HUMAN RIGHTS TRIBUNAL OF ONTARIO

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 of Dr. Indar Maharaj, dated August 22, 1995 alleging discrimination in employment on the basis of reprisal by Transpharm Canada Inc. (COB as Toronto Institute of Pharmaceutical Technology), Mr. Alex MacGregor and Mrs. Nneka MacGregor.

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Dr. Indar Maharaj

Complainant

-and-

Transpharm Canada Inc. (COB as Toronto Institute of Pharmaceutical

Technology), Alex MacGregor and Nneka MacGregor

Respondents

DECISION ON COSTS

Adjudicator: Mary Anne McKellar

Date: February 28, 2003

Citation: 2003 HRTO 3

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 AND IDENTIFICATION OF ISSUE

1By decision dated September 23, 2002, the Human Rights Tribunal of Ontario (the “Tribunal”, formerly the Board of Inquiry) dismissed the Complaint of Indar Maharaj as against the Respondents.

2By letter dated October 24, 2002, counsel for the Respondents sought to have the Tribunal award costs against the Ontario Human Rights Commission (the “Commission”) in respect of that dismissal, and sought to have the Tribunal reconvene the hearing for the purposes of entertaining submissions on the issue.

3By letter dated October 28, 2002, the Tribunal directed the Respondents and the Commission to make written submissions on the issue of costs. The most recent of those submissions was filed with the Tribunal on January 6, 2003. The Tribunal has now reviewed all of the written submissions, and is of the view that this matter can be disposed of on the basis of them without the need for further submissions, or an oral hearing.

DECISION

4The Tribunal declines to award costs against the Commission in the circumstances of this case.

REASONS FOR DECISION

(a) The Code

5The Tribunal’s jurisdiction to award costs derives from section 41(4) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”):

41(4) Where, upon dismissing a complaint, the Tribunal finds that,

(a) the complaint was trivial, frivolous, vexatious or made in bad faith; or

(b) in the particular circumstances undue hardship was caused to the person complained against,

the Tribunal may order the Commission to pay to the person complained against such costs as are fixed by the Tribunal.

(b) The Caselaw

6The parties referred the Tribunal to a number of decisions, and the Tribunal has itself reviewed some others: Grace v. 149468 Canada Inc., [1996] O.H.R.B.I.D. No. 5; Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008; Jerome v. DeMarco (No.3) (1993), 1993 CanLII 16443 (ON HRT), 20 C.H.R.R. D/15; Potocnik v. Thunder Bay (City), [1997] O.H.R.B.I.D. No. 18; Daniels v. Hamilton-Wentworth (Regional Municipality) Police Services Board, [1997] O.H.R.B.I.D. No. 21; Wellington v. Brampton (95-052) (December 13, 1995); Ontario (Human Rights Commission) v. Cyrville Taxi (January 26, 1984), No. 191 (Ont. Bd. Of Inquiry); Bryan v Premark Canada Inc., [1999] O.H.R.B.I.D. No. 5; and Abouchar v Metropolitan Toronto School Board, [1999] O.H.R.B.I.D. No. 4.

7It is generally recognized that the respondent who seeks to have costs awarded against the Commission bears the burden of persuading the Tribunal that it should make such order. See for example, Daniels and Potocnik, supra for statements to this effect.

8The overwhelming tendency has been to recognize that the power to award costs under section 41(4) should be exercised sparingly, lest it have a chilling effect on the referral of complaints:

The Board has consistently held that the discretion to award costs should be exercised sparingly in order to avoid the “chilling” effect that an expansive interpretation of section 41(4) would create. This has not been expressed as a concern about the financial impact such awards may have on the Commission. Rather, the Board has held that its discretion to award costs should not be exercised in a way that would discourage the Commission from bringing important and novel human rights disputes to the Board, where costs might be ordered against it. This is of particular concern in a statutory scheme that has resulted in such a small percentage of human rights disputes reaching the adjudicative stage. (Bryan, supra, at Paragraph 5)

9All of the above cases recognize that there are two statutory prerequisites to the Tribunal’s exercise of its jurisdiction pursuant to section 41(4): the complaint must have been dismissed; and the Tribunal must find on the facts either that (a) the complaint was trivial, frivolous, vexatious or made in bad faith, or that (b) undue hardship was caused to the person complained against.

10Some boards of inquiry have approached requests for costs by effectively reading into the statutory prerequisites a third requirement that where a complaint is vexatious or made in bad faith the Commission must have acted irresponsibly in its investigation and prosecution of the complaint before costs will be awarded against it. Other boards of inquiry have not approached the issue in this fashion, and have held that the bad faith of the complainant is enough to warrant an award of costs, although the Commission’s conduct may be taken into account in determining whether the Tribunal should exercise its discretion to make such order. This issue is thoroughly canvassed in Wellington, supra. It is also alluded to in Abouchar, supra, where the adjudicator found no evidence of bad faith and consequently did not have “to consider the debate in the caselaw as to whether or not irresponsibility on the part of the Commission must be found before an award of costs is appropriate in cases of bad faith on the part of the complainant”.

