McKenzie Forest Products Inc. v. Ontario Human Rights Commission et al.

[Indexed as: McKenzie Forest Products Inc. v. Ontario (Human Rights Commission)]

48 O.R. (3d) 150

[2000] O.J. No. 1318

No. C33123

Court of Appeal for Ontario

McMurtry C.J.O., Abella and O'Connor JJ.A.

April 18, 2000

*Application for leave to appeal to the Supreme Court of Canada was dismissed November 9, 2000. (L'Heureux-Dubé, Bastarache and LeBel JJ.) S.C.C. Bulletin, 2000, p. 2009.

Human rights -- Board of Inquiry -- Jurisdiction -- Human Rights Commission referring complaint of discrimination to Board of Inquiry -- Commission then withdrawing from complaint -- Complainant having independent status as party before Board of Inquiry -- Board of Inquiry autonomous tribunal independent of Commission -- Board of Inquiry not losing its jurisdiction to continue with hearing of complaint when Commission withdrew.

The Ontario Human Rights Commission referred a complaint of discrimination in employment on the basis of physical handicap to a Board of Inquiry. The Commission subsequently informed the Board of Inquiry and the complainant that it would no longer participate in the hearing before the Board. The respondent moved before the Board of Inquiry for an order dismissing the complaint on the basis that the Commission had withdrawn the complaint, leaving the Board without jurisdiction to entertain the matter. The Board of Inquiry ruled that it retained jurisdiction to hear the complaint. The respondent's application for judicial review was allowed by the Divisional Court, which held that the Human Rights Code, R.S.O. 1990, c. H.19 mandates that the public interest represented by the Commission prevails, in the event of a conflict, over the private interest represented by the complainant, and that the presence of the Commission is a prerequisite to a hearing of the Board of Inquiry. The Commission appealed.

Held, the appeal should be allowed.

The Divisional Court erred in failing to recognize the independent status of the complainant as a party before the Board of Inquiry. The Code does not establish a hierarchy of interests in its protection of human rights. Nowhere in the Code is it mandated that the public interest is accorded greater protection. It would require specific wording in the Code to find that the complainant in this case is unable to pursue his right to an individual remedy.

Once the Commission exercises its discretion to refer a complaint to the Board of Inquiry, the role of the Commission fundamentally changes. It no longer acts as an investigative and screening body, but becomes a part of the proceeding. At this point, the determination of the complaint becomes the responsibility of the Board of Inquiry.

The Divisional Court erred in not finding that the Board of Inquiry is an autonomous tribunal independent of the Commission.

While s. 39(2)(a) of the Code identifies, among the parties to a proceeding before the Board of Inquiry, "the Commission, which shall have carriage of the complaint", it would offend the object and scheme of the Code to give "carriage" a restrictive and narrow interpretation. The proper interpretation of s. 39(2)(a) with respect to the Commission having "carriage of the complaint" should relate to procedure and not to substantive rights, so that, as between the Commission and the complainant, carriage is to be assigned to the Commission. The Divisional Court erred in finding that the Board of Inquiry lost its jurisdiction to continue with the hearing of the complaint when the Commission decided not to participate further in the proceedings.

APPEAL from a decision of the Divisional Court granting an application for judicial review of a decision of a Board of Inquiry.

Cases referred to Action Travail des Femmes v. Canadian National Railway Co., 1987 109 (SCC), [1987] 1 S.C.R. 1114, 40 D.L.R. (4th) 193, 76 N.R. 161 (sub nom. Canadian National Railway Co. v. Canada (Human Rights Commission)); Bell Canada v. Communications, Energy and Paperworkers Union of Canada, 1998 8700 (FCA), [1999] 1 F.C. 113, 159 F.T.R. 160n, 167 D.L.R. (4th) 432, 233 N.R. 87, 98 C.L.L.C. 230-047 (C.A.); Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3, 122 D.L.R. (4th) 129, 177 N.R. 325; Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536, 52 O.R. (2d) 799, 12 O.A.C. 241, 23 D.L.R. (4th) 321, 64 N.R. 161, 17 Admin. L.R. 89, 9 C.C.E.L. 185, 86 C.L.L.C. 17,002; Seneca College of Applied Arts & Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181, 124 D.L.R. (3d) 193, 37 N.R. 455, 14 B.L.R. 157, 17 C.C.L.T. 106, 81 C.L.L.C. ô14,117, 22 C.P.C. 130 Statutes referred to Human Rights Code, R.S.O. 1990, c. H.19, ss. 8, 33(1), (2), 34(1), 36(1), 37(1), 39(1), (2), 41

Joanne D. Rosen, for appellant, Ontario Human Rights Commission. D. Gerald Rayner, for respondent, Adam Tilberg. Nigel Campbell and Robert J. Brush, for applicant/ respondent in appeal, McKenzie Forest Products Inc. Margaret L. Leighton, for respondent, Board of Inquiry. J. Paul R. Howard, for intervenor, Toronto District School Board.

