Complainant's agent indicated that he intended to bring a motion to add the six remainder respondents as parties. The motion was scheduled to be heard on March 24, 1999. Due to lack of service on all the affected respondents by the moving party, the motion was adjourned on consent to a date to be determined by way of conference call.

11[I]n the April 14, 1999, conference call, the Board directed the complainant's agent to file supplementary motion materials dealing with a number of issues. As well, the Board, in a letter to the parties, advised that the motion materials "should not include evidence or reference to the contents of settlement offers or evidence regarding the reasonableness of offers made in the investigative stage of the complaint". The letter also confirmed the commencement of the motion on July 13, 1999.

12The complainant, now representing herself, filed supplementary motion materials. Responding materials were filed by counsel for the Commission, MTCC, COS, ICO, Intertask, Paul Akehurst and Leanne Akehurst. Counsel for Otsuka and Okada did not file any motion materials or make oral submissions on the motion. The materials filed were very helpful as were the oral arguments.

13The complainant indicated for the first time at paras. 126 and 130 of her supplementary motion record that she also wanted the Board to add Herbert Drouin, Executive Director of COS, and Manpower Inc. as parties. However, neither Drouin nor Manpower Inc. was served and indeed neither of their names appeared in the style of cause in the complainant/moving party's motion materials. The Board ruled that it would not proceed with the motion as against Drouin and Manpower Inc. because they had not received notice. The Board had previously directed that materials were to be served on all parties affected by the motion.

14Ms. Payne indicated that she still wanted to add Drouin and Manpower Inc. After hearing submissions from the parties, the Board made the following order:

The Complainant may bring a motion to add respondents, other than the ones sought to be added in today's motion, as parties in this proceeding. Said motion shall be brought after the delivery of a decision in the motion heard July 13, 1999 and before the commencement of the hearing on the merits.

15Given the Board's reasons for decision on the motion at hand, the complainant may still wish to bring her motion to add Drouin and Manpower Inc. as parties. The analysis employed herein is different from that which would be used in a motion to add Drouin and Manpower Inc.

VI. PARTIES' SUBMISSIONS ON THE JURISDICTION QUESTION

(A) The Complainant/Moving Party

16In her supplementary motion record, Ms. Payne argues, inter alia, that the Commission did not follow the correct procedure for referring the complaint to the Board. As well, the Commission erred in issuing a s. 36(2) decision to not refer the subject-matter of the complaint to the Board after having already done so as against Otsuka and Okada pursuant to s. 36(1). She submits that the actions of the Commission prevented her from fully exercising her rights under the Code to have the matter determined by the Board.

17In terms of the order she is seeking the Board to make, the complainant in her supplementary motion record states that she wants the Board to exercise its powers pursuant to s. 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended and:

nullify the Commission's decision to release parties after referring the subject-matter of the complaint to the Board and order the Commission to refile this complaint in accordance with Board procedures, thereby restoring [t]he Remaining Respondents as parties to this complaint; and/or

exercise its powers pursuant to sections 39(2)(d) and 39(3) of the Code and add "any person appearing to have infringed the right" as a party to these proceedings.

(i) The Commission Misapplying Sections 34 and 36

18Ms. Payne states that the Commission's power to dismiss complaints rests within s. 34 of the Code. The matter went through a s. 34 consideration and the Commission could have decided not to proceed but chose to proceed. Hence, she asserts at para. 52 of her supplementary motion record, "[t]he Commission may not repeat the section 34 process by assuming the role of the Board".

19The complainant argues that the Commission was in error by releasing a s. 36(2) "non-referral" decision after referring the subject-matter of the complaint to the Board in accordance with s. 36(1). By doing so, she says that the Commission improperly bifurcated the complaint and should have referred as against all of the respondents named in the amended complaint filed or none at all. The Commission could not pick and choose which of the respondents named in the complaint it would refer to the Board. As Ms. Payne writes in her supplementary motion record at paras. 69–70:

There is only one complaint and one referral decision to be made. That is, Should the subject matter of the complaint be referred to the Board? Logic suggests that the answer should be yes or no, not yes and no. In this case, the Commission has placed itself in the unusual position of referring and not referring the subject-matter of the complaint to the board even though it is the same subject-matter.

(ii) Removal of Parties and Quereshi

20Relying on Quereshi v. Central High School of Commerce(1987), 1987 CanLII 8495 (ON HRT), 9 C.H.R.R. D/4527 (Ont. Bd.Inq.), the complainant submits that the proper procedure for the Commission to have followed was to refer or not refer the subject-matter of the complaint (including all the respondents named in the complaint). Once the Commission did so, a party's only recourse was to move before the Board for an order that the respondent be removed as a party. As a result, the complainant submits that the Commission improperly performed an adjudicative function of the Board.

