Quereshi v. Toronto (Board of Education)
Ontario Superior Court of Justice (Divisional Court)
Counsel: Charles Roach, Kikelola Roach, for Appellant Anthony Griffin, for Respondent, Ontario Human Rights Commission J. Paul R. Howard, for Respondent, Board of Education for the City of Toronto and Central High School of Commerce Shannon Chace-Hall, for Intervenor
Before: Wilson J.
Nature of the Proceeding
1The appeal and cross-appeal concern the remedies awarded to the Appellant, Muhammad Saleem Quereshi, by Professor Ed Ratushny of the Human Rights Tribunal of Ontario (the "Tribunal").
2The two relevant decisions of the Tribunal are the Decision on Remedy dated May 15, 2003 (the "Remedy Decision") and a supplementary Decision on Remedy dated August 31, 2004 (the "Supplementary Decision").
3The Appellant requests that aspects of the Tribunal's Remedy Decisions be set aside and that new orders be made regarding the pension benefits, sick leave credits, lost income and interest.
4The Respondent Board of Education for the City of Toronto (the "Board") cross-appeals with respect to aspects of the Tribunal's Remedy Decision on lost income, general damages, legal fees, and interest. The Ontario Human Rights Commission (the "Commission") agrees with the Board's submission with respect to legal fees, but disputes the Board's request to reduce the general damages, or to alter the interest provisions ordered by the Tribunal.
5The Appellant also seeks a declaration that s. 41(4) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") infringes the Appellant's rights under s. 7 and s. 15(1) of the Canadian Charter of Rights and Freedoms. That section provides for costs in limited circumstances payable by the Commission to a respondent, and not to a complainant.
6The Board, the Commission, and the Attorney General of Ontario as Intervener, submit that the Appellant's constitutional argument should fail.
Background
7The Appellant is a highly qualified teacher with numerous degrees. In 1982, he applied for employment with the Respondents, the Board of Education for the City of Toronto (now the Toronto District School Board) and Central High School of Commerce (both the Board and the School will be referred to collectively as the "Board"). He was not selected as the successful candidate.
8He immediately filed a complaint with the Commission alleging that the Board had discriminated against him on the basis of a number of prohibited grounds, including his race, creed, sex and age, in violation of the Code.
9The complaint was referred to the Tribunal for a hearing. The Tribunal first conducted a hearing specifically on whether or not there had been a contravention of the Code. The Tribunal found in 1989 that the principal and vice-principal selection team had unintentionally discriminated against the Appellant by reason of their "failure to take into account cultural differences arising out of [his] place of origin and ethnic origin".
10The Board appealed the decision to the Divisional Court [1991 CarswellOnt 1510 (Ont. Div. Ct.)]. On January 2, 1991, the Divisional Court allowed the appeal. The Commission then appealed to the Ontario Court of Appeal [1997 CarswellOnt 47 (Ont. C.A.)]. On January 15, 1997, that appeal was allowed, and the decision of the Tribunal was restored. Leave to appeal to the Supreme Court of Canada [(1997), 105 O.A.C. 319 (note) (S.C.C.)] was denied on September 18, 1997.
11Hearings before the Tribunal on remedy began in December 1997. There were further delays caused by further appeals to the courts. The Tribunal released the Remedy Decision on May 15, 2003.
12In that decision, the Tribunal dealt with pension benefits, sick leave credits and OHIP benefits. As well, the Tribunal ruled on lost income, including mitigating income.
13The Tribunal awarded general damages in the amount of $35,000, which included an amount of $10,000 for legal costs. The Tribunal also ordered prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.
14The parties communicated with the Tribunal with respect to the prejudgment interest rate and costs.
15In the Supplementary Decision dated August 31, 2004 the Tribunal confirmed that it did not have jurisdiction to reduce the prejudgment interest rate, or to vary the component of the general damage award dealing with costs, as the Tribunal was functus.
Jurisdiction
16The Divisional Court has jurisdiction to hear this matter pursuant to s. 42 of the Code:
Appeal from decision of Tribunal
- (1) Any party to a proceeding before the Tribunal may appeal from a decision or order of the Tribunal to the Divisional Court in accordance with the rules of court.
