HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lilia Hancock
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
McKesson Canada Corporation,
Frank Sedore, Marvin Kalchman,
Joe Varkul and Alfredo DaSilva
Respondents
DECISION
Adjudicator: Mary Anne McKellar
Date: July 14, 2008
Citation: 2008 HRTO 42
Indexed as: Hancock v. McKesson
Human Rights Tribunal of Ontario
655 Bay Street, 14th Floor
Toronto ON M7A 2C7
Phone (416) 314-8419 Fax (416) 314-8743 Toll free 1-866-598-0322
TTY (416) 314-2379 / 1-800-424-1168
E-mail hrto.registrar-transition@ontario.ca
Website www.hrto.ca
APPEARANCES
Lilia Hancock, Complainant ) On her own behalf
McKesson Canada Corporation, ) Karen Sargeant and
Frank Sedore, Marvin Kalchman, ) Dan Pugen, Counsel
and Joe Varkul, Respondents )
Alfredo DaSilva, Personal Respondent ) On his own behalf
Ontario Human Rights Commission ) Sheena Scott and
) Megan Evans-Maxwell,
) Counsel
Introduction
[1] The complaint dealt with in this file was made on May 14, 2001 (the ”Complaint"). It alleges contraventions of section 7 and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
[2] This decision deals with a request by certain of the respondents to the Complaint, McKesson Canada Corporation ("McKesson"), Frank Sedore ("Sedore"), Marvin Kalchman ("Kalchman") and Joe Varkul ("Varkul") (all of whom may be collectively referred to as the "Moving Parties"), that this matter be dismissed without any hearing into its merits on the basis that it would constitute an abuse of process to continue it. The Moving Parties' request is supported by the respondent Alfredo DaSilva ("DaSilva") and opposed by the complainant, Lilia Hancock ("Hancock") and by the Ontario Human Rights Commission ("the Commission").
Decision
[3] The motion succeeds in part. The Complaint is dismissed as against Sedore, for the reasons that follow.
The Facts
(a) Material Relied On
[4] The facts set out below are derived from a number of sources: the documents filed by the parties with the Commission; the Commission’s correspondence with the Moving parties; the Case Analysis Report prepared by the Commission; the Tribunal’s file; the pleadings exchanged by the parties; the affidavit material filed in connection with the motion; and the viva voce testimony of two witnesses. Where the documentation prepared by the parties reveals substantial agreement with respect to what occurred and when it occurred, I have assumed for the purposes of this motion the accuracy of those facts. I have not assumed the accuracy of any facts that are in dispute, but have endeavoured to indicate where there is or may be such a dispute. The only real factual dispute that materially affects the disposition of the motion relates to Sedore’s fitness to participate in the hearing.
(b) the Parties to the Complaint
[5] Hancock is an employee of McKesson (or its predecessor), and has been since 1987. She is employed in a bargaining unit position, and works in the warehouse. Her bargaining agent, Teamsters, Chemical, Energy and Allied Workers, Local 424 (the “Union") was notified of this proceeding but did not seek to participate.
[6] McKesson has a written policy setting out expected standards in respect of workplace conduct and specifically referencing the Code and proscriptions of discrimination on the grounds enumerated therein. The policy makes provision for the filing and investigation of complaints. It is common ground between the parties that on two separate occasions during her employment, Hancock filed complaints pursuant to the policy and that the outcome in each case was that the employment of the individual about whom she had complained was terminated. The material filed suggests that the second of these complaints was dealt with in 1996.
[7] The circumstances that prompted Hancock to file a complaint with the Commission occurred in late 2000, more specifically between October and mid-November 2000.
[8] At the relevant time, Hancock's immediate supervisor was DaSilva, and Sedore was the Day Shift Supervisor. Vito Bavaro was the Warehouse Manager, and as such had supervisory responsibility over Sedore. Kalchman was McKesson's Human Resources Manager, and Varkul was McKesson's Vice-President for the Ontario Region.
(c) The Internal Complaint
[9] Sedore disciplined Hancock and another employee on or about December 11, 2000, in respect of an incident that occurred on or about December 8, 2000. On December 13, 2000, Hancock filed a written complaint with McKesson (the “Internal Complaint”). The Internal Complaint alleged inappropriate conduct on the part of Sedore and sought to have his employment terminated. The text of the Internal Complaint is set out below, and the alleged physical contact of which it complains is alleged to have occurred in the first week of November 2000:
Frank Sedor
(all of these are facts) 12/13/00
Physical Harrasment: throwing paper and tapes to an employee.
(personally Karyn Green)
Discrimination: favour for one or two emplyees but not for all.
Time theft: fixing an employees lateness and calling a favour for employees. (you owe me)
Physical and sexual contact; physical contact with aggressiveness, one arm around the neck from behind. (personally Lilia Hancock)
Intimidation and abuse of authority: Giving orders with an attitude and a threatening of voice saying “i’m your boss, i said so”.