(iii) Threats by the Commission

21Ms. Payne takes the position in her written and oral argument that the Commission had "threatened" her by saying that it would not refer the subject-matter if she did not accept what the Commission considered to be reasonable offers of the remainder respondents. The complainant argues at para. 91 that:

Nothing in the Code permits the Commission to impose terms of settlement by refusing to call a Board simply because the Commission thinks a settlement offer is reasonable. Threats may also not be used to achieve this improper end. The reasonableness or unreasonableness of a settlement offer should not be a consideration when the Commission is deciding whether to refer a complaint to the Board.

She relies on Johnson v. Hamilton (City)(1991), 1991 CanLII 13126 (ON CTGDDC), 15 C.H.R.R. D/254 (Ont. Div.Ct.). Ms. Payne argues that such behaviour also amounts to an abuse of the Board's process.

(iv) Power to Add Respondents: Section 39

22Ms. Payne argues that she is not bringing a de facto application for judicial review here; the Board has the jurisdiction to add the remainder respondents pursuant to ss. 39(2)(d) and 39(3) of the Code. She submits that the evidence satisfies the threshold test vis-à-vis the remainder respondents in s. 39(2)(d) wherein the Board may add "any person appearing to the board of inquiry to have infringed the right". Ms. Payne, in oral argument, submits that s. 39(2)(d) allows the Board to add as party respondents people not named in the complaint filed with the Commission or ones who were so named but not referred by the Commission. She also indicates that she is not aware of any material evidence at present that was not available to the Commission during the investigative, referral and reconsideration stages.

(v) Power to Add: Brillinger

23The complainant relies on the Board's decision in Brillinger v. Brockie, [1999] O.H.R.B.I.D. No. 6 (QL) [CHRR Doc. 99-119] as standing for the authority that the Board may add the remainder respondents by correcting a "technical error" in the referral process.

(B) The Commission

24Commission counsel, Ms. Cirillo, argues that the Board clearly lacks jurisdiction to grant the order Ms. Payne seeks. To do so would amount to the Board reviewing the Commission's pre- and post-referral conduct — in essence, sitting as the Divisional Court on an application for judicial review. Essentially, the Commission argues that it acted within its authority pursuant to ss. 36 and 37 of the Code during the referral and reconsideration stages. However, if in the alternative the Commission acted outside its power, counsel submits that the appropriate forum for review of that decision is the Divisional Court and not the Board.

25Counsel relies on the recent Divisional Court decision in McKenzie Forest Products Inc. v. Tilberg, 1999 CanLII 35213 (ON SCDC), [1999] O.J. No. 2813 (QL) [reported 35 C.H.R.R. D/27] which overturned a decision of the Board on a judicial review application. The Commission is seeking leave to appeal that decision at this time. Counsel mentions that the Court focussed on and confirmed the prominent role of the Commission, as representative of the public interest, in Code proceedings. Counsel submits that Ferrier J. (who wrote a dissenting opinion) also endorsed the leading role of the Commission prior to referral of a complaint to the Board. At § 75 [p. D/36], Ferrier J. wrote that the Commission "does have considerably more power than the other parties at this [pre-referral] stage".

26In oral argument, counsel for the Commission asserts that no one has a right to have a hearing before the Board. Even the right to have the matter investigated is subject to the s. 34 considerations. It is the Commission who confers party status on a complainant by deciding to refer the subject-matter of the complaint to the Board pursuant to s. 36(1) of the Code.

(i) Referral of Some of the Respondents

27The Commission disagrees with the moving party's submissions on referral of the subject-matter of the complaint to the Board. It is the Commission's position that it has the statutory authority to refer as against only some of the respondents named in a complaint and relies on Quereshi, supra.

(ii) The Referral Process

28Ms. Cirillo argues that the Commission properly exercised its statutory decision-making powers. The Commission decided that the "procedure" of referring the matter to the Board was "appropriate" pursuant to s. 36(1) as against Otsuka and Okada but not "appropriate" as against the six remainder respondents. As the Board derives its jurisdiction from the Commission's referral only, the Board is empowered pursuant to s. 39 to hold an inquiry as against only those referred respondents.

29Ms. Payne's only statutory recourse at this stage was the one she undertook — a reconsideration application under s. 37. Upon the Commission's rejection of her reconsideration request, Ms. Payne's only legal recourse was to seek judicial review in the Divisional Court.

(iii) No Denial of Natural Justice

30Counsel asserts that there was no denial of natural justice as Ms. Payne was given (and availed herself of) every opportunity to put extensive submissions before the investigating officer during the investigation, the Commission during the s. 36 referral process and again on the s. 37 reconsideration application.