Powers of court
(3) An appeal under this section may be made on questions of law or fact or both and the court may affirm or reverse the decision or order of the Tribunal or direct the Tribunal to make any decision or order that the Tribunal is authorized to make under this Act and the court may substitute its opinion for that of the Tribunal.
Standard of Review:
17There is a broad statutory right of appeal from the decision of the Tribunal under the Code, and there is no privative clause.
18However, the jurisprudence supports a position that the court should show a "relative degree of deference" to human rights tribunals in their findings of fact. In Attis v. New Brunswick District No. 15 Board of Education, [1996] 1 S.C.R. 825 (S.C.C.) at p. 847, LaForest J. stated that, as regards the superior expertise of a human rights tribunal to fact finding and adjudication in a human rights context, the standard of review on the basis of reasonableness is applicable. See also, Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 (Ont. C.A.) at p. 32, in which Laskin J.A. stated that "the standard of review of the Board's findings of fact and the application of the law to those findings of fact is reasonableness".
19General questions of law, however, should be reviewed on a standard of "correctness". For example, in the case of Berg v. University of British Columbia, [1993] 2 S.C.R. 353 (S.C.C), at 369, Lamer J. noted: "the superior expertise of a human rights tribunal does relate to fact finding and adjudication in a human rights context, but does not extend to general questions of law".
20As summarized by the Divisional Court in Smith v. Mardana Ltd., [2005] OJ. No. 377 (Ont. Div. Ct.) at para. 3"the standard of review on questions of fact should be reasonableness, and on questions of law, correctness".
Appeal with Respect to Remedies
21The parties agree that the period of economic loss resulting from the discrimination commences October 14, 1982 and continues to June 30, 1991.
22With respect to the various heads of damages, the parties jointly retained an accountant to prepare a report with alternative underlying factual assumptions reflecting the positions of the parties. It is the underlying factual assumptions that were in dispute before the Tribunal, and continue to be in dispute before this court.
23The Tribunal is empowered to direct payments in accordance with s. 41(1)(b) of the Code as follows:
41 (1) Where the Tribunal, 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 Tribunal may, by order,
(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 willfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
24I will review each disputed head of damage, and outline our conclusions.
1. Pension
25The parties reached an agreement before the Tribunal with respect to the loss of pension benefits. The difficulty arises with respect to implementing the agreement. During the hearing before this court, the parties again resolved their difficulties.
26The parties agreed that the Appellant lost the equivalent of .65 years of pensionable service during the relevant period of loss. The accountant calculated that the value of that loss as at the date of the hearing as $6900.00, assuming that the Appellant would retire at the age of 65.
27The Appellant wished to top up, or buy back his pension credits, rather than accept the lump sum payment. The Board agreed to cooperate, so long as they were not required to pay more than $6900.00. The Appellant's wishes may not be able to be accommodated due to the position taken by the pension fund, not the Board.
28The Board is prepared to pay as directed the agreed sum of $6900.00 together with prejudgment interest from the date of the report in August 2001. The payment may be made either to the Appellant, or to the pension fund as directed. The Board agrees to cooperate if it is possible for the Appellant to buy back his pension, so long as the Board payment does not exceed the agreed upon sum.
29Counsel for the Appellant, upon instructions from his client, agreed to this resolution of this issue before us.
30There is no need for this court to intervene on this issue, unless a court order incorporating these terms would be helpful to the parties.
2. Sick Leave
31The parties also reached an agreement before the Tribunal with respect to sick leave benefits.
32During the period of loss arising from the discrimination, the Appellant accumulated the equivalent of 108 sick leave credits. At the hearing, the accountant had calculated the present day lump sum value of these credits as being worth $7820.00.
33The Appellant wished to bank his benefits, to be available to him in the future, rather than accept the lump sum payment.
34The Board agreed to allow the Appellant to bank the number of sick day benefits, so long as the credit given for sick leave benefits was calculated as the value of the number of days equivalent to the lump sum of $7820.00. This agreement is reflected in the transcripts.
35Apparently, the sum of $7820.00 translates into a credit for sick leave benefits for 10 days, not the 108 sick days accumulated.
36The Appellant now is understandably not happy with this result. However, in light of the agreement reached between the parties on the record before the Tribunal, it would not be appropriate for this court to intervene.
