Ontario Human Rights Commission v. Paradise Fine Foods Ltd., 2007 HRTO 15

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Joseph Modi Complainant

-and-

Paradise Fine Foods Ltd. Sayed Ben Aycha, Muhamad Omarbach Respondents

INTERIM DECISION

Adjudicator: David Mullan Date: May 18, 2007 Citation: 2007 HRTO 15

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 Ontario Human Rights Commission (“Commission”) has brought a motion for the dismissal of an application for costs on the basis that the Tribunal lacks jurisdiction to award costs in this case.

decision

2The motion is dismissed.

facts

3On March 21, 2007, I made a decision on a complaint brought by the Commission and Joseph Modi alleging various forms of discrimination against two Personal Respondents, Sayed Ben Aycha and Muhamad Omarbach, and a corporate respondent, Paradise Fine Foods Ltd. I upheld the complaint against Sayed Ben Aycha and the Corporate Respondent but dismissed the complaint against Muhamad Omarbach.

4This prompted counsel for Mr. Omarbach to make an application for costs under section 41(4) of the Ontario Human Rights Code (“Code”). It provides:

(4) Where, upon dismissing a complaint, the Tribunal finds that,

(a) the complaint was trivial, frivolous, vexatious or made in bad faith; or

(b) in the particular circumstances undue hardship was caused to the person complained against,

the Tribunal may order the Commission to pay to the person complained against such costs as are fixed by the Tribunal.

issue

5Does section 41(4) of the Code confer jurisdiction on the Tribunal to entertain an application for costs made by a successful respondent or respondents where the Tribunal has sustained a complaint of discrimination against one or more respondents but dismissed it against one or more other respondents?

analysis

6This is not a novel issue. In Ontario Human Rights Commission and Bryan v. Premark Canada Inc., Colegate and Stethem (“Premark”), [1999] O.H.R.B.I.D. No. 5 (May 31, 1999), Adjudicator MacNaughton determined that she (acting as a Board of Inquiry) had jurisdiction to entertain an application for costs in similar circumstances. She stated that to interpret section 41(4) as precluding an award of costs in such cases

…would lead to the most unfair result that the Commission could proceed in bad faith, or on a trivial, frivolous or vexatious basis against several respondents and, so long as liability was found against one of the respondents, the remaining respondent would have no recourse to section 41(1)(sic).

7In so doing, she distinguished the earlier decision of the Board of Inquiry in Naraine v. Ford Motor Co. of Canada (No. 6) (“Naraine”) (1997), 1997 CanLII 24811 (ON HRT), 28 C.H.R.R. D/275 (Backhouse), where it was held that section 41(4) precluded an award of costs in favour of a corporate respondent against which parts but not all of a complaint had been dismissed. In the critical paragraph of her decision on this point, Adjudicator Backhouse stated:

[16] The wording of s. 41(4) is not, on its face, particularly instructive on this question. The phrase “upon dismissing a complaint” might be construed to mean the “entire complaint” or “a portion of a complaint”. Further assistance can be drawn from reviewing the whole subsection, which appears to have set forth very restrictive rules regarding costs. Costs can only be awarded against the Commission. Awards can only be awarded in favour of respondents. The Board is empowered to exercise its discretion only in limited and circumscribed situations. The very restrictiveness of the subsection as a whole would suggest that the legislature intended such awards of costs to be anomalous and unusual events. In keeping with the tenor of the rest of the subsection, it seems proper to conclude that the entirety of the complaint (or complaints in cases where multiple complaints are filed) must be dismissed before an award of costs is permissible.

She then went on to state that an expansive interpretation of section 41(4) could have a “chilling effect” on the way in which the Commission carried out its mandate of determining which cases it should refer for public adjudication.

8It is, however, interesting that Adjudicator Backhouse, after holding that she would have dismissed the corporate respondent’s application for costs in any event, then went on to deal, under a completely separate heading, with an application for costs by personal respondents against whom the complaint had been dismissed. In so doing, she did not at any point explicitly qualify her consideration of the merits of these applications by stating (as she had in the case of the corporate respondent) that she was only doing so to guard against the possibility that she did have jurisdiction to entertain them

9Both the Commission and counsel for Muhamad Omarbach addressed Premark and Naraine in their written submissions on the motion. The Commission urged me to treat these two cases as irreconcilable and to characterize Adjudicator MacNaughton’s reading of Naraine in Premark as involving a misinterpretation of Adjudicator Backhouse’s decision. According to the Commission, Adjudicator Backhouse’s conclusions on the meaning of section 41(4) were intended to apply just as much to the situation of a respondent against whom a complaint had been dismissed as they did to a respondent against whom part but not all of a complaint had been dismissed. In short, her consideration of the merits of the application for costs by the individual respondents was inserted just in case she had been incorrect on the issue of jurisdiction. The Commission also submitted that for the policy reasons identified by Adjudicator Backhouse, I should prefer the conclusion that she reached as to the meaning of section 41(4) to that of Adjudicator MacNaughton in Premark.

10In contrast, counsel for Muhamad Omarbach asserted the alternative interpretation of Adjudicator Backhouse’s decision in Naraine and Adjudicator MacNaughton’s distinguishing of it in Premark. He argued that, as a matter of statutory interpretation, Adjudicator MacNaughton had been correct and that section 41(4) allowed any respondent against whom a complaint had been dismissed in its entirety to seek costs against the Commission.

