HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Barbara Boldt-MacPherson
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
The Hoita Kokoro Centre and John Hoita
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Boldt-Macpherson v. The Hoita Kokoro Centre et al
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@ontario.ca Website www.hrto.ca
APPEARANCES
Barbara Boldt-MacPherson, Complainant ) On her own behalf
Ontario Human Rights Commission ) Cathy Pike, Counsel
The Hoita Kokoro Centre and John Hoita, ) Harry Kopyto, Legal Agent Respondents )
Introduction
1This Interim Decision addresses the following preliminary matters: (1) a motion brought by the complainant to amend the pleadings filed by the Commission on her behalf; (2) a motion by the respondents to quash or dismiss the complaint for lack of timeliness and laches; and (3) the Commission’s request that certain information provided in response to the Tribunal’s request for clarification of the pleadings be treated as a “guide” to the Commission’s case and not limit the Commission’s ability to make submissions at the close of the hearing.
BACKGROUND
2The complaint in this matter was filed on September 21, 2004 and alleges that the complainant experienced discrimination and harassment in her employment because of her sex, sexual solicitations and advances, and reprisal in violation of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). This complaint was referred by the Commission to the Tribunal by letter dated April 26, 2007.
3At the Pre-Hearing Conference Call held on January 18, 2008, the complainant indicated that she wanted to amend the pleadings which had been filed on her behalf by the Commission. The complainant was required to file her proposed amendments by February 4, 2008. The respondents were afforded until February 18, 2008 to file submissions in response to the proposed amendments, but did not do so.
4Also at the Pre-Hearing Conference Call, the Commission and the complainant were asked to provide clarification by February 4, 2008 regarding the specific material facts being relied upon to support each of the alleged Code violations and how each fact relates to the alleged violation. Thereafter, the respondents were afforded until February 18, 2008 to raise any issues regarding lack of timeliness or laches. In light of the respondents’ submissions received on February 12, 2008, it was not necessary to hear any response from the Commission or the complainant on this issue.
DISCUSSION AND ANALYSIS
Complainant’s motion to amend pleadings
5Section 39(1) of the Code provides that the Tribunal shall hold a hearing to determine whether a right of the complainant has been infringed. This clause empowers the Tribunal to amend the complaint as necessary so as to hear and determine the substance of the discrimination allegation: Jeffrey v. Dofasco Inc., (2000) O.H.R.B.I.D. No.11 (Ont. Bd. Inq.).
6When considering whether to amend the complaint to add additional allegations, the Tribunal will consider several factors including:
a. Whether the additional allegations flow from or form part of the continuum of facts of the original complaint,
b. Whether the allegations provide a useful context for considering the legal issues in the case,
c. The reasons for raising the allegations at this date,
d. The quality of the evidence to support the additional allegations,
e. Whether the amendment would occasion actual prejudice to the respondents so that a fair hearing on the issues could not be held, and
f. The impact of the proposed amendment on the course of the hearing and the other parties.
Odell v. Toronto Transit Commission (No. 1) (2001) 2001 CanLII 26210 (ON HRT), 39 CH.R.R. D/200; Musty v. Meridian Magnesium Products Ltd. (1998) 1998 CanLII 29886 (ON HRT), 35 C.H.R.R. D/237; Davis v. Trust Flooring Group and Ken McAulay 2005 HRTO 1
7In the instant case, the complainant first seeks to make amendments to paragraphs 1, 2, 3 and 9 of the pleading. In the material submitted by the Commission in response to the Tribunal’s direction to provide clarification regarding what material facts were being relied upon to support each alleged violation of the Code, it is stated that “paragraphs 1 through 11 of the statement of facts are a necessary part of the background to the complaint [that] speak to the power imbalance between the complainant and respondent” and “these paragraphs do not, in themselves, constitute actionable items”. As a result, I do not see the necessity for the amendments requested to these paragraphs.
8The complainant next seeks an amendment to paragraph 14 which appears to involve a deletion of the sentence, “The sexual contact continued until 2004”. Paragraph 14 is a key paragraph that sets out material facts in support of the allegation of sexual solicitation. No reason is provided by the complainant as to why this amendment is being sought, nor is any clarification provided as to when the sexual contact is now alleged to have ceased. Nonetheless, the amendment is granted as I regard this request as more in the nature of a clarification as opposed to a new allegation. No prejudice should be caused to the respondents as a result of this amendment, and they will be free to question the complainant as to why this change was made.
