McKenzie Forest Products Inc. v. Tilberg
Ontario Divisional Court
McKenzie Forest Products Inc. Applicant
v.
Adam Tilberg, Ontario Human Rights Commission, Ontario Human Rights Board of Inquiry, and Attorney General of Ontario Respondents
Date of Decision: May 31, 1999
Before: Ontario Court (General Division), Smith A.C.J., Ferrier and Crane JJ.
Reasons by: Crane J.
Dissenting Reasons by: Ferrier J.
Docket No.: D201/98 (638/98)
Appeal from: (sub nom. Tilberg v. McKenzie Forest Products Inc.) (1998), 1998 29888 (ON HRT), 33 C.H.R.R. D/258 (Ont. Bd.Inq.)
Appearances by: Nigel Campbell, Counsel for the Applicant D. Gerald Rayner, Counsel for the Respondent Adam Tilberg Brian Eyolfson, Counsel for the Respondent Commission Gary Yee, Counsel for the Respondent Board of Inquiry
HUMAN RIGHTS COMMISSIONS — withdrawal from carriage of complaint — discretion to dismiss complaint — role of human rights commission — JURISDICTION — human rights commission withdraws as carrier of complaint
BOARDS OF INQUIRY / TRIBUNALS — authority to proceed in absence of human rights commission — APPEALS AND JUDICIAL REVIEW — board/tribunal's hearing of complaint exceeds remedial authority — PARTIES — COMPLAINTS — complainant's right to proceed without human rights commission — PUBLIC INTEREST — remedy consistent with public interest — protection of private interest
Summary: This is an application for judicial review on the grounds that the Ontario Board of Inquiry appointed in this case lacks jurisdiction to continue with the hearing because the Ontario Human Rights Commission withdrew and relinquished its carriage of the complaint. The majority of the Court finds that the Board lacks jurisdiction to proceed in the absence of the Commission.
Initially, the Commission decided it would not be appropriate to appoint a Board to hear a complaint of employment discrimination filed by Adam Tilberg against McKenzie Forest Products, and determined that the evidence did not warrant it. Subsequently, the Commission decided to refer the matter to hearing, however, it later withdrew from the Board of Inquiry process.
The Board of Inquiry refused a motion by McKenzie Forest Products to dismiss the Tilberg complaint. The Board found that the complainant's party status and right to a hearing survived the Commission's withdrawal from the process.
The position of the Commission was that it had not and could not withdraw the complaint, but rather that it abandoned active carriage of the complaint. The Commission withdrew on the basis of certain assurances that had been given by McKenzie Forest Products. The hearing continued with Mr. Tilberg retaining his own counsel. McKenzie Forest Products sought review of the Board of Inquiry's decision.
The Court finds that under the Code, a Board of Inquiry may not proceed in the absence of the Commission, and the Board was in error to rule otherwise. The Commission cannot delegate carriage of the complaint.
The Court also expresses concern with the decision of the Board of Inquiry in allowing the complainant to proceed with a claim for an individual remedy in the absence of the "public interest" representation of the Commission. A remedy provided to a complainant must be consistent with the public interest and must further the objects of the Code.
The Court emphasizes that the Code gives the Commission discretion to refer the subject matter of the complaint to the Board of Inquiry. There is no provision for referring the complainant to the Board.
The Court sets aside the ruling of the Board of Inquiry that it has jurisdiction to proceed with the hearing, and orders costs in favour of McKenzie Forest Products. The Ontario Human Rights Commission is ordered to pay $3,500 in costs, and Adam Tilberg is ordered to pay $500.
In dissent, Ferrier J. finds that the public interest requires a consideration of various private interests. The public interest is shaped by and shapes private interests. Thus, private interest is integral to the Code.
In addition, there is a clear change in the role of the Commission in furthering what is in the public interest at the point when a matter is referred to a Board of Inquiry. The Commission, upon referral, in effect passes the wand of decision-making authority to the Tribunal. To allow the Commission to effectively determine the outcome at this stage denies the Board of Inquiry its independent status, and the duty imposed on it to hold a hearing.
Ferrier J. finds that the Commission's withdrawal does not preclude the complainant from continuing. Ferrier J. would dismiss the application.
