Smith v. Menzies Chrysler Incorporated, 2008 HRTO 37

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William David Smith

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Menzies Chrysler Incorporated, Tom Graham, Clark Menzies and Mark Lyons

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 13, 2008

Citation: 2008 HRTO 37

Indexed as: Smith v. Menzies Chrysler Incorporated

Human Rights Tribunal of Ontario 400 University Avenue, 7^th^ 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

William David Smith, Complainant ) Paul McKeever, Counsel

Menzie Chrysler Incorporated, ) Richard J. Mazar, Counsel Clark Menzies, Mark Lyons, ) Respondents )

Tom Graham, Respondent ) Paul D. Mack, Counsel

Ontario Human Rights Commission ) Megan Evans Maxwell, ) Counsel

INTRODUCTION

1These are my reasons with respect to various pre-hearing motions brought by the respondents in the complaint of Smith v. Menzies Chrysler Incorporated et al., including a motion for an order to stay or dismiss the complaint currently before the Tribunal.

BACKGROUND

2The complainant, William David Smith, filed a complaint with the Ontario Human Rights Commission (the “Commission”) on December 14, 2006. The complaint alleges discrimination, harassment and reprisal in employment on the basis of sex and sexual orientation.

3The respondents in this matter are Menzies Chrysler Incorporated, Clark Menzies, Mark Lyons and Tom Graham (the “respondents”). Menzies Chrysler Incorporated, Clark Menzies and Mark Lyons are collectively represented and will be referred to as the “Group respondents”. Tom Graham is separately represented and will be referred to as “personal respondent Graham”.

4The complainant was employed by Menzies Chrysler Incorporated (“corporate respondent”) as a used-car salesperson for three periods from 2003 to 2006. Personal respondent Menzies was the proprietor-manager of the car dealership. Personal respondent Lyons was a supervisor and also a manager of the car dealership. Personal respondent Graham worked with the complainant as a used-car salesperson and is alleged to have been the main perpetrator of the discrimination and harassment during the complainant’s final period of employment.

5The complainant’s employment was terminated in September 2006 and he filed his human rights complaint in December 2006. In March 2007, the complainant commenced a civil action in the Ontario Superior Court of Justice against the corporate respondent and personal respondent Graham alleging wrongful dismissal, infliction of mental harm, negligence, assault and conspiracy.

6The respondents deny the human rights allegations and allege that the complainant was dismissed due to poor performance. The respondents further allege that the complainant filed the human rights complaint in order to seek revenge against personal respondent Graham and deflect attention from fraud charges laid by the corporate respondent against the complainant.

7The parties advise that the civil action, although underway, is still in the preliminary stages. The defendants to the civil suit (the corporate respondent and personal respondent Graham) are in the process of pursuing a motion for particulars from the complainant. The defendants have yet to file a Statement of Defence.

8The Commission referred this complaint to the Tribunal on October 11, 2007 and on October 19, 2007, the Registrar issued a “Notice of Initial Conference Call”. The Initial Conference Call commences the legal proceeding before the Human Rights Tribunal of Ontario pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). During the Initial Conference Call on November 14, 2007, counsels for both the Group respondents and personal respondent Graham requested that the Tribunal hear their motion that the complaint be dismissed for abuse of process. Consequently, timelines for service of motion materials and a motion date were scheduled.

9At the end of the motion day on January 18, 2008, I directed all parties to file pleadings setting out their statement of facts, issues and remedies. I further requested submissions clarifying the chronology of the civil action, the judicial consideration of competing lines of jurisprudence, and the parties’ positions with respect to the issue of an alleged improper motive for filing a human rights complaint. The parties filed their pleadings and additional written submissions at the end of March 2008.

MOTION DAY RULINGS

Bias Motion

10At the outset of the motion on January 18, 2008, Mr. Mack, counsel for personal respondent Graham, asked that I recuse myself as the Vice-Chair for apprehension of bias. Mr. Mack stated that the basis for his request was that he perceived that he and I had “clashed” during the Initial Conference Call and that he was concerned any “disfavour” towards him may be carried over to his client.

11When asked to indicate his position, Mr. Mazar, counsel for the Group respondents, stated he supported the bias motion. Mr. Mazar noted that, during the Initial Conference Call, Mr. Mack, counsel for personal respondent, had “made a couple of humorous comments” which precipitated my request that Mr. Mack refrain from this type of humour. Mr. Mazar asserted that my request to Mr. Mack gave rise to “potential bias” and may have an effect on the proceeding.

