Ontario Human Rights Commission v. Stephens, 2006 HRTO 31

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

DECISION

Adjudicator: Laverne Jacobs
Date: November 22, 2006
Citation: 2006 HRTO 31

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

1The Human Rights Commission (“Commission”) brings this motion. It requests that the Human Rights Tribunal (“Tribunal”) reopen its September 15, 2005 hearing in the Stephens motion on costs which resulted in the decision of November 7, 2005 (2005 HRTO 47). It also asks that the Tribunal rescind the order made in the Stephens costs motion altogether. Should the Tribunal decide not to reopen the hearing or rescind its order, the Commission requests, in the alternative, that the Tribunal modify its reasons in Stephens by anonymizing the names of Commission staff which currently appear there. This motion therefore raises the issues of whether the Human Rights Tribunal of Ontario has the power to reopen its own hearings and, if so, whether this is a case in which it should exercise that power. It also raises the question of whether the names of Human Rights Commission staff members should be concealed in this case.

2While the November 7, 2005 decision in Stephens has been issued to the parties, the Tribunal has had it removed from publication, pending this decision. The Tribunal postponed publication on a request from the Commission to which the Respondents agreed.

3This matter has proceeded by way of written representations.

Summary of Parties’ Arguments

4The Commission requests an order reopening the hearing on the motion for costs in the Stephens decision of November 7, 2005 (2005 HRTO 47). It argues that the Tribunal denied natural justice to the Commission and that the Tribunal is empowered to correct this breach by reopening the hearing. By its request to “reopen”, I understand the Commission to be asking the Tribunal to reconsider the question of costs by holding a new costs hearing in which any breaches of natural justice that prevented the Commission from receiving a proper opportunity to present its case are corrected. Alternatively, if the Tribunal decides not to reopen its hearing, the Commission asks that it mask the names of certain individuals before issuing its decision. These individuals are members of Human Rights Commission staff. Instead of being identified by their names, the Commission requests that these staff members be identified in the decision by their position title. The Commission has already filed an appeal from the November 7, 2005 decision with the Ontario Divisional Court. It did so on December 5, 2005.

5The Respondents to this motion, Lynx Industries Inc., Mark Schram and Marjorie Morris (“the Respondents” or “Lynx Industries et al.”) submit that the Tribunal became functus officio upon rendering its decision on November 7, 2005. They argue that although there are exceptions to the doctrine of functus officio which allow a tribunal to reopen its decision, including an exception for breach of natural justice, none of these exceptions apply in the present case.

6In response to the Commission’s argument that the names should be masked, Lynx Industries et al. submit that there is no legal or policy basis for this request. Lastly, they argue that the Tribunal does not have jurisdiction to entertain this motion as the effect of the Commission’s appeal from the November 7, 2005 decision to the Ontario Divisional Court is to stay any further proceedings before the Tribunal.

Issues

7This motion raises three distinct issues. The first deals with whether the Tribunal is functus officio at common law in this case. In particular, the questions to be addressed in relation to this issue are whether the Tribunal has the power to reopen its own hearings and, if so, whether this is a case in which this power should be exercised. The second is whether the Tribunal has jurisdiction to entertain this motion or whether the fact that the Commission has appealed to the Divisional Court prevents the Tribunal from all further actions in relation to this matter by virtue of the Statutory Powers Procedure Act, R.S.O. 1990 c. 22 (SPPA) ss. 25(1). The third is the discrete issue of whether the names of the Commission staff should be suppressed in this case. Each of these three issues will be analyzed in turn.

Analysis

1. Is the Tribunal Functus Officio?

8The parties dedicated the largest part of their arguments to the question of whether the Tribunal possesses the power to reopen its November 7, 2005 decision or whether it is now functus officio.