CASES CITED
American Airlines Inc. v. Canada (Competition Tribunal), 1988 9456 (FCA), [1989] 2 F.C. 88 (C.A.): 96
Bell Canada v. C.E.P.U. (No. 3), 1998 8700 (FCA), [1999] 1 F.C. 113, 33 C.H.R.R. D/1 (C.A.): 80
Burney v. University of Toronto (1995), 1995 18156 (ON HRT), 23 C.H.R.R. D/90 (Ont. Bd.Inq.): 42
Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes, 1987 109 (SCC), [1987] 1 S.C.R. 1114, 8 C.H.R.R. D/4210: 76
Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369: 80
Dagg v. Ontario (Human Rights Comm.) (1979), 1979 1671 (ON SC), 102 D.L.R. (3d) 155 (Ont. Div.Ct.): 51
Faulds v. Harper (1886), 1886 3 (SCC), 11 S.C.R. 639: 96
Gough v. Whyte (1983), 1983 5122 (NS SC), 56 N.S.R. (2d) 68 (S.C.): 96
Imperial Oil Ltd. v. Entrop (1998), 108 O.A.C. 81, 1998 14954 (ON SC), 30 C.H.R.R. D/433 (Gen.Div.): 76
MacBain v. Canada (Human Rights Comm.) (1985), 1985 5548 (FCA), 22 D.L.R. (4th) 119, 6 C.H.R.R. D/3064 (F.C.A.): 80
McKenzie Forest Products Inc. v. Tilberg (1998), 1998 29888 (ON HRT), 33 C.H.R.R. D/258 (Ont. Bd.Inq.): 7, 35
O.P.E.I.U., Local 267 v. Domtar Inc. (No. 2) (1988), 1988 8866 (ON HRT), 10 C.H.R.R. D/5972 (Ont. Bd.Inq.): 94
Ontario (Human Rights Comm.) v. Ontario (Ministry of Health) (1994), 1994 1590 (ON CA), 19 O.R. (3d) 387, 21 C.H.R.R. D/259 (C.A.): 18
Ross v. New Brunswick School Dist. No. 15 (No. 1) (1990), 1990 4041 (NB CA), 78 D.L.R. (4th) 392, 13 C.H.R.R. D/161 (N.B.C.A.): 94
Seneca College of Applied Arts and Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181, 2 C.H.R.R. D/468: 37, 95, 101
Shapiro v. Peel (Regional Municipality) (No. 1) (1997), 1997 24834 (ON HRT), 29 C.H.R.R. D/77 (Ont. Bd.Inq.): 42
U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048, 95 N.R. 161: 17
Wassilyn v. Ontario Racing Comm. (1993), 10 Admin. L.R. (2d) 157 (Ont. Ct. (Gen.Div.)): 90
West End Construction Ltd. v. Ontario (Ministry of Labour) (1989), 1989 4088 (ON CA), 70 O.R. (2d) 133, 10 C.H.R.R. D/6491 (C.A.): 98
Winnipeg School Div. No. 1 v. Craton, 1985 48 (SCC), [1985] 2 S.C.R. 150, 6 C.H.R.R. D/3014: 66
LEGISLATION CITED
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
Preamble: 20, 67
s. 5(1): 2
s. 8: 23
s. 9: 50
s. 11(2): 70
s. 14(1): 46
s. 14(2): 46
s. 14(3): 46
s. 17(2): 70
s. 24(2): 70
s. 25(4): 45, 48
s. 27(2): 21, 56
s. 29(f): 47
s. 29(i): 45, 47, 49
s. 32: 69
s. 33: 24, 69
s. 33(1): 48, 74
s. 33(11): 50
s. 34: 29, 69
s. 34(1): 74
s. 34(2): 74
s. 35: 79
s. 35(1): 32
s. 35(5): 79
s. 36: 69
s. 36(1): 27, 32, 57, 77
s. 36(2): 28, 74
s. 37: 74
s. 37(1): 25
s. 37(2): 25
s. 37(3): 25
s. 39: 18, 30, 32
s. 39(1): 81, 85
s. 39(2): 32, 93, 96, 98
s. 39(2)(a): 52
s. 41: 95
s. 41(1)(b): 71
s. 42(3): 40
s. 43: 49, 74
s. 44: 49
Judicial Review Procedure Act, R.S.O. 1990, c. J.1
s. 2: 15
s. 6(1): 15
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22
s. 1: 83
s. 3: 51
s. 3(1): 82
s. 4.1: 87
s. 6(1): 87
s. 7(1): 87
s. 10: 94
s. 10(1): 87
s. 10.1: 94
s. 19: 95
s. 19(1): 52
AUTHORITIES CITED
Driedger, Elmer A., Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983): 18
Gibson, Dale, "The ”˜Special Nature' of Human Rights Legislation: Re Winnipeg School Division No. 1 and Craton" (1985–86) 50 Sask. L. Rev. 175: 68
Keene, Judith, Human Rights in Ontario, 2d ed. (Toronto: Carswell, 1992): 50
Lederman, S.N. & M.E. Grottenthaler, "The Evolving Public Policy Elements of Remedies for Human Rights Code Violations", in Jeffrey Berryman, ed., Remedies: Issues and Perspectives (Toronto: Carswell, 1991) 335: 71
Macaulay, Robert W., Practice and Procedure Before Administrative Tribunals (Toronto: Carswell, 1988): 54
CRANE J.
