Ontario Human Rights Commission v. Famous Players, 2004 HRTO 15

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: November 16, 2004

Citation: 2004 HRTO 15

Human Rights Tribunal of Ontario

400 University Avenue, 7^th 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 ) Mr. Simser, Agent

Complainants )

Famous Players, A Division of Viacom Canada Inc., ) Allison Taylor and

Respondent ) Wendy Kady, Counsel

INTRODUCTION

1As a result of the in-person pre-hearing conference on the Barker matter held on June 10, 2004, the Tribunal issued an Interim Decision on August 11, 2004, Barker v. Famous Players, 2004 HRTO 10. During that pre-hearing conference, all the parties asked that the three complaints herein (“the Barker, Simser and Malkowski matters”) be combined for a hearing, and that the hearing dates set for August 2004 for the Barker matter be adjourned. The Tribunal granted those motions. A separate motion, brought by Mr. Simser, to amend his Amended Complaint to include the allegation of reprisal, was dismissed.

2During the June 10, 2004 pre-hearing conference, counsel for the Commission advised the Tribunal that other related complaints filed by Ms Barker, Mr. Simser and Mr. Malkowski were at the Commission, but had yet to be reviewed by the Commissioners for any determination of whether or not to refer them to the Tribunal for hearings. At that time, the Tribunal indicated to all the parties that it has no jurisdiction over matters that are pending referral before the Commission. During the June 10, 2004 pre-hearing conference, Ms Barker confirmed that she had two other complaints filed with the Commission, against Cineplex and AMC Theatres, and that she was contemplating filing more in the future. The Tribunal cautioned her that the filing of further Complaints related to movie-going increases the likelihood of delay, since the Respondent has the right to know the case it must meet. See: Barker v. Famous Players, 2004 HRTO 10, at para. 13.

3As part of the Order made in that prior Interim Decision, the Tribunal scheduled another all-day, in-person pre-hearing conference, for October 27, 2004, for the purpose of setting new timelines for the combined matters. In choosing that date for a pre-hearing conference, the Tribunal heard from all the parties as to their positions and their availability, and from Commission counsel, as to the likelihood that the new, captioning-related complaints could be reviewed by the Commissioners in the early fall.

4Shortly prior to the October 27, 2004 pre-hearing conference, the Tribunal received six new complaints, all filed by Ms Barker, Mr. Simser or Mr. Malkowski, against various film exhibitors and distributors, which are all related to Rear Window Captioning. The Tribunal therefore directed that the parties to these six new complaints also appear before it on October 27, 2004, in order to hold an in-person initial conference meeting for those new matters prior to the in-person pre-hearing conference meeting of the combined Barker, Simser and Malkowski matters.

5Regrettably, due to accommodation issues and statutory time constraints, counsel for the other Respondents on these new files were given short notice of this initial conference meeting, and some of them appeared without any instructions from their clients or even the ability to reach them. As a matter of natural justice and fairness, the Tribunal only began the hearing process on these new files in order to establish its jurisdiction, in accordance with s. 39(1) of the Human Rights Code, R.S.O. 1990, c.H. 19 (“the Code”) and made no substantive decisions with respect to them. At this juncture, these new files have not been combined with any other matters. These six new complaints are now properly before the Tribunal, and bear the following separate file numbers: HR-0864-04; HR-0865-04; HR-0866-04; HR-0867-04; HR-0868-04; and HR-0869-04, respectively. A separate letter of direction has gone out to this effect from the Registrar, dated November 1, 2004.

6After the Tribunal conducted the initial conference meeting for the six new files, it held the pre-hearing conference meeting for the combined Barker, Simser and Malkowski matters, the outcome of which is the subject of this Interim Decision.

MOTIONS

7The Respondent brought a motion asking that the Barker, Simser and Malkowski matters be adjourned, pending the movement of another new complaint filed by Ms Barker against another film exhibitor, AMC, through the Commission. The new AMC complaint is not currently before the Tribunal. The Respondent noted that counsel for Cineplex was in attendance, although not for the new complaint filed by Ms Barker, which also remains with the Commission.