(iv) Board Lacks Supervisory Jurisdiction

31Ms. Cirillo argues that the Board lacks any power to review or second-guess the activities of the Commission. The Board does not supervise the fairness of another tribunal's or agency's procedures — that alone is the domain of the superior court of supervisory jurisdiction in Ontario, the Divisional Court. She writes at para. 36 of her factum, "It is the courts who serve as the overseers of administrative processes. A Board of Inquiry has no general oversight powers". She then quotes from Findlay v. Mike's Smoke and Gifts (No. 4)(1993), 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19 at § 83 [p. D/31]:

[T]he Commission will be held to account for its actions outside of the board of inquiry setting, not by ad hoc boards but by the courts and by administrative watchdogs such as the Ombudsman.

32Counsel refers me to the following decisions of the Board which support her submission that it is not the duty or task of the Board to review the Commission's conduct or its handling of a complaint prior to referral: Findlay, supra; Naraine v. Ford Motor Co. of Canada (No. 1)(1994), 1994 CanLII 18436 (ON HRT), 24 C.H.R.R. D/457; Drummond v. Tempo Paint and Varnish Co. (No. 1) (1994), 1994 CanLII 18423 (ON HRT), 24 C.H.R.R. D/341; Joe v. University of Toronto (No. 1)(1995), 1995 CanLII 18192 (ON HRT), 25 C.H.R.R. D/472; Sinclair v. Peel Non-Profit Housing Corp. (No. 1)(1989), 1989 CanLII 9075 (ON HRT), 11 C.H.R.R. D/341.

(v) Board's Power to Add Parties: Section 39(2)(d) and 39(3)

33Ms. Cirillo takes the position that the above two sections give the Board the power to add parties in a limited manner. Where the addition of a party arises from the same factual circumstances and in the absence of any prejudice to the respondents, the Board usually grants such motions. She relies on two decisions of the Board: Tabar v. Scott (No. 1) (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 at [D/1074 and D/1075] §§ 9456 and 9461; reversed on other grounds (sub nom. West End Construction Ltd. v. Ontario (Ministry of Labour)) (1986), 1986 CanLII 2541 (ON HCJ), 9 C.H.R.R. D/4537 (Div.Ct.); reversed on other grounds (1989), 1989 CanLII 4088 (ON CA), 10 C.H.R.R. D/6491 (C.A.); Gale v. Miracle Food Mart (No. 1)(1992), 1992 CanLII 14228 (ON HRT), 17 C.H.R.R. D/162 at [D/165] § 16; reversed (sub nom. Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Comm.)) (No. 3) (1993), 1993 CanLII 16525 (ON CTGDDC), 18 C.H.R.R. D/97 (Gen.Div.). Counsel argues that the above cases may be distinguished as they involved a party bringing a motion to add an entity or person who was not previously named in the complaint. In Ms. Payne's case, the Commission had already considered the matter as against the remainder respondents and chose not to refer as against them. Furthermore, the Commission upheld its decision on reconsideration pursuant to s. 37.

34In oral argument, counsel submits that s. 39(2)(d) is there "for economy of process" where at a hearing it becomes apparent that a person or entity should have been named. The key, she says, is whether the Commission had put its mind to the matter or issue and decided to not refer as against that particular respondent.

(vi) Analogous Power to Amend Complaint Before the Board

35Ms. Cirillo brings up the analogous situation of a party (usually the Commission and/or the complainant) asking the Board to amend the referred complaint. This usually involves new allegations or prohibited grounds of discrimination. Counsel relies on the Board's interim decision in Musty v. Meridian Magnesium Products Limited (No. 3), [1998] O.H.R.B.I.D. No. 20 (QL) [reported 1998 CanLII 29886 (ON HRT), 35 C.H.R.R. D/237]. Counsel also relies on the Board's decision in Moffatt v. Kinark Child and Family Services (No. 3), [1996] O.H.R.B.I.D. No. 36 (QL) [C.H.R.R. NP/97-34]. This was an interim decision involving the complainant's request to add a ground of discrimination to the complaint at the hearing stage.

(vii) Evidence vs. Procedure-Based Decisions

36Commission counsel submits that per s. 39(2)(d), the determination as to whether a person or entity sought to be added as a party respondent "appears to have infringed a right" is an evidence-based inquiry. However, the commissioners declined to refer the subject-matter of the complaint as against the remainder respondents per s. 36(1) because they felt that the "procedure" of referral was not "appropriate". Specifically, the commissioners declined to refer in light of the settlement package offered by the remainder respondents. Indeed, counsel concedes that the commissioners presumed the facts of the case could have resulted in a finding of discrimination against some or all of the remainder respondents. Again, counsel submits that the Commission made a procedure-based decision consistent with the statutory regime set out in the Code and the Board could not second-guess the statutory decision making of the Commission. That would be for the Divisional Court to do if it felt so inclined.