9The common law doctrine of functus officio maintains that a final decision of a decision-making body cannot be reopened except for very limited and exceptional reasons (In re Nazaire Co. (1879), 12 Ch.D. 88, Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] S.C.R. 186). Originally created for the courts, the doctrine has extended to apply to administrative tribunals as well (Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848; Grier v. Metro International Trucks Ltd. (1996) 1996 CanLII 11795 (ON CTGD), 28 O.R. (3d) 67 (Div. Ct) (Grier). In the case of administrative tribunals, four exceptions to the functus doctrine justifying the reopening of a decision can be discerned from the jurisprudence. These are situations in which:

a. the power to reopen has been conferred on the tribunal by legislation (see e.g. Grillas v. Minister of Manpower and Immigration, 1971 CanLII 3 (SCC), [1972] S.C.R. 577)

b. the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose (see e.g. Chandler, supra)

c. the tribunal has made a clerical error or error in expressing its manifest intention (see In re Nazaire Co. (1879), 12 Ch.D. 88, Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] S.C.R. 186)

d. the tribunal has made an error that renders its decision a nullity such as “a denial of natural justice which vitiate[s] the whole proceedings” (see Chandler at para. 25, Ridge v. Baldwin, [1964] A.C. 40(H.L.) ) or “a misapprehension of an important fact lying at the heart of the litigation” (Grier, supra) which may stem from its reliance on factual errors made by the parties (see e.g. Grier, supra; Kingston (City) v. Ontario(Mining & Lands Commissioner) (1977), 1977 CanLII 1267 (ON HCJ), 18 O.R. (2d) 166 (Div. Ct.)) (Kingston)).

10The Commission argues that the Tribunal committed a breach of natural justice in conducting its hearing on costs and that this breach brings it within the fourth group of exceptions to the doctrine of functus officio. It submits that the breach stems in part from the Tribunal’s request that the motion on costs be argued in one day without viva voce evidence. The Commission submits that, at the hearing, it made a specific request to the Tribunal to introduce evidence from staff members whose conduct was in question, but that its request was denied because of the limited time reserved for the hearing. The Commission further contends that neither the Respondents nor the Tribunal advised it that the propriety and good conduct of its staff would be impugned and that such notice is required under s. 8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA). As a consequence, the Commission argues that although the Tribunal does not have statutory authority to review its own decision, it has committed a breach of natural justice serious enough to enable it to reopen this decision. It submits that the incidents that occurred relating to lack of notice and the inability to lead evidence at the hearing constitute a breach of natural justice that vitiated the whole proceeding and rendered the decision null.

11The Respondents, by contrast, claim that the Commission had adequate notice that the conduct of its staff members may be brought into question. They argue that the Commission was aware that the Respondents objected to the Commission’s conduct and that they had knowledge of this even at the time of the investigation. The Respondents submit that the Commission knew that Lynx Industries Inc. intended to bring a motion for costs and that the motion would be based on ss. 41(4) of the Human Rights Code R.S.O., 1990 c. H.19 (Code), a provision that allows the Tribunal to award costs against the Commission upon finding that the complaint was trivial, frivolous, vexatious or made in bad faith. In support of many of their assertions, the Respondents refer to a motion returnable on November 4, 2004, a copy of which they include in their book of authorities. This was a motion requesting, among other things, an order dismissing or staying the complaint for abuse of process and an order for costs payable to the Respondents. In the grounds for this motion (“motion for dismissal”), the Respondents detail their allegations that the Commission’s investigation revealed many flaws including bias in favour of the Complainants and lack of procedural fairness. Allegations were made against specific, named members of the Commission staff. The conduct of these staff members was also examined in the motion on costs. The Respondents also refer to previous cases on costs that examine the conduct of the Commission to indicate the Commission’s awareness that its conduct may be considered in a costs matter. They point to Jeffrey v. Dofasco (No. 5) 2004 HRTO 5 (Dofasco) as an example. Finally, they refer to a letter they wrote to the Commission thirteen days before the hearing (dated September 2, 2005) in which they enclose their Bill of Costs and supportive documentation and indicate that they intended to rely, in part, on documents disclosed to them by the Commission at the time of the November 2004 motion for dismissal.

a) Has the Tribunal Committed a Breach of Natural Justice?