[1] McKenzie Forest Products Inc. brings this application for judicial review for an order to set aside and quash the decision of the respondent Board of Inquiry (Human Rights Code) on the ground that the Board lacked jurisdiction to continue with the hearing on a complaint of the respondent, Adam Tilberg, upon the respondent Human Rights Commission declaring its withdrawal and relinquishment of its carriage of the proceedings.
FACTS
[2] This application pertains to proceedings pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, initiated in February 1993 by the complaint of Adam Tilberg to the Commission, alleging that the non-acceptance by McKenzie of his application for employment infringed his right to equal treatment with respect to employment without discrimination because of handicap, contrary to s. 5(1) of the Code. McKenzie denied the allegation in its Respondent Questionnaire dated 5 May 1993.
[3] The Commission investigated the Tilberg complaint and the Commission concluded "that it would not be appropriate to appoint a board of inquiry, nor does the evidence warrant it". [The Commission] prepared a Case Analysis, dated 29 March 1996. The Case Analysis reported the Commission found evidence that McKenzie had hired persons with disabilities and had accommodated them.
[4] On February 7, 1997, the Commission advised the parties it had decided to refer Mr. Tilberg's complaint to a board of inquiry. The record before us offers no explanation of this change from the Case Analysis conclusion.
[5] The referral was effected by a letter dated 7 February 1997, with the following statement:
The Ontario Human Rights Commission has decided pursuant to section 36(1) of the Ontario Human Rights Code to refer the subject matter of the above-noted complaint to the Board of Inquiry office and the Board shall hold a hearing on the merits of the case.
[6] The Commission made its disclosure, dated 30 April 1997. McKenzie was to provide its disclosure on 26 May 1997.
[7] The written reasons of Ms. Katherine Laird [reported 1998 29888 (ON HRT), 33 C.H.R.R. D/258], a member, Board of Inquiry, disclose that the hearing was commenced by telephone conference in March 1997. Following, a mediation was held in June 1997 with a second mediation session scheduled. However, prior to that date counsel for the Commission wrote to the Board by letter dated 14 October 1997, as follows [D/260, para. 6]:
As already discussed with Mr. Fricot and Mr. Tilberg, the Ontario Human Rights Commission has decided to no longer participate in the Board of Inquiry process, and will not be pursuing the complaint filed by Mr. Tilberg.
As such, the Commission does not intend to tender any evidence at a Board of inquiry hearing should this matter proceed, nor will the Commission be participating in any further mediation sessions which may be scheduled.
The Complainant, Mr. Tilberg, is aware of his right to proceed with this matter on his own. I understand he is considering this option, and wishes to consult with his own legal counsel. It is probable that he will not be able to do so before the next scheduled mediation date. Therefore, the Commission suggests that the Complainant and the responding Party be consulted as to the suitability of the mediation date set for October 27, 1997 in Thunder Bay.
Please contact the undersigned with any questions which may arise from the current position of the Commission.
[8] The complainant, through counsel, sought disclosure from the respondent McKenzie. The Board of Inquiry agreed and ordered production. McKenzie motioned the Board for an order dismissing the Tilberg complaint.
[9] In her reasons dismissing the motion, Ms. Laird states [at p. D/260, para. 8] that she "acknowledged that the Commission was taking the position that it could or had withdrawn". She continues (p. 3 of reasons) "I had made no determinations with respect to the continuing status, if any, of the Commission".