8The Complainants brought a motion in response, opposing the Respondent’s request for a further adjournment. In the alternative, Mr. Simser also submitted that if the Tribunal did grant the adjournment request, that such an adjournment be made peremptory.

9The Respondent brought a motion at the pre-hearing conference that was not in its motion record, in which it sought leave to have the Tribunal hear from counsel for the other Respondents for the six new matters in support of its request for an adjournment. Counsel for the Commission consented to this motion. The Complainants, however, objected to this request, since the six new matters are not currently combined with the Barker, Simser and Malkowski matters.

10The Respondent brought another motion at the pre-hearing conference meeting that was also not included in its motion record, seeking orders to remove the Personal Respondents, John Marier and Kevin Ellis, as parties to these proceedings. All parties consented to this motion.

DECISION

11The motion brought by the Respondent to hear submissions from the other Respondents to the six new matters, made in support of its request for an adjournment, is hereby dismissed, since these new matters are not presently combined with the Barker, Simser, Malkowski matters, and so the other Respondents do not have any standing herein. The motion brought by the Respondent to adjourn the combined Barker, Simser and Malkowski hearing is granted until the next in-person, all-day, pre-hearing conference meeting. A further pre-hearing conference meeting will be held on April 14, 2005, to set new timelines, to hear submissions from all parties, and to determine the status of the outstanding AMC and Cineplex complaints filed by Ms Barker in September 2004. The motion brought by Famous Players, heard on consent, to remove the Personal Respondents, Kevin Ellis and John Marier, as parties is hereby granted, and they are hereby removed as parties to these proceedings. All parties herein, and the Respondents to the six new matters, are directed to advise each other and the Registrar, by November 17, 2004, as to whether or not they consent to a combination of all these matters for the hearing on the merits. Any responses to such correspondence, must be served on all parties and filed with the Registrar no later than November 26, 2004. Any motions must be served and filed prior to March 28, 2005, so that they are returnable on April 14, 2005. The Tribunal has determined, after hearing that the Complainants have agreed not to file any further film-related complaints, that the matters brought before it by these Complainants need to proceed. If any additional complaints with respect to movie-going are filed by individuals other than these three Complainants, the Tribunal is not prepared to have Ms Barker, Mr. Simser or Mr. Malkowski incur any more delay in their proceedings. The Tribunal is only prepared to hear submissions with respect to the complaints filed by these three Complainants against Famous Players, the Respondents to the six new matters, and potentially the complaints filed by Ms Barker against AMC and Cineplex, should they be referred to the Tribunal.

FACTS

12The Respondent brought its motion seeking to adjourn these proceedings, based on six arguments, set out below.

13First, the Respondent argued that Ms Barker’s new complaints against AMC and Cineplex, which remained pending at the Commission at the time of this pre-hearing case conference, should be joined with the other complaints. The Respondent argued strenuously that AMC is the third major film exhibitor in Ontario, particularly in the Greater Toronto Area (“GTA”), that AMC is a necessary party to the litigation, and that it would be inappropriate to hear an industry-wide case without their participation.

14Secondly, the Respondent argued that AMC provides Rear Window Captioning services in the United States, but not in Canada, and so if an order in respect of Rear Window Captioning is made by the Tribunal, it would be of benefit to the complainants to have it include AMC, because it would increase the availability of captioned film in the GTA by having it accessible on more screens and at more movie theatres.

15Thirdly, the Respondent argued that the significant litigation costs involved militates against separate hearings for parties where the subject matter of the litigation is the same.

16Fourthly, the Respondent argued that it would be in the public interest for a single order affecting the film exhibition industry to be made, to avoid contradictory results. The Respondent noted that counsel for Cineplex, Hicks Morley, was on notice of this complaint, although not referred to the Tribunal at this time.