12Counsel for the Commission objected to the respondents’ request that I recuse myself and stated that there was no evidence to support an allegation of reasonable apprehension of bias. Counsel for the complainant stated he “did not hear anything during the Initial Conference Call that would indicate a basis for reasonable apprehension of bias”. He further submitted that no client parties were present on the conference call and a perception by a counsel of disfavour against counsel cannot be said to pertain to his client.

13After recessing to carefully consider the parties’ submissions, I made a brief oral ruling finding that my direction to Mr. Mack during the Initial Conference Call asking him to refrain from a certain line of humour did not give rise to a reasonable apprehension of bias. The following are my reasons detailing that decision.

14As I noted in my oral ruling, the threshold test for reasonable apprehension of bias promulgated by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 is a high standard. The apprehension of bias must be both reasonable and serious, supra at 395. The test, at 394, is as follows:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly.

15The only concern articulated by the respondents as the basis for an apprehension of bias was my single request to Mr. Mack during the Initial Conference Call. Specifically, I asked Mr. Mack, to refrain from joking about the allegations in the case. I note that Mr. Mack acceded to my request and no further discussion regarding this matter occurred.

16Upon considering the above-noted test in the context of the exchange between Mr. Mack and myself, I concluded that the circumstances of the Initial Conference Call did not give rise to a reasonable apprehension of bias. I held that a reasonable person, viewing the matter realistically and having thought the matter through, would not perceive my direction to Mr. Mack reflected a lack of neutrality about the current dismissal motion or a predisposition towards the merits of the complaint. I concluded the alleged “disfavour” did not meet the threshold necessary to support disqualification for a reasonable apprehension of bias. Accordingly, the motion to recuse for apprehension of bias was dismissed.

17I add that, in certain circumstances like this case, a simple request by an adjudicator to counsel to refrain from a particular line of humour is consistent with the Vice-Chair’s responsibilities to foster an atmosphere conducive to a judicial process and respectful of, and sensitive to, the human rights issues that come before the Tribunal. Although Tribunal hearings can be less formal and legalistic, particularly with respect to rules of evidence, so as to promote accessibility, flexibility and expeditiousness, a relaxed tone to the proceedings does not diminish the seriousness of the rights, responsibilities and defences provided under the Code. A human rights hearing is a legal proceeding and it is critical that all parties, including counsel or representatives, maintain a level of decorum fitting the quasi-judicial nature of the process and necessary for the orderly administration of the Tribunal hearing.

Request to Examine Complainant’s Counsel

18This Interim Decision also deals with a request by the respondents to examine the complainant and complainant’s counsel, Paul McKeever.

19As part of their motion to dismiss, the respondents sought to examine Mr. McKeever regarding his alleged improper practice of initiating both a civil action and a human rights complaint. Counsel for the Group respondents asserts that the respondents should be allowed to question Mr. McKeever as to the content and nature of the civil action and human rights complaint in this case. Counsel for personal respondent Graham indicated it was necessary to examine Mr. McKeever in order to demonstrate Mr. McKeever’s alleged tactic of “leveraging settlements” by simultaneously launching two claims. Topics identified by the respondents as potential areas of examination included Mr. McKeever’s “tactical decision” in filing both a human rights complaint and civil lawsuit and his similar “abnormal legal practise” in other cases, as well as possible contingency fee arrangements.

20Counsels for the Commission and complainant objected on the basis that the proposed topics of inquiry, as well as the purpose of the examination (namely to obtain discovery regarding litigation strategy and advice given by Mr. McKeever and fee arrangements), were irrelevant, privileged and highly prejudicial. The Commission and complainant pointed out that if such an examination of Mr. McKeever was permitted, it would effectively compel the complainant to retain a new solicitor.

21After deliberating on the parties’ submissions, I made an oral ruling denying the respondents’ request to examine complainant’s counsel on the basis that the areas of inquiry identified by the respondents, in particular litigation strategy, legal advice and financial arrangements with this complainant, as well as other clients, are confidential matters and communications shielded by solicitor-client privilege.

22In Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809 at para. 16, Major J., on behalf of the Supreme Court of Canada, described solicitor-client privilege as “all-encompassing” and held that it applies to a broad range of communications between lawyer and client “…as long as the communication falls within the usual and ordinary scope of the professional relationship.” The Court confirmed that solicitor-client privilege is “nearly absolute” and that “exceptions to it will be rare”, at para. 18.