(C) ICO, COS, Intertask, Paul Akehurst and Leanne Akehurst

37Mr. Baril, counsel for the above-noted five respondents, agrees with the position of Commission counsel regarding the issue of jurisdiction. He argues that ss. 34 and 36 of the Code may be viewed as "exit chances for respondents". In order to encourage settlement discussions and conciliation, the Legislature created s. 36(1) as a "second exit door". Mr. Baril also points out that in s. 36(1), the Legislature gave great discretion to the Commission as the custodian of the public interest vis-à-vis the Code by providing that even if "it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter ..." [emphasis added]. The Legislature did not say "shall" but used the permissive "may". As well, the word "appropriate" is quite broad. Both these points show that the Legislature wanted to give broad discretion to the Commission in the pre-referral stage of the statutory scheme. Furthermore, the Divisional Court in Tilberg, supra, gives deference to the Commission in its weeding-out and administrative role in the process.

38Expanding his argument on the importance of encouraging settlement, counsel argues that it would be highly unfair and expensive for respondents to have to bring motions before the Board to remove themselves as parties because a complainant felt the Commission had acted improperly. In support of this submission, he cites the Board decision in Findlay, supra, in particular § 85 [p. D/31].

39Costs drive settlement, especially for respondents. As costs may only be awarded as against the Commission (and never as against a complainant) per s. 41(4), the s. 36 "safety valve" becomes very important. He points out that the Board rarely awards costs. Thus, without the Commission being given wide latitude in its s. 36 power, complainants would have little disincentive from being unreasonable in settlement discussions. Mr. Baril states that there is no similar mechanism in Code proceedings to r. 49 of the Rules of Civil Procedure dealing with settlement offers and the adverse costs penalty to a party who, after proceeding to hearing, fails to achieve a result better than the settlement offer.

40As to the meaning of s. 39(2)(d), Mr. Baril feels that the Legislature provided for the addition of a party respondent where in the course of a hearing new material and substantial facts, which are not unduly prejudicial to the person or entity, appear vis-à-vis the person or entity who was neither named in the complaint nor considered by the Commission in its s. 36 procedure. The key is what prejudice befalls the prospective party respondent.

(D) MTCC

41Mr. Hart, counsel for MTCC, agrees with the submissions of Commission counsel and Mr. Baril regarding the issue of jurisdiction. He points out that s. 37 states that the reconsideration decision by the Commission is final. What the complainant is doing in this motion is in effect asking the Board to "reconsider the reconsideration application", a "judicial review by any other name", which he submits the Board has no jurisdiction to do.

42MTCC's counsel argues that s. 39(2)(d) surely doesn't mean that one ignores everything that went on before the referral to the Board — in other words, the initial complaint, the investigation, the s. 36 process, and the s. 37 application (if applicable as in this case). To do so would give a complainant two forums to judicially review the actions of the Commission: one in the Divisional Court (the proper forum) and the other in the Board (the forum lacking jurisdiction).

43Counsel argues that the Board only has the jurisdiction assigned to it by the Code and has no supervisory jurisdiction over the Commission. He also submits that to make the order sought and ignore the final decision of the Commission per s. 37 would amount to an abuse of the Board's process.

VII. ANALYSIS

(A) Introduction

44This motion goes to the heart of the Commission's power as the administrator of the Code and custodian of the public interest to decide which cases and as against which party respondent get referred to a hearing before the Board. This motion deals extensively with the referral powers of the Commission and the Board's power to add parties.

(B) The Jurisdiction of the Board

(i) Role of the Commission: Legislative History

45From the creation of The Ontario Human Rights Commission in 1961 to the present, the Commission has been a pivotal and central figure in the enforcement and administration of human rights legislation in Ontario. The following sections of the 1961 statute [S.O. 1961–62, c. 93] read:

7. The Commission is responsible to the Minister for the administration of this Act.

8. The Commission has power to administer this Act and, without limiting the generality of the foregoing, it is the function of the Commission,

(a) to forward the principle that every person is free and equal in dignity and rights without regard to race, creed, colour, nationality, ancestry or place of origin;

(b) to promote an understanding of, acceptance of and compliance with this Act ...

46Under the 1961 statute, the Minister had discretion to appoint an ad hoc board of inquiry on the recommendation of the Commission. This would occur only after the Commission per s. 13(1) was unable to effect a settlement. Note that the present two-prong conditions of whether "the procedure is appropriate and the evidence warrants an inquiry" before a referral to the Board may occur only appeared in the 1981 Code. The 1981 Code [S.O. 1981, c. 53] also for the first time removed the Minister's discretion to appoint a board of inquiry. If the Commission recommended the referral, the Minister had to make the appointment. In 1995, amendments came into force whereby the Minister no longer made the appointment; a permanent, stand-alone Board of Inquiry was established and held hearings where the Commission made the referral. The history of the statute shows the intention of the Legislature to increase the prominence and role of the Commission in the statutory scheme.

