Jemila Macanovic v. Ontario Human Rights Commission, 2011 HRTO 1

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jemila Macanovic

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ontario Human Rights Commission

Respondent

DECISION

Adjudicator: Mark Hart

Date: January 4, 2011

Citation: 2011 HRTO 1

Indexed as: Macanovic v. Ontario Human Rights Commission

APPEARANCES BY

Jemila Macanovic, Applicant ) Self-represented )

Her Majesty the Queen in right of Ontario )

as represented by the Ontario Human ) Sara Blake, Counsel

Rights Commission, Respondent )

1This is an Application dated on June 30, 2009, pursuant to section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was dated May 29, 2007.

2A preliminary hearing was held in this matter on November 3, 2010, in order to hear oral submissions from the parties regarding two requests: (1) the applicant’s request that the respondent be deemed to have accepted the allegations in her Application pursuant to Rule 3.2; and (2) the respondent’s request to dismiss the Application as beyond this Tribunal’s jurisdiction.

Applicant’s Request under Rule 3.2

3The Application in this matter is dated June 30, 2009, and was perfected on July 27, 2009. In accordance with the Tribunal’s standard procedure, a letter was sent to the parties on August 12, 2009, confirming receipt of the Application and advising the respondent to file its Response within 35 days. There is no dispute that the Tribunal’s letter was received by the respondent.

4No Response was filed by the respondent within the 35 days. At the same time, there was some uncertainty as to whether the applicant wished to proceed with her Application at that time. In the materials filed with her Application, the applicant included a statement that the respondent Commission at that time was involved in a hearing before this Tribunal in relation to another complaint filed by the applicant, which the respondent Commission had referred to the Tribunal under the former human rights system. In her materials, the applicant stated:

In light of these circumstances, it would be very inappropriate and highly unethical for this matter to be dealt with at the present time. I ask that the Tribunal delay the adjudication process concerning [the instant Application] until the [complaint referred by the Commission] is properly dealt with.

Also, I would like to have further discussions with the Commission to see if this matter can be resolved amicably and without involving the Tribunal.

5When the Response still had not been received by the Tribunal by January 26, 2010, a further letter was sent by the Tribunal to the parties on that date directing that the Response be filed immediately together with an explanation as to why the Response had not been filed in a timely manner. This letter also directed the applicant to advise whether she wished to proceed with her Application at that time or if she wished to stay the Application, with reference to the statements included by the applicant with her Application.

6On February 1, 2010, the respondent replied to the Tribunal with reference to the applicant’s statements included with her Application. The Commission stated that it and the applicant were continuing to vigorously pursue the complaint that had been referred to the Tribunal and that the matter was not yet complete. The Commission stated that, consequently, and in keeping with the applicant’s request, it had not yet formally responded to the instant Application. The Commission stated its intention to continue to hold filing its Response until the proceeding relating to the referred complaint had been completed, unless the Tribunal directed otherwise.

7In response, the Tribunal sent a further letter dated February 2, 2010, confirming that the applicant had asked the Tribunal to proceed with the instant Application, and directing the Commission to file its Response.

8When a Response still had not been received by the Tribunal by March 22, 2010, the Tribunal sent out a further letter dated March 22, 2010 drawing the respondent’s attention to Rule 3.2 of the Tribunal’s Rules, which address the potential consequences of a failure to file a Response. Rule 3.2 states as follows:

Where an Application (Form A or Form TR-1) is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application, including the allegations set out in the complaint;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding; and,

d) decide the matter based only on the material before the Tribunal.

9The respondent was advised that if it intended to participate in this proceeding, it was to file a Response forthwith. The respondent was further advised that if no Response had been received within 35 days of the date of the Tribunal’s letter, the Tribunal may consider the exercise of its powers under Rule 3.2 and may proceed to deal with the Application without further notice to the respondent.

10The respondent filed its Response on April 26, 2010, within the 35-day period indicated in the Tribunal’s letter dated March 22, 2010.

11In the meantime, on April 14, 2010, the applicant filed her Request for Order seeking an order pursuant to Rule 3.2 that the respondent be deemed to have accepted the allegations in her Application.

12In my view, the material before this Tribunal indicates some uncertainty about whether the applicant intended to proceed with the instant Application while the proceeding relating to the referred complaint remained outstanding. This uncertainty was not resolved until the Tribunal’s letter dated February 2, 2010, at which time it was clear to the respondent that the filing of a Response was required.

13When a Response still was not filed, the Tribunal followed its standard procedure of sending a letter bringing the respondent’s attention to Rule 3.2 and the potential consequences of a continued failure to file a Response, and affording the respondent a final opportunity to file its Response within 35 days, which the respondent did.