11Even where the prerequisites to making an order for costs are satisfied, the Tribunal retains the discretion to determine whether costs should be ordered. In exercising this discretion, regard has been had not only to the conduct of the Commission (as noted above), but also to the conduct of the party seeking costs, and to the nature of the issues in the case. For example, the respondents’ requests for costs in Cyrville Taxi, supra and in Daniels, supra were unsuccessful because it was found that they had failed to co-operate in the investigation and had thus contributed both to the necessity for, and the protracted length of, the hearing. In Potocnik, supra, the costs awarded were discounted by 30% to take account of the impact on the proceeding of the respondent’s refusal to disclose relevant documents. Both Bryan, supra, and Abouchar, supra, suggest that an award of costs will rarely be appropriate in a case where much of the outcome turns on the assessment of credibility:

My findings and reasons in the decision on the merits (March 27, 1997) make it clear that this was not a simple case. There was extensive evidence, particularly of a circumstantial nature, and it was necessary to assess the credibility of witnesses and to draw inferences on a balance of probabilities. In cases in which credibility is an issue, and in which circumstantial evidence must be weighed and assessed, it will rarely be appropriate for the Board to exercise its discretion under s. 41(4) to order costs against the Commission on the basis that the complaint was trivial or frivolous. The Commission, in conducting its investigation and analysis, will not always be in a position to accurately assess the credibility of various witnesses who may differ on key points in dispute. In such cases, a hearing before the Board may be the most appropriate forum to assess the credibility of the witnesses. (Abouchar, supra, at Paragraph 21)

(c) Application of Above Principles to the Facts of this Case

12In the circumstances of this case, and contrary to the submissions of the Commission, it is clear that the Maharaj complaint has been dismissed, and the first prerequisite to an order under section 41(4) is thus satisfied.

13The Respondents also assert that either or both of (a) and (b) apply as well, while the Commission disputes this assertion. In the Tribunal’s view, no findings need be made with respect to the applicability of (a) or (b), because even if the second prerequisite to an order under section 41(4) were satisfied, the Tribunal is not persuaded that this is an appropriate case in which to exercise its discretion to order costs. The reasons for this determination may be stated briefly.

14At the outset, it may be useful to repeat some of the Tribunal’s comments from the decision on the merits, as the bases for now denying costs are almost all alluded to there:

Although the legal issues raised by these complaints are not novel or complex, and do not require any particularly sophisticated analysis of the provisions of the Code, the litigation of this case nevertheless required twenty-two days of hearing on the merits, followed by an exchange of written submissions. The Board has already noted that it heard evidence from twenty-two witnesses. In the Board’s view, the prolonged nature of the litigation of these very simple complaints is attributable to a number of factors: the web of other litigation in which these parties are or have been involved (at least five other proceedings were alluded to in the course of testimony); the readiness of MacGregor and Orakwue to allege unlawful or fraudulent behaviour on the part of the complainants; the readiness of Maharaj to make similar allegations against the respondents; the repeated attempts to transform this hearing into an adjudication of the general good character and credibility of the complainants and respondents by inquiring into collateral issues; the fact that none of the witnesses were entirely disinterested, objective or wholly credible; the parties’ rejection of the Board’s suggestion that the complaints be heard serially, rather than in combination, with Chacko’s complaint to be heard and decided first, since the success of the Maharaj complaint appeared to be largely contingent upon it.

In more than ten years of full-time adjudicating, I have never experienced a hearing which involved such blatant prevarication (and document fabrication) on the part of key parties and witnesses. Both Maharaj and MacGregor repeatedly offered testimony that flatly contradicted statements they had previously made under oath in the course of their examinations for discovery in Maharajs’ civil action for wrongful dismissal. In addition, as noted below, the Board has concluded that Maharaj fabricated at least two pieces of documentary evidence that he filed with the Board. When MacGregor was confronted with documentary evidence contradicting his testimony in this proceeding, he proceeded to accuse Commission counsel of fabricating a corporate search retrieved from the Companies’ Branch of the Ministry of Consumer and Business Services, and alleged that the transcript of his examination for discovery was incomplete, inaccurate, or had been tampered with.

15Clearly, the nature of this dispute falls within the category of those in which it has been said that an award of costs is rarely appropriate. The outcome of the Maharaj complaint turned entirely on the relative credibility of the complainant and the Personal Respondents. The Tribunal found that the testimony of all of them was completely unreliable in certain critical areas. Notwithstanding the Respondents’ assertion to the contrary, the Tribunal is not convinced that Maharaj’s unreliability, which was largely made out in cross-examination, would have been apparent to the Commission merely as a result of its investigation or its preparation for hearing, particularly in view of the equally unreliable testimony of the Personal Respondent, Alex MacGregor, which differed considerably in this hearing from the answers he provided on discovery in a civil suit involving the same parties. The one area in which the Commission might have been expected to realize there were some serious defects in its case, related to Maharaj’s evidence with respect to mitigation of damages, where it was clear that the Commission did not even bother to obtain and review his income tax returns prior to the commencement of the hearing. On the other hand, the Commission requested that the Board bifurcate the hearing and deal separately with issues of liability and remedy. Had the Respondents not objected to proceeding in this fashion, that defect in the case would not have mattered as the Tribunal would have no need to hear evidence respecting the appropriate remedial order for Maharaj. Alternatively, had the Tribunal found that the Respondents contravened the Code, the defect might have been corrected before the second phase of the hearing.