3. Compensation for Lost Income - Salary Level or Grading
37The Appellant raises an issue with respect to lost income based upon his assumed salary level or grading during the period of economic loss.
38The Appellant asserts that had the discrimination not occurred, he would have taken educational upgrading qualifications sooner for his honours specialist course. According to the Appellant, a full time teaching contract was a prerequisite to taking the course. As well, as the Appellant was working in the summer, the course was not available to him. Taking this course increased the salary level from a group III step 10, to a group IV step 10.
39Once he obtained a full time teaching position, the Appellant immediately completed the course.
40The Board disputes that obtaining a full time contract with the Board was a prerequisite to taking this course. In fact, the Appellant completed the course prior to obtaining full time employment.
41The Tribunal concluded that there was "no credible evidence" that the Appellant would have completed the course sooner, and it rejected the Appellant's argument on this issue.
42There was evidence before the Tribunal that was considered and weighed. We conclude that there are no grounds justifying this court's intervention on this issue.
4. Mitigation of Loss of Income
43The Appellant appeals from the conclusion of the Tribunal in the Remedy Decision that the income earned by the Appellant during his teaching at night should be considered as income earned to mitigate his loss. Therefore, this income should not have been deducted from the calculation of his damages by way of lost income.
44The Board in turn cross-appeals from the conclusion of the Tribunal that the Appellant's income earned from teaching summer school during the period of loss should not be considered as mitigation income. The Board asserts that this income earned should be deducted from the calculation of lost income, along with the income earned teaching night school.
45The Tribunal heard and weighed evidence and heard submissions with respect to these two issues. The conclusions reached by the Tribunal are factual, reasonable, and are supported by the evidence. It would not be appropriate for this court to respond to the invitation of both parties to retry this issue.
5. Interest
46The Appellant seeks compound interest on the award granted. Given the passage of time since 1982, this would be a significant windfall to the Appellant. Alternatively, the Appellant seeks simple interest in accordance with the applicable prejudgment interest rate in October 1982 in accordance with the Remedy Decision dated May 15, 2003.
47The Appellant relies on a decision of Lord Denning in support of his request for compound interest: see Wallersteiner v. Moir (No. 2), [1975] 1 Q.B. 373 (Eng. C.A.). Respectfully, this decision does not reflect Ontario law.
48Subsection 128(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. c.43 specifically provides for awards for simple interest: "Interest shall not be awarded on interest accruing under this section".
49In the Remedy Decision, the Tribunal awarded prejudgment interest upon the award in accordance with the Courts of Justice Act. The applicable rate of interest in October 1982 was 13.75%.
50The Commission supports the Appellant's alternative argument that the interest rate should be confirmed in accordance with the reasons in the Remedy Decision.
51After the Remedy Decision was rendered, Counsel for the Board contacted the Tribunal in writing suggesting that the rate of interest should be reduced to 9%. This was done in spite of submissions already having been made with respect to rate and duration of interest before the Tribunal.
52The Appellant did not make any submissions after the Remedy Decision with respect to interest. The Tribunal instructed the Registrar to advise the parties that the rate of interest for loss of income and general damages would be set at 9%. Further submissions were sent to the Tribunal.
53The Tribunal, in the Supplementary Decision rendered August 31, 2004, concluded that the direction to vary the interest rate was a variation of the Remedy Decision, and that the Tribunal did not have jurisdiction to do so.
54The Remedy Decision with respect to ordering prejudgment interest in accordance with the Courts of Justice Act was reasonable, and accords with the approved practice of the Board.
55The Ontario Court of Appeal in Impact Interiors Inc. v. Ontario (Human Rights Commission), [1998] O.J. No. 2908 (Ont. C.A.) confirms that the Tribunal has jurisdiction to order interest in accordance with the Courts of Justice Act.
56We do not agree with the Board's suggestion that the applicable rate of interest is that established by the Rules of Civil Procedure for personal injury cases.
57We confirm the Tribunal's decision with respect to prejudgment interest in accordance with the Courts of Justice Act.
58The award for interest is reasonable and in accordance with the law. There has been horrendous delay in this case. All the issues were argued before the Tribunal. We see no reason why we should intervene and vary the order for prejudgment interest in the Remedy Decision.
6. Damages
59The Tribunal awarded general damages in the amount of $35,000.00.
