Ontario Superior Court of Justice – Divisional Court
Ontario v. Ontario Human Rights Commission
Counsel: John Zarudny, for the applicant; Jennifer Scott, for the Ontario Human Rights Commission; Kate Hughes, for Michael McKinnon; Maragert Leighton, for the Board.
(651/99)
Reasons for Decision
1By the Court: The Ministry applies for judicial review to prevent a Board of Inquiry (the Board) from considering whether it has jurisdiction with respect to the terms of implementation of its order.
2In April 1998, the Board found that the Ministry of Correctional Services, and certain of its individual employees, infringed the rights of a correctional services worker of native ancestry in breach of the Ontario Human Rights Code, R.S.O. 1990, c. H-19, as amended (the Code). The infringement related to acts of harassment (s. 5(2)), discrimination (s. 5(1)) and reprisal (s. 9) against the complainant who was found to work in a "poisoned workplace" at the Metro East Detention Centre, which was "redolent with racist behaviour" (Decision of the Board, April 28, 1998, p. 149).
3Ten years after the initial complaint to the Ontario Human Rights Commission (OHRC), and after 45 days of evidence and 176 pages of reasons, the Board concluded its inquiry. The Board intended its disposition to fulfill the dual aims of providing a remedy for the discrimination experienced by the complainant and preventing any re-occurrence of the discrimination. To compensate the complainant, Mr. McKinnon, and to correct the "poisoned work environment" in which he worked, the Board fashioned remedies that included payment of damages and compensation, promotion of the complainant, relocation of certain offending coworkers, editing of personnel files, publication of the Board's orders, and the establishment of a human rights training program. Its reasons ended with the following retention of jurisdiction, indicating that it would:
"… remain seized of this matter until such time as these orders have been fully complied with so as to consider and decide any dispute that might arise in respect of the implementation of any aspect of them, including questions concerning the amounts of monies and the removal of materials from the Complainant's and his wife's personnel files" (Decision of the Board, April 28, 1998, p. 176).
4The Board's decision was not challenged in any respect and, in particular, was not challenged on the issue of retention of implementation jurisdiction. Difficulties did ensue with implementation. On March 2, 1999, eleven months after the decision, the complainant made the following complaints, by letter from his counsel to the OHRC:
"1. Failure by the Ministry to implement any aspect of the decision and orders for some six weeks after the decision, and then only after a request had been made of the Attorney General to permit prosecution;
"2. On the night of May 10, 1998, OM16 Linda Ashley contacted the Institution repeatedly indicating that she wanted 'that asshole McKinnon's' home number so that she could 'tell him what I think about him and his […] decision'. Although this was reported to senior management, no action was taken and Mr. McKinnon was not apprised of any steps taken to prevent such events recurring;
"3. Between approximately mid-May and early June 1998 copies of newspaper articles regarding the decision of the Board of Inquiry posted at various places in the Institution were continuously removed. Senior management refused to take any action. In fact OM16 D. MacKinnon advised the Complainant that he had been instructed to remove a copy of such an article posted in the Control Unit due to a complaint from an unnamed staff member, despite the fact that all sorts of articles and clippings are posted in this area;
"4. On June 4, 1998 Mr. McKinnon arrived at the workplace to find that his locker door had been kicked in. This was reported to senior management but no action was taken;
"5. At about the end of June, notices were posted throughout the workplace, including right outside the Assistant Superintendent's office, for a 'going away' party for Frank Geswaldo, ordered moved by the Board of Inquiry;
"6. In late June information was leaked to staff at the Institution that Mr. McKinnon and Ms. Shaw-McKinnon were being paid at the OM16 level. This led to Mr. McKinnon receiving complaints from other staff about his pay rate;
"7. The Ministry, as a result of directions from Carl DeGrandis, failed to continue to deduct Union dues from Mr. McKinnon and Ms. Shaw-McKinnon after June 1998. Mr. McKinnon only learned of this fact in early December, 1998 at which time he took immediate steps to rectify the situation. As of mid-February, the situation remained unremedied by the Ministry. Mr. McKinnon did not learn until late December 1998 that this was a result of Mr. DeGrandis' direction. This failure to deduct Union dues led to challenges being made to Mr. McKinnon's standing as a bargaining unit member entitled to protection of the collective agreement and to representation by his Union;
"8. Mr. McKinnon has been denied a series of promotional opportunities since the decision, including a position on the ICIT team, a Classification Officer position and a position in the Hostage Negotiations course. Mr. McKinnon has continued to raise his concerns with senior management about this as late as December 31, 1998."
5At the time this letter was written, implementation remained outstanding on certain issues of compensation and on the editing of the personnel files. By the time the hearing reconvened before the Board, however, the issues had been resolved except for an issue relating to tax consequences. The Board determined that issue in its decision of May 7, 1999. At the same time, the Board also held that it had jurisdiction to hear the allegations of continued or repeated discrimination and/or reprisals related to the implementation of its April 28, 1998 decision in order to ensure full compliance with the decision and with the Code. The Board held that it did not have jurisdiction to hear fresh allegations of human rights violations unrelated to implementation. The relevant portion of the Board's determination on that issue is set out below:
"If they [the new allegations] are entirely unrelated to the complaints I have been appointed to hear and decide, and only coincidentally are in the nature of human rights complaints lodged by the same complainant against the same corporate respondent, then it seems to me necessary for him to seek the intervention of the Commission. But if his allegations arise from the still warm embers of his earlier complaints and relate to possible failures to implement orders made regarding matters of which I remain seized for purposes of clarification and such adjustment as might be necessary 'to achieve compliance with this Act, both in respect of the complaints and in respect of future practices', then I think my present jurisdiction extends to them." (Decision of the Board, May 7, 1999, p. 10).