47In 1972, the statute was amended by S.O. 1972, c. 119, s. 9 whereby subsection (d) was added to the duties of the Commission as found in s. 11 [R.S.O. 1970, c. 318] to "investigate complaints in contravention of and enforce this Act". Section 29(i) of the current Code provides that it is a function of the Commission to "enforce this Act and orders of the board of inquiry". Section 27(2) of the present Code similarly provides that "The Commission is responsible to the Minister for the administration of this Act".

48The recent Divisional Court case of Tilberg, supra, reinforces the predominance of the Commission in the Code's scheme. Ferrier J., the dissenting judge in this case, also endorsed the predominance of the Commission during what he called "stage one" — up to and including the s. 36 referral process. In Tilberg, the Court ruled that the Board had no jurisdiction to proceed with the hearing in the absence of the Commission, which is not the case in the instant motion.

(ii) Filing the Complaint

49The process as set out in the Code begins once an allegation is made by a complainant, in the form of a complaint filed with the Commission, that his or her rights have been violated. The Commission acts as the gatekeeper; the complainant may only reach the Board for a hearing if the Commission refers "the subject-matter of the complaint" to the Board per s. 36(1). A complainant has no right to have a hearing before the Board; s/he only has a right to file a complaint pursuant to s. 32(1) and to have the Commission investigate the complaint and "endeavour to effect a settlement" (s. 33(1)). The Commission may also initiate a complaint by itself or at someone else's request but this is rarely done.

(iii) Investigation and Section 34 Considerations

50Once the complaint is filed, the Commission must investigate a complaint and attempt to reach a settlement, subject to s. 34. Section 34(1) allows the Commission to not deal with a complaint for various reasons. It reads:

34(1) Where it appears to the Commission that,

(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

(b) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith;

(c) the complaint is not within the jurisdiction of the Commission; or

(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,

the Commission may, in its discretion, decide to not deal with the complaint.

51Ms. Cirillo points out that not every complaint filed goes through a s. 34 analysis (Ms. Payne's case did as reflected in para. 11 of the Section 36 Case Analysis filed as an exhibit to various affidavits on the motion). The Commission appears to use s. 34 most often when a matter is clearly vexatious or recently, where the matter may be dealt with under a collective agreement in a unionized work environment. In essence, s. 34 acts only as a partial screening device since not all cases go through a s. 34 analysis. There is also a reconsideration provision in s. 37 after a s. 34 "no investigation" decision which is deemed to be final, subject to the Divisional Court's supervisory jurisdiction over the Commission. Whether s. 34 has been engaged or not, a matter may still only be referred to the Board if the Commission so decides per s. 36(1).

52Assuming that a matter is not disposed of by virtue of s. 34, the Commission is compelled at this stage to begin an investigation. The Legislature has given the Commission extensive powers of investigation including provisions to resort to a justice of the peace or the Board for various orders dealing with entry of premises, production of documents, etc., as found in s. 33.

53The Commission investigating officer interviews witnesses and gathers information and documentation and writes a Section 36 Case Analysis. This report is sent to those affected by the matter (complainant and respondents named in the complaint) for their comments and response. This report, along with the officer's recommendation for a "referral" or "no referral", goes before the commissioners who speak on behalf of the Commission. Commission counsel correctly argues that the commissioners are not bound by the report and may (and indeed do) disregard the recommendation of the investigating officer. This was the case in the instant matter — the officer recommended a "no referral" as against all the respondents but the commissioners decided to refer only as against Otsuka and Okada.

(iv) Section 36 Referral Power

54Section 36(1) of the Code goes to the heart of the motion at hand. That section reads as follow

36(1) Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the board of inquiry.

Subsection (2) provides for written reasons to be given where a "no-referral" is decided and to inform the complainant of the s. 37 reconsideration route which is final.

55The Commission has wide discretion in the use of its power to refer. Until such time as it refers and sends the complaint with the letter of referral, the Board has no jurisdiction and is not even aware of the complaint. Again, note that the Commission "may refer the subject-matter of the complaint ..." [emphasis added]. It is permissive language. Even if the Commission does not effect a settlement, finds the "procedure is appropriate" and determines that "the evidence warrants an inquiry", it still has an overriding discretion to decide whether to refer.

