Chan v. Ontario Power Generation Inc., 2000 CanLII 20860

Chan v. Ontario Power Generation Inc.

2000-05-02

Ontario Board of Inquiry

Margaret Chan Complainant

and

Ontario Human Rights Commission Commission

v.

Ontario Power Generation Inc. and Margaret Smith Respondents

Date of Complaint: May 30, 1997

Date of Decision: May 2, 2000

Before: Ontario Human Rights Board of Inquiry, Matthew D. Garfield

Decision No.: 00-007-I

Appearances by:

Marvin J. Huberman, Counsel for the Commission

Cecil Norman, Counsel for the Complainant

Lonny Clarke, Counsel for the Respondent Ontario Power Generation Inc.

Joyce Harris, Counsel for the Respondent Margaret Smith

COMPLAINTS — unreasonable delay in dealing with complaint — PROCEDURE — delay as abuse of process — complaint filed in multiple forums as abuse of process — EVIDENCE — sufficient evidence and availability after long delay — availability of witness — memory of witness after long delay

NATURAL JUSTICE — right to a fair hearing — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — s. 7 (security of the person) — HUMAN RIGHTS — difference between human rights proceedings and criminal proceedings — BOARDS OF INQUIRY / TRIBUNALS — application of stare decisis doctrine

Summary: An Ontario Board of Inquiry dismissed an application brought by Ontario Power for an order dismissing a complaint filed against it by Margaret Chan. Ontario Power contended that a delay of over four years by the Ontario Human Rights Commission and the multiplicity of proceedings (grievance arbitration, Labour Relations Board hearing, internal investigation, etc.) amounted to an abuse of process, and a denial of the respondents' s. 7 right to life, liberty and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms.

Margaret Chan was employed by Ontario Hydro, the predecessor corporation to Ontario Power, from 1990 until 1996 in various capacities. The human rights complaint involves her time as a senior stakeholder relations officer under the supervision of Margaret Smith from January to September 1994. Ms. Chan alleged that she was subjected to discriminatory working conditions by Ms. Smith because of her race, colour, ancestry, place of origin and sex. Ms. Chan also alleged that she was harassed, bullied and intimidated by Ms. Smith because of her race. Ms. Chan became ill and suffered a nervous breakdown in September 1994. Her employment was terminated in 1996.

In 1995, Ms. Chan filed a grievance under the collective agreement alleging harassment and discrimination by Ms. Smith. The grievance was subsequently withdrawn. An internal investigation was undertaken by Ontario Power. That investigation found that the evidence did not support a finding of discrimination. In March 1996, Ms. Chan filed a complaint under the Occupational Health and Safety Act based on the same fact situation. The Labour Relations Board declined to hear the complaint in August 1997.

Ms. Chan filed her human rights complaint in June 1995. The Ontario Human Rights Commission decided to investigate in December 1997, but did not commence its investigation until late 1998. The Commission referred the complaint for hearing in October 1999.

Three issues were addressed: (1) does s. 7 of the Charter apply to human rights proceedings; (2) did the delay produce prejudice that amounted to an abuse of process and a denial of natural justice sufficient to warrant dismissal; and (3) did the multiple proceedings constitute such prejudice.

The Board of Inquiry ruled that s. 7 of the Charter has no application to proceedings of a non-penal nature under human rights legislation. While Courts of Appeal in other provinces have ruled differently in cases such as Blencoe v. British Columbia (Human Rights Comm.) and Kodellas v. Saskatchewan (Human Rights Comm.), the Board of Inquiry considered itself bound by the Ontario Court's decisions in Ford v. Ontario (Human Rights Comm.) and Khalil v. Ontario College of Art (No. 3) in which the courts ruled that s. 7 has no application to human rights proceedings.

Regarding the delay of four years and three months on the part of the Commission, the Board of Inquiry found that the applicable legal test is whether or not, on the record, there is evidence of prejudice of such magnitude as to impact on the fairness of the hearing. In this case, the Board determined that the respondents did not meet the test since the evidence regarding prejudice was speculative. The Board of Inquiry was not convinced that a fair hearing could not be held.

The Board of Inquiry found further that delay alone has not usually been dealt with by Ontario courts as an abuse of process which warrants dismissal, where the delay has not caused prejudice and a fair hearing is still possible. In cases of long delay, courts have considered the nature of the prejudice suffered and its impact on the fairness of the process.

The Board of Inquiry rejected the respondents' argument that the multiplicity of proceedings alone and combined with the Commission's delay amounted to an abuse of process and a denial of natural justice. Ms. Chan was entitled to avail herself of the full bundle of rights under various statutory and internal schemes. Each scheme is intended to address rights and interests that are different.