17Fifthly, counsel for the Respondent took issue with the submission made in the Complainants’ motion record in response to their motion for an adjournment that any order made on the existing Respondents would also be binding on AMC, and argued strenuously that the Tribunal lacks the jurisdiction to make an order against AMC unless it is a party before it.

18Finally, the Respondent took issue with the argument that further delay is prejudicial to the Complainants, since Ms Barker was absent from this pre-hearing conference meeting, which had been scheduled well in advance, and the outstanding complaints were made by her. Since the AMC and Cineplex complaints that are pending before the Commission are her new complaints, the Respondent argued that if she wanted to assert the argument of delay as being prejudicial to her, she needed to do so herself before the Tribunal.

19The Complainants brought a motion in response, opposing the adjournment request, for six reasons. They noted at the outset that the Tribunal did not want to delay the proceedings much longer. In their written and oral submissions, they made a number of arguments, set out below.

20First, they argued in their motion record that their original complaints against Famous Players, along with their new complaints against Paramount Pictures and Universal as movie studios, as against Famous Players and Cineplex as theatre owners, and as against Alliance Atlantis as a combined movie studio/theatre owner, represented the film industry sufficiently before the Tribunal.

21Secondly, Mr. Simser advised the Tribunal that he feels the Respondent is unduly concerned about issues of industry competition, which counsel for the Respondent had addressed as a “level playing field,” rather than the proceeding before the Tribunal. He argued that such business considerations do not merit a further adjournment.

22Thirdly, in the alternative, he asked the Tribunal to consider making any order granting a further adjournment peremptory, to end the delay. Mr. Malkowski also submitted that if the Tribunal becomes faced with any other new complaints, that these matters could be delayed even longer. He also argued that there is good industry representation before the Tribunal without these other outstanding complaints.

23Fourthly, in terms of prejudice, the Complainants argued that there was no prejudice to Famous Players in proceeding, but prejudice to them in adjourning and delaying their actions. They submitted that there was no prejudice to Famous Players “to allow the AMC complaint to proceed on its own course.” Mr. Simser, as agent for Ms Barker for this pre-hearing conference meeting, explained in the Complainants’ motion materials in response that Ms Barker was absent from this pre-hearing conference meeting, because she was “very busy with her mid-terms at university.”

24Fifthly, the Complainants submitted that “any precedent from this combined matter will apply to AMC,” and that the relative size of the various Respondents to all the actions now before the Tribunal was sufficiently “balanced”, that “there is no discernible advantage in waiting for AMC to be referred to the Tribunal.”

25Finally, the Complainants advised the Tribunal in their motion materials and during the pre-hearing conference in their oral submissions, that they have agreed amongst themselves not to file any more complaints in this regard and wanted to provide that assurance to the Tribunal.

26Counsel for the Commission argued against the motion for an adjournment as well. His arguments are set out below.

27First, counsel for the Commission submitted that every time any individual files a complaint against a movie studio, distributor or chain, these proceedings before the Tribunal should not be held up, because “theoretically, it could go on forever.”

28Secondly. the Commission argued there is prejudice to the Complainants caused by further delay and urged the Tribunal to do its utmost to ensure that this case is heard during 2005, rather than 2006. As a practical matter, he advised the Tribunal that the earliest Commissioners meeting at which time it is possible the two outstanding Complaints against AMC and Cineplex filed by Ms Barker in September, 2004 could be heard is February, 2005. While he expressed hope that these matters could be put on the Commissioners’ February, 2005 meeting agenda, he could not undertake that this will occur. Counsel for the Commission, however, did agree with the Respondent’s submission that the issue in Ms Barker’s two outstanding Complaints is also related to captioning.

29Thirdly, and in the alternative, counsel for the Commission suggested that the Tribunal could add the Respondents named in the two outstanding Complaints filed by Ms Barker on its own motion, rather than await the Commission’s decision regarding referral.