12I find that even if the Commission was made aware of allegations against it at the time of a motion brought for dismissal of the complaint in November 2004, the real issue is whether there was sufficient indication that the Commission’s staff members’ conduct would be under scrutiny during the motion regarding costs heard on September 15, 2005, approximately 10 months later. I note that the motion on costs was brought as a separate motion from the motion for dismissal. The motion on costs was initiated by a letter from counsel for the Respondents to the Tribunal’s Registrar, dated July 13, 2005 and copying Commission counsel. Counsel for the Respondents requested that the Tribunal reconvene to address the issue of costs now that the Complaint had been dismissed. Through this letter, Counsel asked that the same adjudicator who heard the matter on the merits deal with costs and that a process for determining costs be put in place. Counsel also indicated that she would be available for a conference call with the other parties and the Tribunal to determine procedural and evidentiary requirements. However, there is no indication that such a conference call was held before the hearing. Moreover, there is no indication that any submissions on the costs matter were exchanged or required by the Tribunal before the matter was heard.

13It would appear that the parties were advised by the Tribunal of the date, length and manner of the oral hearing without an opportunity to exchange submissions or indicate evidentiary requests in advance. In such a factual matrix, it is difficult to see how the parties would be able to know the case they are to meet. It may be that the Commission had a general sense of the allegations based on the wording of the provision at issue (ss. 41(4)) and the grounds for the motion to dismiss of 2004 but, this certainly would not have provided adequate detail for the Commission to prepare its case properly in advance. It is certainly worth recalling that the Commission was in the position of responding to the motion, a motion which would consider whether its actions were “vexatious or made in bad faith” among other things. In such a situation, it seems very unusual that it would not be given a chance to receive a more fulsome enunciation of the case to which it had a duty to respond.

14The circumstances leading up to the hearing on costs are particularly problematic in light of the SPPA’s requirement that a party whose good character, propriety of conduct or competence is at issue in a proceeding be entitled to receive reasonable information of the allegations prior to the hearing. Section 8 of the SPPA reads:

8. Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto. R.S.O. 1990, c. S.22, s. 8.

15As the Code indicates at ss. 39(2), the Commission is a party in proceedings before the Tribunal. In this case, all that the Commission received before the hearing regarding the allegations it would meet was a letter from the Respondents dated thirteen days before the hearing. While the Respondents make reference to supporting documentation accompanying this letter, this letter and documentation did not articulate the Respondents’ submissions on the issue of costs. The Commission did not receive reasonable information before the hearing of the allegations being brought against it. Although it is possible that the Commission could have pro-actively requested more information from the Respondents, there is also an obligation on the part of the Tribunal as part of its duty to provide procedural fairness to ensure that there is a channel for a meaningful exchange of such information to take place.

16A further factor to take into consideration is that the awarding of costs is rare. Costs have only been awarded under ss. 41(4) on eight occasions (See Dofasco, supra). It would seem that an adjudicator would need to have the fullest record possible to determine that the factual circumstance is indeed one in which such a rare award should be made. Although I did not have the benefit of presiding over the costs hearing and do not possess the first-hand knowledge of what occurred that the adjudicator presiding has, it seems that denying a request for viva voce evidence may pose some challenges to fairness in this particular situation.

17The Respondents submit that it is within the Tribunal’s discretion to determine the procedure for a hearing on costs and that holding a hearing respecting costs without viva voce evidence is consistent with what is done in the courts. I agree that the Tribunal has the discretion to determine its own procedure and can see how it would aim to create procedures that are efficient. And, it is certainly not necessary in every proceeding that viva voce evidence be used in order to guarantee fairness – the concept of fairness does not require that viva voce evidence be used in every proceeding. However, in determining efficient procedures, the Tribunal must also be careful to balance its duty to ensure procedural fairness. In this particular case, the failure to have the parties exchange written submissions (or otherwise exchange arguments) beforehand coupled with the one-day timeframe which was limited to not providing for oral evidence made it difficult, if not impossible for the parties to know the case they were expected to meet at the hearing and to respond adequately to it. There has been a breach of natural justice on the part of our Tribunal that affected the Stephens hearing on costs.

b) Do the circumstances of which the Commission complains constitute a breach of natural justice that is sufficient to enable the Tribunal to reopen its decision as an exception to the common law doctrine of functus officio?

18It is clear that there is no statutory authority that allows the Tribunal to reopen its decisions. No such authority exists in the Human Rights Code. The SPPA, which applies to all tribunal proceedings exercised as part of a statutory power of decision conferred by an Act of the Ontario Legislature (see SPPA ss. 3(1)), requires a tribunal to make rules of practice governing the matter, before it can vary its own orders (see SPPA ss. 21.2(1)). The Human Rights Tribunal of Ontario has not chosen to make rules to this effect (see Human Rights Tribunal of Ontario Rules of Practice, July 2004).

