HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Russell Sears
Applicant
-and-
Honda of Canada Mfg., a division of Honda Canada Inc. and Jim Proper
Respondents
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Sears v. Honda of Canada Mfg.
WRITTEN SUBMISSIONS
Russell Sears, Applicant
Self-represented
Honda of Canada Mfg., a division of Honda Canada Inc., and Jim Proper, Respondents
Jayson A. Rider, Counsel
Introduction
1This is an Interim Decision in respect of an Application filed on April 21, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The applicant requested monetary compensation, accommodation for his disability-related needs, a letter of apology and “Human Rights training” for the respondents as a public-interest remedy.
2In the original Application, the applicant claims that he was discriminated against and harassed in the workplace over several years in respect of difficulties arising from his colorblindness and myopic degeneration. In their Response, filed on June 24, 2011, the respondents state that they were unaware of any specific restrictions or limitations imposed by the applicant’s visual disability, and that the applicant did not raise any specific requests for accommodation prior to absenting himself from the workplace on December 3, 2010. The Response states that the applicant returned to work on June 20, 2011, and that “certain accommodation measures [were] implemented”.
3The Application has been amended by an Interim Decision dated July 30, 2012, (2012 HRTO 1479) to add allegations of more recent failure to accommodate, and an allegation of reprisal relating to the termination of the applicant’s employment. The Response was amended and both parties have filed further documents relating to the amendments.
4One day of hearing has been held, in which the applicant, who is unrepresented, gave his evidence in chief. During the hearing, I asked several questions in an attempt to clarify the applicant’s testimony as to the facts. I specifically instructed him that he need not make arguments as to the application of the law during his testimony, as he would have an opportunity to do so after all the evidence to be offered by the parties had been given.
5At the close of the hearing, counsel for the respondents indicated that the respondents would be filing a Request for an Order During Proceedings (“Request”) asking that I decline to hear the matter further and dismiss the Application, because the respondents were willing to pay the applicant the full amount of financial compensation requested in the Application. The Request was filed and copied to the applicant on November 29, 2012.
6The respondents request an order that is somewhat similar in wording to a “consent order” that is in certain circumstances available in court proceedings. The difference here is that the consent of the applicant has not been given. The respondents do not offer to admit liability under the Code, but suggest that, because they have agreed to pay the full amount of the applicant's claim for monetary compensation, I decide that “no useful purpose would be served by further proceedings”, and order the payment of the specified amounts.
7To briefly summarize the arguments that will be further discussed below, the respondents submit that the applicant has now been given an opportunity to make oral submissions “in accordance with the Tribunal’s Rules”. The respondents state that there is no useful purpose “served by dragging the senior corporate officers through protracted legal proceedings” when the corporation is willing to pay the full amount of the applicant’s monetary claim. The respondents argue that section 40 of the Code and Rules 1.6, 1.7(v1) and (w) of the Tribunal’s Rules of Procedure empower the Tribunal to grant this Order. They submit that “no legitimate public or private interest would be served by allowing the hearing to proceed further” and that allowing the Application to proceed “would constitute an abuse of Tribunal's processes and mandate to conduct fair, just and expeditious proceedings”.
8The applicant, as noted above, does not consent to this proposal. At the hearing, he acknowledged that, at the end of the hearing process, he might receive less monetary compensation through an order of the Tribunal than the respondents offer, but stated that the money was less important than “the principles”. His brief written Response to the respondents’ Request states that he believes that the senior management of the corporate respondent “has not been informed to the full extent of the abuse of power by lower and middle management”. In addition, while he is no longer employed with the corporate respondent, he states a wish to make the corporate respondent a better place to work for people with disabilities. He urges that the Tribunal continue with the hearing so that the respondents “can use the decision and recommendations [which] will assist Honda in addressing similar issues in the future”.