11I am not bound by previous decisions of the Tribunal (or Board of Inquiry). Nonetheless, considerations of comity and consistency clearly indicate that I should have serious reasons for departing from a well-established and consistently applied line of jurisprudence on a particular issue. However, particularly given the ambiguity in Adjudicator Backhouse’s decision in Naraine, that is not the situation here. I am therefore required to evaluate afresh whether I have jurisdiction to award costs in this matter.

12In the Code, there is no doubting the proposition that, at least at points (e.g. s. 39(2)(a), s. 39(6)), the term “complaint” refers to the entirety of the matter that is before the Tribunal. It embraces all of its various components, including the entire range of allegations under consideration and the various parties, whether named by the Commission or added by the Tribunal under section 39(2)(d). Indeed, as the Commission notes in its written submissions, the Code refers at points to what is before the Tribunal as “the subject-matter of the complaint”: e.g. ss. 36(1), 39(1). This too lends credence to the argument that “complaint” in section 41(4) means the complaint in its entirety.

13However, section 41 (the heading to which is “Orders of Tribunals”) has as its initial focus the authority of the Tribunal to make orders with respect to “a party to the proceeding”. Thus, in its first two subsections, there is a listing of the orders that the Tribunal may make against any party to the proceedings against whom it has made a finding. This lends considerable credence to the argument that subsection 4 also has as its target the situation of individual parties or respondents to the proceedings, and that the words “against a party to the proceeding” are present by way of necessary inference after “complaint” in the opening clause of that subsection. Indeed, that argument gains strength from the fact that subsection 4(b) refers to the hardship “caused to the person complained against”. (emphasis added) In other words, for the purposes of section 41 (including subsection (4)), the various components of the overall complaint are disaggregated at least as they relate to each party or person complained against.

14As against this reading, the Commission asserts that the proper approach to the interpretation of section 41(4) is one that accords with the obvious overall legislative intention that the Tribunal have only a very restricted jurisdiction to award costs. In situations where there are reasonably competing interpretations, the Tribunal, according to the Commission, should adopt the version that protects the Commission from an award of costs thereby avoiding a situation where the Commission might feel under the threat of potential fiscal consequences for referring a complaint to the Tribunal. To paraphrase Adjudicator Backhouse in Naraine, there should be no such “chill” when the Commission is evaluating whether to send a case to the Tribunal. More generally, the Commission argues, this interpretation better promotes the overall purposes of the Code and judicial edicts that the Code be interpreted in a liberal and purposive manner “with a view to broadly protecting the human rights of those to whom it applies”: B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403, a para. 44. In short, by narrowly interpreting a provision permitting an award of costs against the Commission, the Tribunal would be interpreting the Act in a liberal and purposive manner and better protecting human rights as advanced through the Code and its complaint investigation and adjudication mechanisms.

15The Commission also argues in favour of a restrictive interpretation of section 41(4) from the proposition that tribunals have no inherent jurisdiction to award costs, only that which the statute confers specifically on them. Where there is any doubt, the Tribunal should rule against jurisdiction.

16However, as the Supreme Court of Canada makes clear in Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476, at paras. 20-42 (Gonthier J.), the “modern approach” to statutory interpretation requires those seeking a meaning in legislation to start with the wording of the particular provision and to read it contextually in the sense not just of the Act as a whole but first as part of the specific context in which it appears. The specific context here is one in which the legislature has very deliberately chosen to confer jurisdiction (in the form of a discretion) on the Tribunal to award costs in the case of complaints that are trivial, frivolous, vexatious, or made in bad faith, or where the defence of the complaint has caused undue hardship to a person complained against. In making such awards discretionary and in predicating their availability on preconditions that on their face will not be easy to establish, the legislature has certainly sent a strong message that it was very much opposed to an automatic right to costs in all cases where a complaint is dismissed. On the other hand, it is hard to conceive of a reason the legislature would want to exclude from the potential (and it is only that) benefit of the discretion any category of successful respondent. There is no logical policy justification for a provision that denies a person the possibility of costs simply because the finding in her or his favour occurred in the context of proceedings where there were other parties found in violation of the Act as opposed to a situation where that person was the only respondent. A complaint against a person is no less trivial, frivolous, vexatious, or made in bad faith, or causes less hardship because it comes in a context where others are also named and ultimately found responsible. Indeed, in the sense of the harm caused by the length and complexity of the proceedings, certain elements of any hardship occasioned by the complaint may be greater in such cases than where the person seeking costs is a sole respondent.

17In terms of the different situations before the Boards of Inquiry in Naraine and Premark, it is also easy to understand why the legislature might choose to differentiate between situations where the complaint against an individual is dismissed wholly and those where the respondent is only partially successful. From a policy perspective, those who are in some way responsible for discrimination may have less entitlement to an award of costs for defending those aspects of the complaints that have not been sustained than those who have been totally exculpated.

18For these reasons, I therefore reject the submissions of the Commission that the Tribunal does not have jurisdiction to award costs in favour of Muhamad Omarbach in this case. The discretion conferred by section 41(4) of the Code covers any situation where a complaint against a person complained against is dismissed, including cases where complaints against another person or other persons have been sustained.

order

19The motion is dismissed and the Registrar is directed to contact the parties with a view to establishing a date for the hearing of the merits of Muhamad Omarbach’s application for costs against the Commission.