Ontario Human Rights Commission v. Lang, 2003 HRTO 23

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Jean-Marc Lang Complainant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services and Enfants en Peril (Children at Risk) Respondents

Interim DECISION

Adjudicator: Steven J. Faughnan

Date: October 14, 2003

Citation: 2003 HRTO 23

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168

INTRODUCTION

1This interim decision deals with the interpretation of an earlier interim decision, Lang v. Ontario (Ministry of Community and Social Services (No.2), [2003] 46 C.H.R.R.D/102, HRTO 7, (HRTO) ("Lang (No. 2)"), and whether the Complainant has complied with the terms of that decision. The parties filed written submissions on the issue in response to a request from the Tribunal. Although all of the factual and legal submissions made by the parties may not be explicitly set out in this decision, all the factual and legal submissions of the parties were considered in determining the matters at issue herein.

Decision

2The steps that the Complainant has taken are in compliance with the conditions set out in Lang (No. 2). The Amended Statement of Facts and Issues filed by the Commission dated May 16, 2003 is in full force and effect. The dates for the further exchange of pleadings or disclosure, if any, are set out in the Order that follows this decision.

THE FACTS

3In the initial Statement of Facts and Issues dated March 23, 2001 filed by the Commission under Rule 35 of the Tribunal's Rules of Practice (the "Rules of Practice"), there was no specific claim for what are commonly referred to as "liquidated damages", however, a claim for what are commonly referred to as "general damages" was set out in the section entitled Mesures de Redressement and was framed in the following way:

Des dommages généreux contre les intimés, conjointement et solidairement, au terme de cette audience devant la Commission d'enquête. La Commission n'étant pas en mesure de préciser les montants réclames, s'engage a communiquer avec les intéressés dans les plus brefs délais, une fois que les montants réclames seront déterminés;

4As set out in Lang (No.2) the Complainant requested certain amendments to modify their position with respect to damages.

5As set out at paragraph 15 of Lang (No. 2), amongst other things, the Complainant requested the following amendment (hereinafter referred to as the "Claim for General Damages"):

Dommages généraux: En guise de reconnaissance de la peine et douleur causée par le contenu de la plainte JPIR-3VLK28 et NRIX-3ZYLVD, que l'intimé, le Ministère (MSSC) et/ou Enfants en Péril (EEP), conjointement et/ou subsidiairement, accordent des dommages généraux de $100,000.00 à Jean-Marc Lang pour perte d'être libre de discrimination, d'attention parentale n'eût été de la discrimination et du manque de services nécessaires à sa santé médicale et mentale.

6In addition, as set out at paragraph 15 of Lang (No.2), the Complainant also requested the following amendment (hereinafter referred to as the "Claim for Liquidated Damages"):

Dommages généraux: Une ordonnance enjoignant les intimés, conjointement et/ou subsidiairement, d'effectuer une compensation monétaire de $38,058.99 en ce qui concerne les dommages liquidés, c'est à dire dépenses antérieures reliées à la thérapie;

7As set out at paragraph 22 of Lang (No. 2), Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social services (the "Ministry") asserted that the requested amendment for a Claim for General Damages should be denied because, amongst other things, of the Complainant's ability to claim damages in a civil action. As explained at paragraph 9 of Lang (No. 2), that action, in which members of the Lang family, including the Complainant, number among the plaintiffs, alleges a failure of the Province of Ontario to provide adequate services for children with autism, and challenges eligibility requirements of the Preschool Autism Program offered by the Province of Ontario (hereinafter referred to as the "Civil Action"). The plaintiffs in the Civil Action claim both damages and declaratory relief. At the time, Mr. David Corbett, now Mr. Justice Corbett, acted for the Plaintiffs in the Civil Action.

8In Lang (No. 2) after the reasons for allowing the amendments set out in paragraphs 5 and 6 above were set out, the decision provided as follows:

CONDITIONS ATTACHED TO THE PERMITTED AMENDMENTS

61While amendments to the complaints have been permitted, the Tribunal is concerned that any further delay arising from permitting the amendments be minimized. Accordingly, the parties are to canvass among themselves dates for the provision of any response to the amendments and for disclosure. If those dates cannot be agreed upon by April 4, 2003, I will set them.

62In addition, Mr. Lang must provide a copy of this Interim Decision to counsel in the Civil Action and the complainant is to take to take [sic] whatever steps are necessary to ensure that there will be no double indemnification.