9As I understand it, the respondents do not claim that the Tribunal is required by law to make the order requested; they argue that the Tribunal has discretionary jurisdiction to make the order and should exercise its discretion to do so in this case. I am not persuaded that the Tribunal has jurisdiction to make the order requested. If I am wrong in this, I find that, in any event, such an order should not be made in the circumstances of this case for the reasons set out below in the section on abuse of process.
ANALYSIS
10At the outset, it should be noted that this Application addresses matters that are clearly within the jurisdiction of the Tribunal. The applicant has made allegations which, if established, would lead to a finding that the Code has been breached, unless the respondents establish that the allegations should not be believed or that a defence under the Code applies.
11The statutory provisions relevant to this decision are set out below:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of …disability.
The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.
This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
(1) The Tribunal may make rules governing the practice and procedure before it.
(2) The rules shall ensure that the following requirements are met with respect to any proceeding before the Tribunal:
An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.
An application may not be finally disposed of without written reasons.
(3) Without limiting the generality of subsection (1), the Tribunal rules may,
(a) provide for and require the use of hearings or of practices and procedures that are provided for under the Statutory Powers Procedure Act or that are alternatives to traditional adjudicative or adversarial procedures;
(b) authorize the Tribunal to,
(i) define or narrow the issues required to dispose of an application and limit the evidence and submissions of the parties on such issues, …
(5) The rules shall be consistent with this Part.
45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
45.3 (1) If, on an application under section 35, the Tribunal determines that any one or more of the parties to the application have infringed a right under Part I, the Tribunal may make an order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
(2) For greater certainty, an order under subsection (1) may direct a person to do anything with respect to future practices.
45.9 (1) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.
(2) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the Tribunal may, on the joint motion of the parties, make an order requiring compliance with the settlement or any part of the settlement.
12The Tribunal’s Rules of Procedure also come into play. The Rules are prefaced with a statement of their purpose:
The purpose of these Rules of Procedure (“Rules”) is to enable the Tribunal to fulfill its mandate under the Code by providing:
a fair, open and accessible process to deal with applications made under the Code, and
the opportunity for fair, just and expeditious proceedings for the resolution of applications made under the Code.
13Rule 1.1 echoes the purpose statement:
1.1. These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.
14The respondent admit that the requested order is novel, but point to two subsections of Rule 1:
1.6. The Tribunal will determine how a matter will be dealt with and may use procedures other than traditional adjudicative or adversarial procedures.
1.7. In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:
v.1) make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants; and
w) take any other action that the Tribunal determines is appropriate.
15But for section 5(1) above, the provisions of the Code and the Rules relevant to this Request are concerned, not with substantive rights under the Code, but with the practices and procedures used by the Tribunal in giving effect to these rights. It is clear that the Code grants the Tribunal wide latitude in respect of practices and procedures, and the Rules reflect this. However, the Code also imposes specific limits within which the Tribunal must operate, and Tribunal practices and procedures must always be informed by the substantive purpose of the legislation.
Does the Tribunal have jurisdiction to make the order requested?
16It is worth reiteration that the order requested here is one that dismisses the Application without making a finding on the merits, on the basis that “no useful purpose would be served by further proceedings”, and directs that a specified amount of money be paid to the applicant.
17The respondent states that the Tribunal has jurisdiction to make the requested order because the applicant has been given an opportunity to make oral submissions for the purpose of s.43(2). This argument will be addressed below, but in my view the respondent has not addressed the primary issue of jurisdiction in this case, which is the parties’ ‒ in this case, the applicant’s ‒ entitlement to a decision on the merits of an Application which is within the jurisdiction of the Tribunal.
18Section 34 allows a” person who believes that any of his or her rights under Part I have been infringed” to apply for an order under s. 45.2. The applicant has done so. Section 45.2 allows the Tribunal to make orders if “the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application”. If the Tribunal determines that there has been an infringement of Part 1, the scope of the order power is very broad, and includes, as noted by the respondent, “an order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act”. However, the Code grants no power to make an order under s. 45 without a finding of an infringement of a right under Part I or consent of both parties pursuant to 45.9 (2). In my view, the Tribunal has no jurisdiction to make the order requested by the respondents without first determining whether a right under Part 1 has been infringed. This finding in itself is sufficient to dispose of the respondents’ Request, but because of the novelty of the respondents’ argument, and in case I am wrong in this conclusion, I have addressed other issues below.