Code of ethics:
code of conduct: respect for others.
SOLUTION
1: We want Frank Sedor to be terminated immediately.
2: After this meeting i Lilia Hancock personally do not feel safe for this man to be supervising me for the reason being that i don’t know what he is capable of doing.
3: Failure for the company. To comply with this solution, we will definitely take this to a higher level.
4: Failure for the company to comply we will hold the company responsible for any events that should happen in the future.
[signed “L. Hancock”]
[10] McKesson investigated the Internal Complaint. There does not appear to be any dispute between the parties that this investigation involved meetings attended by Hancock, her Union representative, Sedore, Bavaro, and Kalchman. Both the Complaint and McKesson's Response to it refer to such meetings. It also does not appear to be disputed that Sedore denied that he had engaged in any physical contact with Hancock and suggested that she had fabricated the Internal Complaint in retaliation for his having disciplined her, and that a scheme to do so was discussed at the McKesson staff holiday party. Hancock denies these assertions.
[11] There is also no dispute that the investigation involved interviewing various persons that Hancock had identified as witnesses. She asserts that only three of eight witnesses she had identified were interviewed. McKesson's Response to the Complaint states merely that the witnesses Hancock identified were interviewed. In its Response to the Complaint and in its pleading McKesson asserts out that Kalchman interviewed the witnesses Hancock initially identified, but that she identified additional witnesses after he had verbally told her that his conclusion was that the complaint about the physical contact was not substantiated.
[12] Hancock was verbally informed in early January 2001 that its investigation did not reveal that Sedore had engaged in any sexual harassment of her. In her Complaint, Hancock asserts that she was specifically told that DaSilva denied having witnessed any incidents involving Sedore, but that Sedore would be disciplined. In its Response to the Complaint, McKesson states that Hancock was provided with a letter dated January 4, 2001 setting out: the results of the investigation; that it had told Sedore to refrain from any physical contact with Hancock; and that she could follow up any questions she had about the investigation with her Union representatives. Hancock refers to McKesson’s written decision in her Complaint. McKesson disputes that it ever indicated Sedore would be “disciplined”, or that its direction to him was disciplinary in nature. The resolution of how McKesson’s direction to Sedore should be characterized has no relevance in my view to the motion before me.
[13] Hancock does not appear to have followed up on the investigation with her Union representatives. No grievance was filed. Instead, it is acknowledged by all parties that Hancock's husband attended at the workplace and verbally confronted Sedore in the parking lot on January 8, 2001. McKesson expressed its displeasure at this incident in a letter delivered to Hancock's husband on January 9, 2001. On the same day (January 9, 2001), Hancock commenced a medical leave. There is some uncertainty about how long this leave lasted – the Commission’s Amended Statement of Facts and Issues specifies that it ended in March 12, 2001, while other documents suggest it lasted until July 23, 2001. The resolution of this factual dispute respecting the length of the leave also has no relevance to the motion before me.
[14] While on medical leave, Hancock made a written appeal to Varkul, and requested a meeting with him. That meeting occurred on January 29, 2001. There appears to be no dispute that Hancock reiterated her complaint against Sedore. In her Complaint she asserts that her letter to Varkul outlined "my concerns of sexual harassment by Mr. Sedore". She also asserts in her Complaint that at the meeting with Varkul she outlined her concerns "of sexual harassment by Mr. Sedore and Mr. DaSilva". McKesson's Response to the Complaint agrees that Hancock made allegations about DaSilva's conduct at this meeting, and it asserts that this was the first occasion on which Hancock had complained to McKesson about him. Her Complaint, whilst asserting that DaSilva asked her "are you ready for sex?" on December 14, 2000, does not contain any assertion that she complained to McKesson about this conduct prior to January 29, 2001. Hancock also communicated to Varkul that she was prepared to resolve the whole matter by not returning to work provided she received certain financial compensation.
[15] Varkul advised Hancock in writing on February 20, 2001, that no further action would be taken respecting her Internal Complaint, and apparently indicating that he was satisfied the matter had been investigated and the allegations found not to be substantiated. McKesson's Response to the Complaint also asserts that Varkul's letter expressed concerns about why the allegations respecting DaSilva's conduct had not been raised in the context of the investigation of the Internal Complaint, but communicated in any event that no action would be taken in respect of these allegations as DaSilva was no longer employed by McKesson. Hancock and the Commission have in fact asserted that DaSilva’s employment was terminated on January 29, 2001.
[16] When Hancock returned to work from her medical leave, she continued to work in the warehouse, and Sedore continued to be the Dayshift Supervisor. She filed no further complaints about him. He commenced a medical leave in April 2005, from which he has never returned.
[17] The central issue grounding the Moving Parties' motion is their assertion that Sedore's medical condition is such that he is unable to participate in any capacity in any hearing into the merits of Hancock's Complaint. Before turning to the evidence respecting Sedore's medical condition, it is useful to summarize briefly what occurred between the filing of the Complaint, and the hearing into this motion.