The judgment of the court was delivered by

[1] MCMURTRY C.J.O.: -- This is an appeal from the decision of the Divisional Court dated May 31, 1999 which granted the application for judicial review brought by the respondent, McKenzie Forest Products Inc. (McKenzie), in respect of a decision of the respondent Board of Inquiry. The majority of the Divisional Court held that when the Ontario Human Rights Commission (Commission) took steps to surrender active carriage of the complaint, the Board of Inquiry lost jurisdiction to hear the complaint.

Background

[2] In his complaint, the respondent, Adam Tilberg (Tilberg), alleged that McKenzie infringed his right to equal treatment with respect to employment by discriminating against him because of his physical handicap, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 ("the Code").

[3] Initially, the Commission staff recommended to the Commissioners that they not appoint a Board of Inquiry. However, by letter dated February 7, 1997, the Commission advised McKenzie that it had decided to refer Tilberg's complaint to a Board of Inquiry. There is no explanation in the record for this turn of events.

[4] The hearing into the complaint commenced by a telephone conference call. The parties agreed to a schedule for the filing of pleadings and the disclosure of documents. A mediation was held and a second mediation date was scheduled.

[5] Prior to the second mediation, the Commission informed the Board of Inquiry, Tilberg and McKenzie that it had decided that it would "no longer participate" in the hearing before the Board of Inquiry. The Commission also stated in its letter that Tilberg was "aware of his right to proceed with this matter on his own".

[6] The Commission requested "as a condition of its withdrawing from the proceedings" a letter of assurance from McKenzie stating the following:

(a) McKenzie does not consider it discriminated against Tilberg.

(b) McKenzie understands the importance of the Code.

(c) McKenzie acknowledges that the Code plays a significant role in the employment practices of employers within Ontario.

(d) McKenzie's human resources policies adopt procedures and policies that reflect and conform with the provisions of the Code.

McKenzie complied with the condition by delivering a letter of assurance.

[7] The respondent realized, before providing the letter of assurance, that the complainant had not abandoned his claim. Furthermore, the complainant had received no personal benefit from the letter of assurance and was expected to pick up the costs of legal representation for the continued hearing.

[8] The hearing into Tilberg's complaint resumed with Tilberg retaining his own counsel and revised pleadings were filed. McKenzie then moved before the Board of Inquiry for an order dismissing Tilberg's complaint on the basis that the Commission had withdrawn from the complaint and "relinquished carriage of the matters" leaving the Board of Inquiry "without jurisdiction to entertain the matters".

[9] The Board of Inquiry ruled that it would continue with the hearing of Tilberg's complaint as it had retained jurisdiction for the following reasons:

1. The Commission,

(a) had not withdrawn and cannot withdraw as a party before the Board of Inquiry;

(b) lacks the authority itself to withdraw a complaint which has been referred for a hearing; and

(c) is only one of at least three parties before any Board of Inquiry and therefore cannot on its own cause the tribunal to lack jurisdiction

2. In the absence of the Commission, the complainant can rely on his statutory status as a party to the proceeding to present the evidence and arguments in support of the merits of the complaint.

[10] As indicated above, the Divisional Court granted McKenzie's application for judicial review. The majority held that:

(a) the Code mandates that the public interest represented by the Commission prevails, in the event of a conflict, over the private interest represented by the complainant, and

(b) the presence of the Commission is prerequisite to a hearing of the Board of Inquiry given the statutory scheme.

Questions on Which Leave to Appeal was Granted

[11] On the Commission's motion seeking leave to appeal the Divisional Court's decision, this court granted leave to appeal on the following questions:

A. Did the Divisional Court err in failing to recognize the independent status of the complainant as a party before the Board of Inquiry in light of the policy and procedure of the Code?

