HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Nancy Barker, Gary Malkowski and Scott Simser
Complainants
-and-
Famous Players, a division of Viacom Canada Inc., et al.
Respondents
INTERIM DECISION
Adjudicator: Mary Ross Hendriks
and HR-0906/0907-05
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 Griffin and ) Amyn Hadibhai, Counsel
Nancy Barker, Scott Simser and ) On their own behalf Gary Malkowski, Complainants )
Famous Players, a division of ) Allison Taylor and Wendy Kady, Viacom Canada Inc., Respondent ) Counsel
Universal Studios Canada Inc. ) Hugh Christie and C.Michelle Small, Respondent ) Counsel
Paramount Pictures Canada Distribution Inc. ) Jason Hanson, Counsel Respondent
Alliance Atlantis Cinemas ) Allison Taylor, Counsel Respondent
Cineplex Gallaxy LP ) Tom Moutsatsos, Counsel Respondent
AMC Entertainment International Inc. ) Patricia Murray, Counsel Respondent
Rainbow Centre Cinemas Inc., ) Stephen Brunswick and Matthew Sokolsky, Respondent ) Counsel
INTRODUCTION
1Further to the Tribunal’s last Interim Decision herein, dated November 16, 2004, the Tribunal ordered, inter alia, that all parties to files HR-0524-03, HR-0575/0576-03, and HR-0864-04 to HR-0869-04 participate in a further, in-person, pre-hearing conference on April 14, 2005, to set new timelines for these matters. In that Interim Decision, the Tribunal also ordered that any motions must be returnable on April 14, 2005.
2On February 15, 2005, the Tribunal received two Amended Complaints of Nancy Barker, dated September 9, 2004, against Cineplex Galaxy LP and against AMC Entertainment International Inc., respectively. Since Ms Barker is one of the three original Complainants herein, and the existence of these additional Complaints was disclosed and discussed during the October 27, 2004, in-person pre-hearing conference, these two Amended Complaints fall squarely within the analysis set out in paragraphs 41 and 42(5) of the last Interim Decision. For this reason, the Tribunal directed that an in-person Initial Conference meeting be held at the outset on April 14, 2005, to deal with these two Amended Complaints, being files HR-0906-05 and HR-0907-05.
3The Tribunal held its Initial Conference meeting for files HR-0906-05 and HR-0907-05 on April 14, 2005. All parties were present or represented by counsel and the Tribunal has established its jurisdiction over these new matters in accordance with s.39(1) of the Human Rights Code, R.S.O. 1990, c.H. 19 (the “Code”).
MOTION
4The moving parties, Famous Players, a Division of Viacom Canada Inc. (“Famous Players”) and Cineplex Galaxy LP (“Cineplex”) each brought a motion asking that Rainbow Centre Cinemas Inc. (“Rainbow”) be added as a party. Rainbow has not been named in any of the Complaints and is not currently a party before this Tribunal.
5Rainbow filed a motion record in response, which included affidavit evidence, opposing this motion to be added as a party in a combined proceeding. However, at the outset of the hearing of the motion, counsel for Rainbow advised the Tribunal that he no longer opposed this motion.
SUBMISSIONS
6The moving parties maintain in their affidavit evidence that Rainbow does not have Rear Window Captioning or any other similar technology installed in any of its theatres or for any of its screens. They further submit that since Rainbow is a significant participant in the movie theatre industry in Ontario, with seven separate theatre locations and active participation in the “5th Annual ReelWorld Film Festival,” there is no basis on which to distinguish it from any of the other Respondents named as parties in these proceedings.
7Rather, the moving parties argue that as a matter of public interest, the Complainants’ central allegation, that the Respondents’ failure to provide Rear Window Captioning technology in the film industry is discriminatory against persons who are deaf or hearing impaired, is equally applicable as an allegation against Rainbow. They maintain that if the Tribunal ultimately does make an Order in favour of the Complainants, that it is in the public interest that such a single Order be made against all significant film exhibitors, including Rainbow. Moreover, they argue that there is no substantial prejudice to Rainbow in being added as a Respondent at this time, since the pleadings will need to be amended and there is no date set for the hearing on the merits.
8Prior to the return of this motion, counsel for Rainbow indicated that he might be seeking an adjournment, which was denied by the Tribunal in its correspondence dated March 8, 2005, due to scheduling difficulties.
9Neither the Commission nor the Complainants filed any motion materials in response to this motion to add Rainbow as a party to a combined hearing.
10Rainbow’s responding motion materials indicate by way of affidavit that it offers listening devices to aid the hearing impaired in all of its cinemas across Ontario, known as an Ultra Phonic Infrared Headphone Transmission System. It also made submissions in its motion record concerning the design and layout of its floor space. However, at the outset of the hearing of the motion on the merits, counsel for Rainbow advised the Tribunal that upon reflection, he felt it was in the best interests of all concerned not to oppose the motion to add his client as a party, but rather, asked the Tribunal for its assistance in engaging all parties in a comprehensive mediation process. Since counsel for Rainbow did not oppose this motion, the Tribunal is not considering its affidavit evidence at this juncture.
