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 George Forde dated March 6, 1998, alleging
discrimination in employment on the basis of race, colour, creed, harassment and reprisal.
B E T W E E N:
Ontario Human Rights Commission
-and-
George Forde
Complainants
-and-
Artisan Screen Print Ltd., Edwin Lemeiux,
Peter Balzer, Mark Voyame
Respondents
INTERIM DECISION
Adjudicator: David Mullan
Date: July 23, 2001
Board File No.: BI-0362-00
Decision No.: 01-018-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
A P P E A R A N C E S
Ontario Human Rights Commission ) William R. Holder, Counsel
George Forde, Complainant )
) on his own behalf
Artisan Screen Print Ltd., Corporate ) Ronald P. Bohm, Counsel
Respondent )
Edwin Lemeuix, Peter Balzer, Mark )
Voyame, Personal Respondents )
INTRODUCTION
The complaint before the Board in this proceeding alleges discrimination in employment on the basis of race, colour and creed pursuant to sections 5(1), (2) and 9 of the Human Rights Code, R.S.O. 1990, c.H.19 (as amended) ("Code"). It also involves complaints of violations of the entitlement to enforce one's rights under the Code without reprisal or fear of reprisal as provided for in sections 8 and 9 of the Code. The complainant, George Forde makes these allegations in the context of his employment and ultimate lay off by the respondent, Artisan Screen Print. He also names as respondents the company's President, Peter Balzer, its General Manager, Edwin Lemieux, and one of its employees, Mark Voyame.
This decision deals with preliminary matters relating to the continuing role (if any) of the Commission in the course of the hearing of this complaint. Both prior to and at the pre-hearing conference pertaining to this complaint, counsel for the Commission intimated that the Commission was likely to enter into a settlement with the respondents. If that occurred, he indicated that the Commission would thereafter no longer be active in the proceedings at least to the extent of presenting the case on behalf of the complainant. At the pre-hearing conference, the complainant indicated that he was not satisfied with the terms of the proposed settlement. If it should eventuate, he wished to proceed with the hearing of the complaint before the Board. In this context, he also objected to the Commission's proposed withdrawal from further participation on his behalf.
As a result of discussions with the parties at the pre-hearing conference on April 11, 2001, I requested that the Commission provide submissions on a number of questions by May 9, 2001. The respondents and the complainant thereafter had until May 23, 2001 to file a response. Those questions were:
Whether the Commission requires the leave of the Board to withdraw from further participation in a hearing when it has entered into a settlement which is not acceptable to the individual complainant. More particularly, whether this is a matter that requires notice of motion under Rule 59 of the Rules of Practice.
In the event that the Commission does require leave from the Board to withdraw from further participation, on what bases or criteria should the Board decide that issue? Whether it is competent for the Board in such circumstances to direct the Commission to continue to participate actively in any way in the proceedings.
More generally, I asked the parties to take account of the judgment of the Ontario Court of Appeal in McKenzie Forest Products Inc. v. Ontario (Human Rights Commission) (2000), 2000 CanLII 5702 (ON CA), 48 O.R. (3d) 150 ("Tilberg").
Subsequently, by letter dated April 19, 2001, counsel for the Commission informed the
Board that the Commission had indeed signed an agreement to settle the matter as
between it and the respondents. As a consequence, the issues raised at the pre-hearing conference became live ones.
By letter dated May 9, 2001, counsel for the Commission also filed submissions on the questions raised. By letter dated May 23, 2001, counsel for the respondent filed a response to those questions, in effect supporting and supplementing the positions taken by the Commission. The complainant did not make any submissions. For the purposes of this preliminary ruling, I am therefore assuming that the complainant has continued to maintain the position that he took at the pre-hearing conference; that the Commission should continue to present the case on his behalf notwithstanding any settlement as between the Commission and the respondents and that, in any event, the Commission should file Pleadings as required by Rule 35 of the Rules of Practice and, most notably, "a statement of the facts and issues in dispute" and "the desired remedy including any claim for interest".
