COURT FILE NO.: 21/2001

DATE: 20040216

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

RE: Pritchard v. Ontario Human Rights Commission and Sears Canada Inc.

BEFORE: Swinton J.

COUNSEL: Geri Sanson and Mark Hart for the Applicant/Moving Party Anthony Griffin and M. Catherine Osborne for the Respondent Ontario Human Rights Commission

HEARD: February 12, 2004

ENDORSEMENT

1The applicant has brought a motion to dismiss a motion brought by the respondent Ontario Human Rights Commission to be heard by a panel of the Divisional Court on February 24, 2004 or, in the alternative adjourning that motion until the Supreme Court of Canada has heard an appeal scheduled for March 23, 2004.

2In this application for judicial review proceeding, the applicant seeks to set aside the decision of the Commission dated December 20, 2000, in which the Commission refused to investigate her complaint pursuant to s. 34 of the Ontario Human Rights Code. This has been a long and difficult proceeding, but the Commission and Sears have now consented to certain relief requested in the application – namely, to set aside the order, to not remit this to a further s. 34 consideration, and to refer the complaint for investigation. The motion to the panel on February 24, 2004 seeks an order granting the relief sought in paragraphs 1(a) to (c) of the application for judicial review.

3The applicant seeks to dismiss that motion or adjourn it until the Supreme Court of Canada has heard the appeal of a decision of the Ontario Court of Appeal determining that a legal opinion provided to the Commission is privileged and need not be disclosed to her in this application. Counsel for the Commission has advised the Supreme Court of Canada of the settlement, but also informed the Court that it wishes to proceed with the appeal, given the national importance of the privilege issue for human rights proceedings.

4In my view, the applicant has not demonstrated a good reason for me to dismiss this motion. She complained that there had not been compliance with the production order of McFarland J. dated July 6, 2001 with respect to disclosure of oral communications by staff during the s. 34 hearing. However, she made no complaint about the information given by the respondent around October 31, 2001 until January, 2004. While she states that she always intended to ask for further disclosure, the letter to which she pointed does not make that point with respect to staff statements. If dissatisfied with the information, she should have proceeded in a more timely manner. Moreover, the information would be irrelevant if the Commission’s motion is granted.

5She also seeks to dismiss the motion because the Commission has failed to pay a costs order of Jennings J. dated September 25, 2003 or to prevent the Commission from bringing any further proceedings until the order is paid.

6This is not a case like Bottan v. Vroom, [2001] O.J. No. 2737 (S.C.J.), aff’d [2002] O.J. No. 1383 (C.A.). There, the action and defences to counterclaim were struck pursuant to 57.03(2) and 60.12 where the party had shown a serious disregard for costs orders and was sanctioned as a consequence. The Commission has paid an earlier, substantial costs order and has explained that the delay in the current payment was caused by the difficulties in obtaining agreement on a formal order, which the Ministry of Finance required prior to issuing a cheque. However, Commission counsel acknowledged that the delay has been too long and advised that a cheque could be provided within two weeks. Therefore, I order the costs order of Jennings J. paid by February 27, 2004.

7This brings me to the request that I adjourn the motion scheduled for February 24, 2004. If the Commission’s motion succeeds before the panel, the Commission can begin an investigation into all aspects of the applicant’s complaint. They argue that there is no reason to adjourn that motion, as the decision of the Supreme Court of Canada on privilege will not affect the proceedings, given that the legal opinion is relevant only to the validity of the decision which they seek to set aside. While the applicant has indicated that she may amend her application for judicial review to seek new relief, the draft she provided still contains the same request to set aside the order of the Commission, which is the relief sought in the motion as well.

8In my view, the applicant’s arguments to me should more properly be made to the panel hearing the motion on February 24. Therefore, aside from the order as to costs, this motion is dismissed, without prejudice to the applicant raising the arguments about the appropriateness of the timing of the Commission’s motion before the panel.

9If the parties are unable to agree with respect to costs, they may make brief written submissions within 30 days.