60The Board appeals from this order, and suggests that the appropriate award is $5000.00.
61In the award of $35,000.00 is an allocation for $10,000.00 for legal costs.
62With respect to the general damage figure of $25,000.00, we disagree with the Board's suggestion that the award should be reduced. The award of $25,000.00 is entirely justified given the impact of the discrimination upon the Appellant, over a five-year period, and the findings of fact of the Tribunal. The Tribunal cites precedent for this amount in Bubb-Clarke v. Toronto Transit Commission, [2002] O.H.R.B.I.D. No. 6 (Ont. Bd. of Inquiry) (Member Rosenberg).
63The Commission opposes the suggestion that the award should be reduced.
64The Tribunal considered the appropriate factors. An award of damages is at the heart of the expertise of the Tribunal. There is no limit to general damages that may be awarded pursuant to section 41(1)(b) of the Code. The delay in this case was unconscionable. We conclude that it would not be appropriate for this court to intervene on the issue of the assessment of the general damages in the amount of $25,000.00.
7. Costs
65The Tribunal increased the award for general damages in the amount of $10,000.00 "to take into account that the Complainant incurred substantial legal expenses as one factor in assessing general damages, without specifically compensating for actual expenses". We have concerns about this aspect of the decision.
66General damages are intended to compensate for a complainant's non-financial loss. The Tribunal has jurisdiction to award such compensation under s. 41(1)(b) of the Code, which states that the Tribunal may "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".
67The only specific reference to legal costs in the Code is in s. 41(4), which provides as follows:
41(4) Where, upon dismissing a complaint, the Tribunal finds that,
(a) the complaint was trivial, frivolous, vexatious or made in bad faith; or
(b) in the particular circumstances undue hardship was caused to the person complained against,
the Tribunal may order the Commission to pay to the person complained against such costs as are fixed by the Tribunal.
68Section 17.1 the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 applies to tribunals, including the Tribunal in this case. That section provides that a tribunal may set out, in a rule, a mechanism for ordering costs in a proceeding, but only in limited circumstances. In any event, the Tribunal has not availed itself of this power to create a rule with respect to costs of a complainant.
69It has been noted that s. 41(4) of the Ontario Code is different from provisions in other provincial and federal human rights legislation. The Ontario legislation has been described by one Board of Inquiry as "clearly the most restrictive in the country with respect to costs in human rights proceedings" (Naraine v. Ford Motor Co. of Canada, [1997] O.H.R.B.I.D. No. 6 (Ont. Bd. of Inquiry) (Member C. Backhouse)).
70However, the Divisional Court decision in Ontario (Human Rights Commission) v. Ontario (Liquor Control Board) (1988), 25 O.A.C. 161 (Ont. Div. Ct.) considered the scope of the predecessor to s. 41(4):
The legislature has expressly provided for the recovery of costs in limited circumstances "to the person complained against" under s. 40(6) [now s. 41(4)] of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. The power of the Board of Inquiry under s. 40(1) to ''make restitution including monetary compensation" is not an express provision for the award of costs to complainants under the Code. The rule of liberal interpretation to carry out the objects of the Code to, as far as possible, remedy the effects of and prevent discrimination do not apply to procedural matters or the question of costs.
Under the principle of statutory interpretation, expressio unius exclusio alterius. by expressly providing boards of inquiry with authority to award costs only in s. 40(6) of the Code, the legislature has excluded jurisdiction to award costs otherwise under the Code. [emphasis added]
71In Ontario (Human Rights Commission), the Court concluded that s. 41(4) specifically occupies the field, leaving no implicit or residual authority to award costs under the general provisions of s. 41(1)(b).
72Ontario (Human Rights Commission) is in conflict with a more recent decision of the Tribunal: Curling v. Torimiro, [2000] O.H.R.B.I.D. No. 16 (Ont. Bd. of Inquiry)(Vice-Chair Laird). The Vice-Chair held that s. 41(4) did not foreclose an order for a complainant's legal expenses as part of a restitutional award under s. 41(1)(b).