BACKGROUND
The questions concerning the continuing role of the Commission at the hearing of a complaint which it has already settled with a respondent arise primarily out of the judgment of the Ontario Court of Appeal in Tilberg. There, the Court determined authoritatively for the first time that a complainant was entitled (if he or she so wished) to proceed to a hearing with a complaint which the Commission had referred to the Board notwithstanding that the Commission had subsequently entered into a settlement with the respondent. This judgment reversed the decision of the Divisional Court (1999 CanLII 35213 (ON SCDC), [1999] O.J. 2813 (Div. Ct.) (Q.L.)) and restored the ruling of the Board ([1998)] O.H.R.B.I.D. No. 16 (Q.L.)).
That issue is not in question here. The complainant is entitled to a determination on the merits if he so wishes; the Board has jurisdiction to proceed notwithstanding that the matter has been settled as between the Commission and the respondents. What are in question, however, are the continuing role (if any) of the Commission in these proceedings and the authority (if any) of the Board in relation to that continuing role.
While the Court of Appeal in Tilberg did not discuss these issues in detail, it made at least some observations pertinent to them. In particular, at p.158, McMurtry C.J.O. (delivering the judgment of the Court) stated:
In my view, it is not unreasonable for the Commission to withdraw from participating in the hearing before the Board of Inquiry when its public interest mandate has been satisfied.
What, however, is by no means clear from this statement is whether the Board loses all authority in relation to the circumstances and conditions under which the Commission may withdraw from active participation. Those are matters that are raised squarely in this proceeding.
LEGISLATIVE PROVISIONS
The following provisions of the Code, the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 (as amended) ("SPPA") and the Board of Inquiry Rules of Practice potentially bear on the resolution of the matters in contention.
Section 33(2)(a) of the Code provides that the Commission is a party to the proceeding before the Board and "shall have the carriage of the complaint". Subclause (b) of the same subsection provides that the complainant is also a party to the proceedings. Section 33(3) provides for the addition but not the removal of parties to the proceedings.
Section 23(1) of the SPPA, applicable to proceedings before the Board, entitles the Board to
...make such orders or give such directions in proceedings before it as it considers proper to prevent an abuse of its processes.
Under the Rules of Practice, made by the Board pursuant to section 35(5) of the Code, Rule 15 reiterates that the parties to the proceedings include the complainant and the Commission as well as the respondent and other interested parties as determined by the panel hearing the case. Rule 35 then provides:
Within thirty (30) days of the conference call, the Human Rights Commission or the complainant where the Human Rights Commission has been permitted to withdraw by the panel, shall serve on the other parties and file with the Board together with a statement of service (Form 2) a statement with the following information:
(a) a statement of the facts and issue in dispute;
(b) the desired remedy including any claim for interest; and
(c) a notice of motion to amend the complaint, if appropriate.
Where the Human Rights Commission remains as a party, and a complainant chooses, the complainant may file pleadings in accordance with this rule.[emphasis added]
The Rules of Practice then go on to prescribe what follows after this filing by the Commission and/or the complainant including, under Rule 49, a Case Management-Prehearing. This is the current stage of this complaint. In that context, by reference to Rule 50, the panel presiding
...may make such orders as it considers appropriate for the conduct of the proceeding and these orders are binding on the parties unless the panel provides otherwise.
This too echoes a provision in the SPPA: section 5.3(3) contained in the section on pre-hearing conferences.
Section 7(1) of the SPPA states that, where a party has had proper notice of an oral hearing and does not attend, that party has no further entitlement to "notice in the proceeding".
Out of an abundance of caution, Rule 3 of the Rules of Practice provides that, where any rule conflicts with a statute or regulation, the statute or regulation "shall prevail". More specifically, in terms of this case, the provisions of the Code and the SPPA prevail in the event of inconsistencies between the terms of those two statutes and those of the Rules of Practice.
Factually, it is also of significance that, in this instance, acting under Rule 14, on November 1, 2000, this Panel extended the time for the filing of pleadings by the Commission as provided for in Rule 35. This was made in response to a request by the Commission and with the consent of the respondents and the complainant. The reason for this request was the possibility of a settlement of the complaint. The Commission asserted that the filing of pleadings might not only prove to be a waste of everyone's time should the parties reach a settlement but also impede the ongoing settlement discussions.
SUBMISSIONS OF THE PARTIES
The Commission
Counsel for the Commission, relying upon the extract from Tilberg cited above, has submitted that, in accordance with the spirit of that judgment, the Board has no basis for requiring the Commission to seek its leave before withdrawing from participation in the proceeding.
