Ontario Human Rights Commission v. ICE Consultants Inc., 2006 HRTO 6

Human Rights Tribunal of Ontario

Between: Ontario Human Rights Commission (Commission) -and- Marlene Garrelhas (Complainant) -and- ICE Consultants Inc., Michael Bain and Evan Wright (Respondents)

Interim Decision No. 2

Adjudicator: Michael Gottheil Date: March 31, 2006 Citation: 2006 HRTO 6

Appearances: Ontario Human Rights Commission: Reema Khawja, Counsel Marlene Garrelhas, Complainant: No appearance ICE Consultants Inc., Michael Bain and Evan Wrights, Respondents: Trevor Lawson, Counsel

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), 5(2) and 9. Specifically, the Complaint claims that the Respondents discriminated against the Complainant in relation to her employment on the basis of disability.

2In an Interim Decision dated November 24, 2005 (2005 HRTO 51), I dismissed a Motion brought by the Respondents seeking further particulars in respect of certain allegations raised in the Commission's pleadings and an order striking out certain other allegations. The Respondents had brought the Motion prior to filing their pleadings. I accepted the Commission's argument that the Motion was premature, but ruled that once all pleadings and replies had been filed, if the Respondents wished to maintain their position, I would deal with the issues on the basis of written submissions.

3In their pleadings filed on January 12, 2006, the Respondents did maintain some of the requests that had been raised in the earlier Motion. Though the Respondents no longer sought further particulars in respect of paragraphs 22, 34 and 38, they continued to maintain that paragraphs 19 and 20 of the Commission's Statement of Facts and paragraphs 2(e) and 2(f) of the Statement of Remedy be struck out. Those paragraphs read as follows:

19. From July 1999 to September 2000, Ms. Garrelhas was required to work overtime, for which she was not remunerated. Other employees of the corporate respondent were not so treated.

20. Ms. Garrelhas was not paid vacation pay for the years 1998, 2000 and 2001. Other employees of the corporate respondent were not so treated.

2(e) An order seeking compensation for overtime for which Ms. Garrelhas was not paid during the period from July 1999 to September 2000.

2(f) An order seeking compensation for vacation pay for which Ms. Garrelhas was not paid during the years 1998, 2000 and 2001.

4The Respondents claim that paragraphs 19, 20, 2(e) and 2(f) are lacking in particularity, and deal with matters that were not raised in a timely manner. As a result, the Respondents claim that it would be unfair to require them to answer those allegations and claims. For the reasons set out below, the Tribunal agrees with the Respondents and grants the request that those paragraphs be struck.

BACKGROUND

5The Complainant, Ms. Marlene Garrelhas, was hired by the Respondent ICE Consultants Inc. ("the Corporate Respondent") on May 19, 1998 as a Customer Service Representative. The Complaint alleges that in or about April 1999, the Complainant was diagnosed with a depressive disorder. The Complaint further alleges that on or about February 4, 2002, after the Complainant had been on sick leave for a number of months, her employment was terminated by the Respondents. The essence of the Complaint is that certain actions of the Respondents, commencing when Ms. Garrelhas was first diagnosed with her depressive disorder, up to and including the time of her termination, constitute discrimination and harassment in employment on the grounds of disability.

6The Complaint was filed March 12, 2002. The Commission conducted an investigation of the Complaint pursuant to Section 33 of the Code in the period between January 2003 and October 2004. A number of individuals, including representatives and employees of the Corporate Respondent, were interviewed by the Commission Investigator. In addition, the Commission Investigator requested and was provided various documents from the Respondents. Subsequently, a Section 36 Case Analysis Report was prepared and provided to the Complainant and Respondents for comment. The Case Analysis, along with submissions from the Respondents, was presented to the Commission for consideration. On April 12, 2005, the Respondents and the Complainant were advised that the Commission had decided to refer the Complaint to the Tribunal.