[10] Ms. Laird, on behalf of the Board of Inquiry, states under "Findings" at p. 7 [D/261, para. 19] of her reasons that:
... The Commission is only one of at least three parties before any board of inquiry, and cannot, on its own, have the ability to cause the tribunal to lose jurisdiction.
[11] The specific finding of Ms. Laird, which is the subject of this judicial review, is stated by her at p. 7 [D/261, para. 20] of her reasons, I quote:
Given that the Commission cannot withdraw a complaint, can the Commission withdraw from a complaint, or from the hearing into the complaint? Counsel for the Commission and the respondent both took the position that the Commission could, and had in fact, withdrawn from the complaint, differing, as we have seen, on whether there was a resulting impact on the Board's jurisdiction. In my view, the correct interpretation is that the Commission has merely declined to take carriage of the complaint at the hearing on the merits. 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: Shapiro, supra. 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.
[12] In my respectful view Ms. Laird did recognize the difficulty and dilemma that her ruling put the Board of Inquiry into. She states at p. 8 [D/262, para. 23] of her reasons the following:
... However, I also note that a decision-maker cannot require a party to present evidence or argument on a particular point in issue. In the absence of full argument, I am unwilling to make a determination as to whether the Board of Inquiry could, and should in the present case, order the Commission to retain, or take back, active carriage of this complaint. Even if the Board does have the authority to require the Commission to assume active carriage of the complaint at the hearing, there are negative public policy ramifications weighing against making such an order, as discussed in Burney v. University of Toronto ...
[13] The factum of the applicant sets out the subsequent events commencing at para. 6 as follows:
The Commission made its Disclosure on April 30, 1997. McKenzie delivered its Response on May 26, 1997. Subsequent to an initial mediation session, the Commission, by its counsel, informed the Board, Tilberg and McKenzie that the Commission would no longer be participating in the hearing. By a separate letter to McKenzie, the Commission requested, as a condition of its withdrawing from the proceedings, a letter of assurance stating the following:
McKenzie does not consider it discriminated against Tilberg;
McKenzie understands the importance of the Code;
McKenzie acknowledges that the Code plays a significant role in the employment practices of employers within Ontario; and
McKenzie's human resources policies adopt procedures and policies that reflect and conform with the provisions of the Code.
McKenzie duly complied with the condition and delivered a letter of assurance in the required form.
The. hearing into Tilberg's complaint resumed with Tilberg retaining his own counsel. Revised pleadings were filed, and thereafter on June 29, 1998 McKenzie moved before the Board for an order dismissing Tilberg's complaint on the basis that the Commission's decision to withdraw and relinquish carriage of the proceedings had left the Board without jurisdiction to continue.
[14] The response of the Board of Inquiry is outlined in the factum of the Human Rights Commission, at para. 1, stating that the Board of Inquiry in its ruling held,
... that where the Commission had taken steps to abandon active carriage of the complaint before the Board:
(a) the Commission had not withdrawn and could not withdraw as a party before the Board;
(b) the Commission could not withdraw the complaint; and therefore
(c) the Board retained the jurisdiction to hear an [sic] decide the complaint.
The Board declined to make a ruling as to whether it could or should order the Commission to retain, or take back, active carriage of the case, noting the public policy reasons militating [sic] against such an order.
[15] The applicant McKenzie brought the within application for judicial review pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, [o]n the ground that the Board committed a jurisdictional error in deciding to continue with the hearing of Mr. Tilberg's complaint. In the factum of the Board of Inquiry at para. 4, counsel puts the reasons of the Board as follows (Board Decision, pp. 6–7 [D/261], at Board Record, tab 29):
- The Board found that it had jurisdiction to continue on the basis of its findings that:
i) "the Commission has not withdrawn, and cannot withdraw, as a party before the Board of Inquiry."
ii) "[in accordance with submissions of Commission counsel] the Commission itself lacks the authority to withdraw a complaint which has been referred for a hearing."
iii) "the correct interpretation is that the Commission has merely declined to take carriage of the complaint at the hearing on its merits."
STANDARD OF REVIEW
[16] I find the characterization of the issue before this Court to be jurisdictional. Namely, does the Board of Inquiry have jurisdiction to proceed with a hearing after the withdrawal of the Commission from the proceeding.