19The respondent has not requested a dismissal of the Application without the payment of the specified sum of money; however, it has argued that the Application could be dismissed in the circumstances of this case without continuing the hearing.
20Section 40 of the Code states that the Tribunal “shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications”.
21The Code does not define “dispose” or “disposition”. Black’s Law Dictionary, 8th ed. (St. Paul, MN: Thomson West, 1999), defines “disposition” as “”a final settlement or determination”. In the Concise Oxford Dictionary, 10th edition, revised, Oxford University Press: 2001, definitions of “dispose” include “determine the course of events”, ”deal with”…”finish”. It is clear from the wording and statutory context of the term “dispose” in s. 40 that it includes both determining that the Code has been infringed and making an appropriate order, dismissing an Application, in whole or in part, and closing a file or making a consent order further to a settlement reached by the parties.
22Section 43 of the Code allows the Tribunal to “make rules governing the practice and procedure before it”. This provision sets out a broad and general grant of discretion to the Tribunal to make rules that allow it to “dispose” of the merits of an Application within its jurisdiction using a range of adjudicative strategies, some of which are listed in subsection 43 (3).
23Subsection 43(2) states that an “application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules”.
24Subsection 43(2) imposes a clear limit on an otherwise broad statutory grant of discretion in practices and procedures. The Tribunal may not determine that the Code has been infringed, or dismiss an Application, without affording the parties an opportunity to make oral submissions in accordance with the rules.
25At this stage the applicant has only finished his evidence in chief. Should the term “oral submissions” be limited to the giving of testimony? Certainly, most lawyers understand “submissions” to go beyond the giving of evidence to the presentation of argument; the chance to persuade the adjudicator to interpret questions of law, fact or procedure as the party wishes these to be interpreted. The applicant has not had a chance to do that.
26The Code does not define “submissions”. The Dictionary of Canadian Law, 3d Ed. Daphne Dukelow and Betsy Nuse, eds., (Scarborough: Thomson Professional Publishing Canada, 1991), defines the term as follows:
statements and rhetoric urging the trier of fact to make particular findings of fact and apply the law in the manner proposed by the person making the submissions
Black’s Law Dictionary, (above), defines “submission” as “an advocate’s argument”; the Concise Oxford Dictionary, (above), as “Law a theory etc. submitted by counsel to a judge or jury”.
27The Code was amended in 2008 in a way that made substantial changes in the procedure relating to the enforcement of substantive Code rights. The amendments created a new system in which individuals have direct access to the Tribunal and the Ontario Human Rights Commission (“the Commission”) has been relieved of its screening function. Subsection 43(2) represents a significant feature of the new system in providing that an application that is within the jurisdiction of the Tribunal “shall not be finally disposed of without affording the parties an opportunity to make oral submissions”. The definition of “submissions” as including argument or theory intended to urge the trier of fact to make particular findings of fact and apply the law in the manner proposed by the person making the submissions appears to me to be the definition most congruent with the intentions of the legislature in implementing the “direct access” system—the parties are specifically guaranteed an opportunity to be heard, and in my view they may be heard in respect of the relevant law as well as the facts.
