Glover v. 571566 Ontario, 2009 HRTO 1497

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Complainant

-and-

571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Vladimir (a.k.a. Walter) Perin Sr. and Walter Perin Jr. Respondents

AND B E T W E E N:

Martha Glover Complainant

-and-

Ontario Human Rights Commission Commission

-and-

571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Vladimir (a.k.a. Walter) Perin Sr. and Walter Perin Jr. Respondents

INTERIM DECISION

Adjudicator: Ian Anderson Date: September 18, 2009 Citation: 2009 HRTO 1497 Indexed as: Glover v. 571566 Ontario

APPEARANCES BY

Martha Glover, Complainant (HR-1331-07) ) Geri Sanson, Counsel Ontario Human Rights Commission, Complainant (HR -1207-06) ) Prahbu Rajan and Cathy Pike, Counsel 571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Vladimir (aka Walter) Perin Sr. and Walter Perin Jr., Respondents (HR-1207-06 and HR-1331-07) ) David M. McNevin, Counsel Ontario Human Rights Commission and Hart Schwartz ) Kim Twohig, Counsel

INTRODUCTION

1A hearing was held on December 5, 2008 to hear submissions with respect to certain issues identified in the Tribunal’s Interim Decision dated November 12, 2008. This is the Tribunal’s decision with respect to one of those issues: the application of section 53(8) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) to the proceedings at hand.

2The Code was substantially amended effective June 30, 2008. In what follows, “old section” will be a reference to a section as it read prior to June 30, 2008.

BACKGROUND

3On October 9, 2001, Martha Glover filed a complaint with the Ontario Human Rights Commission against 571566 Ontario Inc. o/a Cadillac Tavern, Mr. Vladimir (aka Walter) Perin Sr. and Mr. Walter Perin Jr. alleging discrimination in employment because of sex, sexual harassment and reprisal contrary to the Code (the “original complaint”). The Commission referred the original complaint to the Tribunal. Ms. Glover, the Commission and the respondents to the original complaint entered into Minutes of Settlement and a Release on or about March 1, 2006. Ms. Glover and the Commission assert that the respondents to the original complaint defaulted on some of their obligations pursuant to the Minutes of Settlement.

4Tribunal File No. HR-1207-06 is a complaint initiated pursuant to old section 32(2) of the Code by the Ontario Human Rights Commission (the “Commission’s complaint”) with respect to the alleged breach of the Minutes of Settlement. It seeks certain orders in relation to the alleged breach of the Minutes of Settlement. It names the Commission as complainant and 571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Mr. Vladimir (aka Walter) Perin Sr. and Mr. Walter Perin Jr. as responding parties (collectively, the “respondents”). Ms. Glover was not named as a party. It was referred to the Tribunal by the Commission on December 1, 2006 pursuant to old section 36(1) of the Code.

5Tribunal File No. HR-1331-07 relates to a complaint filed with the Commission by Ms. Glover (“Ms. Glover’s complaint”) on or about October 30, 2006 pursuant to old section 32(1). In her complaint to the Commission, Ms. Glover named the Commission itself and Mr. Schwartz, who was at the material times the Director of Legal Services of the Commission, as respondents, in addition to 571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Mr. Vladimir (aka Walter) Perin Sr. and Mr. Walter Perin Jr. Ms. Glover’s complaint sought remedies against the Commission and Mr. Schwartz and certain additional remedies against the respondents, in particular that the allegations in her original complaint be heard and determined as a consequence of the respondents’ breach of the settlement of the original complaint.

6On July 24, 2007, the Commission exercised its discretion pursuant to old section 36 with respect to Ms. Glover’s complaint against the respondents. The Commission decided that there was no basis under the Code to cancel the Memorandum of Settlement and Release and litigate the original complaint. Accordingly, the Commission concluded that there was no basis to refer that portion of Ms. Glover’s complaint against the respondents to the Tribunal. With respect to the remainder of Ms. Glover’s complaint against the respondents, the Commission decided to refer the subject-matter of the complaint which relied upon old section 43 of the Code to the Tribunal. By the same decision, the Commission also exercised its discretion under old section 34(1)(b) and (c) of the Code not to deal with the complaint against the potential responding parties. Ms. Glover applied for reconsideration of both aspects of the Commission’s decision which were not favourable to her. Pursuant to old section 37, by decision dated January 30, 2008, the Commission decided to uphold its original decisions with respect to both of these aspects of Ms. Glover’s complaint.