73Relying upon Curling, the Tribunal in the case at bar concluded at para 26:
In my view, the Karumanchiri decision precludes the award of specific "costs" for legal disbursements and counsel fees. However, personal expenses, including legal fees and disbursements, incurred by a Complainant in successfully pursuing a discrimination complaint may be taken into account as one factor in assessing general damages. These are not actual taxable "costs" but a recognition that an additional financial burden was experienced by the Complainant. It is notable that although the Court denied legal costs in the Karumanchiri case, it expressed the hope, nevertheless, that the Respondent L.C.B.O. would compensate the Complainants for their "legal expenses" and said it would be "regrettable" if they did not. Justice Rosenberg added: "It is even possible that they could recover these costs as damages in a civil suit".
74The Ontario Court of Appeal in Tilberg v. McKenzie Forest Products Inc. (2000), 48 O.R. (3d) 150 (Ont. C.A.) confirmed that if the Commission chooses to withdraw from a matter once the public mandate has been met, the complainant may continue the matter. In that case, when this happened and the complainant retained counsel, the Court stated at para. 7 that the complainant "was expected to pick up costs of the continued hearing".
75In this case, the Commission chose to withdraw, as the Appellant was not prepared to settle the case in accordance with the recommendations of the Commission Counsel. Based upon Tilberg, this does not engage entitlement to costs.
76In light of the reasoning in Ontario (Human Rights Commission) and the plain language of s. 41(4) and the obiter in Tilberg, we must set aside the costrelated part of the general damage award in the amount of $10,000.00. The general damage award is reduced, therefore, to $25,000.00. Any broadening of the scope of s. 41(4) to allow costs awards against parties other than "the person complained against" would require amendment by the legislature.
Constitutional Challenge
77The Appellant seeks to challenge the constitutionality of section 41(4) of the Code, and if successful seeks costs in the amount of $150,000.00 payable not by the Commission, but by the Board.
Late service of Notice of Constitutional Question
78The counsel for the Attorney General for Ontario raises a preliminary issue with respect to the timing of the service of the Notice of Constitutional Question.
79Subsection 109(2.2) of the Courts of Justice Act provides that the notice is to be served as soon as the circumstances become known, and not less than 15 days before the hearing.
80The Notice of Constitutional Question was served upon the Attorney General for Ontario and Canada twenty-two days before the hearing. The question was raised well over a year ago, but through inadvertence, the notice was not served.
81The Attorney General for Canada declined to intervene.
82Counsel for the Attorney General for Ontario has prepared a factum and case brief. She raises concerns about the adequacy of the notice, if there is a finding of a Charter breach, and the necessity to file s. 1 materials, to justify as reasonable the statutory provision.
83She chose not to request an adjournment. In light of the epic history of the case, all parties were anxious to proceed.
84Counsel points out the practical problems that late service of the Notice of Constitutional Question creates when the notice requirements are not complied with.
The context of the statutory provision in question
85Section 41(4) of the Code provides as follows:
Where, upon dismissing a complaint, the Tribunal finds that,
(a) the complaint was trivial, frivolous, vexatious or made in bad faith; or
(b) in the particular circumstances undue hardship was caused to the person complained against,
the Tribunal may order the Commission to pay to the person complained against such costs as are fixed by the Tribunal.
86To understand this provision, it is helpful to understand the legislative scheme and the context relevant to s. 41(4) of the Code.
87The following extracts from the factum of the Attorney General in paragraphs 11 to 15 provide this context.
The Commission is a publicly funded body that administers and enforces the Code in the public interest. The Commission's responsibilities under the Code include both "gatekeeping" (or screening) functions and "complaint carriage" functions:
Gatekeeping: The commission is responsible for receiving complaints, investigating them, attempting to facilitate settlement through mediation and, ultimately, determining whether complaints should be referred to the Tribunal for a hearing. The Commission has the discretion under s. 34(1) of the Code to decide not to deal with a complaint where the complaint could be more appropriately dealt with under another Act; the subject matter of the complaint is trivial, frivolous, vexatious or made in bad faith; the complaint is not within the Commission's jurisdiction; or the complaint is brought too late. The Commission thus performs a gatekeeping function, with the goal of screening out trivial or insubstantial claims.
Complaint Carriage: Where a complaint is referred to the Tribunal for a determination of whether a complainant's rights have been infringed, the Commission has carriage of the complaint. The Commission is responsible for presenting evidence about the complaint to the Tribunal and for shepherding the complaint through the Tribunal process. The Commission may withdraw from participation in a hearing before the Tribunal when its public interest mandate has been satisfied.