56The Legislature intended for the Commission to decide who the party respondents are to be at a hearing before the Board in a human rights complaint, subject to the restriction found in ss. 39(2)(d) and 39(3). Once the Commission decides to refer, it still has the power to refer only some of the allegations, some of the prohibited grounds of discrimination and some of the respondents named in the complaint. Indeed, it is the Commission itself who confers party status on a complainant by deciding to refer the subject-matter of the complaint to the Board. I adopt the reasoning of the Board in Quereshi, supra, at § 35247 [p. D/4528]:

... While the Act does not appear to deal with the situation explicitly, it is implicit that the Commission can request a Board of Inquiry with respect to only some of the initial respondents or some of the grounds of discrimination or some of the allegations of the complaint. Otherwise, the Commission and, ultimately, a board of inquiry, would be rigidly bound by the form of the complaint as initially drafted.

57As Mr. Baril observes in his factum, if the Commission had decided to not refer as against any of the respondents per s. 36(1), this motion would never have taken place as there would have been no referral of the subject-matter of the complaint to the Board and consequently, no hearing before the Board. Counsel points out that Ms. Payne's only legal recourse at that point was to have made a s. 37 reconsideration application to the Commission. If that was unsuccessful, then her legal recourse would have been to seek judicial review against the Commission in the Divisional Court, which counsel argues is no different than what should have happened here. I agree.

58I agree with Commission counsel's submission that the Musty and Moffatt decisions, supra, dealing with the power to amend the complaint, are analogous to the motion at hand. In Musty, supra, Adjudicator McKellar placed weight on the Commission's opposition to amend the complaint and observed at para. 70 [p. D/248, § 68]:

... The Commission's view of the scope of the case is jurisdictionally significant because the Board derives its jurisdiction from the Commission's referral ... A Board might be hesitant, however, to amend a complaint to include allegations that the Commission expressly declined to refer.

59Similarly, in Moffatt, supra, Adjudicator Laird, when dealing with a request to add a ground of discrimination to the complaint at the hearing, made the following comment in obiter at para. 5:

I note, however, that an application such as this, which seeks to add to the complaint an allegation of which the respondent has had notice, is quite different from the situation in which a complainant requests the opportunity to prove a ground of discrimination alleged in the original complaint but which the Commission had declined to include in its referral to the Board of Inquiry.

60The above quotes show deference to or recognition of the Commission's power to refer the subject-matter of the complaint to the Board, which includes the allegations, prohibited grounds of discrimination and the parties. This is also consistent with the Board's finding in Quereshi, supra. As will be discussed later in my reasons, the question of whether the Commission properly discharged its power to refer only as against some of the respondents named in the complaint is not for me to decide as I have no jurisdiction to do so. The proper forum for that discussion is the Divisional Court.

61In dealing with the analogous power of amending a complaint, the complainant relies on the Board's decision in Brillinger, supra. In that case, Adjudicator MacNaughton made an order to add a party complainant. She wrote at para. 2:

... 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 ...

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.

62The facts in Brillinger, supra, are very different from the facts before me. There was clearly no "technical error in drafting" in the complaint here. As well, the above-quoted case deals with a complainant and not with remainder respondents whom the Commission chose not to refer as against. Also note that in Brillinger the motion to add the party complainant was brought by the Commission.

(v) Section 37 Reconsideration

63Section 37 of the Code deals with the power of the Commission to reconsider its s. 34 and 36 decisions. Section 37(3) reads:

37(3) Every decision of the Commission on reconsideration together with the reasons therefor shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final.

64The plain and ordinary meaning of the words "... and the decision shall be final" when put in the context of the Code's regime produces the unmistakable conclusion that the Legislature wanted an end or finality to the "no-referral" decision stage, subject of course to the superior court's inherent jurisdiction to supervise the conduct of the Commission through use of the prerogative remedies, etc. It would be wrong for the Board to essentially grant de facto writs of certiorari and mandamus and add party respondents where the Commission had put its mind to the issues of referral at the s. 36 and 37 stages.

(vi) Section 39

65What does s. 39, and in particular subsections (2)(d) and (3) mean in the context of the ss. 36 referral and 37 reconsideration powers of the Commission when it comes to the Board adding a party respondent? Sections 39(2) and 39(3) read:

39(2) The parties to a proceeding before the board of inquiry are,

(a) the Commission, which shall have the carriage of the complaint;

(b) the complainant;

(c) any person who the Commission alleges has infringed the right;

(d) any person appearing to the board of inquiry to have infringed the right;

(e) where the complaint is of alleged conduct constituting harassment under subsection 2(2) or subsection 5(2) or of alleged conduct under section 7, any person who, in the opinion of the board, knew or was in possession of facts from which the person ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct.

(3) A party may be added by the board of inquiry under clause (2)(d) or clause (2)(e) at any stage of the proceeding upon such terms as the board considers proper.

