Perth v. Human Resources Capital Group Inc., 2008 HRTO 21

Human Rights Tribunal of Ontario

B E T W E E N:

Lise D. Perth

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Human Resources Capital Group Inc. Groupe Capital de Ressource Humaine Inc. c.o.b. Spherion Workforce Architects and Lise Paquette

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: April 9, 2008

Citation: 2008 HRTO 21

Indexed as: Perth v. Human Resources Capital Group Inc.

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

ORAL SUBMISSIONS BY:

Lise D. Perth, Complainant ) On her own behalf

Ontario Human Rights Commission ) Brian Smith, Counsel

Human Resources Capital Group Inc. ) Groupe Capital de Ressource Humaine Inc. ) Steven Williams, Counsel c.o.b. Spherion Workforce Architects, ) Corporate Respondent and ) and Lise Paquette, Personal Respondent )

INTRODUCTION

1This is a complaint arising out of the termination of the complainant’s employment on April 16, 2002. Lise Perth, the complainant, alleges that the termination was based on her age and that it therefore amounted to discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The corporate respondent, Ms. Perth’s former employer, is a temporary staffing agency. It takes the position that the termination of employment was based on valid business reasons without any consideration of the complainant’s age. The personal respondent was the complainant’s supervisor at the time of the events.

2This decision deals with the request of the Ontario Human Rights Commission (the Commission) to withdraw from the proceedings. Although in a general sense, the complainant accepts that the Commission may withdraw, she asks that it be directed to take some further steps to assist her in the Tribunal’s processes.

3As background to my decision, I provide the following chronology of some of the actions taken in this case. On June 26, 2007, the Commission referred the complaint to the Tribunal for a hearing. The parties attended mediation on August 30, 2007. An additional day was scheduled for mediation, which was subsequently cancelled. The parties had discussions and exchanged correspondence between September 2007 and January 2008 relating to settlement issues. Some of this discussion and correspondence involved all parties; some was between the complainant (through a representative) and the respondents or between the Commission and the respondents. On January 31, 2008, the Commission advised the complainant that it had reached a settlement with the respondents. At the time, there was an outstanding settlement offer from the respondents to the complainant.

4On February 7, 2008, the Commission served and filed a Request for Order During Proceedings, in which it set out the nature of and reasons for its request to withdraw. The complainant submitted a letter in response to which the Commission replied in writing. The Tribunal convened a conference call to hear the oral submissions of the parties on March 31, 2008. The respondents filed no materials, and took no position on the Commission’s request.

SUBMISSIONS OF THE PARTIES

5The Commission summarized the legal principles applicable to its request as the following:

• The Commission can withdraw from active participation in a hearing where it has reached a settlement with the respondents;
• A complainant is entitled to continue her hearing without the Commission;
• The Commission cannot be forced to retain active carriage of a case, or to account for the settlement it has reached, and
• The Tribunal may direct the Commission to take transitional steps necessary to avoid any abuse of process from occurring.

6The Commission relies on the following decisions, from which it extracted the above principles: Forde v. Artisan Screen Print Ltd. et al. (2001), 2001 CanLII 26226 (ON HRT), 40 C.H.R.R. 272 (BOI) (Forde); Davis v. 1041433 Ontario Limited o/a Trust Flooring Group et al., (2005), 2005 HRTO 1, 51 C.H.R.R. 433 (BOI) (Davis); McKenzie Forest Products Inc. v. Tilberg (No. 1) (1998), 1998 CanLII 29888 (ON HRT), 33 C.H.R.R. D/258, [1998] O.H.R.B.I.D. No. 16 (QL), restored on appeal in McKenzie Forest Products Inc. v. Ontario (Human Rights Commission) (2000), 2000 CanLII 5702 (ON CA), 48 O.R. (3d) 150, 37 C.H.R.R. D/316 (Ont.C.A.) (Tilberg).

7The Commission states that it has entered into Minutes of Settlement with the respondents that satisfy the Commission’s public interest mandate in the context of this complaint. Without divulging the content of the settlement discussions, counsel for the Commission provided a chronology of the efforts made to resolve the complaint, involving the complainant, the Commission, and the respondents. As indicated above, some of those discussions included all parties and some, particularly those leading to the settlement between the Commission and the respondents, were between the Commission and the respondents only. Commission counsel also described the status of the proceedings, including its full disclosure to the parties of all arguably relevant documents, deadlines for next steps to be taken, and the actions it took to inform the complainant of this request within the context of those deadlines.

8The Commission submits that there are no outstanding transitional issues that should lead the Tribunal to order it to take any action as a condition of withdrawal. As part of its request, the Commission has also asked that current deadlines for delivery of disclosure and pleadings be extended as reasonably necessary to allow the complainant some time to assume carriage of the complaint. The respondent has agreed to this request for an extension.

9As indicated, the complainant wishes the Tribunal to direct that the Commission continue some level of involvement, despite its settlement with the respondents. She asks that the Tribunal require the Commission to produce an affidavit “to explain their position on withdrawal in reply to the issues that I have raised in this letter.” She wishes the Commission to assist her in further mediation; to assist with disclosure; to provide guidance with the pre-hearing conference and any other conferences; to arrange for witnesses; to write and serve a statement of facts (with her input) and generally; to guide her throughout the process.

