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 Nicole Curling dated April 15, 1994, amended August 28, 1998, alleging discrimination in employment on the basis of sex, sexual harassment and sexual solicitation and by Order dated September 30, 1999, alleging reprisal.

BETWEEN:

Ontario Human Rights Commission

-and-

Nicole Curling

Complainant

• and-

Alexander Torimiro, The Victoria Tea Company Ltd.,

The Torimiro Corporation

Respondents

IMPLEMENTATION DECISION

Adjudicator : Mary Ross Hendriks

Date : May 23, 2002

Board File No. : BI-0245-99

Decision No. : 02-008-IM

Board of Inquiry (Human Rights Code)

505 University Avenue

5th Floor, Toronto ON M5G 2P3

Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946

TTY: (416) 314-2379 / 1-800-424-116

INTRODUCTION

The Board of Inquiry’s (“Board”) hearing into the human rights complaint of Nicole Curling (“Curling”) began in 1999. All parties were given notice of the hearing before the Board. The Respondents were initially represented by counsel. As Katherine Laird, the Vice-Chair who originally decided this complaint, has resigned from the Board, I was assigned to consider the implementation and enforcement issues raised by the Complainant and the Ontario Human Rights Commission (“Commission”).

Counsel for both the Complainant and the Commission have recently asked the Board to extend the time of its fourth decision, being the decision on remedy, which set out the monetary and public interest remedies ordered against the Respondents, since they have been unable to enforce it. They have two grounds for this request:

(1) the 19 weeks of time lost due to the automatic stay of the fourth decision that was triggered by the Respondents’ unsuccessful appeal, which prevented the decision from being enforced; and

(2) the prejudice to Curling if the fourth decision expires on April 3, 2002 without any of its remedies having been achieved.

In this regard, counsel for both Curling and the Commission have also requested that the Board extend for a period of at least 6 months, if not longer, the time for which it will remain seized of the matter.

Counsel for Curling also requested that the Board:

(1) summons the Respondents to account for their failure to pay any of the monies awarded or to implement any of the public interest matters set out in the fourth decision;

(2) summons representatives of the Commission to explain and account for its failure to enforce any of the terms contained therein. No authority was cited for such request, and the Commission indicated by way of written response its objections;

(3) that the Board make such further and other orders as may be required to immediately enforce the order and/or institute consequences for non-compliance;

(4) that the Board include specific reporting obligations by the Commission to the Board to demonstrate that the Commission is fulfilling its enforcement obligation; and

(5) that such new orders include a finding of contempt if the Respondents fail to respond to the summons, comply with previous decisions or comply with further decisions.

The Respondents have not replied to the Board on the issues raised herein, although duly served with all correspondence.

The Board advised all the parties that, because of the novel legal issues raised herein, the Board needed to hear full argument by way of motion. On May 10, 2002, counsel for Curling responded that Curling could not afford to go forward with such a motion because of cost considerations. Counsel for the Commission asked the Board to proceed with the time extension issue in any event.

The Board determined that it could only address whether or not it can remain seized of the matter for remedial purposes, and if so, whether or not it can extend the time in which it is going to remain seized for that purpose, under these circumstances.

BACKGROUND

At the hearing before the Board, before (then) Vice-Chair Laird, the Commission brought three motions. The first of which was dealt with during the September 22, 1999 pre-hearing conference call, at which time “The Torimiro Corporation” was added as a named Respondent. The other two were set down for September 28-30, 1999. However, on September, 23 1999, the Board was advised in writing by counsel to the Respondents that there had been a “breakdown” in solicitor-client communication and he was no longer representing the Respondents.

The Personal Respondent (“Torimiro”) failed to attend the hearing on September 28-30, 1999. The Registrar of the Board attempted to contact Torimiro, and was advised by someone at his telephone number that he had gone to New York.

THE BOARD’S DECISION

Four decisions were rendered by Vice-Chair Laird, which are factually relevant to this matter, particularly since the remedies ordered in the fourth decision have yet to be complied with. They are summarized below.