ORDER

63The Tribunal therefore orders the following:

1. The complainant is permitted to amend his complaints to claim the relief set out at subparagraphs 2(a), 2(b), 2(f) and 2(h) of the complainant's Notice of Motion dated January 31, 2003.

2. The request for relief set out at subparagraphs 2(c) and 2(d) of the complainant's Notice of Motion dated January 31, 2003, shall be addressed at the hearing of this matter.

3. This Order is subject to the following conditions:

a. That the parties are to canvass among themselves dates for the provision of any response to the permitted amendments and for disclosure. If those dates cannot be agreed upon by April 4, 2003, I will set them.

b. That Mr. Lang must provide a copy of this Interim Decision to counsel in the Civil Action and the complainant is to take to take [sic] whatever steps are necessary to ensure that there will be no double indemnification.

9Therein lies the controversy, specifically the interpretation of the following words: "the Complainant is to take whatever steps are necessary to ensure that there will be no double indemnification".

The Events after Lang (No. 2) was issued

10In correspondence to the parties dated April 4, 2003, the Ministry took the position that the claim in the Civil Action must be amended to exclude the Claim for Liquidated Damages claim and the Claim for General Damages. They submit that if the Complainant fails to take this step, which is necessary to avoid double indemnification, the Complainant has not satisfied the conditions set out in Lang (No.2) and the Order allowing the amended relief to be claimed is not operative. By letter of the same date also sent to all the parties, Children at Risk (Enfants en Péril) ("Children at Risk") agreed with the position taken by the Ministry.

11By letter to counsel in the Civil Action (also of the same date), a copy of which was sent to all the parties and to the Tribunal, Mr. Michel Lang enclosed a copy of Lang (No. 2), and confirmed that he undertook before the Tribunal not to seek double indemnification as it relates to the Civil Action and this proceeding. He then writes:

In reading the letters that were addressed to me recently by the Respondents in this case, I see no reason to amend the civil action claim in the Wynberg et al case and furthermore the Human Rights Tribunal interim decision does not require such steps but rather demands of the complainant to take whatever steps are necessary to ensure that there will be no double indemnification. [emphasis in original]

This being said, the burden is on the complainant to ensure that these steps are adhered to and as a result, I am advising you, as counsel for the litigants in the Wynberg et al case, that I will not be seeking double indemnification concerning the Human Rights Tribunal and the Wynberg et al case.

I trust that the above is sufficient and complies with the order of the Human Rights Tribunal.

12By letter dated April 8, 2003 sent to all the parties and to counsel in the Civil Action, the Ministry expressed its dissatisfaction with Mr. Lang's letter and reasserted its requirement for an amendment to the Civil Action.

13By letter of the same date sent to all the parties and to the Tribunal, counsel for the Ontario Human Rights Commission (the "Commission") advised that the parties had discussed the next steps in the proceeding and had agreed to a timetable for procedural steps following the interim decision. In addition to the dates for the Commission and the Complainant to serve their amended pleadings and for disclosure to be provided, the letter sets out that the parties had agreed that by April 24, 2003, the Complainant, in collaboration with Mr. Charney, Ms. Kraicer, and counsel in the Civil Action would "ensure that all necessary steps are taken to ensure no double indemnification and confirm same to all parties in writing (as a condition precedent for the order of the Tribunal)". In their written submissions dated July 24, 2003 the Ministry points out that April 24, 2001, was chosen because that was the first scheduled date of the Civil Action.

14Apparently, at the commencement of the Civil Action, Mr. Corbett provided the Ministry with a draft order discontinuing the Claim for Liquidated Damages, but not the Claim for General Damages.

15By correspondence dated May 5, 2003, the Ministry advised Mr. Corbett that it was their position that the proposed Order did not comply with the condition set out in Lang (No. 2), because it did not include a discontinuance of the Claim for General Damages.

16In the interim, the Commission served and filed an amended Statement of Facts and Issues dated May 16, 2003. (Hereinafter referred to as the "Commission's Amended Pleading"). While containing the Claim for Liquidated Damages, as well as added paragraphs containing factual allegations in support of that claim, the Commission's amended pleading did not incorporate the Claim for General Damages. As will be seen shortly, neither the Ministry nor the Complainant were aware of the absence of this claim.