19In the absence of statutory authority, the jurisprudence has allowed for tribunals to revisit their own decisions in three other situations. These situations occur, first, when the tribunal has failed to dispose of an issue that has been fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose. This was the situation in Chandler, supra where the board in question held a valid hearing but rendered a decision that dealt with matters over which it had no jurisdiction. The Supreme Court of Canada held that the board had not completed its statutory function and that it should be entitled to continue its original proceedings in order to do so (see also Severud v. Canada (Employment and Immigration Commission (C.A.) [1991] F.C. 318). A second situation in which tribunals have been allowed to reopen a matter is when they have committed a clerical error or error that goes against the manifest intention of the decision. Often the older cases of In re Nazaire Co. (1879), 12 Ch.D. 88 and Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] S.C.R. 186 are cited for their articulation of the rule. Finally, if a tribunal has made an error that renders its decision a nullity, the jurisprudence has also found it permissible for the tribunal to revisit its own decision. At least two such errors can be identified. Closely related to the idea of a clerical error is one where the tribunal has misapprehended a material fact in rendering its decision.¹ Although the case law on this type of error is very small, it appears that such an error has occurred when the parties present inaccurate information and the tribunal relies on this information in reaching its decision. This was the case in both Grier, supra and Kingston, supra. The second, is the much more well-known scenario and the situation that the parties argue in the present case —namely, that the tribunal has committed a breach of natural justice serious enough to vitiate the entire proceedings.

20The law on the exception for breach of natural justice started its development with the case of Ridge v. Baldwin, supra. There, a chief police constable was dismissed from office by a resolution of a committee passed at a meeting of which he had no notice and to which he was not invited to attend so that he could be heard in his own defence. Ridge v. Baldwin, supra is useful and best known for the general proposition set out by Lord Reid relating to the ability of an administrative body to reconsider a matter if it realizes that it has not provided a proper opportunity to be heard. In Lord Reid’s words:

I do not doubt that if an officer or body realizes that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.

21This dicta has been applied and considered almost consistently in the cases dealing with functus officio. One such case is the Supreme Court of Canada decision in Chandler, supra the leading case on functus officio. A case of particular importance to the facts of this case is the Supreme Court of Canada decision of Posluns v. Toronto Stock Exchange 1968 CanLII 6 (SCC), [1968] S.C.R. 330. Similar to the Commission in our case, the appellant in Posluns, supra attended a hearing for which he was not notified that his personal accountability would be under scrutiny. The board in question held a new hearing at the request of appellant’s counsel and the matter was reheard. This method for proceeding was sanctioned by the Supreme Court of Canada.

22The situation in the Federal Court of Appeal decision of Gill v. Canada (Minister of Employment and Immigration) F.C.A. 1987 CanLII 9012 (FCA), [1987] 2 F.C. 425 is also persuasive. There, relying on Singh et al. v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, the Court indicated that a breach of natural justice, namely a failure to hold a hearing in a refugee determination violated both the Bill of Rights and the Canadian Charter of Rights. The Federal Court of Appeal sent the matter back to the Immigration Appeal Board so that it could reconsider reopening the matter. While it has not been argued that the breach of natural justice in our case violates a constitutional or quasi-constitutional enactment, it does violate the requirements for a fair hearing of the SPPA, a piece of legislation that governs the fairness of proceedings before all Ontario tribunals. In my opinion, this is type of situation to which the exception to the functus officio doctrine applies.

2. Stay of Proceedings

23This is an unusual case, particularly since an appeal from the Tribunal decision has already been filed. Section 25(1) of the SPPA reads:

Appeal operates as stay, exception

25 (1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,

(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or

(b) the tribunal or the court or other appellate body orders otherwise. 1997, c. 23, s. 13 (21).