Curling v. Torimiro [1999] O.H.R.B.I.D. No. 13

At the conclusion of the September hearing dates the Board made a variety of rulings in its first decision. Of particular relevance to this proceeding, the Board ordered that, pursuant to section 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 (“SPPA”), the personal and corporate Respondents were advised that if they failed to attend or be represented at the continuation of this proceeding, the hearing would continue without further notice to them.

Curling v. Torimiro [1999] O.H.R.B.I.D. No.17

On December 22, 1999 the Board issued its second decision on the merits. In it, the Board found that the personal Respondent had discriminated against Curling because of her sex, as per ss.5(1), sexually harassed her as per ss.7(2), subjected her to sexual solicitations as per ss.7(3) and took reprisals against her, which included commencing a civil lawsuit for $1.5 million, for filing a human rights complaint, contrary to s.8 of the Code. The Victoria Tea Company was also found liable for the acts of the personal Respondent, as its owner, director, and manager, as per ss. 45(1) of the Code.

The Board declined to make a determination of liability with respect to The Torimiro Corporation, at that time requesting written submissions on this point. The Board granted the Commission’s request for an extension of time in which to prepare its position and submissions on remedy.

With respect to the participation of the Respondents the Board stated that:

The personal respondent and corporate respondents have not participated in or been represented at this hearing since September 22, 1999, despite having had notice of all subsequent hearing days, including a day scheduled to deal with their motion for a stay of proceedings, among other matters. Torimiro has sent correspondence to the Registrar of the Board stating that he does not intend to participate further in the hearing and will be seeking a stay of proceedings in Divisional Court. No court documents have been served on the Board to date. At the point at which Torimiro last attended the hearing, the complainant was being cross-examined. Torimiro was conducting the cross-examination himself. Re-examination of Curling was conducted in the absence of the respondents.

RESPONDENTS RENEW CONTACT WITH THE BOARD

After the release of the Board’s second decision on the merits, Fred Blucher advised that he had been retained by the Respondents. However, the Respondents failed to file written submissions on remedy by the date prescribed and did not seek an extension of time to do so. On February 22, 2000, Mr. Blucher advised the Registrar of the Board that he no longer represented the Respondents.

On March 13, 2000, a third lawyer, Stacey Ball, wrote to the Board, advising that he had instructions to commence an application for judicial review on behalf of the Respondents. A week later, Mr. Ball requested an opportunity to make submissions on remedy, which was ultimately granted. In the interests of fairness, the Board allowed the Respondents an additional six months to file submissions regarding the scope and quantum of a monetary award. The Board also allowed the Respondents an additional fifteen days from the date of release of the decision on the merits to respond to the issues of the liability of Torimiro and the scope of the public interest remedies.

Curling v. Torimiro [2000] O.H.R.B.I.D. No. 8

Within the submissions on remedy the Respondents’ made an allegation of a reasonable apprehension of bias against the Board. In the third decision issued May 19, 2000, the Board rejected the allegations.

Curling v. Torimiro [2000] O.H.R.B.I.D. No.16

In its fourth decision issued October 3, 2002 the Board made its remedial orders, and also made a finding that The Torimiro Corporation had taken over the operation of the business formerly run by The Victoria Tea Company Limited and, as such, the secondary liability attached to it as well.

It should also be made clear that in reaching its decision the Board had the benefit of the Respondents’ written submissions on the issues of quantum of compensation, legal costs, and the jurisdiction of the Board to award interest.