17Apparently, because the Ministry had not translated the Commission's Amended Pleading, it did not realize that the Claim for General Damages was not contained in it. By letter to the Commission dated May 20, 2003, a copy of which was sent to the Tribunal and the other parties, the Ministry reiterated their position set out in their earlier letter that the conditions set out in paragraphs 62 and 63 of Lang (No. 2) had not been met. As a result the Ministry asserted that the Commission's Amended Pleading was without legal effect and void. By letter dated May 21, 2003, sent to the Tribunal and the other parties, Children at Risk concurred with the position taken by the Ministry and stated that the "double indemnification issue" must be resolved before the Commission or the Complainant can file any amendment to the Complaints.

18Mr. Lang then forwarded a letter dated May 30, 2003, to the Tribunal and all the other parties. The letter recounts what had transpired to that date and states that it is the Complainant's position that there was compliance with Lang (No. 2) "et (nous) avons respecté la décision au-delà de ce qui est prescrit." The letter ends with the following:

Malgré tous nos efforts, en citant que nous avons consacrés plusieurs semaines pour divulguer à la Commission de droits de la personne les documents se rapportant à notre requête, les parties intimées captivent l'attention des parties et invoquent une interprétation légale a l'égard des dommages généraux réclamés.

Nous avons communiqué avec la Commission, qui à la charge du dossier, pour se pencher sur le contenu du sujet.

Nous jugeons que cette traduction dépasse de loin des limites justifiables et nous estimons qu'il est opportun et raissonable de continuer selon l'horaire des dates convenues pour l'avancement de la cause tel que stipulé dan le paragraph 61 de la décision.

Nous avons reçu la plaidoirie amendée déposée par la Commission Ontarienne des Droits de la Personne et supportons la position prise.

19In response, the Ministry forwarded a letter to the Commission and all the other parties dated June 6, 2003. After repeating their earlier position regarding the Complainant's alleged failure to comply with the Interim Order, the letter notes that after a review of the Commission's Amended Pleading it was apparent that the pleading was not amended to include the Claim for General Damages. The letter concludes by stating that if this is correct then the Complainant had not decided to pursue the claim in this proceeding and as a result it is not necessary for there to be a discontinuance of it in the Civil Action. The letter ends by requesting confirmation that the Complainant has decided not to make that particular amendment, or whether the Ministry misinterpreted the amendments made to the pleading.

20In a letter to the Complainant and copied to all the parties dated June 11, 2003, the Commission sought similar clarification from the Complainant.

21Shortly thereafter, the Ministry forwarded a letter dated June 18, 2003, which stated amongst other things, that until the question regarding the Claim for General Damages claim is clarified, the Ministry could not provide a copy of its amended Response.

22In a letter dated June 20, 2003, Children at Risk also requested immediate clarification of the Complainant's position with respect to the Claim for General Damages and points out that no pleadings were received from the Complainant asserting the Claim for General Damages within the agreed upon deadline. They further state that until the Complainant's position was clarified, they also could not provide an amended reply.

23By letter to the Tribunal dated June 24, 2003, Mr. Lang responded to the various requests for clarification. In the letter he states, amongst other things, that he only learned in discussions with the Commission the previous day that, contrary to his impression, the Claim for General Damages was not contained in the Commission's Amended Pleading. He ends the letter by apologizing for the confusion and reiterating the request for the inclusion of the Claim for General Damages. With respect to the ongoing controversy regarding double indemnification, he suggests that in light of the unexpected and unforeseen delays, the issue be addressed at the hearing.

24By letter to the Tribunal and the parties dated June 25, 2003, the Commission confirms the Complainant's intention to pursue a Claim for General damages and states that, "Il nous a expliqué son point de vue selon lequel notre plaidoirie amendée en date du 16 mai dernier comprenait, à la page 15, paragraphe 2, l'amendement qui a été permis en vertu de l'ordonnance de Monsieur Faughnan. To clarify its position regarding remedy, the Commission then writes:

Si l'on considère l'évolution des plaidoiries, l'on constate que la plaidoirie de la Commission du 23 mars 2001 a été particularisée par la position écrite du 29 octobre 2001, à la suite d'une ordonnance par le Tribunal. Il nous semble que dans la mesure où Monsieur Lang cherchait à amender les plaidoiries en l'espèce, it cherchait, dans sa requête, à amender ou supplémenter non seulement la plaidoirie du 23 mars 2001, mais également la position du 29 octobre 2001. En fait, dans la mesure où la position écrite de la Commission du 29 octobre 2001 ne faisait que préciser la plaidoirie amendée de la Commission du 16 mai 2003, cette position reflète encore les réclamations qui seront soulevées par la Commission lors de l'audience des plaintes.