9The complainant seeks to amend paragraph 22 to add a number of allegations relating to the period during which she worked for the respondents from July 2002 to March 2004. The first allegation the complainant wishes to add is that she “frequently found used condoms in the treatment offices while cleaning up and preparing the room for another client”. This allegation does not appear in the complaint filed three and a half years ago, and no explanation is provided as to why this allegation is being raised now. However, no allegation of actual prejudice has been raised by the respondents. I will allow the amendment, but will consider the lateness of this amendment in weighing the evidence and making my findings.
10Paragraph 22 already includes the allegation that the complainant was not allowed to leave the respondent’s premises unless it was to do something for him. The complainant seeks to amend this statement to add “like picking up Contact C”. As this is merely an example to illustrate an allegation already made, I will allow this amendment.
11The last proposed amendment to paragraph 22 is to add the allegation that “the complainant also was never allowed to call in sick if she or her son were ill as he threatened to close the business leaving her without an income instead he gave her more pharmacopeias with bottles that were already opened to take which only made things worse.” Once again, no explanation is provided as to why this amendment is being sought at this late stage. In this instance, the complaint does include the allegation that the respondent John Hoita would threaten to close the business and move away, but ties this allegation to the complainant’s protestations that she did not wanted to be treated this way or wanted it to stop rather than to the complainant calling in sick. No allegation of giving the complainant pharmacopeias is raised in the complaint. Once again, however, as no allegation of actual prejudice has been raised by the respondents, I will allow the amendment but will consider the lateness of this amendment in weighing the evidence and making my findings.
12With regard to paragraph 27 of the pleading, the complainant seeks to clarify that the respondent did not actually follow her “in” to the women’s washroom, but rather followed her “to” the women’s washroom. As this amendment is merely a matter of clarification, I will allow it.
13The complainant seeks to add a new paragraph 30 that contains further allegations of reprisal. In particular, the complainant alleges that the respondents committed an act of reprisal by “maligning” her in a letter dated October 10, 2007 sent to the Criminal Injuries Compensation Board (“CICB”). The complainant further alleges reprisal in relation to certain requests for disclosure made by the respondents to the Commission. I will allow an amendment to set out the former allegation, as it is specific and flows from the continuum of facts in the original complaint. With regard to the latter allegation pertaining to disclosure requests made to the Commission, I will not allow this amendment as the allegations provide no basis upon which to assert a claim of reprisal.
14Finally, the complainant asks to amend the pleading to claim special damages in the amount of $25,000 as she has not been able to work full time since March 2004 because of trauma. As this is merely a claim for relief rather than a new allegation, the amendment is allowed.
15In correspondence dated February 4, 2008, the Commission corrected some minor errors in the pleadings. These corrections are typographical and not substantive in nature. However, since amended pleadings will be filed, the Commission will now have the opportunity to correct these errors.
16For the foregoing reasons, the complainant’s request to amend paragraphs 14, 22, 27 and 30 (limited only to the October 10, 2007 letter to the CICB) and the desired remedies are granted. The Commission and complainant shall file amended pleadings in accordance with this decision by March 7, 2008. The respondents shall have an opportunity to file an amended response by March 18, 2008.
Respondents’ motion to dismiss complaint for lack of timeliness and laches
17The respondents request that the complaint be dismissed on the basis of lack of timeliness and laches. The respondents state that the delay in this matter has been egregious, with relevant facts being relied upon going back more than ten years. The respondents assert that a delay that is egregious is presumptively prejudicial because of the significant effect on witness’s recollection of events. The respondents further assert that although there is no formula for determining what period of delay constitutes laches, there are periods of time much shorter than the delay in the instant case that have been found to be laches. No authorities are cited for either of these propositions.
18As stated by the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44, [2000] S.C.J. No. 43, delay, without more, will not warrant a stay of proceedings in a human rights matter. Staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period. However, where delay impairs a party's ability to answer the complaint against him, because memories have faded, or evidence is lost, or witnesses have died, then administrative delay may be invoked to impugn the validity of the proceedings and provide a remedy.
19The test for whether a Tribunal hearing may proceed despite delay without an abuse of its process or a denial of natural justice is the following: whether or not on the record there is evidence of prejudice of such magnitude as to impact on the fairness of the hearing: Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (1995), 1995 CanLII 7431 (ON CTGD), 24 C.H.R.R. D/464 (Div. Ct.) at para. 9; Jeffrey v. Dofasco No. 4 (2004) 49 C.H.R.R. D/27 (Ont. Bd.of Inq.) at para 145.