23The respondents seek to examine complainant’s counsel in order to explore Mr. McKeever’s alleged pattern of pursuing both human rights and civil claims. The respondents have proffered no other purpose or rationale for a line of examination that will necessarily intrude upon solicitor-client privilege. I find the contention that Mr. McKeever routinely advises his clients to seek human rights and civil recourse does not address the question of whether the continuance of this proceeding would amount to an abuse of the Tribunal's process, and consequently does not justify an incursion into areas sedulously protected by solicitor-client privilege. I further note that sections 5.4(2) and 15(2)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA), bar an order for disclosure or admission of privileged information.

ISSUES

24The following issues remained outstanding from the motion date:

1. Should this complaint be stayed or dismissed because to proceed would constitute an abuse of process?

2. Should the respondents be permitted to examine the complainant?

DECISION

25On April 14, 2008, I rendered a “bottom line ruling” denying the respondents’ request to examine the complainant and further refusing their motion to stay or dismiss the hearing. Accordingly, this matter will proceed to a full hearing of the merits of the complaint.

ANALYSIS AND REASONS FOR DECISION

26The respondents seek an order staying or dismissing the human rights complaint and found their motion on the argument that to allow this complaint to proceed to a hearing would constitute an abuse of process. In summary, the three grounds upon which the respondents premise their abuse of process claim are: 1) duplicative proceedings, 2) undue prejudice, and 3) bad faith and misleading allegations. Set out below are my reasons with respect to each of these grounds.

27The law with respect to dismissal or granting a stay because of abuse of process is clear and not in dispute between the parties. The Tribunal has the jurisdiction to dismiss or stay proceedings if to continue would amount to an abuse of process. In Ontario, this discretionary power is confirmed by section 23(1) of the SPPA. As explained in Thwaites v. Air Canada Pilots Assn. (No. 2), 2007 CHRT 54, the doctrine of abuse of process may be used to preclude litigation where to proceed would violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 37. It is well-established that the application of the doctrine is to be determined on a case-by-case basis, and that dismissal or stay of proceeding is “an extraordinary remedy” where “the party requesting it must clearly demonstrate that the balance of convenience overwhelmingly favours the granting of it”, see Fiorini v. DiPoce Management Ltd. (No. 2) (1997), CHRR Doc. 97-233 (Ont.Bd.Inq.) at para. 16.

Abuse of Process Because of Duplicative Proceedings

28The respondents argue that the institution of both the human rights complaint and civil action is an abuse of process because the human rights complaint is duplicative of the civil action. The respondents argue the human rights complaint and civil suit involve the same parties, same factual underpinnings, as well as similar damage claims, and all of this risks inconsistent findings of fact and double recovery. The Commission and complainant disagree that any alleged duplication amounts to an abuse of process.

29From my reading of the human rights pleadings and civil statement of claim, the proceedings do not appear to be duplicative. There are clearly different parties, along with their respective interests, as well as distinct legal issues and remedies, in dispute in the two cases.

Different Parties

30With respect to different parties and interests, I note that the corporate respondent and personal respondent Graham are the only named defendants to the civil lawsuit. Unlike the civil action, the human rights complaint identifies Clark Menzies, the proprietor-manager, and Mark Lyons, the manager-supervisor, as personal respondents in the allegations of wrongdoing. As will be discussed below, the identification of Menzies and Lyons as named personal respondents gives rise to potentially separate interests and legal issues specific to the human rights litigation.

31Furthermore, the Ontario Human Rights Commission, a key participant in the human rights proceeding, is not a party in the civil action. Although the Commission’s position may, to some extent, be aligned with the complainant, the Commission has independent party status, that entitles it to call evidence, examine witnesses, make arguments and claim remedies before the Tribunal in furtherance of its public policy mandate, see McKenzie Forest Products Inc. v. Tilberg (2000) 2000 CanLII 5702 (ON CA), 48 O.R. (3d) 150 (Ont.C.A.). As succinctly stated in the recent decision of Snow v. Honda of Canada Manufacturing 2007 HRTO 45 at para. 50, “[t]he Commission and the complainant are distinct parties to the proceedings under the Code, each having a specific role, the role of the Commission being that of representing the public interest.”