14The applicant submits that the respondent was given four chances to file its Response, which she regards as too many. While this is true, it does not account for the uncertainty that was created by the applicant’s own statement included in her Application asking that the Tribunal delay the adjudication process regarding the instant Application until the referred complaint had been dealt with. As stated above, this uncertainty was not resolved until the Tribunal’s letter dated February 2, 2010, at which time the applicant clearly stated her intention to proceed with the instant Application.

15I am not in this Decision suggesting that before invoking Rule 3.2, the Tribunal must in every circumstance send out a warning letter, as it did on March 22, 2010. There may be circumstances where, even in the absence of such a warning letter, resort to Rule 3.2 may be justified. However, in the instant case, having sent out the warning letter on March 22, 2010, and the respondent having complied with the deadline set out in that letter, it is my view that it would not be appropriate to invoke Rule 3.2 and deem the respondent to have accepted the applicant’s allegations. In this regard, I note that the applicant’s Request for Order was not filed until April 14, 2010, after the Tribunal’s warning letter had been sent setting out the final deadline for the respondent’s Response.

16Accordingly, the applicant’s Request is denied.

Respondent’s Request to Dismiss

17The respondent has requested that the Application be dismissed as being beyond this Tribunal’s jurisdiction, on the basis that the complaint in its pith and substance relates to the adjudicative processes of the Commission and therefore is not within the scope of “services” as that term has been interpreted by this Tribunal.

18In response, the applicant submits that her complaint is not challenging the Commission’s actual decisions but rather is challenging the conduct of the Commission staff member who investigated her complaints.

19This Application arises out of two complaints that were filed by the applicant with the respondent Commission alleging discrimination because of disability. The first complaint was filed against Shoppers Drug Mart (the “Shoppers complaint”) relating to the termination of her employment due to mental health problems. The applicant alleges that, due to the Commission investigator’s bias regarding mental health issues, she did not thoroughly investigate the complaint and in particular did not interview the respondents to that complaint in order to test their statements for veracity or seek any corroborating evidence. The applicant states that, nonetheless, the Commission investigator included in her investigation report statements by the respondents alleging erratic and unstable behaviour by the applicant during the course of her employment.

20The applicant further alleges that the Commission investigator interpreted the applicant’s answers during an investigative interview in a way that suggested problematic mental illness, and that the investigator made assumptions about the applicant’s mental illness due to her lack of understanding of mental illness. The applicant relies upon the investigation report prepared by the Commission investigator to support both of these allegations.

21The second complaint was filed against the Ministry of Labour (the “MOL complaint”) which arose after an Employment Standards Officer made a decision to have a security guard present at a fact finding meeting involving the applicant and her former employer, Shoppers. The applicant alleges that her former employer misled the Employment Standards Officer to believe that the applicant was mentally unstable.

22The applicant alleges that the same Commission investigator accepted certain sceptical explanations provided by the Employment Standards Officer simply because the applicant is mentally ill and failed to properly investigate the MOL complaint. Once again, the applicant relies upon the investigation report prepared by the Commission investigator to support her allegations.

23The applicant alleges that she raised her concerns with the investigator’s manager, but he failed to take steps to address them.

24As I stated in Makhi v. Ontario (Human Rights Commission), 2010 HRTO 1047, this Tribunal does not have jurisdiction to review the decisions of another adjudicative body. That jurisdiction belongs to the Divisional Court.

25Further, as the Tribunal stated in Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99, at para. 12:

The application of the Code and the powers of the Tribunal are specifically enumerated in the Code. Pursuant to s. 1, every person has the right to equal treatment “with respect to services, goods and facilities”. While a statutory decision-making process is a “service” for the purposes of the Code, there are elements of that process that are not encompassed by the Code’s meaning of “service”, such as the decision itself. The content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the “service” a statutory Tribunal is providing to the public. The decision is, therefore, not subject to the Tribunal’s jurisdiction.

26While a recent decision of this Tribunal expressed potential disagreement over the issue of whether the “content, reasons and result” contained in a decision of a statutory decision-maker can be understood to be part of a “service” within the meaning of s. 1 of the Code, see Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765, I agree with the reasoning and result in Ballieram v. Workplace Safety and Insurance Board, 2010 HRTO 712, that the initial Baird analysis was correct and that the term “services” in section 1 of the Code does not include the “content, reasons and result” contained in a decision of a statutory decision-maker, which is in accord with the vast preponderance of the jurisprudence of this Tribunal.

