Anderson v. YMCA of Barrie (No. 2)
2001-04-17
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 Ellen Anderson dated December 6, 1994 and the complaint by Lucia M. O”™Neill dated September 14, 1995, alleging discrimination in the provision of services on the basis of sex.
B E T W E E N:
Ontario Human Rights Commission Commission
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Ellen Anderson and Lucia O”™Neill Complainants
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The YMCA of Barrie Respondent
DECISION ON IMPLEMENTATION
Adjudicator: Heather M. MacNaughton
Board File Nos: BI-0264/99 and BI-0265/99
Decision No: 01- 007-I
A P P E A R A N C E S
Ontario Human Rights Commission Naomi Overend, Counsel
Ellen Anderson Complainant On her own behalf
Lucia O”™Neill Complainant On her own behalf
The YMCA of Barrie Respondent John Anderson, Counsel
THE ISSUE
On December 6, 2000, I released my decision in this matter (the "Decision"). I found, based on facts agreed to by the parties, that the facilities as they existed at the Barrie YMCA constituted an infringement of the rights of Ellen Anderson and Lucia O”™Neill under section 1 of the Ontario Human Rights Code R.S.O. 1990, c. H. 19 as amended (the "Code").
In the Decision, I said that the Board of Inquiry would remain seized, with respect to issues arising, until the completion of the construction of a Women”™s Plus facility as ordered.
On February 15, 2001, the hearing reconvened by conference call to deal with two matters raised by the Complainants and the Ontario Human Rights Commission (the "Commission"). The first matter was the failure of the YMCA to post the Decision as required by my Order, the second was the failure of the YMCA to provide architect”™s drawings reflecting a Women”™s Plus Facility comparable to that of the Men”™s Plus Facility. The parties had filed briefs of documents which they wished me to review and I heard submissions from Counsel for the Commission, concurred in by the Complainants, and from Counsel for the Respondents. For reasons that will be explained in the paragraphs that follow, this decision deals only with the first issue raised by the Complainants and the Commission.
THE POSTING OF THE DECISION
The facts with respect to this issue were not in dispute.
The Facts
As indicated above, the Decision was signed on December 6, 2000, and released to the parties by the Board of Inquiry on December 7. It was faxed to Counsel for both the Commission and the Respondent, and mailed to the Complainants.
On December 15, 2000, Ms. Anderson advised Counsel for the Commission that the decision had not been posted at the Barrie YMCA. Counsel for the Commission wrote to Counsel for the Respondent inquiring why the YMCA had not posted the Decision. He responded that he had not received a copy of the Decision from the Board of Inquiry and that the YMCA was waiting for an original of the Decision which, on receipt, they would post.
Counsel for the YMCA mistakenly believed that the Commission, and not the Board of Inquiry, had sent the copy of the Decision which he received by fax. An exchange of correspondence followed in which this misunderstanding was clarified. The intervening holiday season meant that the decision was not posted until January 2001.
The Submissions of the Commission and the Complainants
Counsel for the Commission, and the Complainants, do not suggest that the failure to post the Decision by the YMCA, or its Counsel, was intentional. Nor do they suggest that there was any deliberate flouting of the Decision and the Order contained in it. However, they submit that the error rendered ineffective a Communications Agreement which had been entered into by the parties separately from the agreement that led to the Decision.
Further, Counsel for the Commission submits that the late posting of the Decision compounded a disturbing trend that she observed during the course of the hearing. That trend, she submitted, was that the YMCA defended the non-existence of a Women”™s Plus facility on the basis that women members, when surveyed, had not expressed an interest in one.
In support of that submission, Counsel for the Commission, referred to recent communications between the YMCA and its members, and a number of public statements, which she submits, downplays the role of the Complainants and their human rights complaints, in achieving equality of the facilities at the Barrie YMCA. Counsel for the Commission submits that these communications, read together, intentionally leave the impression that construction of a Women”™s Plus facility is proceeding at this time because "the time has come".
She further submits that the evidence at the hearing does not support the YMCA”™s contention that it had earlier surveyed its members.
The Submissions of the Respondent
Counsel for the Respondent submits that the late posting of the Decision was an error. It was not intended to flout either the spirit, or the intent, of the Communications Agreement or the Decision.
Counsel for the Respondent submits that the Communications Agreement was negotiated separately from the settlement that resulted in the Decision. Hence, it did not form a part of the settlement agreement which was incorporated in the Decision. He submits that, so long as the requirements of my Decision are met, I have no jurisdiction to deal with issues arising from the Communications Agreement and should not make factual findings based on evidence that had not been concluded.
Counsel for the Respondent submits that it is not appropriate for me to control the communications of either party regarding this matter. His client was, he says, entitled to develop a communications strategy with respect to the Decision, so long as it did not breach the Communications Agreement. They have done so, as has the Commission and the Complainants.
In that regard, he submits that the YMCA member bulletins, relied on by the Commission in support of its submissions, are update