(d) The Complaint and its Investigation
[18] Hancock's Complaint is dated May 14, 2001. It refers to the incident that she set out in her Internal Complaint in which she alleged that Sedore grabbed her from behind and wrapped his arm around her neck and asserts that this incident was witnessed by DaSilva. There are two other allegations made about specific conduct of Sedore: that he "stuck his tongue at the right side of his mouth in a poking motion for about five seconds simulating sexual intercourse"; and that he told Hancock on three occasions that "she needed spanking". The first incident is alleged to have occurred in October 2000 and the comments are alleged to have been made in November 2000 – that is before Hancock made her Internal Complaint. Hancock also alleges that DaSilva witnessed the first incident and laughed. In its Response to the Complaint, McKesson asserts that these were new allegations about Sedore's conduct that Hancock could have, but had not raised in her Internal Complaint or during the investigation of it. The Case Analysis Report prepared by the Commission's investigator notes in paragraph 33 that Hancock conceded that the only issue she raised in her Internal Complaint was the "grabbing from behind" incident.
[19] In her Complaint, Hancock also clearly states that she was not satisfied with the "outcome" of the investigation of her Internal Complaint. She also makes a bald assertion that she believes her employer "failed to properly investigate" her concerns of sexual harassment. The only particularized allegation about the conduct of the investigation (as opposed to its outcome) that she makes is to assert that only three of the eight witnesses she identified were interviewed by McKesson. I have already set out McKesson’s position with respect to these assertions.
[20] The Moving Parties filed their Response to the Complaint on June 22, 2001. By letter dated October 15, 2003, Anita Fox, an investigator with the Commission wrote to then counsel for McKesson seeking to set up investigation interviews. The affidavit filed by the Human Rights Officer Cliff Fernandes (“Fernandes”) who completed the investigation and prepared the Case Analysis Report indicates that Hancock was interviewed shortly after this. By letter dated November 19, 2003, current counsel for the Moving Parties requested that the Commission exercise its discretion under section 34 of the Code and dismiss the Complaint on the basis that it could more appropriately dealt with in another forum, namely under the grievance procedure. There was no further written communication between the Commission and McKesson until October 5, 2005, when the Commission advised that the section 34 request would be dealt with in the context of the investigation. Fernandes’ affidavit indicates, however, that Anita Fox made two intervening phone calls to counsel for the Moving Parties, in one of which she sought to schedule interviews while counsel asserted her view that the section 34 review should precede any interviews, and in another of which a message to return her call was left, with no record in the Commission’s file of any response. In any event, Fernandes took over the investigation and conducted a number of interviews and prepared a Case Analysis Report dated November 30, 2005. The Case Analysis Report was not provided to the parties until January 20, 2006. It recommended that the Complaint not be dismissed under section 34 of the Code and that it be referred to the Tribunal for a hearing on the merits. Sedore had ceased to be actively employed by McKesson in April 2005 and he was not interviewed in person as part of the Commission's investigation, although he apparently answered certain questions through counsel via e-mail. The Case Analysis Report refers to, but does not name, an eyewitness to the alleged physical contact between Sedore and Hancock. That individual was identified as Shawn Harris at some point after the referral had occurred.
(e) Referral to the Tribunal
[21] The Commission referred the Complaint to the Tribunal on March 28, 2006. The parties consented to attempt to resolve the matter through mediation prior to exchanging pleadings. That mediation occurred on July 6, 2006. It was unsuccessful. The parties finished exchanging pleadings in November 2006. Subsequently, on March 5, 2007, the Commission filed an amended Statement of Facts and Issues.
[22] The original Statement of Facts and Issues filed by the Commission omits any reference to the alleged incident of Sedore's gestures with his tongue. It does repeat the allegations about the spanking comments and the grabbing from behind, and DaSilva's having witnessed the latter. It also repeats the allegations about DaSilva's asking Hancock if she was "ready for sex?". The amended Statement of Facts and issues identifies by name the witness to the alleged grabbing incident. It is not clear to me if this is the first time that individual was named or not.
[23] The Moving Parties' response to the Commission's Statement of Facts and Issues asserts that Hancock only provided Kalchman with her list of eight "witnesses" to the incident she complained of in the Internal Complaint after Kalchman had verbally advised her on January 3, 2001 that the investigation was complete and her complaint had been found to be unsubstantiated. The Moving Parties further assert that Kalchman nevertheless reviewed the list of witnesses and Hancock's description of what they had witnessed and concluded that none of them had any direct knowledge or observation of the "grabbing from behind" incident. The Moving Parties’ response to the Commission's Statements of Facts and Issues also appears to suggest that McKesson's first knowledge of Hancock's allegations about DaSilva's conduct on December 14, 2000 came when it was served with the Complaint, but that appears to contradict the Response to the Complaint that it filed with the Commission and which I have referred to above.
