Ontario Human Rights Commission v. Famous Players, A Division of Viacom Canada Inc., 2004 HRTO 10

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Nancy Barker, Scott Simser and Gary Malkowski

Complainants

-and-

Famous Players, A Division of Viacom Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Mary Ross Hendriks

Date: August 11, 2004

Citation: 2004 HRTO 10

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

APPEARANCES

Ontario Human Rights Commission ) Amyn Hadibhai, Counsel Nancy Barker, Scott Simser and Gary Malkowski, ) On their own behalf Complainants ) Famous Players, A Division of Viacom Canada Inc., ) Allison Taylor and Respondent ) Wendy Kady, Counsel

INTRODUCTION

1The Complaints before the Human Rights Tribunal of Ontario (the "Tribunal") involve deaf persons who allege that their right to equal treatment with respect to services, goods and facilities without discrimination because of disability has been infringed by the Respondent. Specifically, they allege that the Respondent has failed to provide captioning services in its movie theatres. The Respondent submits that these Complaints involve considerable factual complexity, with respect to the technology involved in accommodating the deaf community, and the quantum of film available that is suitable for such technology. The Respondent also submits that the Tribunal needs to examine the role of film distributors, although they are not currently parties before the Tribunal.

2The Tribunal scheduled an in-person pre-hearing conference on the Barker matter, in anticipation of the scheduled hearing on the merits of that matter, which was to be held on August 3-6 and 9-13, 2004. This pre-hearing conference took place on June 10, 2004.

3In anticipation of this pre-hearing conference, the parties involved in all three Complaints indicated in correspondence to the Tribunal a need to resolve certain issues. The Tribunal directed them to bring those issues before the Tribunal by way of motion, returnable on June 10, 2004.

MOTIONS

4The Respondent brought a motion asking that the Barker matter be combined with the Simser and Malkowski matters, the latter two matters having already been combined for hearing. Prior to or at the return of this motion, all parties consented to this request. The Tribunal granted this motion.

5The Respondent brought another motion, seeking to adjourn the hearing dates in the Barker matter sine die. Prior to or at the return of this motion, all parties consented to this request as well. The Tribunal granted this motion.

6The Respondent brought a further motion, seeking to postpone its obligation to make full disclosure, as previously directed by the Tribunal. The Commission opposed this motion, arguing that it has the right to prepare its case. The Tribunal granted this motion, on certain terms, as set out in the Order.

7Mr. Simser also brought his own motion, to amend his Complaint to add the allegation of reprisal, within the meaning of section 8 of the Code. The Respondent opposed this motion, arguing that the proposed allegation lacks merit. The Commission took no position. The Tribunal reserved its decision on this issue.

DECISION

8The motion, brought on consent, to combine the three matters is granted. The motion, brought on consent, to adjourn the hearing dates scheduled for August, 2004 in the Barker matter is also granted. A further pre-hearing conference will be held on October 27, 2004 to set new timelines for the combined hearing. The motion brought by the Respondent to further postpone its disclosure obligations is granted, on the terms set out in the Order. The motion brought by Mr. Simser to amend his Amended Complaint to add a new allegation of reprisal is denied.

FACTS

9The Respondent brought its motion seeking to postpone its obligation to make full disclosure, for three reasons. First, the Respondent argued that Mr. Simser and Mr. Malkowski have brought similar complaints against two other film exhibitors, Cineplex Odeon and Alliance Atlantis, and against two other film distributors, Paramount and Universal. The Respondent submitted that the same technology, Rear Window Captioning, was in issue, and that the parties overlap. Thus, the Respondent argued that it is probable these complaints will also be referred to the Tribunal for a hearing. The Respondent anticipates the likelihood that these cases will all be tried together or in close conjunction with one another. For this reason, the Respondent argues that it is not necessary or advisable to make disclosure at this time, since the hearing on the merits will not likely proceed in the near future. Secondly, the Respondent argued that it is difficult to determine the proper scope of disclosure, since the ultimate parties to the hearing are not yet known. Finally, the Respondent submitted that the summer season for movie-going is its busy season, and that there is only one employee responsible for organizing the key records required for the captioning-related disclosure, and that he would require some time to organize those records.