On the basis of the evidence before it, the Board ordered the personal Respondent, Alexander Torimiro, and the corporate Respondents, The Victoria Tea Company and The Torimiro Corporation, to pay Curling the following amounts in damages, on a joint and several basis:

(1) $10,000 as compensation for her humilation and loss of dignity from the infringement of her rights under s.5(1), s.7(2) and s.7(3)(a) to be free from sex discrimination, sexual harassment and sexual solicitation;

(2) $10,000 as compensation for her mental anguish caused by the infringement of her rights under s.5(1), s.7(2) and s.7(3)(a);

(3) $4,000 as compensation for her humilation and loss of dignity resulting from the infringement of her right under s.7(3)(b) to be free from retaliatory treatment for the rejection of sexual solicitations and advances;

(4) $7,000 as compensation for the loss of the right under s.8 to be free from reprisals for having filed and pursued a human rights complaint, and for the humiliation and loss of dignity associated with the infringement;

(5) $10,000 as compensation for her mental anguish caused by the infringement of her right under s.8 to be free from reprisals for having filed and pursued a human rights complaint;

(6) $2,000 as compensation for her loss of earnings after terminating her employment with the Victoria Tea Company Limited;

(7) $7,600 as compensation for her legal expenses arising out of the infringement of her right under s.8 to be free from reprisals;

(8) pre-judgment interest on all of the above at the applicable rate under the Courts of Justice Act, April 15, 1994;

(9) post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act from the date of this Order.

In addition, a number of far-reaching public interest remedies were ordered against the Respondents. Finally, the Board specified that it would remain seized of this matter for a period of eighteen months from the date of the decision to deal with any issues with respect to the implementation.

THE ENFORCEMENT ISSUES

The Commission advised the Board, on April 3, 2002, that it had filed the Board’s fourth decision on remedy with the Superior Court of Justice, but noted the following serious difficulties:

However, before any steps could be taken to implement the Order, the Respondents served the Commission with a Notice of Appeal on October 26, 2000, indicating that they were appealing the Board’s decision to the Divisional Court. Pursuant to Rule 72 of the Board’s Rules of Practice, this had the effect of automatically staying the Order. As a result, the Commission was prevented from taking any further steps to implement or enforce the Order until February 13, 2001, the date on which the Divisional Court issued an order dismissing the appeal for delay. The Divisional Court notified the Commission of the dismissal on March 8, 2001.

Both counsel for the Commission and for Curling request the Board exclude from the 18-month time period during which the Board was to remain seized of the matter the 19 weeks during which Board’s decision was automatically stayed due to the Respondents’ unsuccessful appeal. If this request is granted the Board would remain seized of the matter until August 14, 2002. Further, both counsel for the Commission and for Curling have also requested that the Board extend the time it remains seized for at least an additional period of 6 months.

The Respondents have not replied to these requests, although they were notified by all the parties and by the Board by way of pre-paid first class mail addressed to them at their last known address.

Counsel for Curling has requested that the Board summons the Respondents to account for their failure to pay any of the monies awarded or to implement any of the public interest matters ordered by the Board, and to summons representatives of the Commission to explain and account for its failure to enforce the decision. The Commission objected to the latter request.

The Board advised all parties that, because of the novel legal issues raised by these requests, the Board would need to hear full argument by way of motion. On May 10, 2002, counsel for Curling responded that Curling could not afford to go forward with such a motion because of cost considerations. Counsel for the Commission wrote to the Board on May 13, 2002, and asked that the Board proceed. By way of Registrar’s letter the Board advised the parties that, given Curling’s position, it would decide only the Commission’s request to extend the time during which the Board would remain seized of this matter for purposes of implementing its Orders.

ANALYSIS

While the Respondents have not made any submissions in connection with the Commission’s request, the Board must consider whether it remains seized of these proceedings and has the jurisdiction to grant the remedy requested.

In so doing, the Board has considered the principles of natural justice, the standard of fairness expected of an administrative tribunal, the legal principle of functus officio, the Code and the SPPA and the consideration of prejudice, if any, to the Respondents if the requested decision is made.