[24] I was assigned to hear this case and convened a conference call on March 9, 2007. Because the Moving Parties herein had requested in their pleadings that the Tribunal dismiss the Complaint on the basis of section 34 of the Code, I directed that the Moving Parties file written submissions on the matter, but that the Commission and Hancock need not do so unless specifically directed. These submissions were filed on April 5, 2007. I dismissed the motion, without reasons, and this was communicated to the parties by letter dated April 20, 2007 from the Deputy Registrar of the Tribunal.
[25] By Registrar’s letter dated April 30, 2007, the hearing on the merits was scheduled for July 17 - 20, 2007. The Moving Parties identified at that time that they had recently learned that Sedore's medical condition was such that he could not participate in the hearing, and that they would therefore be seeking to bring this motion. At this time a copy of a medical note from Sedore's attending family physician, Dr, Irene Hussain, was produced. An additional day of hearing was scheduled for July 4, 2007 to deal with the motion, in the expectation that if the motion did not succeed the previously scheduled hearing dates could be preserved.
(f) Evidence Respecting Sedore’s Fitness to Participate
[26] The Moving Parties filed their motion record on June 27, 2007. It contained an affidavit from Dr. Hussain. On June 29, 2007, the Commission filed its Motion Record. This was the Friday before the Canada Day long weekend. The Commission’s record contained a brief "will-say" statement of Ryan Ruckstuhl ("Ruckstuhl"), a private investigator that the Commission had retained to conduct surveillance on Sedore. The surveillance occurred on June 28, 2007 and Ruckstuhl's written report of it is dated June 30, 2007. This report and a DVD of the video footage Ruckstuhl had taken in the course of his surveillance was provided to me and to the Moving Parties at the commencement of the hearing on July 4, 2007. The Moving Parties requested an adjournment, which I granted. The Commission indicated an intention to cross-examine Dr. Hussain on her affidavit, but she was not available on July 17, 2007. I reconvened a further conference call to address issues relating to the scope of evidence before me on the motion. That conference call occurred on July 16, 2007 and my decision dealing with the events of July 4, 2007 and how the case should go forward was released on July 17, 2007. The upshot was that the hearing date of July 17, 2007 was adjourned, the motion was heard on July 18, 2007, and the balance of the scheduled days were adjourned.
[27] I had before me the affidavit of Dr. Hussain and I also heard viva voce evidence from her and from Ruckstuhl. In addition to the evidence of these two individuals I also had before me the affidavits of Rob Jessup-Ramsay, Kalchman’s successor as McKesson's Manager of Human Resources, and of Fernandes. These two individuals were not cross-examined on those affidavits.
[28] Dr. Hussain's affidavit was sworn June 26, 2007. Attached as an exhibit to it is the medical note she had previously provided dated April 11, 2007. Both record that Dr. Hussain has been Sedore's primary care physician since 2001. Both also make reference, among other things, to the fact that Sedore's medical condition is such that he is no longer able to drive. It came out during the course of the hearing that the April 11, 2007 report was generated as part of an annual reporting requirement of the insurer paying Sedore's LTD benefits, but that it referred to Sedore's inability to attend a Tribunal hearing because he had raised it as a concern with her. Jessup-Ramsay’s affidavit indicates that he had contacted Sedore to advise of the upcoming hearing and had then received a copy of the April 11, 2007 note.
[29] Ruckstuhl conducted surveillance of Sedore's home from 5:59 a.m. until 3:40 p.m. on June 28, 2007. During that time, Sedore was observed doing the following: (1) shortly after 10 a.m. he exited the side door of his home into the carport accompanied by a small dog, and walked about the carport with it for a couple of minutes; (2) shortly before 11 a.m. he opened the front door of his home and retrieved mail from the post box located next to the door; and (3) approximately 20 minutes later Sedore left the house and walked with the assistance of a cane to a car parked in the driveway, got in and drove to a nearby shopping mall where he briefly (3 minutes or less) went into a Shopper's Drug Mart store, and then returned to the car and drove home, arriving approximately 17 minutes after he had left. The video footage clearly shows that Sedore's movements are quite slow and laboured.
[30] In her affidavit, Dr. Hussain set out that Sedore suffers from three distinct medical conditions. He has multiple sclerosis ("MS") and is under the care of a specialist for that condition. He also suffers from cardiomyopathy and is under the care of a cardiologist. Dr. Hussain is privy to these specialists' periodic reports on Sedore's diagnosis/ prognosis. Finally, Sedore suffers from chronic recurrent pancreatitis. He has been hospitalized for periods of time in relation to both the cardiomyopathy and the pancreatitis. He takes a number of prescription medications.