16Secondly, the Respondents’ conduct contributed significantly to the protracted length of this hearing in a number of ways. As noted in the excerpt from the decision on the merits above, the Maharaj complaint was heard together with the complaint of Mini Chacko. Both were former employees of the Corporate Respondent. Chacko alleged, and the Tribunal found, that she had been terminated because of her pregnancy. Maharaj alleged that he had been terminated in reprisal for urging that she not be terminated on that basis. The Respondents resisted (as did the Commission) the Tribunal’s suggestion that the two complaints be heard serially, with the Chacko complaint proceeding first. The two key documents that the Tribunal found Maharaj had fabricated related entirely to the issue of his involvement in and knowledge of the reasons for Chacko’s termination. Had the Tribunal’s suggestion been followed, it is very likely that this hearing would have been considerably shorter. As well, as noted above, the Respondents resisted the Commission’s proposal that the hearing be bifurcated to deal separately with the issues of liability and remedy. Once again, acceding to this request would have shortened the hearing of the Maharaj complaint by, in the Tribunal’s estimate, at least 2-4 days, as it would not have had to deal with the examination of Maharaj’s tax returns, the lengthy cross-examination with respect to the meaning of certain diary entries, the introduction and examination of various scientific materials pertaining to those entries, or the evidence of two additional witnesses, John Delcore and Peter Lee.

17Notwithstanding the submissions of the Respondents, the Tribunal notes that, with the exception of the two expert witnesses, fully half of the rest of the witnesses testified with respect to the issues surrounding Chacko’s performance and termination and the Respondents’ attitudes towards pregnant women and parents.

18This hearing was further prolonged by the extensive examination and cross-examination of various witnesses with respect to a videotape of one of Maharaj’s lectures, which videotape was asserted to be the proximate cause of his termination. However, as the Tribunal found, the videotape played no role in that decision, which was made prior to the tape ever being viewed. The Personal Respondent Alex MacGregor’s untrustworthy testimony in this regard resulted in his own and Maharaj’s extensive examination with respect to the videotape, as well as the introduction of opinion evidence from two other witnesses, George Grant and Ching Yee Lo. In all, the Tribunal estimates that at least 6 days of hearing time were consumed by matters relating to the consideration of this material.

19Furthermore, the Respondents pursued several collateral issues with respect to the legal character of Maharaj’s activities in his home laboratory, and the nature of his private research pursuits. While the fact of such pursuits, and inquiries into whether they were income-generating was of course relevant to the issues of mitigation, the identification and legal character of any products manufactured by Maharaj was not relevant. Although the Respondents initially asserted that Maharaj’s activities were illegal, and had formed part of the basis of his termination, it became clear during the course of the hearing that the Respondents had no knowledge of any alleged criminal activities on Maharaj’s part until almost 5 years after his employment had been terminated.

20The Respondents maintain that the Commission also pursued certain irrelevant issues before the Tribunal. One of these related to the quality of the Personal Respondent Alex MacGregor’s academic qualifications, however, the Tribunal ruled that such evidence was irrelevant, and the disposition of that issue did not occupy much hearing time. Another issue related to the quality of the equipment and pedagogical program of the Corporate Respondent. In the Tribunal’s view, while the issue of the quality of the teaching program and laboratory facilities was not itself an issue the Tribunal was about to decide, evidence pertaining to these matters was reasonably necessary to counter certain allegations the Respondents made with respect to Maharaj’s performance, and to alleged complaints received about that performance from the student body. Finally, the Respondents contend that the Commission spent an inordinate amount of time on the issue of when Maharaj’s employment with the Corporate Respondent commenced. The dispute between the parties on this issue amounted to a difference of about 3 weeks. Clearly, the exact start date had no significance whatsoever for the issues before the Tribunal. Nevertheless, the amount of hearing time consumed by examination of this issue was not particularly lengthy, and the Tribunal notes that the Respondents did not at any time object to this line of inquiry.

21In short, while the caselaw holds that the Commission may be held accountable by the Tribunal to a respondent for costs associated with a complaint made in bad faith, where it acted irresponsibly in pursuing it, the Tribunal will not hold the Commission accountable for costs that result not from its actions or conduct, but from the litigation strategies employed by the Respondents, and from the Respondents’ own conduct during the course of the hearing.

22For all of the above reasons, even had it determined that the statutory prerequisites to making such order existed, the Tribunal has determined that this is not an appropriate case in which to exercise its discretion to order costs.

Dated at Toronto, this 28th day of February, 2003.

“Mary Anne McKellar”

Mary Anne McKellar, Vice-Chair