The Board of Inquiry concluded that the motion for dismissal was premature and not founded on the evidence. The Board of Inquiry stated that it would take appropriate account of the delay when it came to weighing the evidence and fashioning a remedy, and the respondents could bring this motion back before the Board of Inquiry during the course of the hearing if it became clear that the legal test for a dismissal had been met.

CASES CITED

A-1 Collision and Auto Service v. Hall (1994), 1994 CanLII 7554 (ON CTGD), 23 C.H.R.R. D/155, [1994] O.J. No. 3988 (QL) (Gen.Div.): 30

Blencoe v. British Columbia (Human Rights) (1998), 1998 CanLII 13300 (BC CA), 160 D.L.R. (4th) 303, 31 C.H.R.R. D/175 (B.C.C.A.): 15

Canadian Airlines International Ltd. v. Canada (Human Rights Comm.), 1995 CanLII 3546 (FCA), [1996] 1 F.C. 638, C.H.R.R. NP/97-86 (C.A.): 16

Commercial Union Assurance v. Ontario (Human Rights Comm.) (1988), 1988 CanLII 4589 (ON CA), 63 O.R. (2d) 112, 9 C.H.R.R. D/5144 (C.A.): 40

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.): 47

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.): 21, 46

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 1) (1995), 1995 CanLII 7431 (ON CTGD), 24 C.H.R.R. D/464, [1995] O.J. No. 4292 (QL) (Gen.Div.): 21

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 2) (1999), 1999 CanLII 15056 (ON SC), 34 C.H.R.R. D/405, [1999] O.J. No. 2530 (QL) (Gen.Div.): 17, 22

Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 46

Khalil v. Ontario College of Art (No. 3) (2000), CHRR Doc. 00-020, [2000] O.J. No. 15 (QL) (Sup.Ct.): 17

Kodellas v. Saskatchewan (Human Rights Comm.) (1989), 1989 CanLII 284 (SK CA), 60 D.L.R. (4th) 143, 10 C.H.R.R. D/6305 (Sask. C.A.): 16

Leroux v. Ontario (Human Rights Comm.) (1999), 1999 CanLII 15059 (ON CTGD), 35 C.H.R.R. D/338 (Ont. Ct. (Gen.Div.)): 22

Mayang v. Al-Ben-Gros Holdings Ltd. (1993), 1993 CanLII 16499 (ON HRT), 26 C.H.R.R. D/70 (Ont. Bd.Inq.): 47

Mears v. Ontario Hydro (1983), 1983 CanLII 4713 (ON HRT), 5 C.H.R.R. D/1927 (Ont. Bd.Inq.): 27

Nisbett v. Manitoba (Human Rights Comm.) (1993), 1993 CanLII 3366 (MB CA), 101 D.L.R. (4th) 744, 18 C.H.R.R. D/504 (Man. C.A.): 16

Ontario (Ministry of Health) v. Ontario (Human Rights Comm.) (1993), 1993 CanLII 5604 (ON CTGDDC), 20 C.H.R.R. D/421, [1993] O.J. No. 1528 (QL) (Gen.Div.): 39

Ontario Hydro (Re), [1997] O.L.R.D. No. 3145 (QL): 9

Ratzlaff v. British Columbia (Medical Services Comm.), 1996 CanLII 616 (BC CA), [1996] B.C.J. No. 36 (QL) (C.A.): 36

Shepherd v. Bama Artisans Inc. (1988), 1988 CanLII 8890 (ON HRT), 9 C.H.R.R. D/5049 (Ont. Bd.Inq.): 46

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 7: 2, 4, 13

Ontario

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

s. 24(1): 13

s. 34: 11, 45

s. 36(1): 12

Occupational Health and Safety Act, R.S.O. 1990, c. O.1: 9

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 23(1): 45

INTRODUCTION

1These are my reasons for decision on a motion brought by the respondents, Ontario Power Generation Inc. ("Ontario Power") and Margaret Smith, for an order staying or dismissing the main proceedings before the Board of Inquiry (the "Board"). The matter before me involves a complaint (the "complaint") by Margaret Chan alleging that the respondents had violated her rights under the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the "Code").

2The respondents contend that a delay of over four years by the Ontario Human Rights Commission (the "Commission") and the multiplicity of proceedings (grievance arbitration, Labour Relations Board hearing, internal investigation, etc.) amount to an abuse of process, a denial of natural justice and a denial of the respondents' right to life, liberty and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 (the "Charter").