7On agreement, the Commission’s complaint and Ms. Glover’s complaint as referred to the Tribunal have been consolidated. Ms. Glover seeks to add the Commission and Mr. Schwartz as responding parties (Mr. Schwartz and the Commission in this capacity shall hereafter be referred to as the “potential responding parties”) and to raise the allegations in her original complaint against the respondents.

8On June 30, 2008, the current section 53(8) of the Code came into force. The potential responding parties and the Commission take the position that it precludes the Tribunal from hearing the original allegations against the respondents or adding the potential responding parties.

9For the purposes of the discussion which follows, it is also convenient to set out certain sections of Part VI of the Code:

49. In this Part,

“effective date” means the day sections 4 and 5 of the Human Rights Code Amendment Act, 2006 come into force;

“new Part IV” means Part IV as it reads on and after the effective date;

“old Part IV” means Part IV as it reads before the effective date.

53(1) This section applies to a complaint filed with the Commission under subsection 32(1) of the old Part IV or initiated by the Commission under subsection 32(2) of the old Part IV before the effective date.

(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32(3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,

(a) the Commission has all the powers described in subsection 32(3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and

(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.

(3) Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint.

(5) If, after the end of the six-month period referred to in subsection (2), the Commission has failed to deal with the merits of a complaint continued under that subsection and the complaint has not been withdrawn or settled, the complainant may make an application to the Tribunal with respect to the subject-matter of the complaint within a further six-month period after the end of the earlier six-month period.

(6) The new Part IV applies to an application made under subsections (3) and (5).

(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

55(1) This section applies to complaints that are referred to the Tribunal by the Commission under section 36 of the old Part IV before the effective date or during the six-month period referred to in subsection 53(2).

(2) On and after the effective date, the new Part IV applies to a complaint described in subsection (1) as though it were an application made to the Tribunal under that Part and the Tribunal shall deal with the complaint in accordance with the new Part IV.

SUBMISSIONS OF THE PARTIES

10Ms. Glover argues that section 53(8) was only intended to preclude applications to the Tribunal with respect to the subject-matter of complaints filed with the Commission which the Commission had dismissed in whole. She also argues that she had an “application” with the Tribunal prior to the “effective date”, i.e., June 30, 2008, with the result that the application is governed by section 55. She argues she seeks to amend that “application”, not bring a new application, and that therefore section 53(8) does not apply. She argues that the Tribunal’s jurisdiction to permit the amendment of an application to incorporate aspects of a complaint not referred by the Commission to the Tribunal is at least as broad, if not broader, as it was prior to amendments of the Code.

11The potential responding parties argue that by virtue of section 55(2), section 53(8) is applicable to these proceedings. They argue that the Commission has not simply dealt with the “subject-matter” of the allegations against the potential responding parties, and the original allegations, it has dealt with the exact substance of those allegations, and not once but twice: in making the original decision not to deal and refer respectively those aspects of Ms. Glover’s complaint to the Tribunal and in declining to reconsider that decision. The Commission, they argue, determined that Ms. Glover’s allegations against the potential responding parties did not constitute a breach of the Code and therefore that those allegations were not within the jurisdiction of the Tribunal. They argue that Ms. Glover’s argument that section 53(8) applies only to complaints which the Commission has dismissed in whole makes no sense, as it implies that the Commission would be required to refer something over which it has no jurisdiction. Further, they argue that section 53(8) must be interpreted as applying to attempts to amend existing applications as well as new applications.

12The Commission adopts the potential responding parties’ arguments on this issue.

13The respondents attended the hearing by counsel only for the purposes of indicating that they had no direct interest in the issues raised and that accordingly they took no position with respect to those issues and waived any right of reply. Counsel then took his leave.