[17] I find the standard of review in this application is that of correctness. Syndicat National des Employés de la Commission Scolaire Régionale de l'Ontario (CSN) v. Union des Employés de Service, Local 298 (FTQ) (1988), 1988 30 (SCC), 95 N.R. 161 at 204 (S.C.C.) ("Bibeault")
ANALYSIS
[18] The resolution of the issue in this application requires an interpretation of the governing statute (the Human Rights Code). The applicant focuses upon s. 39. In my view, the resolution lies in reading the statute in its entirety. The Ontario Court of Appeal in Ontario Human Rights Commission v. Ontario (Ministry of Health) (1994), 1994 1590 (ON CA), 19 O.R. (3d) 387 at 394 [21 C.H.R.R. D/259 at D/263, para. 12] set out some principles which govern how human rights legislation is to be interpreted:
General Principles
A human rights code is not like an ordinary law. It is a fundamental law which declares public policy: Insurance Corp. of British Columbia v. Heerspink, 1982 27 (SCC), [1982] 2 S.C.R. 145 at p. 158, 127 D.L.R. (3d) 219, per Lamer J.; Winnipeg School Division No. 1 v. Craton, 1985 48 (SCC), [1985] 2 S.C.R. 150 at p. 156, 21 D.L.R. (4th) 1, per McIntyre J. Because a human rights code is not an ordinary statute, rules of statutory interpretation which advocate a strict grammatical construction of the words are not the proper approach to take in interpreting its provisions; focusing on the limited words of the section itself would ignore the dominant purpose of human rights legislation: Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536 at pp. 546-47, 23 D.L.R. (4th) 321, per McIntyre J.; Canadian National Railway Co. v. Canada (Human Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114 at p. 1133, 40 D.L.R. (4th) 193 (hereafter "Action Travail"), per Dickson C.J.C. A human rights code is remedial legislation and is to be given such interpretation as will best ensure its objects are attained: Action Travail, supra, at p. 1134 ...
Weiler J.A. continues [at D/263, para. 13] with reference to Driedger, Construction of Statutes, 2d ed. (1983) at 105 setting out the steps to be followed in reading statutes:
The Act as a whole is to be read in its entire context so as to ascertain the intention of Parliament (the law as expressly or impliedly enacted by the words), the object of the Act (the ends sought to be achieved), and the scheme of the Act (the relation between the individual provisions of the Act).
The words of the individual provisions to be applied to the particular case under consideration are then to be read in their grammatical and ordinary sense in the light of the intention of Parliament embodied in the Act as a whole, the object of the Act and the scheme of the Act, and if they are clear and unambiguous and in harmony with that intention, object and scheme and with the general body of the law, that is the end.
If the words are apparently obscure or ambiguous, then a meaning that accords with the intention of Parliament, the object of the Act and the scheme of the Act, but one that the words are reasonably capable of bearing, is to be given them.
If, notwithstanding that the words are clear and unambiguous when read in their grammatical and ordinary sense, there is disharmony within the statute, statutes in pari materia, or the general law, then an unordinary meaning that will produce harmony is to be given the words, if they are reasonably capable of bearing that meaning.
If obscurity, ambiguity or disharmony cannot be resolved objectively by reference to the intention of Parliament, the object of the Act or the scheme of the Act, then a meaning that appears to be the most reasonable may be selected.
[19] Weiler J.A. provides [at p. D/263, para. 14] direction for my analysis:
Clearly, the first stage in any analysis of the meaning of a particular provision of the Code must be a determination of its objects or purpose.
[20] The Preamble to the Code proclaims the objects of the statute:
WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;
AND WHEREAS it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;
[21] It is clear to me that the public policy stated above is intended by provisions of the Code to be carried out in the public interest. On a reading of the statute in its entirety, the Ontario Human Rights Commission is charged with that public interest and pursuant to s. 27(2):
27(2) The Commission is responsible to the Minister for the administration of this Act.
[22] I refer to s. 8 of the Code. If read alone this section may be interpreted1 as conferring an individual right of action and if so, indicate an interest other than "the public interest".
[23] Section 8 of the Code states:
- 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 and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
[24] On reading the Code in its entirety, s. 8 can only mean a person has a right to claim and enforce his or her rights under this Act as provided in the Act — namely, the right to lodge a complaint making an allegation of an infringement of a Part 1 right. On receiving the complaint, the Commission shall investigate the complaint and endeavour to effect settlement (s. 33 in part) or:
34(1) 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 to not deal with the complaint.
