COURT FILE NO.: 61/02

DATE: 20031119

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J., MCRAE AND EPSTEIN JJ.

B E T W E E N:

MARGARET WAY

Applicant

• and -

ONTARIO (HUMAN RIGHTS COMMISSION), DUFFERIN-PEEL CATHOLIC DISTRICT SCHOOL BOARD AND JOSEPH HUGEL

Respondents

Amani Oakley and Neil Oakley, for the Applicant

Cathy Pike, for the Ontario Human Rights Commission

Robert W. Weir, for the Dufferin-Peel Catholic District School Board and Joseph Hugel

HEARD: November 19, 2003

EPSTEIN J.: (Orally)

1This is an application for judicial review of two decisions of the Ontario Human Rights Commission, made pursuant to s.34 of the Human Rights Code. In these decisions the Commission exercised its discretion not to deal with the complaint of the applicant, Margaret Way. The Commission decided that the complaint could be characterized as vexatious and that with the exception of the last alleged incident of discrimination, the incidents alleged to have violated the Code did not occur within the six month limitation period.

2Briefly stated, the nature of the complaint is as follows. In the summer of 1978, the Director of Education for the respondent Dufferin-Peel Separate School Board, Mr. Hugel, interviewed the complainant for a teaching position. Ms. Way alleges that he told her that he would only offer such a position to her if she reconciled with her ex-husband. As a result, Ms. Way filed a complaint in 1979 with the Commission and ultimately an agreement was reached between her and the Board under which the Board would consider her candidacy if she applied for a teaching position in the future.

3The complainant alleges that since then she applied repeatedly for positions with the Board, the most recent being in January, 1999. However, she was consistently denied employment within the Board’s jurisdiction and so in May of 1999 she filed a second complaint alleging that she had been denied employment on the basis of marital status and age, contrary to the Code.

4The essence of Ms. May’s complaint is that she was denied a teaching position in 1978 because of her marital status and that this Board, for the reasons given by Mr. Hugel in 1978 has never considered her for employment. She now, at age 53 alleges that she believes that her age is also a reason why she is not considered for employment.

5On March 20, 2000, the Commission declined to deal with Ms. Way’s complaint, pursuant to s.34 of the Code. Ms. Way then applied for a reconsideration of her claim under s.37. On May 9, 2001, the Commission released its decision and refused to consider its original decision.

6Section 34(1) of the Human Rights Code provides as follows:

“Where it appears to the Commission that:

(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

(b) the subject matter of the complaint is trivial, frivolous, vexatious or made in bad faith;

(c) the complaint is not within the jurisdiction of the Commission; or

(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, the Commission may, in its discretion, decide not to deal with the illness.”

7The Commission’s decision not to deal with the complaint was made pursuant to ss.34(1)(b) and (d). Section 34 of the Code permits the Commission to sift through complaints and remove a number of them from the time consuming process of investigation. The Commission is not under a duty to investigate every complaint. See Brome v. Ontario (Human Rights Commission), 35 C.H.R.R. D/469 (Div. Ct.) and Gismondi v. Ontario (Human Rights Commission), [2003] O.J. No. 419 (Div. Ct.).

8In dealing with the issue of vexatiousness, in the context of the s.34(1)(b) analysis, Commission staff came to the conclusion that the evidence indicated that the complaint could be characterized as vexatious as it did not establish a reasonable basis upon which it could be maintained. In coming to this conclusion Commission staff relied upon the meaning of vexatious as contained in Black’s Law Dictionary. This definition is as follows:

“… without reasonable or probable cause or excuse. When the party bringing the proceeding is not acting bona fide and merely wishes to annoy or embarrass his opponent or when it is not calculated to lead to any practical result such a proceeding is often described as “frivolous or vexatious” and the court may dismiss it on that ground.”

9The applicant argues that the Commission’s reliance on the definition of vexatious contained in Black’s Law Dictionary is not consistent with its own guidelines.

10It is common ground that the standard for review of a decision made under this section is patent unreasonableness.

11We disagree with the applicant’s position, both with respect to the content of the guidelines in relation to the decision and the use the Commission should have made of them.

12The guidelines provide that a definition of vexatious includes a groundless complaint. We refer back to the words of the staff in examining the issue of vexatious that in “determining whether a particular complaint is vexatious or made in bad faith the Commission will determine whether there is any reasonable ground upon which the complaint can be maintained.”

13In any event, the law is clear that care must be taken so that guidelines do not crystalize into binding and conclusive rules. The reason for this is that if discretion is too tightly circumscribed by guidelines the flexibility and judgment that are integral to discretion may be lost.

14We are of the view that the Commission was entitled to use the definition of vexatious that it did when examining whether Ms. May’s complaint fell within s.34(1)(b) of the Code. In many cases proceedings have been held to be vexatious because they were instituted without any reasonable ground. Moreover, the categories of vexation are never closed. See Mascan Corporation v. French (1988), 64 O.R. (2d) 1 (Ont. C.A.).

15Given the appropriate definition of vexatious used by the Commission it was entirely open to it to come to the conclusion that Ms. May’s complaint should not proceed on the grounds set out in s.34(1)(b). It follows that the Commission’s decision and the reconsideration decision are not patently unreasonable.

16Having so concluded, there is no need to consider the Commission’s s.34(1)(d) analysis.

17For these reasons the application is dismissed.

CUNNINGHAM A.C.J.

18Costs will be to the Board fixed at $2,000 all inclusive, and costs to the Commission fixed at $1,000 all inclusive.

CUNNINGHAM A.C. J.

MCRAE J.

EPSTEIN J.

Date of Reasons for Judgment: November 19, 2003

Date of Release: December 11, 2003

COURT FILE NO.: 61/02

DATE: 20031119

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT