HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission Commission
-and-
Sarah Sanford Complainant
-and-
Dr. Gerry Koop Respondent
INTERIM DECISION
Adjudicator: Michael Gottheil
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
INTRODUCTION
1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c.H.19 as amended (“the Code”), alleging an infringement of sections 5(1), 7(2) and 9. The Complaint was referred to the Human Rights Tribunal of Ontario (“the Tribunal”) on April 20, 2005.
2On May 20, 2005 the Tribunal held an Initial Conference Call pursuant to the Tribunal’s Rules of Practice 2004 (“the Rules”). Notice of the Initial Conference Call was provided to all parties. The respondent did not participate in the Initial Conference Call.
3Pursuant to the Tribunal’s Rules, all pleadings in the matter were required to be filed no later than July 29, 2005. The respondent did not file pleadings.
4By correspondence dated June 16, 2005 the Commission, with the consent of the complainant, requested that the Complaint be disposed of by way of written hearing.
5This decision addresses the Commission’s request.
FACTS
6As set out above, this complaint involves a claim that the respondent, Dr. Gerry Koop, engaged in certain conduct which is alleged to constitute gender discrimination and sexual harassment in employment and thus constitutes a violation of the complainant’s rights under the Code. The initial complaint was filed on or about October 14, 2003 and subsequently was referred to the Tribunal pursuant to Section 36(1) of the Code by letter dated April 13, 2005.
7In accordance with its Rules, the Tribunal proceeded to hold an Initial Conference Call (“ICC”) on May 20, 2005. Notice of that ICC was provided to all parties by way of a formal Notice dated April 22, 2005. That Notice read, in part:
NOTICE OF INITIAL CONFERENCE CALL
The Ontario Human Rights Commission has referred the Complaint of Sarah Sanford dated October 14, 2003, to the Human Rights Tribunal of Ontario pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The Tribunal received the referral on April 20, 2005.
The proceeding before the Tribunal will commence by Initial Conference Call on:
Date: May 20, 2005
Time: 9:00 a.m.
Important - If You Do NOT Participate in the Initial Conference Call
If you are not available to receive the conference call, either personally or through a representative, the call may proceed without your participation. You (or your representative) will receive a memorandum setting out the matters discussed during the call.
What To Do If You Cannot Participate in the Initial Conference Call
Your conference call has been scheduled to provide the maximum amount of advance notice to all parties. This conference call cannot be re-scheduled or adjourned to a later date. If you are unable to take the call from the telephone number shown above, the following options are available:
as this call may last anywhere from 20 minutes to 1 hour, see if it is possible to adjust your schedule so that you can be available for the call; OR
appoint someone to take the call in your place. Be sure to authorize the person to agree to the items listed below by giving them information from your schedule, as well as any other information that may be necessary to schedule the hearing (for example, your preference for hearing location or accommodation for a disability); OR
you may take the call from another telephone number by either dialing in to be connected or by having our operator connect you (a number will be given to you ahead of time), regardless of where you may be; OR
you may request the conference call to be re-scheduled to an earlier date, provided that you: a) obtain the consent of all other parties to the new date, b) call the Tribunal’s office to ensure that the new date is convenient to the Tribunal, and c) submit your request in writing as quickly as possible to allow Tribunal staff sufficient time to change the call arrangements.
What Will Be Discussed During the Initial Conference Call
The following matters will be discussed during the conference call:
confirmation of parties’ names and addresses and those of their representatives for purposes of service;
identifying any person(s) not already named in the Complaint who may be affected by the proceeding and should be given notice;
confirmation of dates for exchange of pleadings and disclosure as established by the Tribunal’s Rules;
where the parties consent, setting a mediation date;
where necessary, identifying and canvassing dates for argument of any preliminary motions;
canvassing dates for the hearing on the merits; and
identifying any accommodation needs (e.g., wheelchair access, etc.).
Tribunal’s Rules of Practice
Parties and Counsel who do not have a copy of our new Rules can download them from our website at www.hrto.ca or are welcome to call (416) 314-2079 or e-mail at hrto.registrar@jus.gov.on.ca and a copy will be sent to them. Please read these Rules carefully, as you will be expected to comply with them.
If you have any questions or require any additional information, please do not hesitate to call Nadia Jevremovic, Hearings Officer at (416) 314-8435.
8The respondent neither participated in the ICC nor did he contact the Registrar in advance of the ICC date to advise of his unavailability. The conference call operator indicated to the Tribunal that when she attempted to contact the respondent, there was no answer, and was connected to the respondent’s voice mail.
9The Tribunal proceeded with the ICC in the absence of the respondent. Dates were fixed for the exchange of pleadings and by letter dated June 1, 2005 sent to all parties (including the respondent), the Tribunal confirmed that the Commission and the complainant were to file their respective pleadings by June 24, 2005, the respondent was to file his pleadings by July 22, 2005 and replies if any, were to be filed by July, 29, 2005.
10Because both the complainant and the respondent reside in Ottawa, and the alleged events giving rise to the Complaint took place in Ottawa, the Tribunal would, in normal circumstances, hold an oral hearing in Ottawa.
11The Commission did file its pleadings by correspondence dated June 24, 2005. Counsel for the complainant advised that the complainant did not intend to file any pleadings and was content to rely upon those filed by the Commission. The complainant did however provide additional disclosure. Counsel for both the Commission and the complainant indicated that their correspondence had been served upon the respondent.
12The respondent did not file his pleadings nor provide any disclosure within the time fixed by the Tribunal pursuant to the Rules. Nor did the respondent respond or communicate in any way with the Tribunal.
13By letter dated June 16, 2005 the Commission, with copies sent to counsel for the complainant and to the respondent, requested the following:
The Commission, with the consent of the complainant, is requesting that a written hearing be held in the above noted matter. We ask that you inquire of the Tribunal’s Chair whether the Tribunal will exercise its discretion under Rule 6 to conduct the proceeding by way of a written hearing . Having made Rule 6, the Tribunal is permitted by Section 5.1(1) of the Statutory Powers Procedure Act to hold a written hearing.
The respondent did not participate in the Commission’s investigation or attend on the pre-hearing conference call.
A written hearing would be fast and cost effective to all concerned.
DECISION
14Considering the facts and circumstances of the present case, and the request made by the Commission in its June 16, 2005 correspondence, the Tribunal will issue a Notice of Written Hearing. However, for the reasons set out below, certain conditions will attach to proceeding in this way.
15Section 39 of the Code requires that when a complaint is referred to the Tribunal by the Commission, the Tribunal shall hold a hearing into the matter. Section 39 appears to require that the Tribunal hold a hearing even in circumstances where, as here, the respondent has failed to participate in the proceedings before the Tribunal and has failed to comply with the Tribunal’s Rules requiring the filing of pleadings and the provision of disclosure to the other parties. This statutory requirement is in contrast to the process available to other administrative tribunals and the Courts, where failure by a responding party to participate, file a defence, or comply with the rules of the tribunal or Court may result in a default judgment being issued against that party, on the basis only of material filed by the applicant/plaintiff.
16This is not to say however that it is necessarily appropriate to hold a full oral hearing in every case. As the Commission pointed out in its June 16, 2005 correspondence, both the Tribunal’s Rules and the Statutory Powers Procedures Act R.S.O. 1990, c. S.22 (“the SPPA”) contemplate the holding of written or electronic hearings.
17In addition, both the Rules and the SPPA recognize the important principle that administrative decision-making generally and human rights adjudication in particular must be fair, efficient and cost effective. The introduction to the Tribunal’s Rules provide, in part:
INTRODUCTION
The Human Rights Tribunal of Ontario hears and decides complaints made pursuant to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended. Complaints are referred to the Tribunal by the Ontario Human Rights Commission.
The Tribunal is committed to a fair, accessible and efficient hearing process that affords all parties an opportunity to present their case and to respond to the opposing case.
The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended and these Rules of Practice, made under section 25.1 of that Act, apply to all the proceedings before the Human Rights Tribunal of Ontario….
Section 2 of the SPPA provides:
Liberal construction of Act and rules
This Act, and any rule made by a tribunal under section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.
18Therefore it is clear that the statutory and regulatory scheme does permit, and perhaps requires the Tribunal to fashion appropriate procedures to address the particular circumstances of a case. The goal will be to balance the principles of fairness, accessibility efficiency and cost effectiveness, and to ensure that matters are dealt with in the most just and expeditious manner. Written hearings are one way of meeting these objectives.
19There will no doubt be various circumstances in which written or electronic hearings will be appropriate. This decision does not purport to enumerate all such cases. However, it does appear to the Tribunal at this stage, that absent any additional considerations, and based on the facts presently before the Tribunal, the instant case is certainly an example of where a written hearing is fair to the parties, is an efficient way of determining the Complaint and indeed furthers the purposes of the Code.
20The system of adjudication established under the Code is adversarial. The Commission, complainants and respondents have the right and obligation to present their evidence and arguments. Each side bears legal and evidentiary onuses. The Tribunal is charged with considering the evidence and arguments of the parties and making determinations based on the materials and submissions presented.
21Where a respondent chooses not to participate in the legal processes established for the determination of a complaint which has been referred to the Tribunal, and the Commission or the complainant requests a written hearing, it would be the rare case where a full oral hearing would nonetheless be scheduled. Requiring the parties to attend an oral hearing, call viva voce evidence and present oral argument would place an unnecessary strain on the resources of the parties and the Tribunal, and would do nothing to further the principles set out in the Rules and SPPA.
22While the SPPA does contemplate the holding of written (or electronic) hearings, those permissive provisions also highlight that there will be cases in which an alternative to an oral hearing, for the determination of the merits of a complaint, will not be appropriate. Section 5.1 of the SPPA provides:
Written Hearings
5.1(1)A tribunal whose rules made under section 25.1 deal with written hearings may hold a written hearing in a proceeding.
Exception
(2) The tribunal shall not hold a written hearing if a party satisfies the tribunal that there is good reason for not doing so.