Section 41(4) grants the Tribunal the discretion to award costs against the Commission in exceptional circumstances. The Code does not provide for the payment of any costs as between complainants and respondents.
Section 41(4) allows for costs sanctions against the Commission in favour of a successful respondent where the Commission's gatekeeping function has not been effective and a complaint that was trivial, frivolous, vexatious or made in bad faith proceeded, or where in the particular circumstances responding to a complaint caused undue hardship to the respondent.
88The difference between complainants and respondents in these matters is clear. While a complainant makes the choice to bring a complaint forward, a respondent comes before the Tribunal out of the necessity of responding to a complaint. When a respondent is confronted with a complaint that proceeds to a hearing, he or she has no choice but to defend the claim, and to assume whatever costs this may entail, including preparation time, time away from work, and the costs of legal counsel if he or she chooses to be represented before the Tribunal, as well as the costs of disbursement relating to the hearing, such as expert witnesses.
89Section 41(4) provides a mechanism for successful respondents to be compensated for their legal costs by the Commission in those rare and exceptional circumstances where a complaint is found to be trivial, frivolous, vexatious or made in bad faith or to have caused undue hardship to a respondent.
90By way of contrast, complainants have the benefit of the Commission's carriage of their complaint and are thus not obliged to incur legal costs in order to have their claim brought before the Tribunal, although they may hire private legal counsel if they choose to do so.
Section 7 Challenge
91Section 7 of the Charter provides:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
92We conclude that section 41(4) of the Code does not infringe the Appellant's right to "life, liberty and security of the person". The Appellant's interest in recovering his legal costs is economic in nature and thus does not fall within the scope of s. 7.
93It is well established in the jurisprudence the right to "life, liberty and security of the person" guaranteed by s. 7 does not include purely economic interests.
94Siemens v. Manitoba (Attorney General) (2002), 2003 SCC 3, [2003] 1 S.C.R. 6 (S.C.C.) at para. 45 confirms this principle:
The right to life liberty and security of the person encompasses fundamental life choices, not pure economic interests. As La Forest J. explained in Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 66:
…the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence.
95Similarly, in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (S.C.C), at pp. 358-359, the court confirms:
The prejudice to the respondent in this case … is essentially confined to his personal hardship. He is not "employable" as a politician, he and his family have moved residences twice, his financial resources are depleted, and he has suffered physically and psychologically. However, the state has not interfered with the respondent and his family's ability to make essential life choices. To accept that the prejudice suffered by the respondent in this case amounts to state interference with his security of the person would be to stretch the meaning of this right.
96The Appellant's challenge based upon a breach of s. 7 of the Charter is therefore dismissed.
Section 15(1) Challenge
97Section 15(1) of the Charter provides:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
98In the Notice of Constitutional Question, the Appellant alleges s. 41(4) of the Code is discriminatory as the section provides for legal costs to a successful respondent but fails to provide for costs to a successful complainant represented by his privately retained counsel.
99At the opening of the hearing, counsel for the Appellant changed their position. They sought an award of costs against the Board, rather than the Commission.
100The factum of the Attorney General for Ontario pointed out that even if the Appellant was successful, the offending legislation would be struck down as unconstitutional, and nobody, be it a complainant or a respondent, would be entitled to costs payable by the Commission.
101A successful s. 15(1) challenge involves three sequential elements, which have been formulated as three questions, as discussed in Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657 (S.C.C.):
(1) Is the claim for a benefit provided by law? If not, what relevant benefit is provided by law?
(2) Was the relevant benefit denied to the claimants while being granted to a comparator group alike in all ways relevant to benefit, except for the personal characteristic associated with an enumerated or analogous ground?
(3) If the claimants succeed on the first two issues, is discrimination established by showing that the distinction denied their equal human worth and human dignity?
102It is the position of the Attorney General that none of the three requirements are met, based upon the revised position argued by the Appellant.
103We agree.
104Section 41(4) provides for costs payable by the Commission in rare stipulated circumstances to respondents, only if the gatekeeper function of the Commission goes awry, and a frivolous complaint is brought forward. The Appellant is seeking costs from the Board, and seeks that we read in this right, where none is provided for in the statute. The Appellant suggests in essence that we assume the role of the legislature. We decline to do so.