7The Tribunal held an Initial Conference Call on June 1, 2005 pursuant to its Rules. Following that call, on June 16, 2005, the Commission served and filed its pleadings and provided disclosure to the Respondents.

8It is undisputed that at no time prior to the Commission filing its pleadings on June 16, 2005 were the Respondents aware that a claim was being made for overtime and vacation pay arising in the years 1998 - 2001.

9In the earlier Motion brought by the Respondents (which as noted above was disposed of in 2005 HRTO 51), the Respondents argued that it would be unfair for the Tribunal to entertain the claims for overtime and vacation pay set out in paragraphs 19, 20, 2(e) and 2(f) of the Commission's pleadings. They argued that the allegations had not been identified in the original complaint, nor raised during the investigation. They noted as well that the claims related to allegations which were between four and eight years old.

10The Respondents also argued that there was nothing in the pleadings filed which identified how or on what basis the alleged failure to pay overtime and vacation pay related to a violation of the Code. In other words, even if the Respondents had failed to pay vacation and overtime pay properly to the Complainant (an allegation the Respondents strongly denied) there were no facts to support the claim that such a failure was because of, or related to her disability. Indeed, the Respondents argued, part of the claim related to a period before the Complainant was even diagnosed with a disability.

11In the earlier Interim Decision, though I dismissed the Respondents' Motion as being premature, I made several case management directions. Those directions provided as follows:

a. The Commission shall within 10 days of this decision, confirm whether it has any additional particulars in relation to paragraphs 19, 20, 22, 34, 38 of its pleadings;

b. Within 25 days thereafter, the Respondents shall file their pleadings and provide to the Commission and the Complainant disclosure as required by the Rules. The Respondents shall at the same time set out any preliminary or procedural objections which they may have, and provide detailed submissions with respect to any issue related to the sufficiency or propriety of the Commission's pleadings;

c. Within 10 days thereafter, the Commission (and the Complainant if she desires) may provide a Reply to the pleadings of the Respondents. In any event, the Commission shall provide detailed submissions in response to any issue raised by the Respondents related to the sufficiency or propriety of the pleadings;

d. The Tribunal proposes to deal with any objection related to the sufficiency or propriety of pleadings on the basis of the written submissions as noted above. Should any party consider that process to be inappropriate and feel that an oral hearing is necessary, they should set out the reasons for that position at the same time they file their submissions.

12In accordance with direction "a", of the Interim Decision, on December 2, 2005 the Commission filed and served a letter indicating that it had no further particulars related to paragraphs 19 and 20. (It provided additional particulars with respect to the other impugned paragraphs. As noted above, the Respondents have since abandoned objections they had with respect to those paragraphs).

13On January 12, 2006, the Respondents filed their pleadings and raised the objections which are the subject of this Decision.

14On January 23, 2006, the Commission filed its Reply. Notwithstanding the Direction issued in the earlier Tribunal Decision, and its December 2, 2005 letter in which it confirmed that it had no particulars related to paragraphs 19 and 20, the Commission sets out for the first time particulars related to the vacation and overtime pay claims. In relation to the overtime claim, the Commission alleged that:

a) Re Over-time

1. In July/99 the Complainant started in a new position as a Financial Sales Administrator which involved significantly expanded responsibility and increased duties.

2. From the time she started in this position the complainant alleges that she worked long hours on a regular basis, averaging 12 hours per day, 5 days per week for a weekly average of 60 hours. She often worked at home during the evenings and was sometimes required to come in during night shifts. She worked both Christmas day [sic] and New Years Eve, [sic] 1999 because no one else was willing or able to work.

3. She alleges that she regularly complained to her supervisors, including Mr. Bain and Mr. Wright about the long hours she was working and asked both to be compensated for these hours and to be given some help so she could work fewer hours.

4. She alleges that she was told that she was not entitled to over-time pay because she was on salary but that she would be rewarded at some point in the indefinite future when the company was successful.

