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 Maurice Commanda dated August 29, 1985 and September 5, 1985 respectively and amended October 31, 1986, alleging discrimination in employment on the basis of race, ancestry and colour.

B E T W E E N:

Ontario Human Rights Commission

-and-

Maurice Commanda; Doug Chevrier; John Goulais; Robert Commanda; Bernie Commanda; Gilbert Anishnabie

Complainants

-and-

Rainbow Concrete Industries Ltd., Boris Naneff and Jack Myers

Respondents

INTERIM DECISION

Adjudicator: Mary Anne McKellar

Date: July 9, 2001

Board File No.: BI-0305 to BI-0310-00

Decision No.: 01-014-I

Board of Inquiry (Human Rights Code)

505 University Avenue 2nd Floor, Toronto, ON M5G 2P3 Phone (416) 314-0004 Toll free 1-800-668-3946 Fax: (416) 314-8743 TTY: (416) 314-2379 TTY Tollfree: 1-800-424-1168

INTRODUCTION

The Respondents brought a preliminary motion seeking to have the Complaints dismissed as constituting an abuse of process. This motion was heard on April 24 and 25, 2001. The evidence adduced in support of the motion included the affidavits of the Personal Respondents, Boris Naneff and Jack Myers. The Commission opposed the motion. It cross-examined the Personal Respondents in respect of those affidavits, and it made legal submissions to the Board. Although represented by counsel, the Complainants did not participate in the hearing of the motion.

The Board reserved on the motion. Prior to the release of its decision in respect of it, Counsel for the Respondents advised the Board and the parties that the Personal Respondent Myers had passed away suddenly.

THE ISSUE

The issue before the Board is how to proceed in the face of Mr. Myers' death.

THE PARTIES' POSITIONS

The Board is in receipt of Mr. Jeffrey's correspondence dated June 15, 2001 and June 18, 2001, and Mr. Holder's and Mr. McTavish's letters dated June 13, 2001 and June 15, 2001 respectively. Based on this correspondence, the Board understands the parties' positions to be the following.

The Respondents wish to have the Board reconvene the hearing into the Respondents' motion so that they may adduce further evidence and argument with respect to the impact of Mr. Myers' death. The Respondents propose that the above be accomplished by the filing of a Supplementary Affidavit from Mr. Naneff, on which the other parties might cross-examine. The Respondents further suggest the possibility of submissions in writing.

The Commission wishes to have the Board decide the motion on the basis of the evidence and argument already received, with Mr. Jeffrey then having the right to make an additional motion based on the impact of Mr. Myers' death. This position is premised on the assertion that the Complainants would be prejudiced by merely reconvening the current motion since, as the Board understands it, they chose not to participate in that motion, at a time when the grounds for seeking relief were different than they now are.

The Complainants appear to take the position that the Respondents are precluded from relying on the impact of Mr. Myers' death in respect either the current motion or any subsequent one on the basis that had the Respondents not delayed these proceedings the hearing would have been completed by now and Mr. Myers' evidence heard.

ANALYSIS OF THESE POSITIONS

The Complainants' position is not well founded. The Respondents cannot be precluded from attempting to rely on the fact of Mr. Myers' death to establish that it would be an abuse of process for this matter to proceed to hearing on the merits. Indeed, the Commission's position acknowledges their right to make that assertion. In response to such assertion, the Complainants or the Commission may argue that the Board ought not to exercise its discretion to grant the relief sought having regard to the Respondents' own conduct. Those arguments, however, must be made in the context of the motion and on the basis of the evidence adduced. They cannot be made in the absence of evidence to support a bar to the Respondents' even seeking relief.

The only question before the Board at this time, therefore, is what is the fairest and most expeditious manner of dealing with the evidence and submissions in respect of Mr. Myers' death.

OPTIONS FOR PROCEEDING

Mr. Holder's opposition to Mr. Jeffrey's proposal to reconvene the hearing into the current motion appears to be premised solely on the prejudice that might thereby be caused to the Complainants. With due respect to Mr. Holder, any such prejudice is not his to assert. Other than asserting that the Respondents should be barred from relying on the fact of Mr. Myers' death at all, the Complainants have not indicated their position with respect to either means of proceeding.

Before determining which way to proceed, therefore, the Board seeks to have the Complainants advise if they intend to participate in any hearing with respect to the impact of Mr. Myers' death, whether that be a reconvening of the hearing into the current motion, or a subsequent additional motion.

If the Complainants indicate that they do not intend to participate, the Commission is directed to advise the Board if it consents to proceeding in the fashion suggested by Mr. Jeffrey.

If the Complainants indicate that they do intend to participate, they are requested to specify whether they wish to oppose the Respondents' motion on all grounds, or only as it relates to the death of Mr. Myers. If the latter, they are to indicate whether they consent to proceeding in the fashion suggested by Mr. Jeffrey. If the former, all parties are requested to indicate whether they take the position that the Board should decide the current motion, and then, if necessary, entertain an additional motion at which all of the grounds including Mr. Myers' death would be addressed, or if they take the position that the current motion should be dismissed on consent, and a new motion entertained now.

TIMETABLE FOR INDICATING CHOICE OF OPTIONS

The Complainants are requested to provide the Board and the other parties with their position on the matters set out above by July 13, 2001.

The Commission is requested to provide the Board and the other parties with their response to the Complainants' position by July 18, 2001.

If necessary, the Respondents are requested to provide the Board and the other parties with their response to the Complainants' and to the Commission by July 20, 2001.

Dated at Toronto, this 9th day of July, 2001

"Mary Anne McKellar"

Mary Anne McKellar, Vice-Chair