10Counsel for the Commission indicated that the Commission had fulfilled its disclosure obligation, and that it was entitled to disclosure from the Respondent under the Rules of Practice. The Commission further argued that disclosure obligations are ongoing, and that it has the right to start preparing its case. The Commission noted the Respondent's repeated non-compliance with the Tribunal's previous written directions to make disclosure and to serve and file pleadings in all three matters. In particular, the Commission requested the Respondent's financial records to support what it anticipated to be the Respondent's argument of accommodation to the point of undue hardship.

11Counsel for the Respondent replied that the Respondent would not be making financial disclosure, and stated for the record that it would not be making an argument based on undue hardship. Rather, counsel stated that the Respondent's position will rest on issues of availability of Rear Window Captioning and other forms of captioning, but that its entire position will not be known to it until the Respondent is aware of who all the other parties to the case will be. She added that while the cost of installing it may be spoken to, the Respondent believes that relative to the availability of captioned film, the cost is not justified. She said that the Respondent cannot be obliged to buy captioning equipment if there is no captioned film. However, she added that the "straight undue hardship test" will not be raised.

12The Commission indicated to the Tribunal that the other complaints made by Mr. Simser and Mr. Malkowski regarding movie-going will be put before the Commissioners in late September, 2004, for determinations with respect to referral to the Tribunal.

13The Tribunal sought submissions from the Complainants. Ms Barker confirmed that she has two other complaints filed with the Commission, against Cineplex and AMC Theatres, and was contemplating filing more complaints in the near future. The Tribunal cautioned her that the filing of further complaints related to movie-going increases the likelihood of more delay, since the Respondent has the right to know the case it must meet. Mr. Simser and Mr. Malkowski confirmed their understanding of the status of their other complaints at the Commission, as indicated by Commission counsel. Commission counsel submitted that there is a high probability that the majority if not all of the complaints filed by Mr. Simser and Mr. Malkowski will be presented to the Commissioners for consideration of referral to the Tribunal, in late September, 2004.

14The Tribunal advised the Complainants that it has no statutory jurisdiction to hear matters that are not referred to it by the Commission. The Tribunal said that if their other complaints related to movie-going are referred to the Tribunal, Vice-Chair Ross Hendriks will likely be assigned to them, as well. The Tribunal also indicated to all the parties that any of their other outstanding complaints filed at the Commission, that are unrelated to movie-going, would not be considered for a combined hearing with these complaints, even if they are referred to the Tribunal for a hearing.

15After hearing from all the parties, there was a consensus that a further in-person pre-hearing, scheduled for late October, 2004, would provide a forum for a review of the status of all the matters at hand.

16Mr. Simser brought a motion to amend his Amended Complaint to add the allegation of reprisal, under section 8 of the Code in relation to an e-mail distributed by the Respondent. Mr. Simser is also seeking an Order compelling the Respondent to disclose a list of all organizations and persons to whom it sent the e-mail, a copy of the form letter referred to in the e-mail, and any responses received to it. In his motion record, he alleges that he suffered humiliation and mental anguish as a result of this reprisal, for which he states he is entitled to seek damages. He made oral arguments that the Respondent knew of his position with respect to captioning issues, when it sent an e-mail to prominent groups that represent the deaf, hard of hearing and blind communities, stating that he was making a complaint seeking captioning for all movie screens across Canada.

17The e-mail in question was put before the Tribunal as Exhibit "B" to the affidavit of Mr. Simser, sworn in support of his motion to amend his Amended Complaint. The e-mail was from Andrew Sherbin, sent to persons unknown, dated February 21, 2003, which is reproduced below in full:

Hello,

We (i.e. Famous Players) were wondering if you would be interested in helping us out with a complaint that has been lodged against us with the Ontario Human Rights Comission. [sic]

Essentially the complainant is demanding we immediately install Rear Window Captioning on ALL of our 845 screens across Canada.