In addition to pointing out that McMurtry C.J.O. made no explicit suggestion that withdrawal from participation was anything other than a unilateral decision for the Commission in the light of its perception of whether the public interest was satisfied, Counsel for the Commission focussed on the inappropriateness of the Board itself making any assessment of whether the Commission had properly or improperly gauged the public interest. If anything, this would be a matter for the courts on judicial review.
Counsel referred to a number of statements to this effect in other Board decisions though none raising quite the same issues as have emerged in this case. Nonetheless, counsel submitted that any full assessment of the Commission's actions would require Board investigation of the whole course of the settlement discussions and negotiations. He asserted that this would be contrary to public policy including the confidentiality surrounding such discussions. He also suggested that it would deter attempts at settlement in subsequent proceeding once the parties became aware that the content and outcome of an settlement discussions might be revealed in the course of a hearing by the Board. He also noted that once a member of the Board became privy to the content of such discussions, that member could no longer preside at the hearing of the merits of the complaint in whatever form it thereafter proceeded. To the extent that the language of Rule 35 suggested the contrary and mandated that the Commission seek the permission of the Board to withdraw, the Commission argued that that portion of the Rule was ultra vires and should be ignored.
Having argued that the Board could not require its leave for permission to withdraw, counsel for the Commission felt no need to respond to the question as to the bases or criteria on which the Board should make any such determination.
Nonetheless, counsel for the Commission did concede that, for certain limited purposes, the Board might still be competent to direct the Commission to "participate" in the hearing. This limited authority was derived from the Board's power under section 26(1) of the SPPA to give directions to prevent an abuse of its processes. Included within this authority would be that of directing the Commission to provide disclosure (if not already given) particularly in situations where that would be essential to the parties obtaining the fruits of the investigation conducted by the Commission under its statutory mandate. However, in his submission, it would not justify an order that the Commission file pleadings as provided for in Rule 35; it was simply inconsistent with the entry into a settlement for the Commission to then prepare a statement of facts and issues and identify the remedies being sought. Given that the Commission has already given full disclosure in this particular matter, he therefore submitted that there was no "abuse of process" basis on which the Board could found an order for any further participation by the Commission.
Counsel then went on to assert that the Commission's decision not to participate in the sense of presenting evidence did not mean that it in effect ceased to be a party. As a continuing party, it should still have the option of making legal submissions on points of law and also be entitled to ongoing notice of the conduct of the proceedings for these purposes.
In large measure, the submissions of counsel for the Commission on this third question echoed the statements of the Board (Vice-Chair Laird) in its preliminary ruling in Tilberg, supra., at p.8:
Given that the Commission remains a party before the Board, I am satisfied that it is within my jurisdiction, in appropriate circumstances, to order the Commission to comply with the Board's Rules, for example with respect to disclosure. Further, in my view, it is appropriate for the Board to continue to give the Commission notice of ongoing proceedings, even though the Commission is not attending and accordingly it is not entitled to notice under s.7(1) of the S.P.P.A. In some situations, such as the present motion, the Board may advise the Commission that it would be helpful if it made submissions on a point of interpretation of the Code. As well, it is of course incumbent on the Board to give notice to the Commission, and an opportunity to make submissions, should there be a motion for costs at the end of a hearing in which the Commission chose not to participate. However, I also note that a decision-maker cannot require a party to present evidence or argument on a particular point in issue.
Vice-Chair Laird then went on to opine, at pp.8-9:
In the absence of full argument, I am unwilling to make a determination as to whether the Board of Inquiry could, and should in the present case, order the Commission to retain, or take back, active carriage of this complaint. Even if a Board does have the authority to require the Commission to assume active carriage of the complaint at the hearing, there are negative policy ramifications weighing against making of such an order, as discussed in Burney v. University of Toronto (1995), 1995 CanLII 18156 (ON HRT), 23 C.H.R.R. D/90 at para. 34 (Ont. Bd. Inq.).
The Respondents
Counsel for the respondents adopted the position taken by the Commission that the Commission did not need the Board's permission to withdraw from the proceedings and that the complainant was not only entitled to but should proceed on his own. In so doing, he relied upon the same extract from the judgment of McMurtry C.J.O. in Tilberg cited above. He also made reference to two other parts of that judgment in which the Court of Appeal (at pp. 157 and 158 respectively) emphasised the "independent party status" of complainants in Board of Inquiry proceedings.