Different Legal Issues

32While the human rights complaint and civil action both arise out of the workplace context, there are unique legal concepts, specific allegations and arguments regarding the rights and defences under the Code different from the wrongful dismissal lis and tort claim alleged in the civil action. For example, one of the main issues the civil court may grapple with is whether the evidence regarding the employment termination warrants severence in lieu of notice.

33The human rights complaint alleges discrimination, harassment and reprisal because of sex and sexual orientation. The respondents strenuously deny the human rights allegations, argue that the sexual harassment provisions of the Code are not applicable and were never intended to protect an individual in the complainant’s circumstances, namely a male worker allegedly harassed by a male peer. Thus, one of the main questions a human rights tribunal may grapple with, based on the respondents’ argument, is whether “locker room” jocularity in a male dominated workplace constitutes sexual harassment. These are clearly different legal issues in dispute in the human rights complaint compared to the legal issues to be determined in the civil proceeding.

34Further, from the face of the complaint, it appears that the presence of Menzies and Lyons as named personal respondents may trigger distinct theories of remedial liability unique to the human rights forum. The complaint implies personal respondents Menzies and Lyons condoned and compounded the discrimination by failing to censure personal respondent Graham’s alleged misconduct. While in no way evaluating the merits of the complaint, the existence of two named personal respondent managers may give rise to the question of whether or not there is any obligation on individual supervisory officers to respond to human rights concerns, in addition to any such responsibility on the corporate entity, and if so, whether or not any separate personal damages flow.

Different Remedies

35In addition to distinct legal issues, I further find that there are dissimilar remedies available in the two proceedings. Although human rights “special damages” for loss of income may to a certain extent overlap with wrongful dismissal damages, the Code and human rights jurisprudence provide several purposive avenues of redress unavailable in a civil action. The human rights process offers “make whole” remedies to undo past harm, such as reinstatement with lost wages, see McKelvey v. D'Ercole (2003), 2003 CanLII 49381 (ON SC), 32 C.C.E.L. (3d) 119 (Ont. S.C.J.). Other remedial categories unique to the human rights system include systemic orders, awards to ensure future compliance and “general damages”, see section 41(1)(a) of the Code.

36Under human rights law, “general damages” is a remedial category to compensate the victim for the harm to the intrinsic and intangible nature of their human rights, see Ontario (Human Rights Commission) v. Shelter Corp. (2001) 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111 (Ont.Div.Ct.). In the case at hand, the complainant seeks “general damages” for the loss of the inherent right to be free of discrimination, harassment and reprisal.

37While both the human rights complaint and the civil action seek damages for mental injury, there are substantial differences with respect to the treatment of mental distress in these two arenas. In his civil action, the complainant seeks $3,000,000.00 in damages for, in part, mental harm, humiliation, personal insult and loss of reputation. In human rights law, the Code’s current statutory cap for damages for mental anguish is $10,000 and an award for mental anguish is predicated upon the infringement being engaged in wilfully or recklessly, see section 41(1)(b) of the Code.

38Further, the complainant seeks punitive damages in his civil action; however, punitive damages have, thus far, had limited application in human rights law. The Superior Court of Justice in Schmidt v. Elko Properties Ltd. [2005] O.J. No. 3347 leave to appeal refused [2005] O.J. No. 5745 (Ont. S.C.J.) at para. 18, noted that a claim for punitive damages was one of the distinguishing features between a human rights complaint and a civil proceeding.

39It is noteworthy that, as a separate party in the human rights proceeding, the Ontario Human Rights Commission is entitled to request remedies in advancement of its public interest mandate, including systemic awards. As many tribunal decisions have highlighted, the Commission’s public interest mandate includes seeking redress for past wrongs, as well as remedies to promote future compliance with the Code, see Sanford v. Koop 2005 HRTO 53 and Pchelkina v. Tomsons 2007 HRTO 42.

40In the present case, the Commission seeks, inter alia, that the corporate respondent develop and adopt an anti-discrimination/anti-harassment policy and provide human rights training to all current and future managers, supervisors and employees. The Commission seeks that the policy and training program target sex, sexual orientation and reprisal concerns, and that the policy specifically establish an internal complaint mechanism. The Commission also requests that any personal respondent no longer in the employ of the corporate respondent attend mandatory human rights training at their own expense. As such, there are clearly broad ranging public interest remedies with significant policy implications claimed in the human rights proceeding, which likely would be absent from the civil process.

Other Considerations

41The respondents rely heavily on the 2003 decision of Echlin J. in McKelvey, supra, as authority for the proposition that it is entirely inappropriate for a complainant to simultaneously pursue both a civil action and human rights complaint arising out of the same events.