[31] The contents of Dr. Hussain's affidavit insofar as it relates to Sedore's MS may be briefly summarized. MS is a degenerative neurological disease. It is often characterized by periods of remission from its symptoms. Sedore's diagnosis, however, is that he has reached the "untreatable relapse" stage of the disease, which I understand to mean that there is no likelihood of meaningful remission. MS has significantly impaired Sedore's visual, ambulatory and cognitive functioning. There are lesions on both sides of his brain. He often cannot speak and has experienced both short-term and long-term memory loss. The prescription medications that Sedore takes (Percocet, Ativan; Diazepam; and Gabapentinin) to treat his MS further impair his cognitive skills, reasoning and his emotional state. In her affidavit, Dr. Hussain attributed some of Sedore's emotion difficulties to his frustration at being unable to engage in many of the normal activities of daily life.
[32] Dr. Hussain concluded in her affidavit both that it would be too stressful and detrimental to Sedore's health to participate in a hearing, and that he would be unlikely to make any meaningful contribution in any event, due to the degree of his cognitive impairment and the more than six years that elapsed between the incidents alleged in the Human Rights Complaint and the swearing of the affidavit.
[33] Dr. Hussain was not cross-examined with respect to any of the contents of her affidavit other than the statements that Sedore was unable to drive and that his cognitive impairment was such that he could not participate in a hearing, even with accommodation.
[34] Hussain testified that Sedore was diagnosed with MS in 1999, but had been suffering from it for a lengthy period of time prior to his diagnosis. He had attended appointments with her on at least monthly intervals since November 2001, and sometimes at two-week intervals. He attended those appointments in the company of his wife. At some point the issue of his driving came up. As Dr. Hussain explained the situation, it arose in the context of a concern that his inability to concentrate made him an unsafe driver. Sedore said he would not drive, and he transferred the ownership of his car to his son. Indeed, Ruckstuhl confirmed in his testimony that the car he observed Sedore driving was registered to his son. While Sedore's inability to concentrate prompted the decision that he should cease driving. Dr. Hussain also testified that there were many days when Sedore would simply be physically incapable of driving because of his visual impairment or because of an inability to manipulate the pedals. Until made aware of the results of Ruckstuhl’s surveillance, she had been under the impression that Sedore was not driving. Dr. Hussain did not take any steps to advise the Ministry of Transportation that it was dangerous for Sedore to be driving, and she testified that this was because of her belief that he was not in fact driving.
[35] Dr. Hussain readily acknowledged that her assessment of the extent of Sedore's cognitive impairment and memory loss was based on her clinical observation of him. She agreed that he had not undergone the kind of neuropsychological testing that could most accurately measure the degree of cognitive impairment, although she understood that his MS specialist, Dr. Gray, had done some kind of memory testing in the past. She also understood that Dr. Gray had concluded that further testing was not therapeutically indicated as Sedore's medical diagnosis was conclusive, and that there were no medications he could be prescribed that would ameliorate his memory problems. Dr. Hussain said that she periodically required Sedore to count backwards from 100 by 3s or 7s, or to engage in some other similar activity, and that while he performed better on some days than others, he was never able to completely perform the task. She also said that his wife might call and tell him to do something like heat up his lunch and he would forget what she told him as soon as he hung up the phone. On many occasions he would lose track of his thoughts in the middle of a sentence. Finally, under cross-examination, Dr. Hussain resorted to metaphor: she likened trying to communicate meaningfully with Sedore to trying to place a phone call when the line has been cut. Although Sedore is most often (but not always) physically capable of speech, Dr. Hussain testified that what he says often makes no sense. While his condition has deteriorated and continues to deteriorate, Dr. Hussain did not think that Sedore would have been able to meaningfully contribute to the hearing process even in the fall of 2005.
[36] Dr. Hussain also offered some brief testimony about what occurred in the immediate aftermath of Ruckstuhl's surveillance of Sedore. On the evening of the day that that surveillance occurred or shortly thereafter, Sedore was hospitalized with chest pains and he remained hospitalized until discharged on July 4, 2007. Dr. Hussain believes he was hospitalized for two or three days. Sedore told Dr. Hussain on July 6, 2007 that he had realized in the parking lot of Shoppers Drug Mart that he was being filmed and this upset him and brought on the pains. This is consistent with the contents of a telephone message that had been left by his son with a representative of McKesson during the Canada Day long weekend. Of course I make no finding as to whether the surveillance and the hospitalization were in fact causally related.
[37] There is no doubt that Sedore suffers from significant physical impairment, but the degree of it appears to vary from day to day, and if that were the only issue, it is quite possible that most of his physical restrictions could be accommodated in a modified hearing procedure. The most difficult one to accommodate would be an inability to speak, but even that might possibly be overcome. The more pressing question is his cognitive ability to participate. Ruckstuhl's observations do not speak to that issue. By contrast, Dr. Hussain has had the opportunity to observe Sedore on an at least monthly basis since November 2001. She has observed that he has short and long-term memory loss, that he has difficulty concentrating and that he loses his place in conversation. She has also observed other cognitive impairment in his processing of information, and stated clearly that what he says often makes no sense, and that it is as if the lines of communication have been severed. The upshot of her evidence on these matters is that he is not cognitively fit to participate in a hearing. His unfitness in this regard is exacerbated by the prescription painkillers and sedatives that he takes to treat his MS. Dr. Hussain is also of the opinion, as set out in her affidavit and not challenged in the course of her viva voce testimony, that Sedore is emotionally unfit to participate in the hearing, and that it would be too stressful to him and detrimental to his emotional and physical health were he to participate.