ANALYSIS AND FINDINGS
The essential dilemma raised by this matter is how to deal with the practical ramifications of the two propositions adopted by the Ontario Court of Appeal in Tilberg.
On the surface, there is nothing necessarily inconsistent with allowing the Commission to withdraw from participation in the hearing of a complaint by the Board while at the same time permitting a complainant to continue with the pursuit of that complaint before the Board. Once a complaint has reached the Board, there is good reason for protecting the expectations of complainants that they will have a hearing even in situations where the Commission is of a mind not to take the case any further and, indeed, has decided to settle the complaint with the respondent as part of its litigation strategy.
However, the facilitation of these two propositions is complicated by the fact that, up until the point at which the Commission has decided to no longer take part, the Commission has been primarily responsible for the investigation of the complaint including the gathering of all relevant evidence, for deciding whether to refer the complaint to the Board, and thereafter, in most cases, for presenting the case in support of the complaint or, as section 39(2) of the Code puts it, for "the carriage of complaint". In such a situation, particularly where (as here, at least to this point) the complainant is unrepresented, the transition in the carriage of the case can give rise to serious logistical difficulties. Indeed, these difficulties are compounded in cases where (as here and in Tilberg itself), the Commission has entered into a formal settlement of the complaint with the respondents.
Once one accepts that the Commission not only has the right to withdraw from participation in the hearing of complaint (as seemingly stated in Tilberg) but also to enter into its own settlement with a respondent, there is little or no basis on which the Board could claim to have the authority to nonetheless compel the Commission to continue to present the case on behalf of the complainant. Moreover, if withdrawal is a matter of right or one for the Commission's independent judgment, it would also seem to follow that there is no basis for the Board demanding that the Commission seek its permission to do so.
The only reading of the relevant paragraph in Tilberg that might result in the opposite conclusion is to interpret the use of the word "reasonable" ("...it is not unreasonable for the Commission to withdraw from participating...") as leaving open the possibility that the Board might have some reviewing role in determining whether the actions of the Commission have indeed been "reasonable". This might gain further support from the possibility that the later reference in the last clause of that sentence to "when its public interest mandate is satisfied" might be read as importing an objective standard and not as implicitly containing the further words "in the opinion of the Commission". In other words, the Board could demand that the Commission seek its permission to withdraw in order that the Board could assess whether the Commission was acting reasonably in determining that the public interest indicated that it should no longer "prosecute" the complaint and, in many instances, settle the matter.
However, in the view of this panel, that would be a strained interpretation of the words used by the Court of Appeal. After all, the Court talks not in terms of the public interest generally but in terms of "its [the Commission's] public interest mandate [emphasis added]". This implies that this is a matter at least primarily for the Commission. The contrary interpretation would also be inconsistent with the entirety of the judgment. At no other point does the Court even hint that the Board could compel the Commission to justify its actions and thereafter go so far at to compel the Commission to continue to carry the complaint notwithstanding its decision to withdraw and even when it has settled the matter with the respondent.
Of course, it might be asserted that the Court of Appeal in Tilberg was not confronted with this issue and never really turned its mind to it in a specific way. In that event, this Board should not place too much reliance on the parsing of words used in a single sentence in the judgment. Nonetheless, as counsel for the Commission has submitted, there are sound reasons of principle for the position that the Board has no or limited capacity to look behind a determination by the Commission that it will no longer participate in the hearing of a particular complaint. Some of these principled reasons are to be found in earlier jurisprudence of the Board itself.
There is a considerable body of Board decisions to the effect that the Board has no business supervising or reviewing the way in which the Commission has conducted itself in the course of the process leading to the reference of a matter to the Board for adjudication. Save in the case of its power under section 23(1) of the SPPA "to prevent abuse of its processes", the consistent position of assorted panels of the Board has been that the task of the Board is
...statutorily defined and does not include a review of the conduct of the Commission and the complaint prior to the appointment of a Board.
Bryan v. PMI Power Equipment (1997), 1997 CanLII 24832 (ON HRT), 29 C.H.R.R. D/420 (Ont. Bd. Inq.)
at para. 22.