ISSUES

3I deal with the following issues:

1. Does s. 7 of the Charter apply to human rights proceedings under the Code and if so, were the respondents' rights under that section violated?

2. Did the delay produce prejudice that amounted to an abuse of the Board's process and a denial of natural justice sufficient to warrant a stay/dismissal?

3. Did the multiple proceedings constitute prejudice that amounted to an abuse of the Board's process and a denial of natural justice sufficient to warrant a stay/dismissal?

DECISION

4The motion is dismissed. Section 7 of the Charter is not applicable to human rights proceedings under the Code. The delay and the multiple proceedings did not produce prejudice of such magnitude that amounted to abuse of the Board's process or a denial of natural justice. Accordingly, these proceedings are not stayed or dismissed.

FACTS

5Margaret Chan was employed by Ontario Hydro, the predecessor of the corporate respondent, from 1990 until March 29, 1996, in various capacities. The complaint before me involves her time as a senior stakeholder relations officer under the supervision of Ms. Smith from January to September 1994. Ms. Chan claims that she was subjected to discrimination with respect to her employment on the basis of race, colour, ancestry, place of origin, ethnic origin and sex. She alleges discriminatory working conditions, including forced unpaid overtime, a heavier workload, lack of sufficient resource assistance, denial of training, and a negative performance evaluation. According to the Commission and Ms. Chan, these factors created a poisoned work environment. The complaint also involves a claim of harassment in the workplace on the basis of race, colour, ancestry, place of origin and ethnic origin, and including alleged verbal abuse, intimidation and bullying on the part of Ms. Smith.

6According to the Commission's Statement of Facts Ms. Chan became Ill and suffered a nervous breakdown in September 1994. She has not returned to duties since that time. Her employment was terminated on March 29, 1996. She now works in Hong Kong.

The Other Proceedings

7On January 25, 1995, the complainant filed a grievance under the collective agreement against the employer alleging harassment and discrimination by Ms. Smith. The grievance deals with the same subject matter as her complaint to the Commission. The grievance was referred to formal arbitration. In February 1997, the union withdrew the grievance after the arbitration had already commenced.

8On March 6, 1995, the corporate respondent announced that Carole Ann Alloway would conduct an internal human rights investigation. She presented her report dated January 17, 1996, and found that the evidence did not support the allegation of racial, ethnic or sex discrimination.

9On March 2, 1996, Ms. Chan filed a complaint under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 as amended (the "OHSA") to the Ontario Labour Relations Board based on the same fact situation. Upon hearing a motion brought by Ontario Hydro, the Labour Relations Board declined to hear the complaint in August 1997; Ontario Hydro, [1997] O.L.R.D. No. 3145 (QL).

Complaint to the Commission

10The complaint before me was filed on June 28, 1995, after the grievance was filed and the Alloway investigation began and before the OHSA complaint was filed. The complaint under the Code was not served upon the respondents for five months after Ms. Chan filed it. Ms. Chan subsequently filed an amended complaint dated May 30,1997.

11The respondents made submissions to the Commission requesting it not deal with the complaint pursuant to s. 34 of the Code. On December 8, 1997, the Commission decided to investigate the matter, having rejected Ontario Power's submissions. The actual investigation into the matter by the Commission did not commence until late 1998. Conciliation attempts were unsuccessful.

12By letter dated October 6, 1999, the Commission advised the parties that it had decided to refer the subject matter of the complaint to the Board for a hearing on the merits, pursuant to s. 36(1) of the Code. The hearing before the Board commenced by the initial conference call on October 26, 1999.

LEGAL ANALYSIS

Delay and Section 7 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

13The respondents contend in their factum and in § 1 of the Notice of Constitutional Question that the combination of the delay of over four years on the part of the Commission and the multiple proceedings deprived them of the right to life, liberty and security of the person as provided by s. 7 of the Charter. As a result, they seek an order staying or dismissing the proceedings pursuant to s. 24(1) of the Charter.

14The Commission argues that I need not address whether s. 7 was violated and if so, whether it is saved by s. 1, as the case law in Ontario is clear: s. 7 has no application to proceedings of a non-penal nature under human rights legislation. Counsel cites Ontario Divisional Court decisions in support of this proposition.

15The respondents concede that the Divisional Court has adopted this approach. However, they invite me to consider Supreme Court of Canada cases that suggest that s. 7 may be applicable to non-penal proceedings. However, they admit that the Supreme Court of Canada has never stated this outright, either as a general proposition or more specifically, as regards to human rights legislation. They also cite the British Court of Appeal decision in Blencoe v. British Columbia (Human Rights)(1998), 1998 CanLII 13300 (BC CA), 160 D.L.R. (4th) 303 [31 C.H.R.R. D/175] where the Court, in a split decision, found that s. 7 was applicable to human rights proceedings and that a delay of thirty months violated the personal respondents' s. 7 rights. The appeal of this important case was heard and reserved by the Supreme Court of Canada in February 2000.