With the successes we have already had with these systems, thanks in part to your cooperation and endorsement, we would like to remind the Human Rights Comission [sic] that we have already made an important start with 31 screens equipped, at a cost of over $20,000 per system.

I have a form letter that I would be glad to send to you, which you can adjust as you see fit, and print on your letterhead to forward to the OHRC (with a copy of Famous Players or myself).

I hope you can help us out.

Please feel free to contact me if you have any questions.

Regards,

Andrew Sherbin Manager, Corporate Affairs Famous Players, a Division of Viacom Canada Inc. 146 Bloor Street West Toronto, ON M5S 1P3 Tel: 416-934-7938 Fax: 416-969-6499 www.famousplayers.com FAMOUS FOR ENTERTAINMENT

18The Tribunal asked Mr. Simser what he believed to be the difference between reprisal within the meaning of the Code, and lobbying. He argued that the e-mail was a bald statement, made to discredit him. He said that he did not expect captioning to be done "immediately," and felt degraded by this comment. He said that the e-mail was directed at him, and sent to discredit him, since he was on the board of directors of the Canadian Hearing Society at the time, which is a senior volunteer position. He added that there were only three possible Complainants at the time to whom the e-mail could have been directed.

19Counsel for the Respondent submitted that Mr. Simser was not named in the e-mail, and that there was no reason to assume the e-mail was in reference to him personally. Moreover, the Respondent argued that the Complainants are seeking captioning of all movie screens, and so the e-mail was reasonably accurate, other than the reference to the complaint being made "across Canada," which the Respondent conceded was not the appropriate jurisdiction.

20Mr. Malkowski advised the Tribunal that he was a member of the senior management team at the Canadian Hearing Society, and that he also had to excuse himself from discussions due to the conflict of interest when this e-mail was discussed.

21Counsel for the Respondent argued that the Respondent has voluntarily installed some Rear Window Captioning where its competitors have chosen not to do so, and that the e-mail from her client to those groups was her client's attempt to persuade them about the amount of accommodation that is reasonable.

ANALYSIS

22The Tribunal has the discretion to add a ground to the Amended Complaint, subject to the principles of natural justice and fairness, in order to fulfill ss.39(1)(a) of the Code, which mandates the Tribunal to determine whether a right of the Complainant has been infringed.

23The sole basis of the motion brought by Mr. Simser to add reprisal within the meaning of section 8 of the Code to his Amended Complaint is the e-mail set out in paragraph 17.

24The issue that arises is whether or not the e-mail, on its face, is sufficient to give rise to the appearance of reprisal, subject to any natural justice concerns.

25Section 8 provides as follows:

Reprisals – Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

26The highest level of court to review the issue of what constitutes reprisal was the Ontario Court of Appeal, in Entrop v. Imperial Oil Ltd. (No.7) (2000), 2000 CanLII 16800 (ON CA), 37 C.H.R.R. D/481 (Ont. C.A.). The Court of Appeal found, at para. 137, that the Board of Inquiry had been correct in its interpretation of what constituted reprisal within the meaning of section 8 of the Code, as follows:

Second, Imperial Oil took a number of actions, which the Board ruled amounted to acts of reprisal against Entrop for having brought a human rights complaint. These actions included the aggressive monitoring of his work performance, pressuring him to withdraw his complaint, interfering with his ability to function as an elected delegate to the Joint Industry Council, the organization that represents non-unionized employee interests, unfairly refusing to assign him to light duties because of his injured knee, and unfairly issuing him a warning letter when he was unavoidably delayed in reporting for a random test. The Board found that at least some of these actions were taken deliberately by Imperial Oil in retaliation for Entrop's filing of a complaint. That finding is reasonably supported by the evidence. In my view, the evidence on Entrop's reassignment together with the finding of reprisal support the Board's conclusion that Imperial Oil's conduct was wilful and reckless and thus justifies the award of damages for mental anguish. I would therefore not give effect to this ground of appeal. [emphasis added]