[38] Based on all the evidence, I conclude that Sedore is not able to participate in any fashion in a hearing into the merits of Hancock's Complaint.
Principles Respecting Delay and Abuse of Process
[39] There are a number of general principles that emerge from the caselaw generated by the Tribunal (or its predecessor(s)) respecting the circumstances in which it is appropriate to dismiss human rights complaints for abuse of process. As the source of their jurisdiction to do so is identical, I do not bother specifying in the paragraphs that follow whether a decision has been rendered by the Tribunal, by the Board of Inquiry, or by a Board of Inquiry appointed specifically for that purpose. For simplicity’s sake, I use Tribunal throughout to designate the decision maker of first instance.
[40] These are the decisions that were filed with me for review: Bui v. B & G Foods, [2001] OHRBID No. 25; Anonuevo v. General Motors of Canada, [1998] OHRBID No. 7; Blencoe v. British Columbia (Human Rights Commission), [2000] S.C.R. 307; [Ford Motor Co. of Canada v. Ontario (Human Rights Commission), 1995 CanLII 7431 (ON CTGD)](https://www.minicounsel.ca/scj/1995/7431), [1995] O.J. No. 4292 (Div. Ct.); [Guthro v. Westinghouse Canada Inc. (No.2) (1992), 1991 CanLII 13135 (ON HRT)](https://www.minicounsel.ca/hrto/1991/13135), 15 C.H.R.R. D/388 (Ont. Bd. Inq.); [Woodheath Development Ltd. v. Goldman (2001), 2001 CanLII 28019 (ON SC)](https://www.minicounsel.ca/scj/2001/28019), 56 O.R. (3d) 658 (Master Dash); Dhanota v. U.A.W. Local 1285, [1982] OLRB Rep. Jan. 113; Carquez v. CUPE Local 229, [1994] OLRB Rep. 857; [Ontario (Ministry of Health) v. Ontario Human Rights Commission, 1993 CanLII 5604 (ON CTGDDC)](https://www.minicounsel.ca/scj/1993/5604), [1993] O.J. No. 1528 (Div. Ct.); [Re Commercial Union Assurance et al v. Ontario Human Rights Commission et al., 1987 CanLII 4092 (ON HCJ)](https://www.minicounsel.ca/scj/1987/4092), [1987] O.J. No. 438 (C.A.); [Drummond v. Tempo Paint & Varnish Co. (1994), 1994 CanLII 18423 (ON HRT)](https://www.minicounsel.ca/hrto/1994/18423), 24 C.H.R.R. D/341 (Ont. Bd. Inq.); [Farris v. Staubach (2004), 2004 CanLII 11325 (ON SC)](https://www.minicounsel.ca/scj/2004/11325), 49 C.H.R.R. D/35; Chowdhury v. Windsor Public Library (No.2) (1995), C.H.R.R. Doc. 95-146 (Ont. Bd. Inq.); Ontario (Human Rights Commission) v. Vogue Shoes (1991) 14 C.H.R.R. D/435 (Ont. Bd. Inq.); [Commanda v. Rainbow Concrete Industries Ltd. (No.2) (2002), 2002 CanLII 46499 (ON HRT)](https://www.minicounsel.ca/hrto/2002/46499), 42 C.H.R.R. D/97 (Ont. Bd. Inq.); [Chan v. Ontario Power Generation Inc. (2000), 2000 CanLII 20860 (ON HRT)](https://www.minicounsel.ca/hrto/2000/20860), 37 C.H.R.R. D/351; [Simms v. Seetech Metal Products (1993), 1993 CanLII 16460 (ON HRT)](https://www.minicounsel.ca/hrto/1993/16460), 20 C.H.R.R. D/477 (Ont. Bd. Inq.); Nelson v. Durham Board of Education (No.2) (1997), C.H.R.R. Doc. 99-038 (Ont. Bd. Inq.); [Laskowska v. Marineland (2005), 2005 HRTO 30](https://www.minicounsel.ca/hrto/2005/30), 53 C.H.R.R. D/262 (H.R.T.O.); and [O.P.E.I.U. Local 267 v. Domtar Inc. (No.1) (1988), 1988 CanLII 8877 (ON HRT)](https://www.minicounsel.ca/hrto/1988/8877), 10 C.H.R.R. D/5968 (Ont. Bd. Inq.). Although I have reviewed all of the caselaw provided, I only make reference to some of these decisions in the paragraphs that follow. With the exception of one case where the Commission was the named complainant, I have tended to refer to the Tribunal’s case law by the complainant’s name, and to the court decisions by the applicant’s name.