B. Did the Divisional Court err in failing to recognize the change in the Commission's role upon its referral of the subject matter of a complaint to the Board of Inquiry?

C. Did the Divisional Court err in holding that the Board of Inquiry is not an autonomous tribunal independent of the Commission?

D. Did the Divisional Court err in holding that the Board of Inquiry lost its jurisdiction to continue with the hearing of the complaint when the Commission decided not to participate further in the proceedings?

Synopsis of Relevant Statutory Framework

[12] The Human Rights Code contains substantial rights and protections. Section 8 explicitly empowers individuals to seek to enforce their rights under the Code in the following language:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act . . . .

[13] The Commission receives complaints from individuals. It is responsible for the investigation of a complaint and will determine whether to refer a complaint to the Board of Inquiry for adjudication. A complainant may request the Commission to reconsider its refusal to refer the complaint. Where a decision to refer is made, respondents have no right to a reconsideration of that decision: (ss. 33(1), (2), 34(1), 36(1), 37(1))

[14] Upon referral, s. 39 requires the Board of Inquiry to hold a hearing. Section 39(2) identifies the parties to a hearing before the Board, in part, as follows:

39(2) The parties to a proceeding before the board of inquiry are:

(a) the Commission, which shall have carriage of the complaint;

(b) the complainant;

(c) any person who the Commission alleges has infringed the right;

(d) any person appearing to the board of inquiry to have infringed the right;

[15] A principal issue before the Board of Inquiry, the Divisional Court and this court is the interpretation and application of the provision in s. 39(2)(a) that the Commission "shall have carriage of the complaint". As stated earlier, the majority of the Divisional Court held that the jurisdiction of the Board of Inquiry was dependent upon the Commission's "carriage" and participation in the hearing.

Summary of Judgments Below

Board of Inquiry

[16] The Board held that the Commission does not have authority to withdraw as a party before the Board of Inquiry even if it chooses not to participate in the hearing. The Board further concluded that the Commission lacks authority to withdraw a complaint after it has been referred to a hearing and that the Commission is only one of at least three parties before any Board of Inquiry.

[17] The Board also emphasized that s. 36(1) of the Code states that the "Commission may refer the subject matter of the complaint to the board of inquiry" and s. 39(1) then mandates that the board of inquiry hold a hearing.

[18] The Board concluded that ". . . in the absence of the Commission, the complainant can rely on his statutory status as a party to the proceeding to present the evidence and arguments in support of the merits of the complaint. . . . Specific statutory language would be required to support a finding that the complainant's party status, and the right to a hearing on the merits, could not survive a Commission decision to not participate in the hearing of a complaint".

Divisional Court

[19] Crane J. for the majority held that the issue raised by the Board's decision was jurisdictional in nature and applied the correctness standard of review.

[20] Crane J. further stated that, "I cannot and do not understand the Code or s. 39, or the intentions of the Legislature to be that a board of inquiry is an autonomous body empowered to act contrary to the will of the Commission". He then concluded that there cannot be a hearing of the Board without the presence of the Commission, which is charged pursuant to s. 39(2) of the Code with carriage of the complaint.

[21] Crane J. held that where private and public interests diverge, the "Code mandates that the public interest prevails". He then concluded "that a Board of Inquiry may only proceed and continue a hearing at the direction and carriage of the Commission. Further I find it repugnant to the Code that a Board of Inquiry direct the Commission in the administration of the Code".

[22] A further concern expressed by Crane J. is that there will be no incentive for a respondent to settle with the Commission and agree to amend its practices if it would still face a hearing with the complainant.

Ferrier J. (dissenting)

[23] Ferrier J. agreed that the applicable standard of review of the decision of the Board of Inquiry is correctness.

[24] He did not agree with Crane J. that the public interest necessarily prevails over the private interest. He expressed the view that the public interest is connected with the private interest and that the latter is also integral to the Code.

[25] Ferrier J. also drew the following distinction between the role of the Commission and the status of a complaint after referral to the Board:

Upon referral, the Commission in effect passes the wand of decision-making authority to the Board. The Board must and does have independent authority to consider the interests of the Commission, complainant and respondents, all of whom are accorded independent party status. Pursuant to the Statutory Powers Procedures Act, the Board has a duty to hold a hearing once the matter has been referred to it, unless all parties consent to a disposition without a hearing. The dispute may remain alive even after the Commission withdraws, for the complainant is a separate party and the Commission's carriage of a complaint is only a procedural, not a substantive, matter.