(a) LEGISLATIVE HISTORY

66To understand the meaning of those subsections, in particular clause 2(d) of s. 39, it is telling to look at the legislative history of the clause. The first reference identifying the proper parties to a hearing before a board of inquiry appears in the 1971 amendments to the statute (S.O. 1971, vol. 2, c. 50, s. 63). It added s. 14b(1) which read:

The parties to a proceeding before a board of inquiry with respect to any complaint are,

(a) the Commission, which shall have the carriage of the complaint,

(b) the person named in the complaint as the complainant;

(c) any person named in the complaint and alleged to have been dealt with contrary to the provisions of this Act;

(d) any person named in the complaint as alleged to have contravened this Act; and

(e) any other person specified by the board upon such notice as the board may determine and after such person has been given an opportunity to be heard against his joinder as a party. [Emphasis added.]

67Clause (d) does not appear in the current Code. Pre-1981 Code, the Commission had substantially less power to fashion the case to be heard by the Board. First, at that time, the statute provided that the Commission could recommend to the Minister that a board of inquiry be appointed. The Minister still had the discretion to appoint or not appoint a board of inquiry. Secondly, the Commission did not have the same scope of power in terms of the case that it recommended the Minister to appoint a board of inquiry. Clauses (c) and (d) were restrictive — including as parties "any person named in the complaint". For example, if someone filed a complaint and named a person in the complaint as a potential respondent, and if the Commission wanted to refer the matter to the Board, the Commission would be required to refer those "named in the complaint".

68In Metropolitan Toronto Board of Commissioners of Police v. Ontario Human Rights Commission (1979), 1979 CanLII 1840 (ON HCJ), 27 O.R. (2d) 48, the Divisional Court wrote at 52:

Under the provisions of s. 14b(1)(d) of the Code "any person named in the complaint as alleged to have contravened this Act" must be added as a party.

No doubt the Legislature had in mind that such party should be added not only as a necessary party to answer the complaint but also to give that party status to oppose the complaint.

69The result of this legislative language and its interpretation by the courts was that the Commission, the Minister and the board of inquiry were constricted by the rigidity of the complaint form filed. The revised and expanded Code of 1981 corrected this situation by removing that clause. By doing so, the Legislature took away part of the power a complainant had to fashion the subject matter (i.e., determining the party respondents) that could go to a hearing before a board of inquiry.

(b) WHEN DOES SECTION 39(2)(D) OPERATE?

70When does the Board's power to add respondents operate and in what circumstances given my comments above? The Legislature chose to include the present clause (d) for some reason. What does that clause mean in the context of ss. 36 and 37 and in the context of the entire Code? I agree with the submissions of Commission counsel that s. 39(2)(d) does not operate where the Commission put its mind to the matter and decided not to refer as against a particular respondent named in the complaint. The Legislature did not intend for the Board to second-guess the Commission where the latter turned its attention to the involvement of a particular respondent and whether that respondent should be a party in the referral. The clause could be invoked where, at a hearing, the evidence seemed to indicate that a person or entity, not considered by the Commission at the s. 36 referral stage, had "infringed the right".

71From a review of Ms. Payne's sworn affidavit to this motion, there is nothing to suggest there is any new, material information or evidence with regards to the remainder respondents that was not available throughout the investigation, at the referral stage and at the reconsideration application stage. Indeed, in oral argument, Ms. Payne acknowledges that she has no new evidence to present in this regard.

72This raises the question of whether the Board has the jurisdiction to add a party respondent that the Commission chose not to refer as against where new, material evidence that was unbeknownst to the Commission during the s. 36 (and s. 37 if applicable) stages comes before the Board? Given my comments in the preceding paragraph, it is unnecessary for me to answer that question.

73I wish to comment on the Board's decision in Thornton v. North American Life Assurance Co. (No. 1)(1991), 1991 CanLII 13125 (ON HRT), 16 C.H.R.R. D/162 which was not provided to me by the moving party or counsel for the responding parties to the motion. It involved a motion by a party respondent under the then numbered s. 38(3) to add a respondent that the Commission decided not to refer as against to the Board. This appears to be the only case where on the record a respondent was added that was previously considered by the Commission and not referred. Thornton, supra, may be distinguished from the instant case for several reasons. First, there was no reconsideration application in Thornton. Secondly, the question of whether the Board had the jurisdiction to make the order was never argued by any of the parties. Indeed jurisdiction was assumed by the adjudicator at § 33 [p. D/165], "Since there is no question that inherently I have the power to add CF as a respondent, I need to decide whether in view of the circumstances prevailing in this case I ought to do it". Indeed, the Commission did not formally oppose the motion to add CF as a party respondent. Thirdly, the adjudicator put great weight in his decision on his belief that CF, as the complainant's employer and North American Life, as the complainant's insurer, were necessary parties in this case involving discrimination in denial of insurance benefits. At § 39 [p. D/166], he wrote:

... But NAL became the insurer only as part of complainant's employment contract, and therefore it appears incontrovertible that CF, the employer, is also involved in this complaint. CF is one of the two parties who are contractually bound to the complainant in one and the same matter. That being the case, making one of the parties a respondent and the other one not, does not appear to me as the proper procedure. It would make CF a missing link in the procedure. [Emphasis added.]