105We will, however, briefly outline our conclusions based upon how the constitutional question was originally framed, until the opening of the hearing.
106Section 41(4) of the Code provides a benefit to respondents, in limited functions when the Commission has in essence failed in its gatekeeper function.
107The Appellant fails on the second requirement to establish a breach of s. 15(1) of the Charter.
108The benefit granted to respondents is not granted to a comparator group, alike in all respects to complainants, except for personal characteristics associated with an enumerated ground of discrimination, or an analogous ground.
109The context for the Code cost provision outlined in the analysis with respect to s. 7 of the Charter makes it clear that complainants are not alike in all respects to respondents. Complainants initiate an inquiry, and if the Commission has concerns about breaches of the Code there will be a hearing, and legal counsel from the Commission will represent the interests of complainants. No such provision applies to respondents.
110To establish a violation of s. 15(1), the differential treatment suffered by a claimant must be based on one or more prohibited grounds of discrimination. The grounds may either be enumerated in s. 15 or analogous to those that are enumerated.
111The Ontario Court of Appeal in Falkiner v. Ontario (Director of Income Maintenance, Ministry of Community & Social Services) (2002), 59 O.R. (3d) 481 (Ont. C.A.), at pp. 506-507 has held that the main question in deciding whether a particular ground is analogous is whether its recognition would further the purpose of s. 15, the protection of human dignity. Factors relating to the nature of the group and Canadian society's treatment of the group must be considered, including the group's historical disadvantage, lack of political power and vulnerability to having its interests disregarded.
112These considerations have no application when considering the role of the complainant as compared to a respondent in a hearing, when the issue of legal costs payable by the Commission is in issue.
113The Ontario courts have repeatedly held that economic disadvantage alone, without more, does not justify protection under s. 15 of the Charter. See Polewsky v. Home Hardware Stores Ltd. (2003), 66 O.R. (3d) 600 (Ont. Div. Ct.) at para. 24, leave to appeal granted [2004] O.J. No. 954 (Ont. C.A.), and R. v. Banks, [2005] O.J. No. 98 (Ont. S.C.J.) at paras 68-70 and Falkiner v. Ontario (Director of Income Maintenance, Ministry of Community & Social Services), supra at p. 507 (C.A.).
114Permitting one party to recover costs, while denying another party the opportunity, is a distinction that does not offend any enumerated or analogous ground under s. 15 of the Charter. See Khokhar v. Blackburn, [1993] A.J. No. 745 (Alta. Q.B.) at paras. 11-12.
115We conclude that the characteristic put forward by the Appellant ("successful complainants represented by privately retained counsel") is not one that should be accepted as an analogous ground under s. 15 of the Charter.
116Even if there was merit to the Appellant's concerns, which we reject, the Appellant has baldly raised a constitutional question and challenge without providing any factual context.
117The Supreme Court of Canada has held that it is impossible to decide a Charter application without having evidence about the effects of the impugned rule, in the form of adjudicative facts: see Damon v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 (S.C.C.) at para 32.
118This court recently reached a similar conclusion in Polewsky v. Home Hardware Stores Ltd., supra, at paras. 18-20. The court cited with approval the comments of the trial judge, who said that decisions on fundamental constitutional rights must be carefully considered, as they will profoundly affect the lives of all residents of Canada. Courts ought not to be asked to rule on such matters on the basis of bald assertions. Ruling on such questions in a factual vacuum trivializes the Charter and could result in an ill-considered decision.
119For these reasons, the claim that there has been a breach of s. 15(1) of the Charter is dismissed.
120Based upon our conclusions reached, we do not need to comment upon the submissions made by counsel for the Attorney General with respect to s. 1 considerations of the Charter.
121In conclusion, all appeals and cross-appeals are dismissed, with the exception of the allocation of $10,000.00 for legal costs incurred characterized by the Tribunal as a head of general damages. The award for general damages is therefore reduced to $25,000.00.
122In our view both the Appellant and the Board were unsuccessful in their appeals and cross-appeals, with the exception of the costs award. In all of the circumstances, we decline to award costs in favour of any party.
Cross-appeal allowed in part.