10In her letter, the complainant questions whether the Commission’s public interest mandate has been satisfied. She states that she has not been fully informed of all settlement discussions and decisions made. During her oral submissions, the complainant states that, in particular, she was not privy to the discussions between the Commission and the respondents. The complainant also suggests that the timing of the Commission’s request to withdraw prejudices her in considering an outstanding settlement offer from the respondents. She asks that the Commission communicate with the respondents with a view to extending the deadline on acceptance of the settlement offer.

DECISION

11Generally, the Commission has accurately summarized the principles and considerations that apply in these circumstances. It is clear from the decision of the Ontario Court of Appeal in Tilberg and other decisions that the Commission may withdraw from participating in a hearing before the Tribunal when its public interest mandate has been satisfied. It is also clear that the complainant is entitled to continue with the hearing even where the Commission has withdrawn.

12In Forde the Board of Inquiry canvassed the reasons why it should not require the Commission to justify the terms of a settlement when the Commission seeks to withdraw from a hearing. The Board concluded that it had no authority to compel the Commission to account for a settlement in the circumstances before it. Whether or not the issue is one of authority, I agree with the Board’s conclusion that there are sound policy reasons why it ought not to engage in such an inquiry when the Commission wishes to withdraw from active participation in a complaint on the basis that its public interest mandate has been satisfied. For this reason, I will not order the Commission to prepare an affidavit explaining its reasons for withdrawal, as requested by the complainant.

13I note here that the complainant also refers to the Davis decision to justify her request for an affidavit from the Commission. In that case, it appears that the Commission was directed to file an affidavit to provide evidence on how the Commission had dealt with the transition issues there. In the case before me, the Commission has provided this information by letter, which account is not substantially disputed by the complainant. I see no reason to require a formal affidavit from the Commission in support of the request to withdraw.

14Even when it is not unreasonable for the Commission to withdraw from participating in a hearing before the Tribunal when its public interest mandate has been satisfied, the Tribunal retains authority to supervise the withdrawal. It may require the Commission to take additional steps, depending on the circumstances. The Commission also recognized in its submissions before me that the Tribunal may supervise the transition in the carriage of the complaint from the Commission to the complainant. In Forde, the Board of Inquiry did not confine the nature of the Tribunal’s concern to preventing “abuse of process” as submitted by the Commission. Rather, the Board found it had a more general power to “ensure that the logistics of that transition proceed in a manner that is not prejudicial to the interests of the complainant or to those of the Board itself in the conduct of a fair and efficient hearing” (Forde, para.45).

15The conclusions to be drawn from of all of the above are that the Tribunal has a role in overseeing the Commission’s decision to withdraw from active participation in a complaint, but generally, the scope of its role is related to issues arising out of the transition. The Tribunal will make directions as necessary to minimize the prejudice to the complainant in making the transition from a case in which the Commission has the burden of putting forward the case for hearing, to one in which the complainant will take on that burden.

16It should be apparent that whether or not such directions are issued depends on the particular circumstances of a case. On my review of the circumstances of this case, I am satisfied that no special directions are necessary. The Commission provided the complainant with notice of its intent to withdraw, even before it brought its formal request to the Tribunal. The request comes at a stage of the process which provides the complainant with reasonable time to prepare for a hearing, if any. The Commission has, in response to the complainant’s request, secured the respondents’ agreement to extend a deadline on the acceptance of an offer of settlement. The respondents have agreed to leave that offer open until ten days after this decision. If the matter does not settle, the Commission has also requested, and the respondents have agreed to, extensions of the deadlines for filing hearing materials in this matter. The Commission has provided full disclosure of all arguably relevant documents.

17In this context, I do not find it appropriate to make the directions sought by the complainant. I am satisfied that the Commission (with the co-operation of the respondents) has sought to minimize the prejudice to the complainant from the transition in this case. The measures requested by the complainant extend beyond transition issues and are in effect, a plea that the Commission continue with its active participation in the case. This is not an outcome, however, that I can direct in the circumstances of this case.

18I recognize that the Board, in Forde found it appropriate to order the Commission to prepare a statement of facts. However, it certainly did not suggest that this would be a necessary measure in every case where the Commission seeks to withdraw. As the Commission points out, there may be difficulties with such a direction under the Tribunal’s Rules of Practice, January 31, 2008 which require that such a statement set out the facts upon which a party “intends to rely.” In any event, given the complainant’s desire in this case to have input into such a statement of facts, I find it best to leave it to her sole judgement to decide what to include in it.

19The complainant has expressed the concern that she was not fully informed of all settlement discussions, referring particularly to the discussions between the Commission and the respondents. The Tribunal does not prohibit private discussions between some of the parties to a complaint, and the fact that they occurred does not give rise to any basis for a direction from me. She has also provided information about matters or evidence that she feels should have been raised during the settlement discussions. On this basis, the complainant wishes the Commission to continue to support her in the settlement process. Again, this is not a remedy I can provide to the complainant. Having accepted that the Commission may withdraw from active participation, I find no basis to order its continued involvement in any settlement discussions. Following the Commission’s withdrawal, the complainant is free to pursue these matters with the respondents if and as she sees fit.

20In sum, the Tribunal allows the Commission’s request to withdraw from active participation in these proceedings. Having regard to the parties’ submissions, pleading dates will be set by the Tribunal ten days after the release of this decision, unless the parties advise that there has been a settlement of the complaint. The Commission will continue to receive notice of the proceedings.

21I am not seized.