74Interestingly, when dealing with another preliminary issue, the adjudicator had this to say about the Commission's referral power at §§ 12–13 [p. D/164]:

... Each complaint stands on its own, and if no settlement can be effected, the Commission, in considering the merit of a complaint, will either dismiss it or request the Minister to appoint a board of inquiry.

As a board of inquiry I have no power under the Code which would allow me to interfere with this process ... [Emphasis added.]

(C) Judicial Review By Any Other Name

75Counsel for the Commission and the remainder respondents submit that the moving party is asking the Board to act as a reviewing court vis-à-vis the Commission's actions at the referral and reconsideration stages. Counsel argue that the only legal forum for such a deliberation is the Divisional Court. I agree. Not only is the complainant asking me to de facto review the Commission's discretionary power of referral under s. 36, she is also asking the Board to reconsider the reconsideration decision of the Commission made pursuant to s. 37. There is nothing in the Code or any other statute that gives the Board the jurisdiction to do that.

76Even the nature of relief sought by Ms. Payne at para. 4a of her supplementary motion record denotes an application for judicial review in the Divisional Court:

... nullify the Commission's decision to release parties after referring the subject-matter of the complaint to the Board ... order the Commission to refile this complaint ... restoring The Remainder Respondents as parties to this complaint.

77The complainant also argues at para. 91 of her Record noted above that, "The reasonableness or unreasonableness of a settlement offer should not be a consideration when the Commission is deciding whether to refer a complaint to the Board".

78Many of the complainant's arguments dealing with the Commission's conduct and the use of its decision-making powers raise interesting and important issues — for example, whether the Commission may decide to not refer as against a respondent based solely on the reasonableness (as viewed by the Commission) of an offer by the respondent which is not accepted by the complainant. Those questions are within the purview of a superior court with supervisory jurisdiction over the Commission on an application for judicial review.

79In Humphreys v. 582945 Ontario Ltd., unreported decision of the Board dated September 21, 1993, decision No. 93-050 [C.H.R.R. NP/94-60], the Board wrote at pp. 6–7:

It is sufficient to say that the actions of the Commission in carrying out its statutory duty are not within the jurisdiction of this Board to criticize ... Once a hearing has been ordered the reasons behind that decision are totally irrelevant to this Board. My task is to determine, based on the evidence presented at this hearing, whether or not the Human Rights Code has been contravened and to fashion a remedy if it has.

80The Board made these comments in Sinclair v. Peel Non-Profit Housing Corp. (No. 1), supra, at 341, para. 2:

... The Act does not provide for an investigation by a board of inquiry into what took place before the Commission. Once a board of inquiry has been established under s. 37 the Board's duties are set out under s. 38.

81The Divisional Court dealt with the Commission's s. 36 power in Jazairi v. Ontario Human Rights Commission(1997), 1997 CanLII 12445 (ON CTGD), 29 C.H.R.R. D/428; upheld 1999 CanLII 3744 (ON CA), [1999] O.J. No. 2474 (QL) [reported 36 C.H.R.R. D/1] (C.A.). At § 24 [p. D/431], the Divisional Court stated:

Having regard to the language of s. 36(1) of the Code, I am of the opinion that the Commission is given somewhat greater responsibility than merely assessing whether liability may be inferred. On the question of referral, considerable deference should be given to the Commission on matters pertaining [to] the role and function given to the Commission by the Code and having regard to its expertise in fact-finding and processing complaints in a human rights context.

82The Divisional Court again commented on the Commission's referral power in Anselm v. Ontario (Human Rights Commission), 1998 CanLII 29800 (ON CTGDDC), [1998] O.J. No. 2577 (QL) [reported 33 C.H.R.R. D/477 at D/478] at § 1:

... The discretion is very broad. We have no jurisdiction to substitute our decision for that of the Commission, which would be the effect of granting the relief requested by Mr. Levinson. He asked us to quash the decision of the Commission and send the matter back to the Commission with our directions such that the Commission will see the matter must be sent to the board of inquiry.

(D) Abuse of Process

83Ms. Payne and counsel for the Commission and the remainder respondents made submissions regarding abuse of the Board's process. Given that I have made a finding that the Board lacks the jurisdiction to grant the order asked for, it is not necessary to consider the abuse of process arguments.

VIII. ORDER

84The motion is dismissed. The Board's Deputy Registrar will contact the complainant, counsel for the Commission and counsel for Otsuka and Okada to set a date for a pre-hearing conference call to deal with such matters as any further motions and the dates for the hearing.