Toronto (City) Board of Education v. Quereshi (No. 2)

1999-10-06

Ontario Divisional Court

Toronto District School Board Applicant

v.

Muhammad Saleem Quereshi and Ontario Human Rights Board of Inquiry Respondents

Date of Decision: October 6, 1999

Before: Ontario Superior Court of Justice, Divisional Court, MacFarland J.

Decision No.: 677/99

Appearances by: Thomas McRae, Counsel for the Applicant Margaret Leighton, Counsel for the Board of Inquiry Charles Roach, Counsel for the Respondent

HUMAN RIGHTS COMMISSIONS — withdrawal from carriage of complaint — JURISDICTION — jurisdiction where human rights commission withdraws as carrier of complaint — BOARDS OF INQUIRY / TRIBUNALS — authority to proceed in absence of human rights commission — COMPLAINTS — complainant's right to proceed without human rights commission

Summary: The Ontario Divisional Court heard an application to stay resumption of a Board of Inquiry hearing into the complaint of Muhammed Saleem Quereshi scheduled to commence the following day.

Mr. Quereshi's complaint has taken seventeen years to date. The parties agreed originally to deal with liability and remedy separately. The Board of Inquiry's finding that Quereshi was a victim of unintentional racial discrimination was upheld by the Ontario Court of Appeal in 1997. The Board of Inquiry then set dates for hearing evidence regarding remedy. Hearing was delayed because of settlement negotiations. Then, in 1998, the Ontario Human Rights Commission informed the Board of Inquiry that it had settled with the respondent and would not participate further in the case.

On May 31, 1999, the Ontario Divisional Court issued its decision in McKenzie Forest Products Inc. v. Tilberg, ruling that there cannot be a hearing before a Board of Inquiry without the presence of the Commission effectively carrying the complaint forward for the Board of Inquiry. That decision was under appeal at the time of this decision.

In light of Tilberg, the School Board took the position that the Board of Inquiry did not have jurisdiction to proceed in the absence of the Commission. However, the Board of Inquiry, although aware of the Tilberg case, refused a request by the School Board for an adjournment pending its application to seek judicial review of the Board of Inquiry's jurisdiction to continue.

The Divisional Court determined that because there was a serious question raised regarding the Board of Inquiry's jurisdiction to continue, a stay should be granted. The Court stayed the Board of Inquiry's hearing until the commencement of the judicial review hearing or future order of this Court.

[Ed. Note: See also (1997), 29 C.H.R.R. D/5 (Ont. C.A.); rev'g (1991), 14 C.H.R.R. D/243 (Ont. Div.Ct.); rev'g (sub nom. Quereshi v. Central High School of Commerce (No. 3)) (1989), 12 C.H.R.R. D/394 (Ont. Bd.Inq.) and (No. 4) (1999), 37 C.H.R.R. D/113 (Ont. Bd.Inq.).]

CASES CITED

McKenzie Forest Products Inc. v. Tilberg (1999), 35 C.H.R.R. D/27 (Ont. Ct. (Gen.Div.)): 4

McKenzie Forest Products Inc. v. Tilberg (2000), 37 C.H.R.R. D/316 (Ont. C.A.): 4

LEGISLATION CITED

Ontario

Human Rights Code, R.S.O. 1990, c. H.19: 4

[1] This is an application to stay proceedings scheduled to resume before a Board of Inquiry tomorrow pending the hearing of an application for judicial review commenced this date.

[2] This matter I am told began some seventeen years ago and by agreement of counsel the process was bifurcated. The liability aspect proceeded first and the Board's finding that the complainant had been the victim of unintentional discrimination was ultimately confirmed by the courts. That process took some considerable time. The Board of Inquiry, after the final determination of liability, set dates for the commencement of the remedy aspect of the complaint beginning at the end of 1997 and dates have been adjourned for various reasons including efforts to settle and to mediate the dispute remaining.

[3] Ultimately, on October 15, 1998, the Commission advised the Board of Inquiry that it had "... reached an agreement with the respondents in this matter. As a result, the Commission will not be participating further in these proceedings". The complainant did not accept the School Board's offer and sought to continue the hearing on the remedy aspect.

[4] On May 31, 1999, this Court issued its decision in McKenzie Forest Products Inc. v. Tilberg [reported 35 C.H.R.R. D/27] where the majority held that where the Commission withdraws from a hearing before a Board of Inquiry in respect of a complaint under the Human Rights Code [R.S.O. 1990, c. H.19] the Board of Inquiry has no jurisdiction to continue the hearing of that complaint. I am told an appeal is pending before the Court of Appeal; I do not know the status of that appeal. *

[5] I am told the Board of Inquiry here, although aware of the Tilberg case, has refused a request by the School Board for an adjournment pending its application to seek judicial review of the Board of Inquiry continuing this complaint for want of jurisdiction based on Tilberg.

[6] The complainant refuses an adjournment and also says if the applicant proceeds with the hearing he will take the position it has waived its right to later complain of want of jurisdiction.

[7] There is no serious dispute but that the applicant has established there is a serious issue to be tried. Want of jurisdiction is a serious matter.

[8] I am satisfied on the evidence that if the Board of Inquiry continues, in the particular circumstances, irreparable harm to the applicant will result where it is alleged the Board of Inquiry is without jurisdiction in the following respects:

(a) the applicant will in effect be litigating against the Commission — with whom it has settled — in circumstances which can only be described as "straw".

These parties have settled their differences and I ask how can either one of them be forced to resile from that — as a means of providing a Board of Inquiry with jurisdiction;

(b) Tilberg says there cannot be a hearing of the Board of Inquiry without the presence of the Commission effectively carrying the complaint forward for the Board of Inquiry.

[9] Additionally the position of the complainant who refused to agree to an adjournment yet takes the position that to continue will constitute a waiver of any right on the part of the School Board to raise the jurisdictional issue at a later time leaves the applicant in an impossible position.

[10] While it is desirable that matters proceed expeditiously — it has been some seventeen years now — it is hoped that the judicial review will be heard quickly as will any appeals. In my view where there is a serious and real question raised that the Board of Inquiry lacks jurisdiction to continue, the balance favours the applicant.

[11] In result the stay requested is granted until the commencement of the judicial review hearing before this Court or further order of this Court. Costs of this application to the Court hearing the judicial review application.

[12] I should note that this matter was an "add-on" and counsel have been here most of the day waiting to be heard. My decision was made just after 6 p.m.

• Ed. Note: Allowed. See (2000), 37 C.H.R.R. D/316 (Ont. C.A.).