5. She felt she had no choice but to work these hours because she was afraid of losing her job.

6. There was no other employee who worked such long hours on a regular basis.

b) Re Vacation Pay

7. The complainant took no vacation in 1998, 2000 or 2001. She asked for vacation but was told she could not take any vacation because there was no one who could replace her.

8. She took medical leave in April, 1999 but no vacation.

9. She was not paid any vacation pay in addition to her regular wages for 1998, 2000 and 2001 when she didn't take any vacation.

10. She didn't receive any vacation pay on termination.

11. She accepted the respondents' refusal to give her paid vacation because she was afraid of losing her job.

15The Commission also provided an explanation of why the vacation and overtime pay claims were not raised until it filed its pleadings in June 2005.

16The letter stated in part:

The complainant states:

a. that she raised these issues with the Investigating Officer (IO) during the investigation but was advised that, in the IO's view, they were not linked to the subject matter of her complaint.

b. She did not know she could raise these issues in a reply to the Case Analysis prepared by the IO which omitted any reference to these issues.

c. Subsequently, the legally trained articling student who prepared the Statement of Fact and Issues (SFI) reviewed the matter and determined that there was an arguable linkage to the complainant's disability. She advised the complainant that these issues were relevant to her complaint and they were included in the SFI.

17Regarding the issue as to the connection between the alleged failure to pay vacation and overtime pay, and discrimination on the basis of disability, the Commission argued that the Respondents knew the Complainant was a vulnerable person and exploited that vulnerability, knowing that she would accept the "illegal" working conditions out of a fear of losing her employment.

18The Commission did not provide additional legal argument in response to the submissions made by the Respondents, but relied on its submissions made in the earlier Motion.

19Neither party objected to a determination of the issue on the basis of their written submissions.

Decision and Analysis

20After careful consideration of the facts and submissions of the parties, I have concluded that it would be unfair and a breach of the natural justice rights of the Respondents to require them to answer the allegations and claims set out in paragraphs 19, 20, 2(e) and 2(f).

21In reaching this conclusion, I am mindful of the well established principle that the adjudication of human rights claims should not be approached in an overly technical way. Due consideration must always be given to the important nature of the rights being claimed. The Tribunal must also be sensitive to the fact that complainants may not be knowledgeable about legal practice and procedures.

22However, the Tribunal's process must nonetheless be fair and provide all parties to a proceeding a meaningful opportunity to present relevant evidence and establish their case including a defence.

23Bastarche J., writing for the majority in Blencoe v. British Columbia (Human Rights Commission), [2000] S.C.C. 44, 2000 SCC 44, 38 C.H.R.R. D/153 noted (at para 102) that inordinate delay may undermine the rights of a party and an administrative tribunal has the authority to provide an appropriate remedy:

There is no doubt that the principles of natural justice and the duty of fairness are part of every administrative proceeding. Where delay impairs a party's ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 9-67; W. Wade and C. Forsyth, Administrative Law (7th ed. 1994), at pp. 435-36). It is thus accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied.

24Although Blencoe dealt primarily with delay occasioned in the processing of a complaint, as opposed to delay in raising allegations, the Court was concerned with ensuring that a respondent was able to properly present its case and make full answer and defence. The above passage from Blencoe is particularly relevant in the present case. The Respondents here were first made aware that a claim was being made for overtime and vacation pay more than three years after the Complaint was filed and between four and seven years after the alleged violations would have taken place. The Respondents were not put on notice during the Investigation by the Commission that such claims were being advanced. They had no opportunity to search for and maintain records. They had no opportunity to interview witnesses and make notes. In my view the prejudice that the Respondents would face in defending these claims is manifest.