[25] Should the Commission decide not to deal with a complaint, it is obliged to advise the complainant of its reasons. Should the complainant be unsatisfied, a request to the Commission for reconsideration of its decision may be filed (s. 37(1)). Under s. 37(2), the complainant is given an opportunity to make written submissions. Importantly to my analysis, a decision of the Commission on reconsideration "shall be final" (s. 37(3)). The personal right to claim of s. 8 is therefore a right to attempt to convince the Commission to pursue the complaint.
[26] We now turn more directly to the issue of this application in our analysis of the statutory provisions of the Code.
[27] Section 36(1) states:
36(1) Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the board of inquiry.
[28] In my judgment, it is important to consider subsection 2 with the above:
36(2) where the Commission decides to not refer the subject-matter of a complaint to the board of inquiry, it shall advise the complainant and the person complained against in writing of the decision and the reasons therefore and inform the complainant of the procedure under section 37 for having the decision reconsidered. [Emphasis added.]
[29] I understand s. 36 to confer to the Commission a broad discretion and exercise of judgment not restrained by the provisions of s. 34. I understand s. 36 requires that the Commission is to decide, firstly, whether or not the complaint or issue is one where the procedure of a board of inquiry is appropriate and secondly, the Commission is to determine whether or not the evidence warrants an inquiry. I interpret s. 36 mandating that the Commission must come to an affirmative judgment on each of the considerations in order that the matter can (in law) be referred to a board of inquiry.
[30] In my judgment, in reading s. 36, with the whole of the Code and with reference to the function of the Commission as set out in s. 39, infra, the conclusion is that it is the intent of the Legislature that the Code is the "undertaking" (to use a term used in corporate law) of the Commission.
[31] I turn now to that provision which was the focus of counsels' submissions to us, namely, s. 39.
[32] 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. The Legislature in creating a board of inquiry states that the board of inquiry is "for the purposes of this Act" (s. 35(1)). I accordingly read s. 39(1) "The board of inquiry shall hold a hearing", to mean simply that on the referral of the Commission of a matter (s. 36(1)), the board of inquiry has no independent discretion to determine whether a hearing is warranted. Further, I read the balance of s. 39 to be in essence the procedure to be followed by the board of inquiry in the conduct of its hearings. It is to be observed that the provisions are essentially natural justice requirements of a statutory body exercising a statutory power of decision. In particular, s. 39(2) provides that all parties who have a direct interest in and may be directly affected by a decision of the board of inquiry are to be parties to that inquiry and thereby have the right to be heard.
[33] In considering s. 39(2), I see structure in the order of parties. Firstly, there is the Commission "which shall have carriage of the complaint"; then there is the complainant, a person who is alleging a breach or infringement of the Code; then there are all those persons that either the Commission or the board of inquiry consider to have a possible responsibility for the alleged infringement.
[34] It is my conclusion that there cannot be a hearing of the board of inquiry without the presence of the Commission effectively carrying the complaint forward for the board. I see nothing in the statute to allow a delegation to a complainant by either the Commission itself, or by the board of inquiry of the Commission's statutory duty.
[35] For these reasons, it is my respectful finding that Adjudicator Laird's ruling is in error in her decision that the subject inquiry may proceed in the absence of the Commission. The ruling states explicity that "the complainant can... present the evidence and the arguments in support of the merits of the complaint" (p. 7 [D/261, para. 20]). Absent this statement, Ms. Laird's ruling by necessary implication grants carriage of the prosecution of the complaint to the complainant, as there is no other party to do it.
[36] It is concluded that it would be necessary, should the Board's ruling stand, that the complainant have carriage of the complaint given the s. 39(2) stipulation as to who may be parties. Given the requirements of natural justice, it would be totally inappropriate for the Board of Inquiry, as the decision maker, to have carriage of the complaint.
[37] There is a further concern with the decision of this Board of Inquiry in allowing the complainant to proceed with a claim for an individual remedy in the absence of the "public interest" representation of the Commission. The Supreme Court of Canada has held on the facts of the case before it, that there is no tort of discrimination, that is, no civil cause of action available to complainants as an alternative to the procedure set out in the Code. Seneca College of Applied Arts and Technology v. Bhadauria(1981), 1981 29 (SCC), 2 C.H.R.R. D/468. It is to be noted that that decision dealt with discrimination in employment as is the case in the application before us.