EFFECT OF THE STATUTORY STAY

The Board finds that, as a matter of natural justice and fairness, the prejudice to Curling if the Board’s jurisdiction over this matter for purposes of implementation expires without achieving any relief from the Respondents constitutes irreparable harm, and thus greatly outweighs by far any possible prejudice to the Respondents. The hearing is complete. The Respondents had notice of the hearing. The Board received and considered their written submissions on remedy.

The Respondents’ attempt to appeal the Board’s decision was dismissed by the Divisional Court for failure to perfect within the time required by the Rules of Civil Procedure. Curling should not be prejudiced due to the statutory stay of proceedings that occurs where an appeal is taken from the decision of any administrative tribunal, in accordance with the operation of ss.25(1) of the SPPA, and s.72 of the Board’s Rules of Practice. As a matter of fairness in interpreting these provisions, Curling should be permitted an automatic extension to compensate her for that automatic delay, and that the extension should be equal in time to the stay.

FUNCTUS OFFICIO

The legal principle of functus officio does not apply to prevent the Board from extending the time of the fourth decision, to compensate for the stay. In Canada (Attorney General) v. Grover (1994), 1994 CanLII 18487 (FC), 24 C.H.R.R. D/390, the Federal Court, Trial Division, held that the Canadian Human Rights Tribunal was not functus officio where, subsequent to its decision, it reconvened to consider a question of implementation. Mr. Justice Cullen noted the compelling policy reasons and the unique nature of human rights legislation to support that tribunal’s ability to retain jurisdiction over the implementation of difficult remedial orders.

Similarly, the doctrine of functus officio was found not to preclude this Board from conducting its retained-jurisdiction inquiry in Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Commission) (2001), 2001 CanLII 28415 (ON SC), 39 C.H.R.R. D/308 (Ont.Div.Ct.). Citing Grover, supra, with approval, the Divisional Court found that “the case law establishes that a board of inquiry has a remedial authority of a supervisory nature to remain seized of the jurisdiction ‘with respect to remedial issues in order to facilitate the implementation of the remedy.’” Notably, however, the Board had decided to remain seized of the matters before it, pending full implementation of its decision.

In this case before the Board, Vice-Chair Laird was unequivocal that she would only remain seized of the matter for a period of eighteen months.

In this particular instance, because of the clearly remedial nature of the relief requested, the Board adopts the more flexible and less formalistic approach to the doctrine of functus officio in the work of administrative tribunals, as advocated by the (late) Mr. Justice Sopinka in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 862, in order to extend the time to compensate for the stay.

DECISION

The Board hereby finds that:

1. The Board is cognizant of the irreparable harm to Curling upon the expiry of the fourth decision regarding remedy, particularly in light of the seriousness of the human right abuses and reprisal that she suffered.

In the spirit of the fourth decision and as a matter of natural justice, the Board hereby grants the 19-week extension of the time requested.

2. Further, or in the alternative, that in liberally and expeditiously interpreting the Board’s Rules of Practice, the Code and the SPPA, Curling automatically be granted an extension of time equivalent to the stay of proceedings automatically triggered upon the appeal of the fourth decision of the Board concerning remedy, ergo 19 weeks;

3. As a matter of administrative law, the Board is not yet functus officio of this matter. The duties of the Board to uphold principles of natural justice and fairness are distinct from the parties’ responsibilities for enforcement in the courts;

4. The fourth decision was clear that the Board was only to remain seized of this matter for a period of eighteen months from the date of that decision. In keeping with the spirit of that decision, this fifth implementation decision granting an extension of time shall expire 19 weeks from the date of this decision. The request for an additional six-month extension is denied, both in the absence of any clear particulars as to its necessity, and in light of the Board’s clear decision that it would cease to be seized of the matter at the end of eighteen months.

ORDER

The Board hereby orders that the time allotted under the fourth decision on remedy is hereby extended for a period of 19 weeks from the date of this fifth implementation decision, and thus expires on October 3, 2002.

Dated at Toronto this 23rd day of May 2002.

“Mary Ross Hendriks”

Mary Ross Hendriks, Vice-Chair