(See also Joe v. University of Toronto (1995), 1995 CanLII 18192 (ON HRT), 25 C.H.R.R. D/472 (Ont. Bd. Inq.); Whitehead v. Servodyne Canada (1986), 1986 CanLII 6525 (ON HRT), 8 C.H.R.R. D/3874 (Ont. Bd. Inq.); Drummond v. Tempo Paint and Varnish (1994), 1994 CanLII 18423 (ON HRT), 24 C.H.R.R. D/341 (Ont. Bd. Inq.); Chan v. Ontario Power Generation (2000), 2000 CanLII 20860 (ON HRT), 37 C.H.R.R. D/351 (Ont. Bd. Inq.))
While all of these cases have involved attempts by respondents to have panels review the way in which the Commission has acted prior to the establishment of a Board, a number of the panels dealing with this question have stated the proposition more generally and to the effect that
...the role of a board of inquiry is not, generally, to ensure that the Commission complies with its constituent statute.
Joe v. University of Toronto, supra, at para. 33.
Indeed, even in cases involving the Board's authority under section 23(1) of the SPPA to prevent abuses of its processes, at least one panel of the Board has taken a circumscribed view of the scope that that section allows for review of the Commission's conduct:
The Board of Inquiry has no supervisory jurisdiction over the Commission. Its task is not to determine whether the Commission has exceeded or failed to exercise its jurisdiction by acting unfairly or failing to satisfy a statutory prerequisite. The Board may, however, be required to assess the lasting impact the Commission's handling of a case has had on the fairness of the proceeding before it and particularly on the ability of a respondent before the Board to make full answer and defence to the allegations against it.
Anonuevo v. General Motors of Canada Ltd. [1998] O.H.R.B.I.D. No. 7 (Q.L.) at
para. 91.
Nonetheless, five countervailing points are relevant:
As already noted, the authorities in issue are not directly on point factually since they involve attempts to secure review of the Commission's activities prior to, not following the referral of a complaint to the Board. They also are situations in which the respondent was requesting that the Board not continue with the hearing; not cases in which the complainant was trying to secure continued Commission participation.
In a number of the Board decisions, the proposition is not stated in absolute terms (as in Joe, supra, where the Board inserts the qualifying word "generally"). In other words, the Board leaves open the possibility that, in exceptional cases, it may be proper to review the action or inaction of the Commission.
Once a tribunal is seized of a matter, there may be different considerations applicable when it is asked to review the subsequent conduct of one of the parties.
Even in the instance of the conduct of the Commission prior to the reference of a matter to the Board, there is judicial authority to the effect that it will on occasion be premature to seek judicial review of that conduct before the Board has had an opportunity to deal with the impugned actions or inaction of the Commission: see e.g. Latif v. Ontario (Human Rights Commission) (1992), 4 Admin.L.R. (2d) 227 (Ont. Div.Ct.); Ontario College of Art v. Ontario (Human Rights Commission) (1992), 1993 CanLII 3430 (ON CTGDDC), 99 D.L.R. (4th) 738 (Ont. Div. Ct.).
As already noted, both in relation to pre-reference and post-reference conduct of the Commission, it may be necessary by virtue of section 23 of the SPPA to consider whether it in any way amounts to an "an abuse of [the Board's] processes". It is probably also the case that such abuse is more likely linked to events following, rather than prior to the reference of a case to the Board.
However, even if these countervailing considerations do suggest that the Board might have a reserve power in relation to the conduct of the Commission in some circumstances, the settlement of a complaint as between the Commission and respondent has its own unique dimensions. In such a context, there are a number of reasons why the Board should not attempt to look behind any settlement or call upon the Commission to justify itself.
First, the Commission's authority to both withdraw from participation in and settle a complaint once it has been referred to the Board (implicitly accepted by the Court of Appeal in Tilberg) is to a certain degree analogous to the Commission's statutory authority to refuse to deal with a complaint (section 34 (1)) or, following the completion of an investigation, not to refer a complaint to the Board (section 36(1)). When the Commission takes either of these steps, the Board has no role to play. A request to the Commission for reconsideration under section 37 and, thereafter, judicial review are the only recourses available to the complainant. That might suggest a similar absence of Board authority to review any Commission decision to discontinue its active participation even after a complaint is before the Board.