28In the course of its submissions on abuse of process (dealt with below), the respondents indicated that, prior to the 2008 amendments, the Commission refused to refer a complaint by one of its former employees to a Board of Inquiry “in very similar circumstances”. The respondents appended a 1996 decision of a former Chief Commissioner that concludes that referral of the subject matter to the board of inquiry is “not appropriate” because “[t]he evidence indicates that the respondents’ offer to settle with the Commission and the complainant is appropriate in relation to its general, specific and public interest remedies”. As noted above, this determination was made in a very different statutory context. At that time, the Commission’s screening function under the then s.36 of the Code gave it broad discretion to refer a matter for a hearing if referral "appears to the Commission" to be "appropriate". This function was characterized by the Ontario Court of Appeal as “more administrative than judicial in nature”: Losenno v. Ontario (Human Rights Comm.), 2005 CanLII 36441 (Ont. C.A.). In my view, this submission is relevant neither to the current statutory scheme nor to an abuse of process argument.
29If I am correct in the above conclusion, I do not have the jurisdiction in the circumstances of this case to deny the applicant the opportunity, not only to clarify points of evidence in cross-examination (if any), but, after listening to the evidence presented by the respondents (if any), to present for consideration his views and position on relevant questions of fact and law.
Would it be an abuse of the Tribunal’s process to continue the hearing?
30Subsection 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”), states that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”. Most Tribunal and appellate decisions on abuse of process have considered situations in which an applicant has signed a release, or is otherwise attempting to relitigate an issue, which is not the case here, but some general principles have been enunciated that are instructive here.
31In a leading case on abuse of process that has been cited in a number of Tribunal decisions, the Supreme Court of Canada emphasized that the abuse of process doctrine focuses on the integrity of the justice system: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (“CUPE”). In the CUPE decision, the Supreme Court confirmed that an arbitrator erred in law by limiting the scope of the power to prohibit relitigation of issues previously decided in criminal proceedings to circumstances in which the convicted person initiates the subsequent proceeding for the purpose of challenging a finding made in the criminal proceeding. The CUPE decision confirmed the well-accepted principle that “where relitigation would undermine the integrity of the adjudicative process, it should not be permitted”, while also noting that “[f]inality concerns must be tempered by a search for justice in each individual case” (see discussion in the Court of Appeal decision confirmed by the Supreme Court, Toronto (City of) v. Canadian Union of Public Employees, 2001 CanLII 24114 (ON C.A.) at paras. 65-72 and 94). The Supreme Court decision in CUPE confirms that approach, acknowledging that the “doctrine of abuse of process is used in a variety of legal contexts”, and declining to set out strict rules, noting that even relitigation may in some instances “enhance, rather than impeach, the integrity of the judicial system.” (CUPE, above, at paras 36 and 52-55). The decision is instructive in its balanced attention to all aspects of the integrity of the justice system, including fairness to individuals, in deciding whether abuse of process is established.
32Decisions of the Ontario Court of Appeal since CUPE maintain the balance set out in the CUPE decision between the public interest (in most cases, in respect of the finality of contracts between parties) and fairness to individuals, by confirming that abuse of process should only be found in the clearest of cases. See, for example, Miguna v. Toronto Police Services Board, 2008 ONCA 799, Waterloo (City) v. Wolfraim, 2007 ONCA 732, France v. Liang, 2007 ONCA 741, and Joshi v. Joshi, 2006 ONCA 4940 (ON CA).
33As noted above, most appellate decisions addressing abuse of process involve a balance between fairness to the individual asserting a right to a judicial process and the public interest in other important aspects of the integrity of the justice system, such as the finality of contracts or of criminal convictions in which all grounds of appeal have been exhausted, or the avoidance of conflicting findings of fact by courts or tribunals dealing at first instance with the same matter. In this case, what is in the balance is fairness to the applicant who asserts a right to the continuation of a Tribunal hearing, and the respondents’ assertion that neither it nor the Tribunal should be required to expend further resources because the applicant’s position is unreasonable.