16Other courts of appeal have weighed in on this issue. Supporting the proposition that s. 7 is applicable to human rights proceedings is the Saskatchewan Court of Appeal decision in Saskatchewan Human Rights Commission v. Kodellas(1989), 1989 CanLII 284 (SK CA), 60 D.L.R. (4th) 143 [10 C.H.R.R. D/6305]. The contrary view is expressed by the Manitoba Court of Appeal in Nisbett v. Manitoba (Human Rights Commission)(1993), 1993 CanLII 3366 (MB CA), 101 D.L.R. (4th) 744 [18 C.H.R.R. D/504] and the Federal Court of Appeal in Canadian Airlines International Ltd. v. Canadian Human Rights Commission, 1995 CanLII 3546 (FCA), [1996] 1 F.C. 638 [C.H.R.R. NP/97-86].

17While the decisions of other provincial courts of appeal are persuasive the decisions of the Ontario Divisional Court and Ontario Court of Appeal are binding on me. The Divisional Court has consistently followed Nisbett. In Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (No. 2), 1999 CanLII 15056 (ON SC), [1999] O.J. No. 2530 (QL) [34 C.H.R.R. D/405], the Divisional Court clearly stated at § 13 [D/407]:

Despite the contrary holding of the British Columbia Court of Appeal in Blencoe v. British Columbia Human Rights Comm. (1998), 31 C.H.R.R. Decision 13, I also agree with the holding in Nisbett that cases dealing with section 7 of the Charter of Rights and Freedoms have no application to proceedings of a non-penal nature under human rights legislation.

As recently as January of this year, the Divisional Court confirmed this approach in Khalil v. Ontario College of Art (No. 3), [2000] O.J. No. 15 (QL) [CHRR Doc. 00-020]. At § 7, the Court held, "Delay by the Commission or the Board of Inquiry does not sound in a claim for relief under s. 7 of the Charter".

18I have read the Supreme Court of Canada cases dealing with s. 7 of the Charter relied on by the respondents. There is no finding by the Supreme Court dealing with the applicability of s. 7 to human rights proceedings that allows me to disregard the decisions of the Ontario Divisional Court which are directly on point. Accordingly, I find that s. 7 of the Charter is not applicable to this proceeding.

Delay that Causes Prejudice that Amounts to Abuse of Process and Denial of Natural Justice

19The respondents argue that the delay of four years and three months on the part of the Commission has created prejudice that amounts to an abuse of the Board's process and a denial of natural justice. The Commission submits that no actual prejudice has been proven by the respondents and that they have not met their onus of proof (which all counsel agree is a high threshold) in the motion before me.

The Applicable Legal Test

20The Commission submits that the proper test on the question of prejudice to determine whether a hearing before the Board may proceed without an abuse of its process or a denial of natural justice is: whether or not on the record there is evidence of prejudice of such magnitude as to impact on the fairness of the hearing. The respondents submit that the above test is applicable to issues of delay alone and is not all encompassing. The test does not cover other aspects of an abuse of process. At § 18 of its factum, the respondents argue, "In evaluating the sense of fair play and decency, it is not only prejudice which affects the ability to accurately assess the merits of a complaint which is relevant". I agree with the Commission's submissions.

21In Ford Motor Co. of Canada v. Ontario (Human Rights Commission), 1995 CanLII 7431 (ON CTGD), [1995] O.J. No. 4292 (QL) [24 C.H.R.R. D/464], the Divisional Court heard a judicial review application where the party was trying to get an order preventing the Board from conducting a hearing. There had been an inordinate delay in the matter, but the Board in an interim decision [(1994), 1994 CanLII 18436 (ON HRT), 24 C.H.R.R. D/457 at D/461], as quoted by the Court at § 14 [p. D/466], found:

that the record did not disclose prejudice of the magnitude contemplated and it would "take appropriate account of the delay when it comes to weighing the evidence and fashioning the remedy."

The Divisional Court found it was inappropriate to intervene at this stage. It had this to say about the proper test to be applied, at § 16 [p. D/466]:

The test as to the denial of natural justice or abuse of process is a legal test and the Board must be correct in its determination ... The proper test on the issue of prejudice to determine whether a hearing can proceed without a denial of natural justice or abuse of process is properly set out in the Nisbett case at p. D/510 and we adopt it as follows:

The question is simply whether or not on the record there has been demonstrated evidence of prejudice of sufficient magnitude to impact on the fairness of the hearing. [Emphasis added.]