Secondly, even allowing for the fact that the dynamic of the process changes once the Commission has referred a complaint to the Board, Board scrutiny of the conduct of the Commission in entering into a settlement with a respondent and an assessment of the terms of that settlement would involve intrusion into matters that are generally treated as confidential. Indeed, there must be serious doubts as to whether the Board has the capacity to compel the Commission to reveal the contents and outcome of the relevant negotiations. In any event, for the Board to do so as a matter of course or even regularly, would almost certainly tend to discourage parties from engaging in the full and frank exchanges which are the hallmarks of genuine attempts at settlement. As well, respondents would be that much less likely to even contemplate a settlement process the outcome of which might be set aside on subsequent review by the Board. Save perhaps in situations where one of the parties to such a settlement moves to have it set aside on grounds such as duress or material non-disclosure, the Board should avoid these risks to the integrity of the settlement process.
Thirdly, as already noted, the determinations of the Commission to disengage from a complaint and to enter into a settlement with a respondent even without the consent of the complainant are determinations that in large measure are based on the Commission's perception of what is appropriate litigation strategy. It is doubtful whether the Board would generally have the competence or the expertise to reassess the Commission's views as to what those interests of the Commission demanded in a particular situation. It is also likely that any Board attempt to review such actions by the Commission would involve a complicated evidential inquiry in which much, if not all of the merits of a particular complaint would have to be canvassed on a preliminary motion. That obviously creates inefficiencies since if the Board held that the Commission's conduct was unjustified and that the Commission should continue to present the case on behalf of the complainant, the merits would again have to be heard at a full hearing. Also, as pointed out by counsel for the Commission, the panel which conducted the review of the Commission's conduct would thereafter be disqualified from presiding at the actual hearing.
Fourthly, and perhaps most persuasively, even if the Board has the capacity to review such actions by the Commission, as Vice-Chair Laird stated in Tilberg, "a decision-maker cannot require a party to present evidence or argument on a particular point in issue". In other words, even if the Board could review the Commission's conduct in such matters and assess whether the Commission had acted improperly, the Board could not force the Commission to thereafter reassume the active "carriage" of the complaint. Indeed, assuming it could as a matter of authority do so, there are obvious reasons why it would not be prudent to have the complainant largely dependent on the participation of an unwilling or reluctant Commission.
I therefore hold that the Board has no authority to compel the Commission either to account for the settlement that it reached in this case or to continue to participate in this hearing in the sense of retaining active carriage of complaint on behalf of the complainant.
However, that does not resolve all the issues raised. Just because the Board has no general authority over the settlement process and the decision to disengage does not necessarily mean that the Board has no right to police or supervise the transition in active carriage of the complaint from the Commission to the complainant.
Indeed, it is accepted by the Commission that the Board in such a case could compel the Commission to provide or complete full disclosure if that had not taken place by the time at which the Commission decided to withdraw from active participation whether resulting from a settlement or some other cause. Counsel for the Commission based this concession on section 23(1) of the SPPA and the power of the Board to make orders necessary "to prevent abuse of its processes".
While I have no doubt that that provision may provide a statutory source for the policing of aspects of the transition in the carriage of the complaint, I do not believe that the Board's powers in this regard are constrained to abuse of process situations. Rule 50 of the Rules of Practice, in effect repeating section 5.3(3) of the SPPA, authorizes a panel presiding at a case management-prehearing to
...make such orders as it considers appropriate for the conduct of the proceeding and these orders are binding on the parties unless the panel otherwise orders.
This coupled with the general common law power of tribunals over the conduct of hearings provides a more general basis for the Board to exercise authority over the transition in the carriage of the complaint from the Commission to the complainant. This power includes the capacity to ensure that the logistics of that transition proceed in a manner that is not prejudicial to the interests of the complainant or to those of the Board itself in the conduct of a fair and efficient hearing.
Among the orders that the Board might make in such a situation are not only that the Commission provide disclosure (as conceded by the Commission) but also the provision of a statement of facts as provided for in Rule 35(a) of the Rules of Practice. Contrary to the submission of counsel for the Commission, I do not accept that this is the same as requiring a party to present evidence or argument during the course of a hearing at least in the sense intended by the Board in Tilberg. As with disclosure, although admittedly it requires some judgment on the part of the Commission, the compilation of a Statement of Facts and Issues is just another aspect of providing the fruits of the investigation to the complainant and the Board.