Same
(2.1) Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters.
And Section 6(4) provides, in part:
Written hearing
6(4) A notice of a written hearing shall include,
(b) a statement that the hearing shall not be held as a written hearing if the party satisfies the tribunal that there is good reason for not holding a written hearing (in which case the tribunal is required to hold it as an electronic or oral hearing) and an indication of the procedure to be followed for that purpose.
(c) a statement that if the party notified neither acts under clause (b) nor participates in the hearing in accordance with the notice, the tribunal may proceed without the party's participation and the party will not be entitled to any further notice in the proceeding.
23Therefore, tribunals to which the SPPA applies, must provide to the parties an opportunity to give reasons why a written hearing is not appropriate in the particular circumstances.
24As noted above, at this point of the proceeding the Tribunal is satisfied that in the circumstances it is appropriate to issue a Notice of Written Hearing. In accordance with section 6(4)(b) of the SPPA the respondent will have the opportunity to provide submissions as to why there “is good reason for not holding a written hearing.” If the respondent fails to do so, the Tribunal will proceed by way of written hearing.
25Proceeding by way of written hearing raises the question of what evidence will be necessary for the parties to present, in what form such evidence should take and what submissions or argument should be required.
26Again, different circumstances may require different approaches. However since the Code does require the holding of a hearing, the parties must provide a sufficient basis to enable the Tribunal to make the necessary findings to support the allegations and to support the desired remedial requests. If there is a difference between a “default judgment” and a “hearing”, then in the Tribunal’s view, in the absence of any Rules which provide otherwise, the parties must provide something more than mere pleadings. (See for example: Re City of Windsor and Local 455 International Association of Firefighters et al. 1974 CanLII 1348 (ON HCJDC), [1974] 51 D.L.R. (3d) 346 (Ont. Div. Ct.)).
27This is not to say that where a respondent chooses not to participate and the evidence will be uncontested, that the scope of evidence required will be the same as in a regular hearing. Still, a party seeking that the Tribunal make findings of fact, including determinations that a respondent has violated the Code, and requesting certain remedies, must ensure that there is sufficient evidence before the Tribunal to support such findings, determinations and orders.
28In addition, the parties will no doubt want to provide submissions and argument in support of their positions.
29With respect to the form evidence should take in a written hearing, certainly the Tribunal’s Rules and the SPPA provide flexibility to address particular circumstances, Rule 64 provides:
At a hearing the Panel may admit any evidence, including hearsay, relevant to the subject matter of the proceeding.
Rule 65 provides:
The panel may admit facts agreed to by the parties without formal proof.
Section 5(1) of the SPPA provides:
- (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
30Again, case law suggests that mere pleadings will not be sufficient to establish an evidentiary basis for findings of fact and remedial orders, where a hearing is required to be held. (Re City of Windsor, supra). The Tribunal finds however that affidavits or statutory declarations by persons who would otherwise have provided viva voce evidence had the hearing been held as an oral hearing would be a proper form of evidence. These could contain statements based on personal knowledge, or information and belief (as long as the basis for the information and belief was set out in the affidavit). Also, business records and medical reports which would normally be admissible before the Tribunal without the necessity of calling the maker of the document, would generally be admitted. The Tribunal would retain the power to question an affiant, or rule or place conditions upon the admissibility of a document.
31The Tribunal notes that it is always be open to parties to make submissions as to the appropriate form of evidence in a written hearing in a particular case. The comments above set out what the Tribunal considers appropriate in the normal course, and in circumstances where a respondent chooses not to participate in a hearing.
Order
32In light of the above, the Tribunal makes the following Order:
a. The Tribunal will, subject to paragraphs b, c and d below, conduct a written hearing to determine the merits of the Complaint.
b. If the respondent objects to proceeding by way of written hearing, he shall no later than August 19, 2005, file with the Tribunal and serve on the other parties, submissions as to why there is good reason not to conduct the proceedings by way of written hearing. The respondent should at the same time include submissions as to the appropriate procedures to be followed if, notwithstanding his objections, the Tribunal determines that it is appropriate to hold a written hearing.
c. If the respondent files submissions as set out above, the Commission and the complainant shall have 5 days to file and serve their replies.
d. Should the respondent object to a written hearing on the merits, the Tribunal will issue a decision setting out whether the case will proceed by written or oral hearing.
e. Should the respondent fail to provide submissions by August 19, 2005 as set out in paragraph b above, in accordance with section 6(4)(c) of the SPPA, the Tribunal will proceed without the respondent’s participation and the respondent will not be entitled to any further notice of these proceedings.
f. Should the respondent fail to provide submissions as set out in paragraph b above, the Commission and the complainant shall, no later than September 17, 2005, serve and file all evidence, documents, submissions and argument upon which they seek the Tribunal to consider in making a decision on the merits of the Complaint and with respect to appropriate remedy.
g. This Order shall serve as a Notice of Written Hearing.
33I am seized of this matter.
Dated at Toronto, this 10th day of August, 2005
“Signed by”
Michael Gottheil
Chair