22The above test was confirmed by two other panels of the Divisional Court in the 1999 Ford case referred to earlier at § 9; and in Leroux v. Ontario (Human Rights Comm.)(1999), 1999 CanLII 15059 (ON CTGD), 35 C.H.R.R. D/338 at §§ 21 and 47. The 1999 Ford decision was the appeal from the Board decision. Even though the Court described the delay of almost eight years attributable to the Commission as "shameful and scandalous", it did not grant the appeal. Instead, it applied the legal test enunciated in Nisbett and adopted by another panel of the Divisional Court in the 1995 judicial review in the same case. If the Court felt that the law called for a dismissal based on passage of time alone, one would think that this is where they would have granted it — in a case involving an eight-year "shameful and scandalous" delay.

23In Leroux, the majority held that a delay of four years did not warrant a stay or dismissal as the delay did not significantly impact on the respondent's ability to receive a fair hearing. Meehan J., in dissent, found that the delay of over four years was oppressive and impacted on the fairness of the hearing and would have allowed the appeal. All three judges, however, agreed on the legal test set out above.

What is the prejudice suffered by the respondents?

24The respondents claim that the prejudice they suffered was comprised of the following:

(a) various key witnesses that would support their position are no longer "available";

(b) other key witnesses that are available have indicated that they can no longer clearly remember the events in issue (some of which involve nuances and subtlety); and

(c) various documents dealing with workload and performance of the complainant no longer exist.

25The respondents contend that the above "actual prejudice" prevents them from giving a full answer and defence and that "a fair hearing" and a determination of the truth of the complainant's allegations is difficult and unlikely". The Commission submits that there is no evidence of actual prejudice to the respondents. Counsel for the Commission asserts that "vague and speculative assertions are insufficient to establish actual prejudice".

(A) KEY WITNESSES ARE NO LONGER AVAILABLE

26The respondents rely on the affidavit of Ms. Smith, the personal respondent, in support of this argument. In her affidavit, she indicates that the witnesses no longer available are:

(1) Jim Mitchell (Human Resources Officer) — he no longer works for Ontario Hydro (the predecessor to Ontario Power) or its successor companies and "The whereabouts of Mr. Mitchell are unknown to me" (§ 68).

(2) Susan Jones (Director of Public Affairs) — Ms. Smith deposes that she believes that Ms. Jones lives somewhere in New Brunswick.

Ms. Smith says at § 68 of her affidavit:

I believe these individuals [Mitchell and Jones], even if they could be located, will be unwilling to dedicate the considerable time necessary to fully prepare for and attend any hearing, since they no longer work for Ontario Hydro and since the passage of time would now require extensive review of available documentation simply to refresh their memories pertaining to the respective work assignments in the department in 1994 and the substandard nature of the Complainant's work. Ms. Jones would have an even more difficult time preparing for and attending a hearing as she lives in New Brunswick and she could do so only at great expense and inconvenience.

27These are speculative reasons. None of the affidavits filed — Ms. Smith's quoted above or her supplementary one and the ones filed by the corporate respondent — indicates what steps, if any, have been taken to locate Mr. Mitchell and Ms. Jones. How does Ms. Smith know that they would be unwilling to devote enough preparation time if they have not been located? And even if that is so, that is a potential problem with any witness in any type of proceeding: some witnesses are better prepared than others. Also, regarding Ms. Jones living in New Brunswick and the cost, Ontario Power (with its significant resources) could decide if it would spend the money to bring her to the proceedings or provide an alternative, e.g., commission evidence or an affidavit. The Board stated in Mears v. Ontario Hydro(1983), 1983 CanLII 4713 (ON HRT), 5 C.H.R.R. D/1927 at § 16511 that a party (coincidentally the predecessor to the corporate respondent before me) lamenting an out-of-province witness could have applied to have the evidence taken as commission evidence.

(3) David Mombourquette (former lawyer at Ontario Hydro) — Ms. Smith deposes that he is living in Nova Scotia. My comments above, as they relate to Ms. Jones being out of the province, apply to Mr. Mombourquette.

(4) Don Falconer (Portfolio Manager for Nuclear and one of the complainant's key clients) — Ms. Smith deposes at § 70:

However, he is no longer with Ontario Hydro or its successors. Further, he has not previously been interviewed or asked about these matters, and would have no reason to recall the necessary details after this delay, nor to keep any records from that period.