This does not, of course, mean that the Board should necessarily make such an order in every case where the Commission has indicated that it will be withdrawing from active involvement. However, in a case such as this, there are three factors, which justify the making of such an order. To this point, the complainant remains unrepresented by counsel; to demand that he distil an appropriate statement of facts from the material provided by way of disclosure may well be to impose a very onerous burden. Secondly, despite concerns that might sometimes arise as to whether, having already settled with the respondents, the Commission will provide a balanced statement of the facts, the complainant in this case by asking for the Commission to still do this is willing to take that risk. Thirdly, it ill fits the Commission to now refuse to file a statement of facts. Under the Rules of Practice, there would already have been a statement of facts on the record were it not for the request which the Commission made earlier (in concert with the respondents) to delay filing such a statement until after there had been further attempts at settlement. Indeed, were it necessary to so rule, I would hold that in itself the Commission's refusal to file a statement of facts having earlier received such an indulgence from the Board would bring this matter directly within the scope of the power of the Board under section 23(1) to make orders to "prevent abuse of its processes".
In contrast to the filing of a statement of facts, I would not make any order with respect to the other elements of the pleadings required by Rule 35 and, most notably, the issues and the desired remedy. Notwithstanding the considerations identified above, the fact that there has been a settlement cannot be ignored in relation to these two items. To require the Commission to provide a statement of the issues and, more particularly, the remedy sought in such a situation would place the Commission in a difficult position. In particular, it might involve the Commission in having to plead differently to positions it took or concessions it made for the purpose of entry into the settlement agreement. In any event, the absence of those items is not nearly so critical to the complainant as the absence of an appropriately crafted statement of facts.
To the extent that the Board does possess these powers in relation to the transition in the active carriage of a complaint from the Commission to the complainant, I would also rule that Rule 35 of the Rules of Practice is not ultra vires at least in so far as it contemplates the Commission moving before the Board to withdraw from active participation in a complaint which is proceeding to a hearing. Even if the Board has no authority to compel continued active participation, such a decision by the Commission does bring about a dramatic change in the nature of the hearing. To this change, the Board may need to attach conditions to ensure an appropriate transition and to that extent, it is implicated in the process. As a consequence, I would rule that a motion to that effect under Rule 59 of the Rules of Practice should precede the withdrawal of the Commission. (For the purposes of this matter, however, I will deem that the Commission has complied with this requirement.)
THE CONTINUING ROLE AND RIGHTS OF THE COMMISSION AS A PARTY
In his written submissions, counsel for the Commission has intimated that the Commission would appreciate receiving ongoing notice of the progress of the proceedings. In so doing, he relied on statements to this effect by Vice-Chair Laird in Tilberg. There, she expressed the view notwithstanding the provisions of section 7(1) of the SPPA to the effect that, if a party does not attend an oral hearing having been given due notice, that party loses the entitlement to "any further notice in the proceeding".
I accept this submission. There are at least three reasons why this request is a reasonable one in the circumstances of this case. It may continue to raise general issues of law as to the conduct of proceedings in the absence of active participation by the Commission. Secondly, should the complainant establish that there has been a violation of the Code, the terms of the settlement between the Commission and the respondents may at that point become relevant to the Board's consideration of an appropriate remedial order. Finally, as Vice-Chair Laird notes, the Commission would be entitled to notice should there be any motion for costs at the conclusion of the hearing.
ORDER
I order that the Commission be allowed to withdraw from active participation in this proceeding subject to the following condition: that within thirty days it prepare and file with the Board and serve on the parties a statement of facts as provided for in Rule 35 of the Rules of Practice. Thereafter, the complainant, George Forde will have twenty-five days in which to provide and serve on the parties (including the Commission) a statement containing any supplementary facts as well as a statement of the issues in dispute and the desired remedy including any claim for interest as provided for in Rule 35 of the Rules of Practice. On being served with this statement, the respondent will have a further twenty-five days to comply with Rule 36.
Dated at Kingston, Ontario this 23rd day of July, 2001
"David Mullan"
David Mullan, Member