20In the instant case, it is asserted that, given the inevitable fading of memories, the respondents will be in a difficult position to present credible evidence in their defence. The respondents’ submissions further assert that relevant documents that would have been tendered and several witnesses that would have been called to refute the allegations are no longer available because of the passage of time. In both instances, the submissions state that details could be provided. In response, the Tribunal wrote to the respondents to make it clear that it is the respondents’ responsibility to bring forward any evidence in support of their motion and to invite the submission of any such evidence by the deadline of February 18, 2008. No such evidence was provided.
21I have considerable sympathy for the respondents’ concerns about delay in this matter. The alleged events referenced in the first 11 paragraphs of the pleadings extend back to 1986 – a period of over twenty years. While the Commission and complainant have clarified that these allegations are not “actionable items” upon which they are seeking a finding that the Code has been violated, they nonetheless assert that these events form part of a “necessary background” to the matters at issue. Further, the allegations of harassment and sexual solicitation extend back to October 1997, almost 10 years ago and some seven years prior to the filing of the complaint.
22Nonetheless, in the absence of any evidence of actual prejudice to the respondents, I am not prepared to dismiss the complaint at this stage of the proceeding. I will, however, take the delay into account in assessing the evidence at the hearing, mindful of the fact that it is the burden of the Commission and the complainant to provide reliable evidence to support the allegations of Code violations.
23The respondents further state that they assume that the facts asserted in their submissions are presumed to be true, failing which they assert the right to call oral evidence in support of their motion. Pursuant to Rule 7 of the Tribunal’s Rules of Practice (formerly Rule 6), the Tribunal has the discretion to conduct any part of a proceeding in writing. On the Pre-Hearing Conference Call in this matter, it was made clear to the parties that the respondents’ motion, as well as other preliminary matters, would be heard by the Tribunal in writing in advance of the commencement of the hearing on the substance of the complaint in accordance with the timetable established by the Tribunal. The respondents were afforded an opportunity to submit evidence in support of their motion, but failed to do so. The respondents’ request for a further oral hearing of their motion is denied.
Commission’s letter dated February 4, 2008
24Finally, I will address the status of the Commission’s letter dated February 4, 2008. Following the Pre-Hearing Conference Call in this matter, the Tribunal directed the Commission and the complainant to provide clarification regarding what material facts were being relied upon to support each alleged violation of the Code. This clarification was provided in the Commission’s February 4, 2008 letter.
25However, in this letter, the Commission states that “in the normal course of events, the Commission is not required to provide its ‘theory of the case’” and requests that the Commission’s response to the Tribunal’s direction be treated as a “guide” to the Commission’s case, and not as a limit on the submissions that the Commission may make at the close of the hearing.
26In a proceeding before the Tribunal, a respondent is entitled to know what Code violations are being alleged and what material facts are being asserted in support of the alleged violations. This is required in order to afford respondents with proper notice as required by Rule 57(a) of the Tribunal’s Rules of Practice and section 8 of the Statutory Powers Procedures Act. As stated by Vice-Chair Wright in Sinclair v. London (City) 2008 HRTO 11 at para. 13:
The purpose of requiring the filing of pleadings is to ensure that each party provides the Tribunal and the other parties with a firm understanding, prior to the commencement of the hearing, of its version of events and the position it takes on the issues in the case. No one is taken by surprise and the matter can proceed fairly and efficiently.
27The Commission’s letter is more than a mere “guide” but represents notice of the alleged Code violations and the material facts being relied upon in support of these alleged violations. While this may not preclude the Commission or the complainant from asserting further or other alleged Code violations or further or other material facts in support of alleged Code violations if evidence arises during the course of the hearing which was not previously known, the respondents are entitled not just to a “guide” but to complete and proper notice of alleged Code violations and supporting material facts to the extent known at this time.
28Accordingly, the Commission’s request that its February 4, 2008 letter be treated as a “guide” is denied, and this letter will be regarded as part of the Commission’s pleadings.
ORDER
29For all of the foregoing reasons, the Tribunal makes the following Order:
a. The Commission and complainant shall file amended pleadings in accordance with this decision by March 7, 2008, and the respondents shall have an opportunity to file an amended response by March 18, 2008;
b. The respondents’ request for dismissal of the complaint due to lack of timeliness and laches is denied, including their request to present oral evidence in support of the motion; and
c. The Commission’s February 4, 2008 letter shall form part of the pleadings.
Dated at Toronto, this 27th day of February 2008.
“Signed by”
Mark Hart
Vice-Chair```