Again, no mention is made whether his whereabouts are known or if not, what steps were taken to find him. Further, her comment about what he would or would not remember is pure speculation.

(B) KEY WITNESSES NO LONGER HAVE CLEAR MEMORY OF EVENTS

28At § 71 of her affidavit, Ms. Smith says that, "I believe that, in addition to the unavailability of the above noted witnesses, the inability to accurately remember and describe the events of 1994 will make a fair hearing of this complaint difficult or impossible".

29She then lists the following potential witnesses as examples:

(1) Nancy McGrorey (had office beside complainant) — Ms. Smith says that Ms. McGrorey, when interviewed by the Commission's investigator, stated that she could no longer remember the answers to approximately sixteen questions put to her. No mention is made of what those sixteen questions were. Therefore, I have no way to gauge the importance of her failure to remember. As well, I don't know what she said to the investigator as a whole.

(2) David Watts — Ms. Smith says that Mr. Watts informed her that he was unable to recall details "more than half of the time". Like Ms. McGrorey, Mr. Watts apparently told the investigator that he too was unable to remember the answers to approximately sixteen questions put to him. My comments re: Ms. McGrorey apply here too.

(3) Jim Shewchuck — he couldn't remember "details of even his own work assignments". Again, it is difficult for me to determine, based on Ms. Smith's affidavit, what he can and cannot remember and how important the things are that he can remember and cannot remember without hearing his evidence.

(4) Lois Wallace (Portfolio Manager for Fossil) and

(5) Paul Newall (Portfolio Manager for Hydroelectric) — according to Ms. Smith:

... and no one has ever interviewed them about these matters since 1994. They would also have no reason to recollect details about work performed for them more than five years ago; they would have no reason to retain personal records after so many corporate restructurings.

Ms. Smith is making assumptions about Wallace and Newall. Based on Ms. Smith's affidavit and the passage of time, I cannot reasonably come to the same conclusion. Wallace and/or Newall may remember key things. They may have kept records.

30As with all the above witnesses, Ms. Smith may indeed be correct or she may be correct vis-à-vis some of them. However, she may also be incorrect — some or all of them may be able to give solid evidence on which I can draw in carrying out my statutory duty. The only way I can gauge whether Ms. Smith's assertions are so is to hear the evidence from these witnesses. As the Divisional Court wrote in Latif v. Ontario (Human Rights Commission) [(sub nom. A-1 Collision and Auto Service v. Hall), 1994 CanLII 7554 (ON CTGD), [1994] O.J. No. 3988 (QL) at § 12, 23 C.H.R.R. D/155 at D/159, § 17], "On the facts of this case, any lapses of memory, real or feigned, were matters that went to the credibility of the witnesses, an issue within the peculiar purview of the trier of fact, the Board". I note that none of the counsel has suggested that the two key witnesses in the proceeding — Ms. Chan and Ms. Smith — will be unable to give solid evidence.

(C) VARIOUS DOCUMENTS NO LONGER EXIST

31Ms. Smith states that various documents no longer exist due to the delay by the Commission and the restructuring of Ontario Hydro. At § 74, she deposes:

Not only were internal restructurings continuing within Ontario Hydro over the period 1993 to 1998, in April 1999 Ontario Hydro ceased to exist as a corporate entity and has been replaced by five successor companies. In this circumstance, many documents have been lost, destroyed, or taken by the successor companies.

32The documents in question are:

(1) weekly time sheets: "I have made some inquiries as to the existence of these documents noted above, and could not locate them". She does not indicate to whom she made the inquiries or when.

(2) e-mails requests to the Supervisor of the Team — Ms. Smith does not believe that they still exist. Again what is the source for this belief: What efforts, if any, were made?

(3) corroborating documentation about department policy re: overtime — she does not know their whereabouts and believes this documentation no longer exists. On what does she base these statements?

(4) files of other senior stakeholder relations officers — files would contain monthly reports and work plans. Ms. Smith states at § 77, "I do not believe that these files would still be available to me to corroborate my evidence". She does not indicate what steps, if any, she took to ascertain if they still exist.

(5) corroborating documents including Board documents and planning documents prepared by the Portfolio Manager, Chris Jones: "... the whereabouts of this documentation is unknown to me ..." What steps were taken, if any, to find these documents. Was Mr. Jones contacted?

(6) "scathing" e-mails and documentation allegedly sent by Ms. Smith to Ms. Chan — Ms. Smith states at § 79, "... no such e-mails or documentation have ever been produced and now the complainant might seek to explain such non-production because of the long delay". I do not see how the respondents are prejudiced here. If anything, their non-existence benefits the respondents.