(Emphasis added)

[26] Ferrier J. concluded that the phrase "carriage of the complaint" in s. 39(2) refers to "procedural leadership" on the part of the Commission and not total effective control of the Commission over the complainant's rights.

Analysis of Issues

Issue A. Did the Divisional Court err in failing to recognize the independent status of the complainant as a party before the Board of Inquiry, in light of the policy and procedure of the Code?

[27] I agree with the appellant that the Code does not establish a hierarchy of interests in its protection of human rights. Nowhere in the Code is it mandated that the public interest is accorded greater protection. Indeed, the preamble suggests that the Code seeks to protect both the interests of a complainant and those of society as a whole.

[28] Section 8 of the Code explicitly recognizes the rights of the individual complainant in stating that "every person has a right to claim and enforce his or her rights under the Act, to institute and participate in proceedings under this Act . . .".

[29] In Seneca College of Applied Arts and Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181, 124 D.L.R. (3d) 193, the court held that a complainant could not bring an independent civil action based on a breach of the Code in the courts because the Code was specifically designed to vindicate the public policy expressed therein. It therefore follows that if such complainants are prohibited from procuring their remedies under the Code, they will have no forum for obtaining relief.

[30] The Code provides the Board of Inquiry with broad remedial powers, many of which are specifically directed toward the individual complainant. For example, s. 41(1)(b) of the Code empowers the Board of Inquiry to order restitution to the complainant, including monetary compensation for a complainant's losses and mental anguish.

[31] In my view, it would require specific wording in the Code to find that a complainant in the position of Tilberg is unable to pursue his right to an individual remedy.

[32] It is therefore my conclusion that the majority of the Divisional Court did err in failing to recognize the independent status of the complainant as a party before the Board of Inquiry.

Issue B. Did the Divisional Court err in failing to recognize the change in the Commission's role upon its referral of the subject matter of a complaint to a Board of Inquiry?

[33] I agree with the appellant that, once the Commission exercises its discretion to refer a complaint to the Board of Inquiry, the role of the Commission fundamentally changes. It no longer acts as an investigative and screening body, but becomes a part of the proceeding. At this point, the determination of the complaint then becomes the responsibility of the Board of Inquiry.

[34] The Commission does, of course, have a responsibility to advocate its view of the public interest and in so doing, may also advocate for the interests of the individual complainant. However, the Commission's role as a party to the proceeding cannot derogate from the independent status of an individual complainant.

[35] Under s. 39(1) of the Code, it is the Board of Inquiry which determines if a right of a complainant has been violated and, if so, the appropriate remedies under s. 41, both in respect of individual interests and of any broader public interest.

[36] I must, therefore, conclude that the majority of the Divisional Court further erred in failing to recognize the change in the Commission's role upon its referral of the subject matter of a complaint to the Board of Inquiry.

Issue C. Did the Divisional Court err in holding that the Board of Inquiry is not an autonomous tribunal independent of the Commission?

[37] In Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995], 1 S.C.R. 3, 122 D.L.R. (4th) 129, Chief Justice Lamer made the following observation in relation to administrative tribunals at p. 49 S.C.R., p. 158 C.C.C.:

I agree and conclude that it is a principle of natural justice that a party should receive a hearing before a tribunal which is not only independent, but also appears independent. Where a party has a reasonable apprehension of bias, it should not be required to submit to the tribunal giving rise to this apprehension. Moreover, the principles for judicial independence outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of parties.

[38] In Communications, Energy and Paperworkers Union of Canada v. Bell Canada (1998), 1998 8700 (FCA), 167 D.L.R. (4th) 432, [1998] 1 F.C. 113, the Federal Court of Appeal was dealing with the role of a human rights tribunal appointed by the Canadian Human Rights Commission. At p. 450, Décary J.A., on behalf of the court, emphasized the independent role of the tribunal as follows:

It will be the duty of the tribunal to determine whether the complaints are well founded or not and the tribunal will in no way be bound by the interpretation given to section 11 by the investigator and presumably adopted by the Commission.