27While I agree that the term “services” needs to be interpreted broadly and liberally, this term also needs to be interpreted in accordance with the intention of the Legislature and in the surrounding context of the administration of justice in this Province. In my view, it was not the intention of the Legislature to make this Tribunal a surrogate Divisional Court to rule on the adjudicative decisions or processes of other statutory decision-makers in relation to human rights issues. This does not mean that all statutory decisions or exercises of discretion are immune from the Code. The question comes down to whether the decision or conduct at issue is "adjudicative" in nature or is part of a comprehensive adjudicative scheme provided by statute.

28I appreciate that the applicant submits that this Application is not about the Commission’s actual decisions regarding the Shoppers and MOL complaints, but instead is about the alleged discriminatory conduct of a Commission staff member. However, in light of the statutory scheme in place at the relevant time, it is not quite that simple.

29As noted by the respondent, under the Code at the relevant time, the Commission was required by statute to investigate a complaint that had been filed, subject to the potential application of the former s. 34 of the Code which is not at issue here. It is significant that the mandate to investigate is accorded statutorily to the “Commission”, which was defined under s. 27 of the former Code to mean persons no fewer than seven as appointed by the Lieutenant Governor in Council and which was the body responsible under the former s. 36 of the Code for making decisions whether to refer complaints to this Tribunal and for making decisions on reconsideration under the former s. 37 of the Code.

30Pursuant to former s. 33(2) of the Code, “an investigation by the Commission may be made by a member or employee of the Commission who is authorized by the Commission for the purpose”. Accordingly, while the mandate to conduct an investigation resides with the Commission, the Commission is entitled to delegate this authority to one of its employees. As submitted by respondent counsel, investigators employed by the Commission did the “legwork” for the Commission. They would review materials submitted by the parties, conduct interviews, review documents, and in the end prepare an investigation report to review what they had found and often would make a recommendation as to whether the complaint should be referred to this Tribunal. The investigation report would be disclosed to the parties, who would be given an opportunity to make written submissions in response. The investigation report together with the parties’ written submissions then would be presented to the Commission for a decision on whether the complaint should be referred to this Tribunal.

31If the Commission decided not to refer a complaint to the Tribunal, the complainant had the right to request reconsideration pursuant to former s. 37 of the Code. A staff member of the Commission would prepare a reconsideration report based on the material filed by the parties, which would be disclosed to the parties for any written submissions in response. The reconsideration report and the parties’ submissions would then be presented to the Commission, or a panel of three members authorized under s. 27(6) of the former Code, for a decision whether to uphold or reverse the Commission’s original decision.

32When viewed in this context, an investigation conducted by a Commission employee cannot, in my view, be separated from the adjudicative scheme under the former Code. This is not to suggest that a Commission staff member, or any employee of a statutory agency that performs an adjudicative function, is insulated from potential liability under the Code by the mere fact of being a Commission or agency employee. Rather, what I am saying is that when an application raises allegations about a Commission staff member or an employee of a statutory agency in relation to their performance of a statutory role that forms an integral part of an adjudicative scheme, such an application in its pith and substance is sufficiently related to the content, reasons and result of a statutory decision as to be beyond this Tribunal’s jurisdiction.

33The connection between the conduct at issue in the instant Application and the adjudicative scheme under the former Code is readily apparent. As indicated above, the applicant relies upon the investigation reports themselves to support her allegation that her rights under the Code were violated. These reports were forwarded to the Commission and formed the basis of the Commission’s decisions under former s. 36 of the Code not to refer her complaints to this Tribunal. As stated by the applicant in her complaint against the respondent Commission:

Judging by the appeal decision that was sent to my home it was obvious that the Commission supported [the investigator’s] position that my mental illness was problematic. They merely reiterated the investigator’s points that demonstrated that the respondents complied with the requirement to accommodate a person with a disability in order to comply with the Human Rights Code.

34The applicant’s submissions in response to the investigation reports are not in evidence before me, but she would have had the opportunity to raise before the Commission her concerns about the lack of thoroughness of the investigations and any bias or assumptions about mental health issues displayed by the investigator in her reports. The Commission would have had authority to remit the matter back for further investigation and even have any further investigation assigned to a different investigator.

35The applicant did seek reconsideration of the Commission’s decisions, and I do have her then counsel’s submissions on reconsideration. These submissions thoroughly and eloquently raise all of the allegations subsequently raised by the applicant in the complaint filed against the respondent Commission. These submissions were before the Commission when it made its decision to deny the applicant’s reconsideration requests.