33With regards to the documents in §§ 1–5 above, it would be surprising if the respondents did not keep this material, especially after Ms. Chan filed her grievance in January 1995. I am also surprised that Ontario Power, with its great resources, has not made more of an effort to locate these potential witnesses, interview them, and ascertain what documentation still exists. Ontario Power has been engaged in various proceedings and investigations involving this subject matter since 1995.

34Both counsel for the Commission and counsel for Ontario Power agree that there has been significant disclosure of documents in the proceeding before me, in accordance with the Board's Rules of Practice. Counsel for the Commission contends that the respondents have benefited in terms of preparing their case and collecting relevant documentation from the other proceedings and investigations in this subject matter. Indeed, at p. 4 of the Notice of Motion, the respondents write:

The Complainant has abused the various processes available to her to determine her allegations. The continual investigation and addressing of the allegations against the Respondents in the various forums is unreasonable, excessive and amounts, on its own, to an abuse of process. [Emphasis added.]

I agree with the Commission's assertion at § 20 of its factum:

Rather than prejudicing the Respondents, the delay and the various proceedings initiated by the Complainant in fact enabled them to gather more information and documents about the Complainant's allegations and to conduct an internal human rights investigation procedure through the Respondent, Ontario Power Generation Inc.

35I have reviewed the materials filed on the motion, including the affidavits and case law. The respondents have not met the legal test enunciated in Ford. I am not convinced that they have suffered prejudice of such magnitude that the Board's process has been abused or a principle of natural justice has been violated. The evidence concerning prejudice is speculative at this point. I am not convinced by the motion materials filed or the oral submissions of counsel for Ontario Power and counsel for Ms. Smith that a fair hearing cannot be held.

Delay Itself Amounting to Abuse of Process

36The respondents contend that an inordinate delay itself (as they argue is the case here), standing alone, may constitute an abuse of process that calls for the stay or dismissal of the proceeding, "even where the delay has not caused prejudice and a fair hearing on the merits is still possible". In their factum, they cite Ratzlaff v. British Columbia (Medical Services Commission), 1996 CanLII 616 (BC CA), [1996] B.C.J. No. 36 (QL) (C.A.) as standing for that proposition. That case involved the B.C. Medical Services Commission requesting its Audit Subcommittee in 1994 to conduct a hearing with regards to the billing practices and payments made to a doctor between 1977 [and] 1990. The doctor sought a prohibition order on the basis of undue delay by the Commission. The motions judge refused to issue such relief, holding that the delay per se would not prevent a fair hearing.

37The Court of Appeal reversed the motions judge. The Court wrote at § 18 that it felt it was a case where the delay was "so egregious" that it must be viewed as an "abuse of power". At § 22 it stated:

Judicial review is available to prevent such abuses of power. I should add that not all lengthy delays are unjust; regard must be had to the causes of delay, and to resulting reasonable changes of position.

38The respondents and a case like Ratzlaff raise an important issue: is delay alone an abuse of process which warrants an extraordinary remedy like a stay or dismissal even where the delay has not caused prejudice and a fair hearing on the merits is still possible? As I have explained earlier, the law in Ontario seems to suggest not, the test being that enunciated in Ford. However, in most cases where there has been such a long delay, the issue would be moot as the indicia of prejudice would likely be present so as to amount to an abuse of process or a denial of the principles of natural justice justifying a stay or dismissal.

39The key is analyzing the nature of the prejudice suffered and its impact on the fairness of the hearing. In Ontario (Ministry of Health) v. Ontario Human Rights Commission, 1993 CanLII 5604 (ON CTGDDC), [1993] O.J. No. 1528 (QL) [reported 20 C.H.R.R. D/421], the Divisional Court dealt with the issue of delay on a judicial review application. At § 23 [p. D/425, § 20], it stated:

The complaints arise out of incidents that occurred from 7 to 9 years ago. It is doubtful whether any tribunal can safely rely on the memories of witnesses as to events that happened so long ago, particularly when the significance of some of the events may depend upon nuances in speech, attitudes and behaviour.

Further, at § 24 [p. D/425, § 21]:

Another result of the delay is that one of the principal witnesses is living in British Columbia and another is working in Poland. They are no longer in the service of the employer. Their evidence, if available at all, could be obtained only at great expense and inconvenience.