[38] My analysis leads me. to conclude that a remedy to a complainant under the Human Rights Code must be one that is consistent with the public interest and one that is in furtherance of the objects of the Code. As only one example, there would be little or no incentive for a respondent to settle with the Commission and amend its practices, perhaps at considerable cost, or, as was the case here, formally agree to conform to the provisions of the Code, in its employment practices, if it must nonetheless face a hearing with a complainant in effect carrying the complaint forward as the prosecutor in the continuing proceeding. The object of the Code is to change behaviour and thereby benefit all, through a more tolerant, accepting and equitable society. This purpose is achieved at some costs — one is the subjection of the individual to the public interest when a conflict develops. It is not inappropriate for the Commission to seek both, but in those circumstances of true divergence, the Code mandates that the public interest prevails.
[39] I conclude 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.
RESULT
[40] The Divisional Court may make any order that the board of inquiry is authorized to make under the Code, including substituting its own opinion for that of the board (s. 42(3)).
[41] I would set aside the ruling of the Board of Inquiry that it has jurisdiction to proceed with the subject hearing and substitute therefore a ruling that the Board of Inquiry lacks jurisdiction to proceed with the hearing in this matter.
[42] To the extent that the Board of inquiry in the subject ruling has relied upon earlier rulings of the Board of Inquiry, would respectfully overrule such decisions as persuasive authorities for the consideration of boards of inquiry under the Code. For example, Shapiro v. Peel (Regional Municipality) (No. 1) (1997), 1997 24834 (ON HRT), 29 C.H.R.R. D/77; Burney v. University of Toronto(1995), 1995 18156 (ON HRT), 23 C.H.R.R. D/90.
COSTS
[43] Counsel have agreed that costs are to follow the result and have consented to this Court fixing the quantum of costs. The applicant, McKenzie Forest Products Inc., is granted its costs of this application fixed in the sum of $4,000 payable to $3,500 by the respondent Commission and as to $500 by the respondent Adam Tilberg. There is to be no other order of costs.
ADDENDUM
[44] I have had the privilege of reading the reasons of my colleague Ferrier J. in draft and, in consequence, I should like to state more particularly my interpretation of the Code in order that the distinctions in our reasons may be seen more clearly.
[45] I have made an inquiry as to the enforcement powers of the Commission under the Code with particular reference to s. 29(i).
- It is the function of the Commission,
(i) to enforce this Act and orders of the board of inquiry;
I have used s. 25(4) as a testing vehicle as that provision stipulates both a violation and the remedy.
[46] The only section of the Human Rights Code that explicitly gives the Commission power to make orders is s. 14(2), which deals with special programs. It provides that the Commission may inquire into the special program and may by order declare that the program does or does not satisfy s. 14(1). Procedural protections are provided in s. 14(3), which states that "[a] person aggrieved by the making of an order under subsection (2) may request the Commission to reconsider its order ..."
[47] In the absence of explicit statutory authority to make orders in contexts other than special programs, one might wonder how the Commission would enforce the Act (s. 29(i)). The Commission may be given order-making powers by necessary implication. However, in my view, the role of the Commission is less that of authoritarian order-maker and more that of educator, conciliator and preventer of human rights abuses. The functions of the Commission as set out in s. 29 provide support for this view. For example, the Commission is to promote understanding, acceptance and compliance with the Act; to develop and conduct programs of public information and education; to review legislation, programs and policies for consistency with the Act; to initiate investigations into problems that may arise in a community and to reduce or prevent such problems; and to promote other agencies and organizations to engage in programs to alleviate tensions and conflicts based upon identification by a prohibited ground of discrimination. Even the inquiry function of the Commission is prospective and preventative rather than retrospective and retributive: subsection (f) of s. 29 provides that the Commission is to "inquire into incidents of and conditions leading or tending to lead to tension or conflict" and to "take appropriate action to eliminate the source of tension or conflict".
[48] In keeping with these functions, the Commission's role in enforcement, as stated in Part IV of the Act, is to investigate a complaint and endeavour to effect a settlement: see s. 33(1). Thus, where a violation of s. 25(4) (for example) occurs, it seems likely that the Commission would investigate and attempt to settle. Section 25(4) provides that an employer shall pay compensation to any employee who is excluded from a benefit or pension plan because of a handicap. The remedy is clearly set out. If an employer admits liability during the course of an investigation, it seems to me that a settlement would be reached. Unfortunately, a search has not found any cases under s. 25(4) that would either confirm or reject this approach. Settlement process would provide the opportunity for face-to-face discussions and give the Commission an opportunity to change the behaviour patterns of the employer.
