Ontario Human Rights Commission v. Lynx Industries Inc., 2004 HRTO 16

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Clive R. Stephens and Joseph O. Symister

Complainants

-and-

Lynx Industries Inc., Mark Schram and

Marjorie Morris

Respondents

INTERIM DECISION

Adjudicator: The Honourable Alvin B. Rosenberg, Q.C.

Date: November 25, 2004

Citation: 2004 HRTO 16

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

E-mail hrto.registrar@jus.gov.on.ca

Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Anthony D. Griffin, Counsel

Clive R. Stephens and Joseph O. Symister, ) On their own behalf

Compainants )

Lynx Industries Inc., Mark Shram and Marjorie Morris, ) Pamela Yudcovitch and

Respondents ) Maria MacDonald, Counsel

Motion heard November 8, 2004

1The Complainants both allege that they were discriminated against because they are black. They allege they were mistreated and then dismissed by the Respondents because of their colour.

2The complaints were submitted to the Commission in the normal way for them to decide if they should be sent to the Tribunal for a hearing. After investigations the Commission decided to send the complaints to the Tribunal.

3The Respondents argue that the investigation by staff of the Tribunal was flawed and move:

(1) for an order dismissing or staying the complaints as constituting an abuse of process or

(2) for an order that the Commission reconsider its decision.

4The Respondents argue that I should do so under the authority of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which provides in ss. 23(1): “A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

5Respondents’ counsel has analysed the actions of various investigators and staff and has been most persuasive in alleging that the investigations were unfair, biased and that the final investigation was inadequate and made a recommendation that the complaints be referred to the Tribunal that was not justified on the evidence.

6In light of the Law that applies, in my view, it is not necessary or appropriate for me to examine the process of the Commission. There is no evidence or allegations that the Respondents are prevented from defending the case against them as a result of anything done or not done by the Commission.

7In Bui v. B&G Foods Inc. (2001), 2001 CanLII 26233 (ON HRT), 41 C.H.R.R. D/191 (Ont. Bd Inq.) at paragraph 87, the Board stated:

The hearing before the Board is a hearing de novo, and unless it results in an abuse of the Board’s process, even a flawed or biased investigation will not deprive the Board of the ability to conduct a hearing…[and] unless there is an abuse of the Board’s process, the remedy for the conduct of the Commission leading up to referral, including how the Commission processes the complaint or complaints, lies with the Divisional Court. (Emphasis added)

8In Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (1995), 1995 CanLII 7431 (ON CTGD), 24 C.H.R.R. D/464 (Ont. Ct. (Gen. Div.)), Steele J. on behalf of himself, Boland J. and Borins J. stated at paragraph 12:

Even if there was a poor or biased investigation…if there was evidence upon which the Commission could recommend the appointment of a board the Commission had such authority. The Board conducts a full hearing and it is the evidence before the Board that governs, not the investigator’s report to the Commission. The Board correctly decided that even if the investigation was not impartial, that it did not affect the board’s de novo hearing.

9Accordingly the motion is dismissed.