42While McKelvey, supra, may be helpful in setting out some of the factors for assessing multiplicity of proceedings, I find the decision distinguishable on the basis that it did not address whether the human rights complaint should be stayed or dismissed. Rather, in McKelvey, supra, Echlin J. stayed the civil action and one key consideration for staying the civil action was the fact that the claimant had filed her human rights complaint first.

43I note that since 2003 there have been competing lines of authority with respect to these issues and all parties referred to various decisions which either mentioned or distinguished McKelvey, supra. I further note the outcome in the 2005 decision of Schmidt v. Elko Properties Ltd., supra. In that case, the employer defendant was unsuccessful in seeking a stay of a wrongful dismissal action pending determination of the plaintiff’s human rights complaint. Leave to appeal was denied by Justice Hambly of the Superior Court, who commented, at para. 9, that “…the absolute statement of Justice Echlin in McKelvey, supra, that an employee cannot pursue a claim before the Human Rights Commission and a civil action based on the same facts goes too far. It is not supported by the case law.”

44Lastly, although the respondents’ submissions raised but did not squarely address the doctrine of res judicata and issue estoppel, I have considered the general concepts in arriving at this decision, and in particular the analysis of the principles in Ford Motor Co. of Canada v. Ontario (Human Rights Commission), 2001 CanLII 21234 (ON CA), [2001] O.J. No. 4937 (Ont.C.A.), and the authorities cited therein. I find the first branch of the doctrine of res judicata, known as issue estoppel, is not applicable to the case at hand. The present situation does not satisfy the three criteria explained in Ford Motor Co., supra, at para. 63: (i) the civil lawsuit is still in its early stages and there is no final decision; (ii) the parties are not the same; and (iii) nor are the issues and questions to be determined by this Tribunal the same.

45In the circumstances of this case, I do not find the pursuit of both a human rights complaint and civil action amount to an abuse of process. The respondents’ “duplication” argument fails to recognize that Clark Menzies, Mark Lyons and the Commission are not parties in the civil proceeding and that there are distinct interests, issues and remedies that are pertinent to each of these participants and specific to the human rights process. I echo the suggestion of other decision-makers that the parties can prevent relitigation and double recovery by ensuring the second judicial body is fully informed about any findings and awards made by the first, see Farris v. Stanbach Ontario Inc., 2004 CanLII 11325 (ON SC), [2004] O.J. No. 1227 (Ont.S.C.J.) and Schmidt, supra.

Abuse of Process Because of Undue Prejudice

46The respondents, and in particular personal respondent Graham, allege that they are subjected to substantial prejudice because of the financial and emotional burden in defending both the civil action and the human rights complaint. The respondents contend the emotional prejudice is particularly heightened in terms of harm to reputation of personal respondent Graham because of the salacious nature of the sexual harassment allegations. The respondents argue that this financial and emotional prejudice is sufficiently oppressive to compromise fairness and constitute an abuse of process such that the human rights complaint must be stayed or dismissed. The respondents submit that, in contrast, the complainant would experience little or no prejudice if restricted to proceeding with his claim only in the civil forum.

47In order to make out a claim for abuse of process due to prejudice, the circumstances giving rise to the prejudice must be so unfair that to proceed with the human rights complaint would be contrary to the interests of justice, see Anonuevo v. General Motors of Canada Ltd. (No. 3)(1998), 1998 CanLII 29850 (ON HRT), 32 C.H.R.R. D/322 (Ont.Bd.Inq.). The onus of proof is on the moving party to show the stay is necessary because: 1) continuing the action would cause substantial prejudice or injustice to the moving party and 2) the stay would not cause an injustice to the responding party, see Farris, supra at para.15, and Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307.

48The Commission and complainant argue that the respondents have failed to satisfy both branches of the test for granting a stay. The Commission and complainant assert that the respondents put forward no evidence that they have suffered actual prejudice which impairs their ability to answer the complaint or receive a fair hearing; whereas it is apparent that a dismissal or delay of the human rights complaint would engender a grave injustice to the complainant and the public given the quasi-constitutional nature of human rights and the public policy interests at stake.