11Counsel for Rainbow advised the Tribunal that he represents both Rainbow and Magic Lantern Theatres, but since Magic Lantern Theatres does not carry on business in Ontario, only Rainbow’s status is at issue here. In any event, his submission to the Tribunal that he does not oppose this motion applies to both Rainbow and Magic Lantern Theatres, which are both his clients.
12Finally, counsel for the moving parties advised the Tribunal that they were also interested in mediation, but that they would be seeking a legal opinion concerning competition issues stemming from mediation.
13After a lengthy mid-morning break, counsel for the Commission, on behalf of all parties, advised the Tribunal that they had agreed to the following:
(1) The Commission and the Complainants will serve and file their pleadings by May 31, 2005;
(2) The Respondents will serve and file their pleadings by June 30, 2005;
(3) The Reply, if any, will be served and filed by the Commission and the Complainants by July 8, 2005;
(4) The parties have all agreed to participate in the Tribunal’s voluntary mediation process. They unanimously requested that The Honourable Peter Cory, a part-time member of this Tribunal, conduct their mediation;
(5) The Complainants expressed a real desire to have the mediation take place prior to August 31, 2005.
ISSUE
14The Tribunal has considered the following issue:
(1) Whether the motion brought by two named Respondents to add its competitor, Rainbow, as another Respondent to these combined proceedings is an appropriate exercise of its discretion.
DECISION
15The motion to add Rainbow as a Respondent to these combined matters is hereby granted. The Tribunal is satisfied that the new Amended Complaints of Ms Barker against Cineplex and AMC are properly before it, and those matters are also combined with the other film-related matters herein for the hearing on the merits. The Tribunal accepts and adopts the parties’ agreed upon timeframe for the exchange of pleadings, and given the importance and complexity of the issues involved, will ask Mr. Cory if he could assist the parties with their mediation. The Tribunal asks all the parties to be mindful of Mr. Cory’s scheduling constraints, since he is in high demand by every level of Government in Canada and internationally and must manage very sensitive and competing priorities.
ANALYSIS
16While the Complainants did not file a Complaint against Rainbow, two of its competitors brought a motion seeking it to be added as a party to this combined matter, on the basis of what they assert is factual parity. Rainbow did not oppose this motion.
17The Code permits the Tribunal to add a party under ss.39(2)(d) of the Code, at any stage of the proceedings upon such terms as the Tribunal considers proper, as per ss.39(3) of the Code. The wording of ss.39(2)(d) states that the parties to a proceeding before the Tribunal are “any person appearing to the Tribunal to have infringed the right.” Based on the information before the Tribunal at this time, it is appropriate to add Rainbow as a Respondent, so that the key participants in Ontario’s film industry are able to meet the allegations of discrimination herein together, in light of the principles of natural justice and fairness. See: Payne v. Otsuka Pharmaceutical Co. (2001), 2001 CanLII 26231 (ON HRT), 41 C.H.R.R. D/52.
18The Tribunal has the authority to add parties as respondents as long as sufficient notice or opportunity is given so as not to prejudice their interests. See: Leroux v. Ontario (Human Rights Commission) (1999), 1999 CanLII 15059 (ON CTGD), 35 C.H.R.R. D/338 (Ont. Gen. Div.). Because all of the parties have consented to a schedule for the exchange of pleadings and expressed a common desire to mediate this dispute, the Tribunal is satisfied that adding Rainbow as a party does not prejudice its interests.
ORDER
19The Tribunal orders the following:
(1) Rainbow Centre Cinemas Inc. is hereby added as a Respondent to the combined matters herein;
(2) The Amended Complaints of Ms Barker against Cineplex Galaxy LP and against AMC Entertainment International Inc. are now properly before the Tribunal as files HR-0906-05 and HR-0907-05, respectively, and are added to the combined matters herein;
(3) On consent of all parties, the Complainants and the Commission shall serve and file their pleadings by May 31, 2005;
(4) On consent of all parties, the Respondents shall serve and file their pleadings by June 30, 2005;
(5) On consent of all parties, the Complainants and the Commission shall serve and file their Reply, if any, by July 8, 2005;
(6) On consent of all parties, the Tribunal will provide its voluntary, confidential mediation services and on an exceptional basis, request the assistance of Mr. Cory with respect to same;
(7) The Tribunal hereby directs all parties to correspond with the Registrar in connection with the scheduling of this mediation; and
(8) The Tribunal would like to thank all parties for their spirit of cooperation.
Dated at Toronto, this 25th day of April, 2005.
“Mary Ross Hendriks”
Mary Ross Hendriks
Vice-Chair