24The Respondents argue that the effect of the Commission filing an appeal in the Divisional Court is to freeze all matters before the Tribunal and effectively bring them to a halt. They argue that unless this Tribunal or the Court lifts the stay, the Tribunal cannot exercise any further powers in the matter, including reopening. The Respondents rely on the case of Roosma v. Ford Motor Co. of Canada Ltd (1988) 1988 CanLII 5633 (ON HCJDC), 66 O.R. (2d) 18 in support of their argument. The Commission argues that the filing of its appeal to the Divisional Court has no bearing on the Tribunal’s jurisdiction to reopen the matter. It argues that there is a time period during which one must file an appeal in order to preserve one’s right of appeal. The Commission submits that it had no choice but to file its appeal or it would lose its right to appeal. It also argues that by virtue of ss. 25(1)(b) of the SPPA, the Tribunal has the power to order that the matter not be stayed by the appeal. In the Commission’s opinion, such an order is appropriate in this case where reopening is necessary to cure a breach of natural justice or allow the suppression of names.

25In my opinion, ss. 25(1)(b) empowers the Tribunal to lift the stay in these circumstances. It is clear that the common law has developed to enable tribunals to re-assess matters where they may have committed an error vitiating their proceedings. By lifting a stay of proceedings and addressing such questions instead of requiring the parties to seek a resolution before the courts, tribunals serve to address issues that fit fundamentally within two of the core reasons for creating our administrative tribunal system – expediency and cost efficiency in resolving disputes. By having the Tribunal determine its own jurisdiction to reopen a matter in certain delineated circumstances, the parties can avoid the cost and delay of bringing an appeal to the courts. Lifting the stay so that the Tribunal can address the matter is apposite in this case.

26Moreover, I believe the Commission’s submission that it only filed an appeal in order to retain its ability to do so. The Rules of Civil Procedure R.R.O. 1990, Reg. 194, (R. 61.04) provide 30 days from the date of the order being appealed for the appeal to be filed in the Divisional Court, and the Commission’s filing of its appeal on December 5, 2005 fits within this timeframe. Correspondence with the Tribunal shows that the Commission sought rehearing in November, 2005, the same month that the decision on costs was rendered. I believe that the Commission made a good faith attempt to have the matter reopened by the Tribunal before having to file an appeal in the Divisional Court in order to retain its right to appeal.

27Further to ss. 25(1)(b), the stay of proceedings should be lifted in this case. However, I am of the opinion that out of respect for the Divisional Court which has full authority to deal with this question of fact and law, the Tribunal should suspend its remedy pending disposition of the appeal and any guidance that the Court may offer or, if the parties so desire, until the matter before the Divisional Court has been discontinued.

3. Suppression of Commission Staff Names

28As I have found that the Tribunal is not functus officio, I do not have to address the Commission’s alternative question of whether the names should be suppressed. This is an issue that should be brought to the adjudicator as a preliminary motion at the new hearing.

Disposition

29In conclusion, I believe that there has been a breach of natural justice in this case which has vitiated the proceedings in the Stephens motion for costs. Although the Tribunal would normally be functus officio for having completed its functions under the legislation, this breach constitutes an exceptional circumstance which enables, if not requires, it to start afresh. Accordingly, the hearing on the motion for costs in Stephens should be held again with a means for the parties to exchange submissions before the hearing so that each party is aware of the case to be met. In addition, an opportunity for the parties to discuss with the adjudicator the nature of the evidentiary requirements that they will require should also be made available by the Tribunal prior to the hearing. The issue of whether the names of Commission staff should be made anonymous in the final decision, if there is a negative finding against them, should be brought to the adjudicator rehearing the matter as a preliminary matter. Finally, in light of the familiarity with this case that the original adjudicator possesses, I see no reason why it should not be returned to this member for rehearing. The Tribunal should publish this second decision on costs in lieu of the first.

30Given, however, that the matter has already been appealed to the Divisional Court, out of respect for the Court, the Tribunal will suspend rehearing this matter pending the Court’s decision and guidance or, if the parties so desire, until the matter before the Divisional Court has been discontinued.

Dated at Toronto, this 22nd day of November, 2006

“Signed By”

Laverne Jacobs

Member

Footnotes

1. 1Indeed, it may be possible to categorize the “misapprehension of material fact” error as part of the exception for clerical error (See David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at Chapter 15), although the former tends to deal with tribunal reliance on errors made by the parties whereas the latter seems to deal more with errors made by the tribunal itself.