40The above case had some similarity of issues and concerns with the case before me now (although the events here did not take place seven to nine years ago, there wasn't a principal witness living in Europe and this case involves a hearing at the Board and not the reconsideration process at the Commission). The Court went on to say at § 27 [p. D/425, § 24], "In my judgment the case at bar should be disposed of in the same way and for the same reasons as the Commercial Union case". The Court quoted with approval the Ontario Court of Appeal decision in Re Commercial Union Assurance v. Ontario Human Rights Commission(1988), 1988 CanLII 4589 (ON CA), 63 O.R. (2d) 112 at 114 [9 C.H.R.R. D/5144 at D/5145, § 39055]:

... However, having regard to the delay and resulting prejudice and to the admitted procedural unfairness of the first reconsideration, the respondent has good reason to fear that a fair decision cannot be arrived at by the same body and that a second reconsideration will inevitably result in unfairness, in the circumstances. We agree.

The above quote shows that both courts did not look at the issue of delay alone but in the greater context of the nature of the prejudice suffered and its impact on the fairness of the process.

Multiple Proceedings Amounting to Abuse of Process and Denial of Natural Justice

41The respondents argue that the multiplicity of proceedings alone and combined with the delay by the Commission amount to an abuse of the Board's process and a denial of natural justice. The multiple proceedings to which the respondents refer are:

(1) the labour grievance and arbitration;

(2) an application under the OHSA to the Ontario Labour Relations Board;

(3) an internal human rights investigation and report by Ms. Alloway; and

(4) two complaints (the original and amended) to the Commission.

The respondents state at § 6 of their factum, "The continual investigation and addressing of the allegations against the respondents in the various forums is unreasonable, excessive and amounts on its own, to an abuse of process".

42The Commission submits that the complainant was entitled to avail herself of her rights under the different schemes. I note that none of the parties suggests that the doctrines of issue estoppel and res judicata may be invoked here.

43I agree with the Commission. Ms. Chan is entitled to avail herself of the full bundle of rights under various statutory and internal schemes. Each scheme is intended to address rights and interests that are different.

44It is unfortunate that the Commission took over four years to refer the matter to the Board. The parties and indeed the people of Ontario are not well served when delay like this occurs. No doubt all the parties have experienced the whole myriad of emotions that occur during litigation. The stress and pressure as expressed by Ms. Smith in her affidavit are real and to be taken seriously. However, the respondents have not discharged their legal burden in seeking the extraordinary remedy of a stay or dismissal.

Commission's Use of Section 34

45The respondents also argue that the Commission improperly exercised its powers under s. 34 of the Code by investigating the matter when it was properly dealt with under another statute and forum. That improper exercise of power amounts to an abuse of process. The proper forum for that argument which, if anything, amounts to an abuse of the Commission's process is the Divisional Court on a judicial review application or a complaint to the Ontario Ombudsman, not the Board of Inquiry. The Commission's actions and "process" are relevant on this motion only as to the legal test of showing that there is such prejudice that a fair hearing before me cannot be held. I add that s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, gives a tribunal the power to "prevent abuse of its processes", not the Commission's process.

Motion Is Premature and Appropriate Remedy

46The motion for a stay/dismissal is premature and is not founded on the evidence before me in the motion materials. I agree with the approach taken by Adjudicator Backhouse in Naraine v. Ford Motor Co. of Canada (No. 1)(1994), 1994 CanLII 18436 (ON HRT), 24 C.H.R.R. D/457 (Ont. Bd.Inq.) (the same case whose Divisional Court appeal and judicial review is referred to earlier). She wrote at § 24 [p. D/461] after refusing to grant a stay, "I will, however, take appropriate account of the delay when it comes to weighing the evidence and fashioning the remedy in this complaint". That is the approach which I plan to take. See also Shepherd v. Bama Artisans Inc.(1988), 1988 CanLII 8890 (ON HRT), 9 C.H.R.R. D/5049 at § 38527 [D/5051], following the decision of the Board in Hyman v. Southam Murray Printing (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 at § 5619 [D/621].

47The respondents may also bring this motion back before me during the course of the hearing of the evidence if it becomes clear that the legal test as enunciated in Ford for a stay or dismissal has been reached. This approach was taken by the Board in Mayang v. Al-Ben-Gros Holdings Ltd.(1993), 1993 CanLII 16499 (ON HRT), 26 C.H.R.R. D/70 at § 10 [D/72]. See also Drummond v. Tempo Paint and Varnish Co.(1994), 1994 CanLII 18423 (ON HRT), 24 C.H.R.R. D/341 at § 23 [D/345].

ORDER

48The motion is dismissed. The Deputy Registrar shall contact the parties to either set a new date for mediation or in the alternative, a pre-hearing conference call to deal with the setting of hearing dates and any pre-hearing issues.