25The Letter ends with the following:

Cependant, pour ce qui est de la question qui demeure controversée, c'est-à-dire celle qui se rapporte à l'évitement de la double indemnité selon l'ordonnance de Monsieur Faughnan, nous sommes d'avis qu'il est nécessaire de recevoir une directive à ce sujet de la part du Tribunal, afin de régler, entre autres, la question à savoir si la plaidoirie amendée de la Commission est valide.

26By letter forwarded to the Tribunal and the other parties dated June 27, 2003, Children at Risk advised that in light of the "confusion" which had arisen over whether or not the Complainant has taken appropriate steps to amend the Complaints to include the Claim for General Damages or whether they have the right to do so because the Statement of Claim in the Civil Action remains unchanged, it would not be able to file a Response to the Commission's Amended Pleading within the agreed upon time frame. The letter further advises that they would file a Response without prejudice to the position that no proper amendment to the Complaints has taken place and that the condition set out in Lang (No. 2) has not been satisfied. The letter ends by asserting that they would not consent to an extension of the date for disclosure of additional documents by the Commission and the Complainant, being August 1, 2003.

27By letter dated July 4, 2003, sent to the Commission and the Tribunal and forwarded to all the other parties, the Ministry recounts their view of the then current circumstances and that it was their position that the amendment for the Claim for General Damages was never made and that the deadline for making the amendment has passed. Accordingly, they were filing their amended response that responded only to the contents of the Commissions Amended Pleading dated May 16, 2003. As noted above, this pleading did not include the Claim for General Damages. The letter ends by stating that given the position set out in the letter of Mr. Lang dated June 24, 2003, the scope of the pleadings must be firmly resolved prior to the hearing recommencement date, that it would be unfair to the Respondents to wait until the beginning of the hearing to find out whether the Claim for General Damages is part of the case that the Respondents have to meet, and that hearing dates should be obtained so that this issue can be resolved expeditiously.

28By letter to the Tribunal dated July 9, 2003, and forwarded to all the parties, Children at Risk enclosed a copy of their amended Response, filed without prejudice to their right to file an additional Response in the event that the Tribunal allows the Claim for General Damages. Children at Risk adopted the position of the Ministry with respect to the Complainant's alleged failure to make the Claim for General Damages and to satisfy the condition in Lang (No. 2). The letter ends by reiterating their position that the date for disclosure of additional documents by the Complainant and the Commission remain unchanged and that hearing dates be canvassed to address the issue regarding the general damage claim as expeditiously as possible.

29By letter dated July 17, 2003, the Tribunal advised the parties that it wished to receive written submissions with respect to the issues set out in the correspondence detailed above. The parties were invited to include authorities, if any that touched on the issues. All the parties filed written submissions.

Submissions of the Parties

The Submissions of the Ministry

30As set out in their written submissions filed, it is the position of the Ministry that the Claim for General Damages was not included in the Statement of Facts and Issues filed by the Commission dated March 23, 2001, the Commission's letter dated October 29, 2001 or in the Commission's amended Statement of Facts and Issues dated May 16, 2003 and that because the Complainant did not comply with Lang (No. 2), that claim can not be made now.

31By way of summary, in support of their position, the Ministry makes the following submissions:

(1) The Commissions Statement of Facts and Issues dated March 23, 2001, and their letter dated October 29, 2001 clearly exclude any claim for general damages that were sought at paragraph 2(b) in the Complainant's motion to amend. That is why the motion to amend was necessary. It is clear from the Complainant's Notice of Motion and Lang (No. 2), that the Complainant understood that the original Statement of Facts and Issues dated March 23, 2001, did not include the Claim for General Damages.

(2) The Tribunal determined in paragraphs 9, 16 and 17 of Lang (No. 2) that the Complainant did not make a Claim for General Damages in the original complaint because a strategic choice had been made to claim these damages in the Civil Action.

(3) The Tribunal has considered the general damages issue on two occasions and provided two deadlines. The Ministry asserts that the Complainant did not provide particulars of this claim before the first deadline of October 12, 2001 set out in the Tribunal's correspondence dated September 21, 2001. Although by virtue of Lang (No. 2) the Complainant was granted a second opportunity to make the amendment, the Complainant has not taken the necessary steps with respect to the Civil Action.

