Ontario Human Rights Commission v. General Motors Defence, 2006 HRTO 36

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Thomas Sinclair, Roland Craig, Barry Fawcett, Donald Coubrough, Lloyd Gordon and Elie Faysal Complainants

-and-

General Motors Defence, a division of General Motors of Canada Limited Respondent

Interim DECISION

Adjudicator: Ian Anderson Date: December 20, 2006 Citation: 2006 HRTO 36

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

1The Tribunal is in receipt of submissions dated December 18, 2006 from General Motors Defence in response to the Tribunal’s decision dated December 12, 2006. No other party has filed submissions in support of General Motors Defence’s position.

2Section 109 of the Courts of Justice Act, R.S.O. 1990, c.43 provides:

(1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

1. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.

2. A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

(2) If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be.

(2.1) The notice shall be in the form provided for by the rules of court or, in the case of a proceeding before a board or tribunal, in a substantially similar form.

(2.2) The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise.

(3) Where the Attorney General of Canada and the Attorney General of Ontario are entitled to notice under subsection (1), they are entitled to notice of any appeal in respect of the constitutional question.

(4) Where the Attorney General of Canada or the Attorney General of Ontario is entitled to notice under this section, he or she is entitled to adduce evidence and make submissions to the court in respect of the constitutional question.

(5) Where the Attorney General of Canada or the Attorney General of Ontario makes submissions under subsection (4), he or she shall be deemed to be a party to the proceeding for the purpose of any appeal in respect of the constitutional question.

(6) This section applies to proceedings before boards and tribunals as well as to court proceedings.

3There is no dispute that section 109 applies to proceedings before the Tribunal. There is no dispute that the Attorneys General of Ontario and Canada were entitled to notice of General Motors Defence’s motion with respect to a constitutional question. Section 109(4) provides that where the Attorney General of Canada or the Attorney General of Ontario are entitled to notice, he or she is entitled to adduce evidence and make submissions. This provision is mandatory. Nothing in section 109 requires the Attorneys General to in any way indicate a prior intention to participate on the day on which the question is to be argued. Accordingly, the Attorney General of Ontario is entitled to make submissions on the constitutional question in the proceedings before the Tribunal.

4In the event that I am mistaken in my conclusion that section 109(4) is mandatory, I would exercise my discretion to extend the time for the Attorney General of Ontario to indicate an intention to intervene and to file a factum. The Tribunal’s deliberations can only benefit from the participation of the representatives of those who enact the legislation whose constitutionality is challenged: see Eaton v. Brant County Board of Education 1997 CanLII 366 (SCC), [1997] 1 SCR 241 at paragraph 48. Further, section 109 gives the Attorney General of Ontario the right to participate on any appeal of the Tribunal’s decision. Little purpose would be served by declining to hear an argument at this stage that might result in the reversal of the Tribunal’s decision on appeal.

5In the alternative, General Motors Defence requests an adjournment of the January 9 and 10, 2007 dates set for hearing argument on the constitutional question. It indicates that its lead counsel will be out of the country on a family vacation during the Christmas holidays and has substantial commitments during the first week of January 2007. It notes that the Attorney General of Ontario’s factum was served upon it only late in the day on December 18, 2006.

6The Tribunal invites submissions from the other parties and intervenors with respect to General Motors Defence’s request for an adjournment. Any such submissions are to be filed no later than 5:00 p.m. December 21, 2006.