6After canvassing the arguments and authorities on jurisdiction, the Board member concluded with the following:
"… I have concluded that I have and should exercise the jurisdiction to hear evidence regarding allegations of continued or repeated discrimination and/or reprisals related to the implementation of the orders made in, and read in light of, my decision of April 28, 1998, and to make such rulings in that regard as are consistent with that decision and that appear to be appropriate for the purpose of assuring the implementation of those orders and the achievement of full compliance with the Code. Thus, provided that sufficient notice of the particulars of such allegations and the opportunity to respond to them is given to the respondent in accordance with the requirements of fairness and natural justice, this hearing will be reconvened for that purpose upon the motion of the complainant. However, in order to avoid any overreaching of jurisdiction, before evidence of such allegation is adduced, I will want the written or oral submissions of counsel as to its relevance to the implementation of the orders herein." (Decision of the Board, May 7, 1999, p. 16).
7The Board has made no decision as to whether the new allegations relate to implementation or whether they are fresh allegations of human rights violations. Nor has the Board even received the requested submissions, because the Ministry has launched this application for judicial review.
8The OHRC, the Board and Mr. McKinnon all argue the application is premature and should not be entertained until the Board has considered the extent of its retained jurisdiction to deal with issues relating to implementation in the circumstances. The Ministry, for its part, challenges the Board's jurisdiction even to embark upon the relevance-to-implementation inquiry, based on the provisions of the Code and based on functus officio.
9In our view the respondents are correct in their submission that the application is premature. The Board should be permitted to conduct its retained-jurisdiction inquiry, and the issues raised by the Ministry should be left for determination after the Board has made its decision, and based upon a complete record regarding the factual and legal underpinnings of that decision.
10The Board is not precluded by the doctrine of functus officio from proceeding with a determination of the relevance of the concerns raised in the March 1999 letter to the issue of the implementation of the remedy imposed. The case law establishes that a board of inquiry has a remedial authority of a supervisory nature to remain seized of jurisdiction "with respect to remedial issues in order to facilitate the implementation of the remedy" imposed by it: Canada (Attorney General) v. Grover et al. (1994), 80 F.T.R. 256; 28 Admin. L.R. (2d) 231 (T.D.), at p. 249.
11The Ministry's argument based on the Code centres around the provisions of subs. 41(1) and (2). Counsel for the Ministry submits that a reconvening of the original hearing with respect to implementation is precluded by s. 41(2) which, he contends, overrides the broad provisions of s. 41(1) and requires any subsequent complaints to be submitted to and investigated by the OHRC before they can be referred to the Board. Those subsections read as follows:
"41(1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Board may, by order,
(a) direct the party to do anything that, in the opinion of the Board, the party ought to do to achieve compliance with this Act, both in respect of the complainant and in respect of future practices; and
(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
"(2) Where the board of inquiry makes a finding under subsection (1) that a right is infringed on the ground of harassment under subsection 2(2) or subsection 5(2) or conduct under section 7, and the board finds that a person who is a party to the proceeding,
(a) knew or was in possession of knowledge from which the person ought to have known of the infringement: and
(b) had the authority by reasonably available means to penalize or prevent the conduct and failed to use it,
the board shall remain seized of the matter and upon complaint of a continuation or repetition of the infringement of the right the Commission may investigate the complaint and, subject to subsection 36(2), request the board to re-convene and if the board finds that a person who is a party to the proceeding,
(c) knew or was in possession of knowledge from which the person ought to have known of the repetition of infringement; and
(d) had the authority by reasonably available means to penalize or prevent the continuation or repetition of the conduct and failed to use it,
the board may make an order requiring the person to take whatever sanctions or steps are reasonably available to prevent any further continuation or repetition of the infringement of the right." (Emphasis added)
12We do not necessarily read s. 41(2) in the same fashion as the Ministry does, but prefer to leave a full consideration of that question for determination at a later date when the court has a more complete record before it. The full problem that the court may be asked to address has not yet been defined. The Board has not made a determination on the relevance of the concerns raised in the March 1999 letter.
13To the extent that the Board has retained jurisdiction to consider the impugned acts in the context of facilitating the implementation of the remedy it imposed, we think it is entitled to embark upon that inquiry. The full scope and extent of that retained jurisdiction, in the context of the Ontario Human Rights Code and s. 41 thereof, is best left for determination on a complete record, after the Board has made its decision with respect to the relationship between the conduct in question and implementation.
14For these Reasons the Board should be left to proceed to the next stage of consideration, in our view, and the application for judicial review is accordingly dismissed as premature.
Application dismissed.