DECISION

14In my view, it is important to begin with the observation that the current proceedings are not the result of an application to the Tribunal rather they are the product of a “referral” to the Tribunal by the Commission under old section 36(1). While section 55(2) provides that new Part IV applies to a complaint referred to the Tribunal by the Commission under old section 36 “as though it were an application” made under new Part IV, it does not provide that new Part VI, which contains section 53(8), applies to such a referral as though it were an application.

15Further, section 53(8) cannot be interpreted as applying to the referral of the subject-matter of a complaint to the Tribunal by the Commission pursuant to old section 36. If section 53(8) applied to such a referral, the Tribunal would be precluded from considering it, notwithstanding the fact that section 55(2) specifically directs the Tribunal to deal with such a referral as if it were an application under Part IV. This is an absurdity.

16If section 53(8) does not apply to the referral of the subject-matter of a complaint pursuant to old section 36, in my view it cannot be said to apply to an amendment to such a referral, at least in so far as the amendment relates to the same subject-matter. On the other hand, if the proposed amendments do not fall within the referred subject-matter, then I agree with the potential responding parties that there is no meaningful distinction between an “amendment” and an application. Put differently, an amendment which does not fall within the subject-matter of a referred complaint is not an amendment to that complaint rather it is effectively a fresh application governed by section 53(8).

17Turning to the proceedings at hand, there is no question that the subject-matter of the proposed amendments is the same as the subject-matter of the complaint that was filed by Ms. Glover with the Commission on or about October 30, 2006. However, a portion of that complaint was referred by the Commission to the Tribunal pursuant to old section 36. The question, therefore, is whether the subject-matter of the proposed amendments falls within the referred subject-matter.

18There is a sense in which whether the subject-matter of the proposed amendments falls within the referred subject-matter is the central question in the dispute between Ms. Glover on the one hand and the Commission and the potential responding parties on the other. Some of the preliminary issues raised by the Commission and the potential responding parties can be seen as touching upon this question. However, as noted in the Tribunal’s Interim Decision of November 4, 2008 (2008 HRTO 225), Ms. Glover takes the position that other issues need to be addressed prior to the determination of these preliminary issues. In the result, the Tribunal’s Interim Decision of November 12, 2008 (2008 HRTO 252), identified the following additional issues for submissions during the December 5, 2008 hearing:

1. Ms. Glover’s production request (referenced in Interim Decision 2008 HRTO 225.

2. The admissibility of Mr. Taylor’s evidence (referenced in Interim Decision 2008 HRTO 225.

3. The duplication of counsel issue (referenced in Interim Decision 2008 HRTO 32.

19In their written and oral submissions, the potential responding parties argued that consideration of the first and second of these issues was premature for a variety of reasons articulated in those submissions. Ms. Glover’s counsel indicated during the hearing that she was not prepared to address those arguments. In their written submissions, the potential responding parties also argued that in any event with respect to the allegations Ms. Glover seeks to make against them, “Her Majesty the Queen in right of Ontario”, and not the Commission, is the proper responding party, and that it is not appropriate to add Mr. Schwartz as a personal respondent to these proceedings. The Commission also made written and oral submissions with respect to some of these points.

20Prior to determining the issues identified in paragraph 18, the Tribunal wishes to have Ms. Glover’s full response on the submissions of the potential responding parties and the Commission identified in paragraph 19. The Tribunal notes that many of these issues appear to be addressed by Ms. Glover in prior written submissions she has filed with the Tribunal. The Tribunal also wishes to give the parties the opportunity to make any further submissions they may wish to make with respect to the issues identified in paragraph 18 in light of the Tribunal’s conclusions in this decision. Accordingly, the Tribunal makes the following directions:

a. The potential responding parties and the Commission shall have two weeks from the date of this Interim Decision to make any further submissions which they wish to make with respect to the issues identified in paragraph 18.

b. Ms. Glover shall have four weeks from the date of this Interim Decision to identify any portions of her prior written submissions she relies upon in response to the submissions of the potential responding parties and the Commission, and to file any further written submissions she may wish in response.

c. The potential responding parties and the Commission shall have six weeks from the date of this Interim Decision to file any submissions in reply.