(4) The Claim for General Damages was not contained in the Commission's Amended Pleading dated May 16, 2003 and by letter of May 30, 2003, the Complainant acknowledged receipt of this amended pleading "et supportons la position prise".

(5) The calling of evidence in the Civil Action is scheduled to continue until December 2003 with no decision expected until well after this human rights proceeding has commenced in February 2004.

(6) If the Complainant is successful in the Civil Action he will receive double indemnification.

The Submissions of Children at Risk

32Children at Risk supports the position taken by the Ministry, and for the most part its submissions mirror those of the Ministry. Children at Risk takes the position that in order to make the Claim for General Damages, there must be compliance with Rule 35 of the Rules of Practice. The Statement of Facts and Issues must be amended to set out the facts and issues. However, they submit that the condition set out in Lang (No. 2) to take all steps to avoid double indemnification has not been met and the deadline for making the amendment has now passed. Children at Risk submit that responsibility for this state of affairs lies completely with the Commission and the Complainant.

33In their submissions they suggest that in the event this Interim Decision allows the Claim for General Damages to be made, if additional disclosure is required, that the parties could fix a schedule for disclosure amongst themselves.

The Commission's Submissions

34As set out in their written submissions filed, by way of summary, the Commission submits that the Complainant instructed counsel in the Civil Action by correspondence dated April 4 and 18, 2003, that he would not be seeking double indemnification and that the Complainant has attempted to comply with the order, but that there remains a misunderstanding about what steps are necessary to avoid double indemnification.

35Given the apparent misunderstanding and the fact that the Complainant does not have legal representation, the Commission would be agreeable to allowing additional time to modify the Complainant's pleading. If the Tribunal permits this additional time for compliance, the Commission requests additional time to provide a reply and the disclosure, as necessary in the circumstances, in connection with these amendments.

36With respect to the scope of the pleadings the Commission points to its June 25, 2003 correspondence and states that the amount claimed by the Commission for general damages is set out in its October 29, 2001 letter in combination with the Commission's Amended Pleading. In its written submissions the Commission points out that in a letter dated June 24, 2003, the Complainant expressed his understanding that that the claim of general damages of $100,000.00 was included in the pleadings, that it was always his intention to claim that amount and that he would have done so in a pleading form but for the misunderstanding. Accordingly, the Commission is agreeable to allowing the Complainant to file his pleading to include the claim for $100,000.00 to the extent that the condition regarding the avoidance of double indemnification is met.

The Complainant's Submissions

37By way of summary, in his written submission's dated July 29, 2003, the Complainant recounts the events after the issuance of Lang (No.2), and submits the following with respect to the amendment for a Claim for General Damages:

(1) The Complainant was under the erroneous impression that the Claim for General Damages had been included in the Commission's Amended Pleading and his letter of June 24, 2003, in which he states that he supports the position taken was sent under this erroneous impression. All parties, including the Complainant now agree that the Commission's Amended Pleading does not include this claim.

(2) That the Ministry, Children at Risk and the Commission do not oppose future amendments to include general damages in the amount of $100,000.00 to the extent that the condition regarding the avoidance of double recovery is met.

(3) The Commission has clearly and deliberately chosen not to support the Complainant in his wish to pursue the Claim for General Damages, and the Complainant is unaware whether the Commission will support the Complainant in the future. These issues are complex in nature, the Complainant does not have a lawyer and the Commission has carriage of the Complaint. Therefore, firm involvement by the Commission in the pursuit of these matters is only fair and just and needed to avoid further confusion.

(4) Given the circumstances, the Complainant should be given an opportunity, with the assistance of the Commission, to make the Claim for General Damages If the Commission needs additional disclosure as a result, the Complainant is prepared to provide relevant documents to the Commission and proceed with timely disclosure.