[41] The Tribunal’s jurisdiction to dismiss this Complaint, in whole or in part, derives from section 23(1) of the Statutory Powers Procedures Act (the “SPPA”):
23(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
[42] The Tribunal has relied on the discretion afforded to it by section 23(1) of the SPPA to dismiss human rights complaints where there has been a delay in the prosecution of the complaint attributable to the Commission, and where that delay has been accompanied by demonstrated evidence of actual prejudice. See Anonuevo at ¶93.
[43] Where the delay complained of relates to the investigation of a complaint, the magnitude of the delay is the time that elapsed between the date of the incidents about which the complaint is made to the date of the referral to the Tribunal. See Anonuevo at ¶107-08. The Tribunal assesses whether any part of the delay is attributable to the conduct of the party seeking to rely on it as a ground for dismissal.
[44] Even where it concludes that a party seeking relief from it has not proceeded expeditiously, and even where some prejudice may have been occasioned to a responding party thereby, the Tribunal will not dismiss a complaint where that prejudice can be alleviated by some other order it may make. See Bui at ¶58. This preference for a less drastic consequence than dismissal is often linked to the Tribunal’s recognition that, for many complainants, there is no other forum in which their complaints might be pursued. See Anonuevo at ¶90.
[45] The over-arching question that the Tribunal must address where relief of the kind sought by the Moving Parties is requested is whether the conduct of a party seeking relief has impaired the ability of a responding party to defend a claim against it to such an extent that the integrity of or public respect for the decision maker would be undermined should the proceedings be allowed to continue. See Bui at ¶53.
[46] In assessing whether the magnitude of delay is unreasonable and in assessing the prejudice occasioned by the delay and any intervening events, including whether some other order might alleviate any prejudice, the Tribunal has regard to the nature of the complaint: its complexity; its novelty; and the type of evidence on which the fact-finding will turn. See for example the discussion in Simms and in Vogue Shoes on these points. In doing so, the Tribunal considers whether the facts can be established with sufficient certainty. A passage in Guthro, where the complaint was not dismissed in the absence of a finding of specific prejudice, nevertheless illustrates the type of factors the Tribunal considers:
The prejudice to a party occasioned by delay must indicate more than inconvenience, it must be sufficiently oppressive to prevent a response or defence from being made. An unreasonable delay creates an unsurmountable problem: a key witness has died; documentary evidence has been destroyed, or some other circumstance has limited the opportunity to defend against the allegations in the complaint. At ¶21
[47] There are a number of cases where the Tribunal (or reviewing courts) have concluded that four years is an unreasonable amount of time to elapse between the events complained of and a referral to the Tribunal. See Anonuevo, Drummond, Commercial Union Assurance and Chan. There are also a number of cases where the Tribunal has concluded that the death of a key witness or a responding party during that period of delay constitutes prejudice of sufficient magnitude that the complaint must be dismissed. This is particularly likely to be the result where ascertaining the facts requires the assessment of competing versions of events based on viva voce testimony, and a key witness having direct knowledge of the events is not available to testify and has not otherwise been examined under oath. One recent decision involving all of these considerations and very similar factual circumstances to those before me is Laskowska, which I discuss in some detail in the following paragraph.
[48] Laskowska was employed by Marineland. She alleged that the brother of the owner of Marineland touched her inappropriately. Her complaint named both the brother and Marineland as responding parties. The incident was alleged to have occurred in August 1999, the complaint was filed in September 2000, and it was referred to the Tribunal in August 2004. In the meantime, the brother had died without ever having been informed that a complaint had been made against him. The Tribunal dismissed the complaint against the brother, and further held that, having done so, it would not make any findings against him. The Tribunal then considered the complaint that Marineland had not responded appropriately to Laskowska’s allegations, and dismissed it, holding that it had to take reasonable steps to address allegations of discrimination in the workplace, but that it was not expected to meet a standard of correctness or perfection.
Application of the Principles to the Facts
[49] This case is not like most of the Tribunal decisions in which a request to dismiss a complaint on the basis of abuse of process is considered. As noted, in the caselaw the Tribunal often makes mention of the fact that the complainant has no other forum available to him/her except the process under the Code. That is not the case here: Hancock, whether she or her bargaining agent appreciated it or not, could have raised her concerns by filing a grievance pursuant to the process mandated by the Labour Relations Act, 1995 and set out in the collective agreement.
[50] The time that elapsed between the filing of the Complaint (May 14, 2001) and the referral to the Tribunal (March 28, 2006) is 58.5 months. The delay is of the magnitude that has been described as inordinate in the caselaw, which I have referred to above. The issues involved in the investigation did not involve any novel or complex issues of law, but rather a discrete inquiry into three or four brief interactions Hancock alleged had occurred between her and Sedore and DaSilva over a period of about one month, and two meetings convened by Kalchman to inquire into the Internal Complaint, as well as its written disposition. Further, the delay is entirely attributable to the Commission.
