Board of Inquiry (Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;
AND IN THE MATTER OF the complaint by David Mitges dated September 6, 1995, alleging discrimination in employment because of sexual orientation.
B E T W E E N :
Ontario Human Rights Commission
- and -
David Mitges
Complainant
- and -
Imperial Oil Limited and Robert Peterson
Respondent
Decision
Adjudicator: Heather MacNaughton
Date: March 3, 2000
Board File No: BI-0298-00
Decision No: 00-012
This proceeding was commenced and conducted by way of conference calls on February 18 and February 25, 2000.
On February 17, the Board of Inquiry received correspondence from Counsel for the Ontario Human Rights Commission ("Commission") indicating that the Commissioners' decision to refer this complaint to the Board of Inquiry, pursuant to s. 36 of the Ontario Human Rights Code R.S.O. 1990, c. H.19 as amended ("Code"), was made after considering information, with respect to which, the parties had not had an opportunity to make submissions. Apparently, subsequent to the completion and circulation of the investigator's case analysis, the Respondents were asked to provide further information. Counsel for the Respondents provided the information but reserved the right to make submissions with respect to it, if the information was to be provided to the Commissioners for their review in considering whether to refer this matter to the Board. That opportunity was not provided to Counsel for the Respondents.
Counsel for the Commission acknowledged that this failure constituted a breach of its duty of fairness to the parties and submitted that, in the result, the decision to refer the complaint to the Board was invalid and of no legal effect. In the absence of a valid referral decision, she argued, the Board lacked the authority to commence this hearing.
Counsel for the Respondent submitted that, in light of the Commission's breach of natural justice, the decision to refer the complaint was a nullity, the subject matter of the complaint was not within the Board's jurisdiction, and the Board could not hold a hearing. Counsel for the Respondents indicated that she was participating in the conference calls without prejudice to her stated position.
Counsel for the Complainant expressed her interest in having the procedural difficulty resolved as quickly as possible, but agreed with the submissions of both Counsel for the Commission and Counsel for the Respondents.
Counsel for the Commission proposes a course of corrective action. She proposes to circulate to all of the parties the full disclosure package, and to allow them an opportunity to make further submissions to the Commission if they wish to do so. The full package, with any new submissions, would then be submitted to the Commissioners for a fresh consideration under s. 36 of the Code. In this manner, she submits, the procedural defect can be corrected. The other Counsel does not oppose this proposed course of action.
Having considered all of the submissions, the authorities discussed, and the apparent consensus among the parties regarding the proposed manner of proceeding, I have concluded that the Commission's proposal is a pragmatic one.
In earlier jurisprudence, this Board has refused to review procedural defects in the Commission processes unless a respondent has been so prejudiced by the defects that they would otherwise result in an abuse of our process. At the same time, the Courts in Ontario have placed an obligation on the Commission to make full and complete disclosure and to allow the parties to make submissions prior to a s. 36 decision. In this case, should the Respondents seek judicial review of the Commission's referral decision, the Divisional Court might find there to have been a breach of natural justice and refer the matter back to the Commission to remedy the breach and to consider anew the referral to this Board for a hearing.
Consequently, while no supervisory court has declared the Commission's referral decision to be a nullity, I am prepared to terminate this proceeding and close the Board's file. This will allow the Commission to proceed in the manner it has proposed and will avoid the necessity of an application to the Divisional Court.
Dated at Toronto, this 3rd day of March, 2000.
" Heather MacNaughton "
Heather MacNaughton Chair, Board of Inquiry