38With respect to satisfying the terms of Lang (No. 2), after recounting the events subsequent to the interim decision, and asserting he provided counsel in the Civil Action with a copy of Lang (No. 2) and that he otherwise complied with the requirements of the Interim Order, by taking appropriate steps to avoid double indemnification, at page 8 of his submissions, Mr. Lang submits the following:

e. The general damages sought out by the Complainant before the Human Rights Tribunal is for general damages of $100,000 for Jean-Marc Lang for the loss arising out of the discrimination, the lack of parental attention but for the discrimination and for the lack of services necessary to the medical and mental health of Jean-Marc. These issues revolved around the discrimination before the Tribunal and only the specified discrimination.

f. The Respondents are focusing on the loss of parental attention and for the lack of services necessary to the medical and mental health of Jean-Marc (sic) and seem to indicate that these claims are covered in both instances. Firstly the Respondents are leaving out the phrase "n'eut ete de la discrimination", (but for the discrimination) in their translation and respective analysis on the conflict-ridden issues.

g. Secondly the discrimination that is before the Tribunal is not and has never been before the Superior Court. The issues before the Superior Court in the Wynberg et al case revolve around past/future services and the loss of income and working capacity on the part of the Adult Plaintiffs [emphasis in original]

39The Complainant's submissions end by asserting that the Civil Action and this proceeding are unique and are not of an overlapping nature. Different remedies are sought based on the specified discrimination and there are no double recovery issues. The Complainant submits that he truly believes that Lang (No. 2) was complied and (with the assistance of the Commission) that he be permitted to proceed with the amendment for the Claim for General Damages.

The Reply Submissions of the Ministry

40By way of summary, as set out in the written reply, the Ministry states that for the reasons set out in its earlier submissions it does oppose any amendment of the Complaints and submits:

(1) Since the Draft Order did not appear to comply with Lang (No. 2) counsel in the Civil Action agreed that the Order was not to be considered by the Court until the Commission's position was clarified. The draft order found at Tab 6 of the Respondents materials was never ordered nor ruled upon by the presiding justice in the Civil Action.

(2) The Complainant, as one of the Plaintiff's in the Civil Action, claims $100,000.00 in general damages as a separate head of damages at paragraph 1(a) of the Statement of Claim in that action. There is nothing in the Statement of Claim to restrict the general damages claim or the issues in that proceeding to the "past/future services and the loss of income and working capacity on the part of the Adult Plaintiffs". Indeed, the Ministry further submits that Helene Boisvert and Mike Lang "on their own behalf and in their capacity as joint litigation guardians of Jean-Marc Lang" brought this claim. In addition, the claims for "past/future services and the loss of income and working capacity on the part of the Adult Plaintiffs" are separate heads of liquidated damages set out at paragraphs 1(b), (c) and (d) of the Statement of Claim.

(3) The identity of the general damage claim in the Civil Action and the Claim for General Damages in the proceeding before the Tribunal is verified by paragraph 68(a) of the Statement of Claim which claims damages on the following basis: "to the extent that they have not received adequate health care and education services, the Minor Plaintiffs have had their health and well being impaired permanently". This claim is virtually identical to, and would cover the same head of damages as, the Claim for General Damages in the proceeding before the Tribunal. As set out at paragraph 68(b) of the Statement of Claim in the Civil Action the plaintiffs also plead and relies upon the Family Law Act, R.S.O. 1990 c. F.2, as amended, and this would cover the proposed claim for "loss of parental attention".

(4) Given the Complainant's acknowledgment at the motion that he had made a strategic decision not to claim these general damages before the Tribunal because they were being raised in the Civil Action, he cannot now purport to claim that the general damages claimed in the Civil Action do not cover the same damages as those set out in the Claim for General damages.

(5) The pre-conditions established by the Tribunal imposed an onus on the Complainant to take "whatever steps are necessary to ensure that there will be no double indemnification". This pre-condition arose because of Mr. Lang's representation that the amounts claimed in the Human Rights proceeding are not being claimed in the Civil Action and the submission that the Statement of Claim in the Civil Action had not been amended to remove the claim for general and liquidated damages made in that proceeding. While Mr. Lang has offered to amend the Statement of Claim to prevent double indemnification for liquidated damages, he has refused to amend the Statement of Claim to "ensure that there will be no double indemnification" with respect to general damages.

Analysis

41Section 41 of the Human Rights Code R.S.O. 1990, ch H 19, as amended, (hereinafter referred to as the "Code") provides that where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order,

(a) direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

42It must be noted at the outset that the request made by the Complainant in its Notice of Motion was to add certain claims for relief. My order was framed in a positive way in that the Complainant was permitted to claim some of the relief requested and was permitted to amend the Complaints to include that relief. In my opinion the issuance of the Interim Order (Lang (No.2)) caused the amendments to be incorporated into the Complaints. It is for that reason that Lang (No. 2) did not require that either the Commission or the Complainant file an amended pleading, although they may have requested an opportunity to do so, only that the Respondents be provided an opportunity to respond to the permitted amendments, amendments that were based on the facts as then set out in the Complaints and the pleadings by the Commission. While I would not have refused the Commission and the Complainant an opportunity to file an amended pleading setting out additional facts in support of the permitted amendments, and the parties could have, as they did, agree on a schedule for the Commission and the Complainant to provide an amended pleading, there was no requirement that they do so.