[51] The germ of this Complaint is the conduct of Sedore. He is both a key witness and a responding party. The allegations against him that appear to subsist at this point relate to comments made to Hancock about spanking (for which it is not asserted that there are any witnesses) and the physical grabbing of Hancock, to which it is now asserted that there is a witness who is expected to confirm her version of events, but who was not identified to McKesson at the time of its internal investigation nor indeed until some time after Sedore had commenced his medical leave. As noted earlier, DaSilva has apparently denied witnessing this event, but would obviously not be in a position to categorically deny that it ever occurred. As I understand it, Sedore has denied the grabbing allegations in the course of the Investigation and Fernandes’ e-mail questioning of him, and he also denied making comments about spanking when Fernandes questioned him about that. As I have already found, Sedore's medical condition is such that he is unavailable to testify and defend himself by, presumably denying the allegations again before me, and having the credibility of his testimony tested through examination and cross-examination. There is no other witness who is in a position to deny that the grabbing incident occurred. Sedore is also unable to testify about the basis of his belief that Hancock fabricated her allegations against him to retaliate for the discipline he had recently imposed on her.
[52] Clearly the Complaint insofar as it relates to Sedore must be dismissed. Further, it is not appropriate, for the reasons set out in Laskowska, to make any inquiry into the allegations against him. Of necessity, therefore, the allegation that DaSilva witnessed that behaviour but did not intervene on Hancock’s behalf must also be dismissed. Any obligation to intervene could only arise where it was established that Sedore’s conduct necessitated it. In all of the circumstances, I find that it would be an abuse of process to continue this proceeding in respect of any allegations against Sedore. The Complaint is dismissed against Sedore.
The Balance of the Complaint
53Kalchman, Varkul and McKesson submitted that the balance of the Complaint insofar as it relates to the investigation of the Internal Complaint and Hancock’s complaint to them about DaSilva’s conduct should also be dismissed. This submission was made under the rubric of the argument that it would also be an abuse of process for it to proceed. In addition to characterizing the core of the Complaint as being about Sedore’s conduct, this submission relies on two propositions:
(a) there is no requirement under the Code that an employer investigate its employees’ complaints of discrimination, such that there can be no inquiry into such investigation where it occurs; and
(b) in any event, there is no remedy that could flow to Hancock under the Code even if the Tribunal undertook an inquiry into the investigation and found it to be flawed because the ultimate result was Code compliant in that Hancock never had to work with DaSilva again after she complained about him and Sedore was directed (and apparently adhered to the direction) not to engage in any physical contact.
54The proposition set out in subparagraph (a) above is not supported by the Tribunal caselaw that I have referred to previously. Further, the proposition relied on in subparagraph (b) is not the kind of consideration that the Tribunal has typically had regard to in dealing with an abuse of process motion. It is, I think, more properly characterized as a basis on which these parties seek to have the Tribunal exercise discretion to dismiss the balance of the Complaint as against them on the basis that there is no “human rights purpose” to its continuation. Indeed, I note that the Moving Parties in their submissions on this point relied on case law of the Ontario Labour Relations Board (“the OLRB”), which is expressly provided in its enabling statue with the discretion whether to inquire into certain complaints before it. By contrast, the Code does not cloak the Tribunal with such discretion. The Tribunal may not finally dispose of a matter within its jurisdiction without affording the parties the opportunity to make oral submissions. I note, in addition, that the Commission took the position at the hearing that even if there could be no personal remedy for Hancock resulting from an inquiry into the balance of the Complaint as against Kalchman, Varkul and McKesson, there might be a public interest remedy that the Commission might pursue.
55I decline to dismiss the balance of the Complaint as against Kalchman, Varkul and McKesson. I do think, however, that given their position set out above, and the fact that I have dismissed the Complaint as against Sedore and will be undertaking no inquiry whatsoever into the allegations about his conduct, it may be useful for the parties to turn their minds as to how they wish to litigate what remains of this Complaint. In particular, it would be useful to know what evidence each intends to rely on in respect of the allegations about the investigation and about DaSilva’s conduct, and whether they wish an oral hearing or could proceed by way of written submissions.
56The parties are therefore directed to advise the Tribunal (and each other) by August 15, 2008 of their position with respect to whether an oral hearing is required, and if so, to identify which of the witnesses on their previously exchanged lists will be testifying about the investigation or about DaSilva’s conduct on December 14, 2000; what they are anticipated to say; and the approximate time required to entertain that testimony.
[57] It also strikes me that the dismissal of the Complaint as against Sedore may have changed the landscape of this litigation sufficiently that the remaining parties (or some of them) may wish to renew attempts to pursue a mediated resolution. If this is the case, they should contact the Tribunal’s Registrar-Transition, who will make the necessary arrangements.
Dated at Toronto, this 14th day of July, 2008.
“Signed by”
Mary Anne McKellar
Member