34The respondents have cited Felix v. Shoppers Drug Mart, 2011 HRTO 89, a decision in which the Tribunal dismissed an Application for abuse of process because of the behaviour of the applicant. In that case, the applicant’s behaviour included filing “materials…[that] are obviously offensive and violate both the Tribunal's Rules and its previous orders. They compare the respondents to Nazis, contain veiled threats against the respondents, attack the Tribunal's integrity, and use profanity. The applicant refused to remove the insulting middle names from the Application and cease copying Tribunal members individually despite a clear direction to do so” (at para 14). In this case, the respondents’ position appears to be that the applicant unreasonably persists in asserting his right to continue the hearing “for the sole purpose of having his ‘pound of flesh’ with the witnesses for the respondents in attempt to publicly shame them for acts of perceived misconduct or inaction in the workplace”. The respondents cite the “scarcity of hearing resources and time available to Tribunal” in urging that it would “not be in the public interest to proceed further”, and that the order requested constitutes “a fair, just and expeditious final disposition of this application [that would] preserve both public and private resources”.
35The respondents’ position seems to be based largely on the view that the payment of the monetary compensation requested by the applicant would dispose of all aspects of the applicant's request for remedies. This is not in fact the case; in addition to the monetary remedy, the applicant requested accommodation for his disability-related needs (although this may no longer be a claim he intends to press in the Application as amended, as he has not requested reinstatement), a letter of apology and “Human Rights training” for the respondents as a public-interest remedy. Further, the respondents do not address the significance of the Tribunal’s discretion, in addition to addressing a successful applicant’s request for order(s), to make an order that has not been requested by the applicant: see s.45.2(2)(b) of the Code, Payne v. Otsuka Pharmaceutical Co. et al (2002), 2002 CanLII 46516 (ON HRT), 44 C.H.R.R. D/203, and Lepofsky v. Toronto Transit Commission, 2007 HRTO 41.
36Even if monetary compensation were the only issue, I do not consider the applicant's wish to continue with the hearing to constitute abuse of process.
37The Application is clearly within the jurisdiction of the Tribunal. The applicant’s behaviour has exhibited none of the characteristics, such as oppressive behaviour or refusal to abide by direction from the Tribunal concerning the scope or conduct of the hearing, that have given rise to dismissal by the Tribunal for abuse of process. The applicant simply wishes to proceed with the hearing of the issues raised in the Application. He clearly wants a finding as to whether the Code has been breached as alleged, and, if such finding is made, he has stated that he is content to abide by the Tribunal's decision in respect of monetary remedy. In addition, he requests an apology for himself, and training for the respondents in the implementation of Code rights that would, in the words of his Response, “assist Honda in addressing similar issues in the future”. The applicant's position is that he wishes to avail himself of the hearing process; there is no subjective or objective indication that abuse of process is involved.
38There is no question that parties before the Tribunal can come to an agreement to settle the matter at any time in the process before a final decision on the merits is made, and Tribunal procedures encourage this. In coming to a settlement, the respondents need not admit liability under the Code and the applicant need not, despite withdrawal of the Application, withdraw the allegations on which the Application was based. Further, in the words of s.45.9(2) “the Tribunal may, on the joint motion of the parties, make an order requiring compliance with the settlement or any part of the settlement”. However, a “settlement” is an agreement between the parties, and there is no agreement in this case.
39The respondents assert that “no legitimate public or private interest would be served by allowing the hearing to proceed further”. I do not agree. The hearing process and the production of decisions as to whether the Code has been breached is the primary function of the Tribunal under the legislation, and an appropriate expenditure of public resources. In C.M. v. York Region District School Board, 2009 HRTO 735, the Tribunal pointed out that the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society, and noted that it is important for there to be public scrutiny when respondents are found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld.
40To allow the respondents to avoid continuing the hearing in the absence of a settlement, solely because of willingness to pay a requested monetary remedy, would certainly be expeditious, but it would be neither fair nor just.
ORDER
41The respondents’ Request for an Order is dismissed.
42Further hearing days will take place as scheduled, unless the parties agree to a settlement and the Application is withdrawn.
Dated at Toronto, this 4^th^ day of January, 2013.
“Signed by”
Judith Keene
Vice-chair