30Counsel for the Commission also requested that all parties seek instructions to consent to the combination of all these proceedings. All Respondents agreed to take consider this request with their clients.

31The Respondent brought another motion at the pre-hearing conference meeting that was not included in their motion record, seeking an order that Mr. Malkowski’s matter against Famous Players and a Personal Respondent, John Marier, a Manager at Famous Players, remove Mr. Marier as a party; and similarly, that Mr. Simser’s matter, dated July 17, 2003, against Famous Players and a Personal Respondent, Kevin Ellis, Vice-President of Public Relations at Famous Players, remove Mr. Ellis as a party. The Complainants and counsel for the Commission all consented to this motion.

ANALYSIS

32The Tribunal has the discretion to grant or refuse adjournment requests, as per Rule 66 of its Rules of Practice, which states:

Any step in the proceeding may be adjourned by a panel on its own motion or by way of a motion by a party. The panel may impose such conditions on an adjournment as it considers appropriate.

33The Respondent argued that it is important for both the public interest that any solution stemming from this hearing be industry-wide, and for its own commercial interests, because it argued that it would be unfairly prejudiced if it must expend the time and resources necessary to comply with an order that does not apply to some of its competitors. Moreover, it argued that AMC in particular, will not be bound by any order of this Tribunal unless it is a party before it. Since the Respondent has submitted at the first pre-hearing conference that it will not be advancing an argument based on undue hardship, the Tribunal is not prepared to give much, if any, weight to its competitive commercial interests. However, the Tribunal finds that the Respondent is correct that only a party before it is bound by its ruling, and AMC is not a party before it. To order otherwise would be a denial of the key principle of natural justice, the right to be heard.

34Counsel for the Commission has alerted all parties and the Tribunal that it will need to amend its pleading in the Barker matter brought against Famous Players, which it describes as “stale” in light of all of these other related matters. At that juncture, the Tribunal directed the Commission to distribute all relevant background information.

35Certainly, the Commission’s pleading on behalf of Ms Barker will be stale if her other complaints against AMC and Cineplex are also referred to the Tribunal for a hearing, and may well be stale even if they are not. While the Tribunal believes that this advisement is both practical and appropriate between counsel under these circumstances, it begs the question as to how many motions for amendments to pleadings must be brought before the hearing on the merits can actually proceed.

36As a matter of natural justice and fairness, the Tribunal is not prepared to require this or any other Respondent to file any more pleadings than is necessary to have a fair hearing, nor is it prepared to make the taxpayer fund the Commission’s work unnecessarily. Amendments to pleadings are time-consuming and expensive for all parties involved, and the Tribunal must balance this factor against the right of the Complainants to put forward their cases in a timely fashion.

37The Tribunal understands that Ms Barker is a university student and has, as Mr. Simser advised as her agent, a pressing need to write her examinations and term papers. However, the two outstanding complaints at the Commission are hers, and she filed them in September 2004, despite the caution the Tribunal gave her at the last pre-hearing conference, which took place on June 10, 2004, and which was included in the Interim Decision, dated August 11, 2004, that arose from it, see: 2004 HRTO 10, at para. 13.

38Counsel for the Respondent argued that in addition to Ms Barker’s absence, there was also no affidavit evidence filed on her behalf that could depose to the prejudice she would suffer if a further adjournment is granted. Thus, the Tribunal has no real evidence before it as to the specific prejudice, as opposed to inconvenience, she would suffer if the adjournment was granted, and in fact, makes the finding that she herself generated some of this additional delay. See: Guthro v. Westinghouse Canada Inc. (No.2) (1992), 1991 CanLII 13135 (ON HRT), 15 C.H.R.R. D/388, at para. 21.