36The connection between the conduct of the investigator at issue in this Application and the adjudicative scheme under the former Code is further evidenced by the remedies sought by the applicant and other material filed by her in this proceeding. In her Application, the applicant sought a financial remedy not only for infringement of her rights and the injury to her dignity and self-respect but also for the “denial of a hearing”, which can only refer to the Commission’s decisions not to refer her complaints to this Tribunal. In a document entitled “Amended Complaint” filed by the applicant with her Application, the applicant also states that “because of the flawed investigations, [the investigator] possibly denied me the right to have my cases heard before the Human Rights Tribunal of Ontario”.

37The applicant relies upon this Tribunal’s decision in African Canadian Legal Clinic v. Legal Aid Ontario, 2010 HRTO 187 to support her position that the conduct of an investigation does fall within the meaning of “services” under s. 1 of the Code and thus is within this Tribunal’s jurisdiction. That decision addressed an audit conducted by Legal Aid Ontario (“LAO”) pursuant to its statutory authority and certain directions given by LAO as a result. In my view, that case is distinguishable from the instant case on the basis that the audit and direction powers granted to the LAO are more regulatory in nature, and cannot properly be regarded as part of an adjudicative scheme or related to the “content, reasons and result” of an adjudicative decision.

38The applicant also relies upon the decision of the Federal Court of Appeal in Pathak v. Canada (Canadian Human Rights Commission), 1995 CanLII 3591 (FCA), [1995] 2 F.C. 455, for the proposition that investigators are different entities than the Commission and do not themselves have decision-making authority. This point is indisputable. However, it does not address the fact that the alleged conduct of the investigator in the instant case forms an integral part of the adjudicative scheme under the former Code. As recognized by the Federal Court of Appeal in Pathak, relying in turn upon the decision of Justice Sopinka in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879, "the investigator, in conducting the investigation, does so as an extension of the Commission" and not "as someone independent of the Commission who will then present evidence as a witness before the Commission".

39The applicant also relies upon this Tribunal’s decision in Robinson v. Ontario Municipal Board, 2010 HRTO 207. While the Tribunal in that case dismissed three applications against the Ontario Municipal Board on the basis of judicial or quasi-judicial immunity, the Vice-chair made the following comments with respect to two employees of the Board who had been named as personal respondents in the context of s. 33 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 which protects employees from personal liability for things done under statutory authority:

I would note at this stage that the personal liability of these individuals for anything done under the authority of the Act might not be a complete answer if the allegations were in respect of actions beyond or outside of the authority of the Act. Equally, while the section might insulate the individuals personally it does not necessarily follow that the respondent Board might not be found to be liable for the conduct of its employees in the manner in which they interact with the public in the course of their duties. All of which is to say only that the effect of section 33 of the Act must be considered in light of the allegations made. However as I have indicated already there appear to be no allegations made in respect of these individuals – the allegations in the complaints relate entirely to the conduct of the hearing about the adjournment request and the resulting decision.

40First, I note that the Robinson decision did not address the specific question I am addressing in this Decision, as the nature of the allegations against Board staff were unclear. However, I do not believe that the Tribunal in Robinson is saying anything different than what I am saying in this Decision. If the nature of the allegations against an employee of a statutory agency do not relate to conduct which forms an integral part of an adjudicative function performed by the agency, for example if the allegations relate to “the manner in which they interact with the public in the course of their duties” or “actions beyond or outside of the authority of the Act”, then such allegations may be within this Tribunal’s jurisdiction.

41The applicant also made reference to the decision of the Ontario Court of Appeal in R. v. Felderhof, (2003) 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481, and in particular paragraph 54 of that decision, which addresses a trial judge’s supervisory powers over a prosecutor in a criminal proceeding. In my view, this passage is of little relevance to the issue before me and the question of the proper interpretation of the term “services” under the Code.

42Finally, in her submissions, counsel for the respondent made reference to the principle of judicial or quasi-judicial immunity. To be clear, I am basing this Decision on the proper interpretation of the term “services” under s. 1 of the Code as not extending to include the conduct or actions of an employee of a statutory agency which form an integral part of an adjudicative scheme under a statute, and I am not making any determination that either the respondent Commission or an employee authorized under the former Code to investigate a complaint are entitled to judicial or quasi-judicial immunity.

43For all of these reasons, I find that the conduct of the investigator at issue in this Application forms an integral part of the adjudicative scheme under the former Code, and therefore does not fall within a proper interpretation of the term “services” in s. 1 of the Code and is beyond this Tribunal’s jurisdiction.

44The Application accordingly is dismissed.