49I am not persuaded that it is appropriate to dismiss the complaint or that the balance of convenience favours granting a stay of the Tribunal’s hearing. An abuse of process because of undue prejudice will only be found in the most exceptional circumstances and the jurisprudence is clear that mere inconvenience and expense is not sufficient to meet this test, see Jeffrey v. Dofasco Inc. (No. 3) (2001), 2001 CanLII 26216 (ON HRT), 39 C.H.R.R. D/500 (Ont.Bd.Inq.)and Arzem v. Ontario (Community and Social Services), (2005), 2005 HRTO 11, 52 C.H.R.R. 170 (HRTO) at para. 101, citing Farris, supra, and Varnman v. Canada (Minister of National Health and Welfare) (1987), 12 F.T.R. 34 at 36 (F.C.T.D.).

50Although claiming legal and emotional complications and extra costs of defending both civil and human rights cases, the respondents have failed to demonstrate any significant expense or inordinate inconvenience, let alone the serious degree of hardship or unfairness necessary to meet the threshold of prejudice required to found an abuse of process. With respect to prejudice flowing from harm to reputation, Justice Bastarache’s comments in Blencoe, supra at para. 71, are apposite at this juncture of the human rights litigation: “The true prejudice to the respondent in this case may only be the lost opportunity to clear his name rapidly.”

51In conclusion, absent proof of “egregious” or “exceptional” circumstances, the respondents’ concerns of additional financial expenditures, emotional strain and loss of reputation do not give rise to prejudice of such magnitude so as to amount to an abuse of process, see Bui v. B & G Foods Inc., [2001] O.H.R.B.I.D. No. 25 at para. 56.

Abuse of Process Because of Bad Faith

52The respondents argue this human rights proceeding should be stayed or dismissed because to allow the hearing to continue would perpetrate an abuse of process because the complainant is motivated by improper purpose and the complaint is vexatious and made in bad faith. The respondents allege that the complaint contains false, scandalous and misleading allegations of Code infringements, some of which they assert are inapplicable to the circumstances of a male co-worker allegedly harassing a male peer. The respondents submit that, in support of their abuse of process motion, it is necessary to examine the complainant to demonstrate his improper motive.

53As recorded in the “bottom line” ruling of April 14, 2008, I deny the respondents’ request to examine the complainant. Even if I were to accept for the purposes of this motion the respondents’ contention that their examination of the complainant may cast doubt on Mr. Smith’s motivation and reveal his allegations as an inaccurate portrayal of the events, I am not persuaded that the decision to forward the complaint for a full hearing on the merits would be wrong. In order to assess the complainant’s motive and consider whether the allegations are misleading or false will effectively require a hearing of the allegations and a determination of whether the complainant was a victim of discrimination, harassment and/or reprisal, or, conversely, a determination that the respondents did not violate the Code.

54There appear to be a myriad of legal and factual issues underlying the complaint and bad faith allegations, including issues of what constitutes sexual harassment, poisoned work environment and reprisal, as well as the scope of responsibility on a corporate employer or supervisory officers to investigate and respond to human rights concerns. Furthermore, the issue as to whether the precise Code provisions are properly triggered and germane to the alleged factual circumstances of male on male “sexual” harassment can only be determined by considering the nature of employment relationships and applicable law to the facts and evidence on the merits. Analyzing the facts and legal considerations to assess whether the Code provisions are inapplicable essentially results in an evaluation of the full elements of the alleged Code contraventions and the defences.

55Given the contentious nature of the allegations underpinning the complaint and the accusations of bad faith, there may be a number of legal questions and findings of fact that will involve serious issues of credibility and competing evidence. There are likely to be a number of witnesses to speak for or against the allegations and the credibility of the key parties may be buttressed or impugned by the evidence other witnesses. Again, this requires a comprehensive appreciation of the evidentiary background, legal tests, statutory interpretation and jurisprudence, all of which would be better argued, tested and understood through a full hearing.

56I make no findings regarding whether or not the complaint is made in bad faith. Rather, I conclude that the interests of all the parties, as well as the administration of justice, will best be served by holding a hearing on the merits to ensure the Tribunal has the benefit of full viva voce and documentary evidence, submissions and authorities. Accordingly, the respondents' motion to dismiss the complaint for abuse of process because of bad faith and misleading allegations is denied, without prejudice to their right to bring forward this particular aspect of the motion at the conclusion of the hearing on the merits.

ORDER

57The request to examine the complainant is denied. The motion to dismiss the complaint or to stay the Tribunal’s proceedings is refused.

58In view of the above, a Pre-Hearing Conference Call will be convened for the purpose of scheduling hearing dates.