43As it so happens the Commission went the extra step to file an amended Statement of Facts and Issues with the permitted Claim for Liquidated damages and factual allegations in support of that claim, to which the Respondents provided their Responses. I am of the opinion that as the pleading was filed and responded to, there is no prejudice to allowing the amendments nunc pro tunc, and I so order. As a result the Amended Statement of Facts and Issues filed by the Commission dated May 16, 2003, is in full force and effect

44The requirement that the Complainant "take all necessary steps to ensure that there is no double indemnification" was not a pre-condition to the amendment, but was a condition attached to my having allowed the amendment That provision was included to ensure that if liability is found in this proceeding, the Complainant does not receive an inappropriate windfall by receiving two damage awards for the same loss. The Complainant has stated and continues to state that he is not seeking double indemnification. By virtue of my order the Complainant is required to maintain this position as this would fall within "whatever steps are necessary to ensure that there will be no double indemnification".

45Notwithstanding the submissions of the Complainant that the Claim for General Damages in this proceeding and the general damages claimed in the Civil Action are of a different nature, and those of the Respondents that they are the same, because of the way that the permitted amendment for the Claim for General Damages is worded, it may become necessary at some point to make that determination. However, in the absence of complete submissions on the issue or an examination of the evidence in support of that claim, it is premature to do so now.

46After evidence and argument it may be necessary to determine if the remedy that the Complainant is seeking is the same or different in nature from that sought in the Civil Action, whether such a remedy is available under the Code and whether an award would amount to double indemnification, but all those determinations must be based on the facts and submissions on law and evidence made at the hearing.

47To allay the concerns of the Respondents, in terms of ensuring that double indemnification will not take place, I am satisfied that this potential result would be obviated by arguing before the Tribunal or the Court, whichever proceeded second, that recovery in respect of any particular item had already been made in the other forum. I am satisfied that this issue can be resolved at the end of the hearing and that its satisfactory resolution is not one beyond the ken of the calibre of counsel that appear before me on this matter, the Complainant and myself. The parties can rest assured that in any final determination that I make in this proceeding, there will be no allowance of double indemnification or overlap of damages between this proceeding and the Civil Action.

48Perhaps because of the lack of oversight by a solicitor or a misapprehension of the steps that the Commission would take on behalf of the Complainant, the Tribunal is faced with a situation that to the Respondents appeared to be a lack of compliance with a Tribunal Order. Yet again it would appear that the Complainant requests relief from the Tribunal. In this regard an observation is necessary. Without commenting definitively on the role and status of the Commission in proceedings before the Tribunal, although the Complainant believed that the Commission would undertake the amendments, and that belief may not have been unreasonable, it must be remembered that, as emphasized by the Court of Appeal in McKenzie Forest Products Inc. v. Ontario (Human Rights Commission), 2000 CanLII 5702 (ON CA), 48 O.R. (3d) 150 (application for leave to appeal to the Supreme Court of Canada dismissed), the Complainant and the Commission are separate parties. As separate parties the interests of a Complainant and the Commission in a proceeding before the Tribunal can diverge, even though the Commission under clause 39(2)(a) of the Code has carriage of the complaint. In future, the Complainant in this proceeding would be well advised to keep this in mind and ensure that their interests and position are adequately asserted and communicated to the Tribunal.

49On a final note, I am concerned that if I do not fix the dates for the provision of additional disclosure, if any, or for the filing of amended Responses, matters may be further complicated. Notwithstanding the invitation of Children at Risk for the parties to arrange these dates themselves, I have decided to fix them in the Order that follows.

Order

50Having determined that the steps that the Complainant has taken are in compliance with the condition(s) set out in Lang (No. 2) and for the reasons set out above it is ordered that:

a. The Amended Statement of Facts and Issues filed by the Commission dated May 16, 2003 is amended nunc pro tunc;

b. Any remaining Disclosure and amended Responses are to be provided by November 4, 2003.

c. Any Reply is to be filed by November 10, 2003.