25The Commission argues that the Respondents ought to have maintained payroll records and if they "failed to comply with [their] legal obligations to maintain proper employment records, [they] should not be heard to complain of prejudice." With respect, I disagree. First, the Commission does not identify the source of the apparent legal obligation to maintain proper employment records. The Tribunal notes that Sections 15(9) and 15.1(5) of the Employment Standards Act 2000, S.O. 2000, c.41 set out the obligations of an employer for the retention of overtime and vacation pay records respectively. In both cases the time for retaining records by the employer would have passed at the point the Respondents were put on notice that a claim was being made.

26More importantly however, the issue before the Tribunal, if such a claim were allowed to be advanced, is not simply whether the Complainant worked and whether she was paid. Rather, a significant component of the issue is the circumstances under which she was allegedly asked to work, the discussions that surrounded that request and acceptance, and how other employees were treated. The Tribunal has no jurisdiction to provide a remedy for a breach of an employment contract or the Employment Standards Act without more. The breach must be tied to a violation of the Code. These other factors would be central to that determination. As I mentioned above, the long delay in stating the claim clearly hampered the ability of the Respondents to gather and maintain crucial facts and evidence.

27The Commission also asserted that the Tribunal has no supervisory jurisdiction over the conduct of the Commission and that a remedy for any alleged impropriety or mishandling of the Complaint prior to referral lies within the jurisdiction of the Divisional Court. It argued that it is only where a respondent can establish an abuse of process, and where that alleged abuse will have an effect on the Tribunal process can the Tribunal provide a remedy. In this regard the Commission relied upon the following cases: Joe v. University of Toronto (No. 1) (1995), 1995 CanLII 18192 (ON HRT), 25 C.H.R.R. D/472 (Ont. Bd. Inq.) Bui v. B & G Foods Inc. (2001), 2001 CanLII 26233 (ON HRT), 41 C.H.R.R. D/191 (Ont. Bd. Inq.) Jeffrey v. Dofasco Inc., [2001] O.H.R.B.I.D. No. 8

28While the Respondents did advance an "abuse of process" argument and the Commission has accurately articulated the relevant principles established in the jurisprudence, I do not believe it is necessary to determine this case on that basis.

29An argument based on abuse of process would focus on the conduct of the parties, from the filing of the Complaint, through the period of the investigation, the referral, and perhaps at the Tribunal itself. Typically, cases of abuse of process allege that the Commission failed to meet its statutory or common law fairness obligations, or its actions caused inordinate delay in having the matter referred to the Tribunal. Abuse of process cases also typically seek that the complaint be dismissed or permanently stayed in its entirety.

30In my view this matter can be disposed of on the basis of the obligation placed on every statutory tribunal: to ensure that the parties are afforded basic natural justice rights. Blencoe (supra) not only set out this fundamental principle, but also recognized it as separate from the ability to remedy an abuse of process. (See Blencoe supra at para. 104)

31In a sense, the present case is more in the nature of a request to amend a complaint, to add a new ground or claim which had not been part of the Complaint referred to the Tribunal. Indeed, on the Commission's own admission, it was not until after the Complaint had been referred to the Tribunal did it (the Commission) decide to add the allegation that the failure to provide vacation and overtime pay constituted a violation of the Code. That allegation was not set out in the original complaint, it was not part of the investigation, it was not in the Section 36 Case analysis, and therefore, was not something that was considered by the Commissioners when deciding to refer the complaint.

32Viewed in this way, the issue is not whether there has been an abuse of process, where some misdeed has been committed and the Respondent is seeking to strike out the entire claim. Rather it is a matter of whether the Tribunal should exercise its discretion to strike out a pleading where the pleading raises for the first time events which occurred between four and seven years earlier and which where known to the Complainant and the Commission prior to the Complaint being filed. In the circumstances it would be manifestly unfair to the Respondents to require them to defend these claims.

ORDER

Paragraphs 19 and 20 of the Commission's Statement of Facts and 2(e) and (f) of the Statement of Remedy shall be struck. The Registrar shall be in contact with the parties to arrange for continuation dates.