39The Respondent made extensive arguments with respect to the issue of prejudice, and put before the Tribunal a large volume of caselaw in support of their motion for an adjournment. In particular, the Respondent referred to Payne v. Otsuka Pharmaceutical Co. (No.2) (2001), 2001 CanLII 26231 (ON HRT), 41 C.H.R.R. D/52 (Ont. Bd. Inq.), at paras. 21-22. In Payne, supra, Chair Garfield, at para.22, while analyzing the principles of natural justice and fairness as they apply to the exercise of the Tribunal’s discretion to add parties, cited Brown and Evans, Judicial Review of Administrative Action in Canada (Canvasback Publishing: 1998, Toronto), where the authors wrote at p. 9-1:

To participate in the making of a decision by a public body, individuals must possess sufficient information to enable them (1) to make representations on their own behalf; or (2) to appear at a hearing or inquiry (if one is held); and (3) effectively to prepare their own case and to answer the case (if any) they have to meet”. [quoting S.A. de Smith, Lord Woolf & J. Jowell, Judicial Review of Administrative Action, 5^th ed. (London: Sweet & Maxwell, 1995) at 432]. It is therefore a fundamental element of the duty of fairness at common law, and, where applicable, of the constitutionally-guaranteed principles of fundamental justice, that prior notice be given to those entitled to participate that a decision is going to be made or some administrative action taken.

The Tribunal cites with approval Chair Garfield’s focus, as set out in Payne, supra, on maintaining the principles of natural justice and fairness throughout human rights cases.

40Neither the Complainants nor the Commission were able to provide the Tribunal with a particularly compelling reason to proceed immediately, particularly when it was clear from the discussions and submissions between all counsel that an amendment and possible further consolidation of pleadings will be necessary, since the Commission’s pleading is now “stale.” Realistically, the best time for all the parties to deal with those issues is at the outset of the case, particularly when the key allegations are all the same.

41The Tribunal wishes to provide all the parties with an opportunity early in these matters to avoid a multiplicity of proceedings to the extent possible. However, the Tribunal is cognizant of the practical submission made by Commission counsel that if these matters are delayed because other complaints are filed with the Commission regarding the accessibility of movie-going for persons with disabilities by other potential complainants, that this situation “could go on forever.” The Tribunal is also mindful that the Complainants all objected to this request for a further adjournment. The Tribunal is therefore prepared to draw the line with these three Complainants and their complaints currently before the Tribunal, with the only possible exception being Ms Barker’s two outstanding complaints still at the Commission.

ORDER

42The Tribunal orders as follows:

(1) the Personal Respondents, Kevin Ellis and John Marier, are hereby removed as parties to files HR-0575-03 and HR- 0576-03 on consent;

(2) that the motion brought by the Respondent to hear submissions from the Respondents to the six files, being, HR-0864-04 to HR-0869-04, in support of the Respondent’s request for an adjournment is dismissed;

(3) that the Barker, Simser and Malkowski matters herein, being HR-0524-03 and HR-0575/0576-03, are adjourned, and that all parties to that combined hearing, along with all parties to the six new files, being, HR-0864-04 to HR-0869-04, shall participate in a further, all-day, in-person pre-hearing conference, on April 14, 2005 to set new timelines;

(4) that the motion brought by Mr. Simser, in the alternative, to make this adjournment peremptory is declined, since AMC is absent from any of these proceedings;

(5) that counsel for the Commission shall provide all parties to Ms Barker’s two outstanding complaints against AMC and Cineplex with a copy of this Interim Decision;

(6) all parties are to advise each other and the Registrar, by November 17, 2004, as to whether or not they consent to a combination of all of these matters for the hearing on the merits;

(7) all parties are to respond to one another’s position on a combined hearing, no later than November 26, 2004;

(8) any motions must be served and filed prior to March 28, 2005, and shall be returnable on April 14, 2005; and

(9) The Tribunal, for all the reasons set out in this Interim Decision, is only prepared to combine the complaints of Ms Barker, Mr. Simser and Mr. Malkowski as described herein, and will not entertain any new complaints from potential new complainants as part of this proceeding.