[39] In the majority judgment of the Divisional Court, it was stated that "I cannot and do not understand . . . the intentions of the Legislature to be that a board of inquiry is an autonomous body empowered to act contrary to the will of the Commission". In my view, this passage is clearly in error as a Board of Inquiry is an administrative tribunal which is not only independent but which must appear to be independent.

[40] I therefore conclude that the Divisional Court erred in not finding that the Board of Inquiry is an autonomous tribunal independent of the Commission.

Issue D. Did the Divisional Court err in finding that the Board of Inquiry lost its jurisdiction to continue with the hearing of the complaint when the Commission decided not to participate further in the proceedings?

[41] Once a complaint has been referred to the Board of Inquiry, there is no provision in the Code which limits the Board of Inquiry's obligation to conduct a hearing into a complaint.

[42] In my view, it is not unreasonable for the Commission to withdraw from participating in the hearing before the Board of Inquiry when its public interest mandate has been satisfied.

[43] The majority of the Divisional Court held that the Commission has a statutory duty pursuant to s. 39(2)(a) to have the carriage of the complaint "and that there was no authority in the Code for the Commission to delegate such carriage to the complainant".

[44] I agree with the submission of the appellant that an interpretation of the Code that would not allow the complainant to proceed in the absence of the Commission is inconsistent with both the independent party status accorded the complainant in the proceedings and with the Board of Inquiry's independent status and its duty to hold a hearing.

[45] In Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536 at pp. 546-47, 23 D.L.R. (4th) 321 at pp. 328-29, the Supreme Court of Canada emphasizes the importance of interpreting the provisions of the Code in a manner which will serve the policy goals of the legislation:

It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment . . . and give it an interpretation which will advance its broad purposes.

[46] This purposive approach of interpretation was enunciated again in Action Travail des Femmes v. Canadian National Railway Co., 1987 109 (SCC), [1987] 1 S.C.R. 1114, 40 D.L.R. (4th) 193, by Dickson C.J.C. at p. 1134 S.C.R., p. 206 D.L.R.:

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact.

[47] In my opinion, the narrow interpretation given to s. 39(2)(a) of the Code by the majority of the Divisional Court that would require the presence of the Commission for the complaint to proceed would unduly frustrate the fundamental policy goals of the Code. I therefore agree with the minority opinion of Ferrier J. who stated that "[t]o hold that carriage gives the Commission what would amount to total effective control over the complainant's Code given substantive rights, would offend the object and scheme of the Code and abrogate the SPPA".

[48] The word "carriage" is not defined in the Code. To give it a restrictive and narrow interpretation would indeed do violence to the overall scheme of the Code. It is therefore essential to interpret the word "carriage" in a manner that best relates to the statutory context.

[49] I therefore conclude that the proper interpretation of s. 39(2)(a) of the Code with respect to the Commission having "carriage of the complaint" should relate to procedure and not to substantive rights. I agree with the appellant that the s. 39(2)(a) provision should be interpreted as instructing the Board of Inquiry that, as between the Commission and a complainant or complainants, carriage is to be assigned to the Commission. It is therefore my view that the Divisional Court erred in finding that the Board of Inquiry lost its jurisdiction to continue with the hearing of the complaint when the Commission decided not to participate further in the proceedings.

[50] There is one further issue that I would like to address given the view expressed by the majority of the Divisional Court that it was important to give public interest settlements priority over the right of the individual complainant to proceed with the hearing of the complainant. Crane J., for the majority expressed the opinion that there would be little or no incentive for a respondent to enter into a public interest settlement with the Commission if the complainant could still proceed with the complaint before a Board of Inquiry.

[51] There is no material that would support the majority's incentive theory. In my opinion, there could be many reasons which would serve the interests of a respondent to enter into a settlement with the Commission knowing that the complainant could still proceed to seek an individual remedy. On the other hand, the Commission might well be reluctant to enter into a public interest settlement with a respondent knowing that a complainant could not proceed to seek individual remedies in its absence.

Conclusion

[52] The appeal is allowed and it is ordered that the decision of the Divisional Court dated May 31, 1999 setting aside the interim decision of the Board of Inquiry dated October 2, 1998 be set aside and the matter be remitted back to the Board of Inquiry for further hearing.

[53] The appellant, Adam Tilberg and the Board of Inquiry are entitled to their costs of this appeal, the motion for leave to appeal and the application in Divisional Court.

Appeal allowed.