27The second highest authority in Ontario to consider the parameters of what constitutes reprisal was the Divisional Court in Jones v. Amway of Canada Ltd. (2002) 159 O.A.C. 331. As the Divisional Court held, in para. 4, "Section 8, obviously, is an extremely important section. Without a strict prohibition against reprisals, the purposes and effectiveness of the statute would be significantly diluted." The Divisional Court went on to find that the protection of section 8 flowed "notwithstanding" the fact that a complaint had not yet been filed with the Commission. The Divisional Court upheld Vice-Chair DeGuire's determination, (2001), 2001 CanLII 26217 (ON HRT), 39 C.H.R.R. D/480 (Ont. Bd. Inq.) that section 8 is predicated upon an intent to retaliate, in para. 11 of its decision, set out below:

The appellants argue that it is not necessary for Ms. Jones to establish a specific intent of the respondents to have acted in a retaliatory or reprisal fashion. Although it is clear that in human rights law generally there is no need to prove an intent to discriminate, we have great difficulty appreciating how there can be a breach of section 8 without an intent to perpetrate the prohibited conduct. Indeed, the appellants went to great lengths to persuade this court, and the Board, that the respondents did intend to act in reprisal for the allegations of wrongdoing. There is, in our opinion, nothing incorrect or unreasonable about the Board's finding that the onus was on the appellant to prove an intent on the part of the respondents. On the evidence, the Board could have inferred the necessary intent, however, it was not incorrect or unreasonable in not doing so as it is a matter of credibility.

28The Tribunal follows the reasoning of Chair Garfield in Ketola v. Value Propane Inc. (No.1) (2002), 2002 CanLII 46510 (ON HRT), 44 C.H.R.R. D/20 (Ont. Bd. Inq.), in which he adopted the reasoning set out in Jones, supra, and added, at para. 119:

…First, the right to be free from reprisal or threat of reprisal is as important as the distinct protection from discrimination and harassment. To allow retaliation upon claiming protection of the Code would be inherently counterintuitive and would gut the protection of human rights anti-discrimination legislation. Secondly, there must be intent, willful blindness or recklessness to find reprisal. There is no such thing as adverse effect reprisal.

29The Tribunal believes that the right set out in section 8 stands apart from other provisions within Part I of the Code for which intent is not required, because like section 9, its purpose is to protect the assertion of human rights from collateral attack that would otherwise "gut" the Code and render it ineffectual.

30Weighing all of these considerations, this e-mail does not give the appearance of a triable issue with respect to reprisal, nor does it provide a sufficient nexus to Mr. Simser's Amended Complaint to warrant a further amendment. The e-mail does not name Mr. Simser by name, nor does it provide enough particulars for a reader to discern who he is indirectly, by referring to his organizational ties, for example. It does not appear to harm him personally, nor does it damage his ability to assert his human rights through either willful blindness or recklessness on the part of the Respondent.

31As a matter of natural justice and fairness, it is unjust to require the Respondent to expend the time and expense necessary to answer this new allegation well into the hearing process, when the basis of the allegation is so insufficient on its face that it fails to present the appearance of a triable issue.

32Rather than constituting reprisal, the Tribunal finds that this e-mail was an attempt at lobbying persons with disabilities, carried out by the public affairs department of the Respondent. Thus, it may fall within the ambit of the Lobbyists Registration Act, 1998, S.O. 1998, c. 27. Under these circumstances, the Tribunal has no jurisdiction to make inquiries regarding the Respondent's compliance with the terms of that Act. The Tribunal notes, however, that the Respondent may have an obligation to file a return as a lobbyist with the registrar appointed under that Act.

ORDER

33The Tribunal orders as follows:

(1) that the Barker matter is hereby combined for a single hearing with the Simser and Malkowski matters;

(2) that the hearing dates for all three matters be adjourned and that all parties participate in a further, all-day, in-person pre-hearing conference, on October 27, 2004, commencing at 10 a.m. to set new timelines;

(3) that the Respondent shall make full disclosure on all Rear Window Captioning matters by September 20, 2004, and that this is the Respondent's final indulgence with respect to making such disclosure, and as such is a peremptory order; and

(4) that Mr. Simser's motion to amend his Amended Complaint to include the allegation of reprisal is dismissed.