[49] Subsection 29(i) provides that it is the function of the Commission "to enforce this Act and orders of the board of inquiry". Sections 43 and 44 concern enforcement. Section 43 provides:
- Where a settlement of a complaint is agreed to in writing, signed by the parties and approved by the Commission, the settlement is binding on the parties, and a breach of the settlement is grounds for a complaint under section 32 ...
[50] In effect, a breach of a settlement would start the whole process of investigation and attempts to effect a settlement over again. In contrast, the contravention of an order of a board carries a possible penalty of a $25,000 fine: see s. 44. However, the infringement of a right contrary to s. 9 and the obstruction of an investigation contrary to subsection 33(11) are also offences carrying a possible penalty of a $25,000 fine. In Human Rights in Ontario, 2d ed. (Toronto: Carswell, 1992) at 265, Judith Keene remarks that anyone, including the Commission, could conceivably seek to commence proceedings under s. 44.
[51] The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 deals primarily with the powers of tribunals and not with the powers of commissions. By virture of s. 3 it is clear that the SPPA applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an act where the tribunal is required to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision. The difficulty is that the Commission is not necessarily exercising a statutory power of decision in its investigative and settlement processes. In Dagg v. Ontario (Human Rights Commission)(1979), 1979 1671 (ON SC), 102 D.L.R. (3d) 155 (Div.Ct.), it was held that when the Commission declines to recommend a board of inquiry, it is exercising an administrative function and an applicant is not entitled to the kind of hearing into its decision as is contemplated by the SPPA.
[52] However, certain enforcement provisions in the SPPA would be available to the Commission. For example, s. 19(1) provides that a tribunal's decision or order may be filed with the Superior Court of justice "and on filing shall be deemed to be an order of that court and enforceable as such". The tribunal or a party may file the tribunal's decision or order. As the Human Rights Code anticipates that the Commission will be a party to a proceeding of a board of inquiry (see s. 39(2)(a)), the Commission is empowered to file the order.
[53] I would not divide the Code into stage one and stage two, nor would I agree that the Commission['s] carriage of a complaint before a board of inquiry is "only a procedural, not a substantive matter".
[54] Many equate the protection of private rights with the public interest. In Practice and Procedure Before Administrative Tribunals (Toronto: Carswell, 1988) at para. 1.7, p. 1-22, R.W. Macaulay points out that this is not the only point of view:
The goal of preserving and enhancing the rights and interests of individuals is central to the Rule of Law and the Charter. This is a basic value, but not the only value. Much of our legislation and many of our agency decisions are directed towards treatment of society and groups as a whole. The individual obtains, in those cases, his protection as a member of the society or group and not as an individual.
[55] Macaulay goes on to state that
[a]dministrative law rests on the imprecise balance of individual interests and the public interest ... Generally speaking however, the "public interest", which is at: the base of administrative law and agency decision-making, can be said to be what is "good", "beneficial" and in the "best" interests of the society for which the particular legislation was designed.
[56] Should the ruling of Miss Laird on behalf of the Board of Inquiry stand as being in accordance with the Code, the result would be that once an issue is referred to the board, the Commission would not be empowered to make any settlement with respondents, no matter how meritorious and far reaching the settlement, conceivably, a settlement which could affect a whole industry, involving thousands of persons. The settlement would only be able to be effected with the consent of an individual complainant (as in this case). This effectively makes the complainant the determinator of the public interest and the administrator of the Code (s. 27(2)). This result, in my view, was not intended by the Legislature, and is directly contrary to the whole tenet of the Code.
[57] As a final point, I note that where the Commission does not effect a settlement, it is given discretion to refer the subject matter of the complaint to the board of inquiry: see s. 36(1) of the Human Rights Code. I emphasize the phrase subject matter because it is important to note that there is no provision for referring the complainant to the board. By referring only the subject matter to the board, the emphasis shifts from the personal interest of the complainant to the public interest in the issue being referred.
FERRIER J. (DISSENTING)
[58] I have had the benefit of reading the reasons of my colleague Crane J. With respect, I am unable to agree with his conclusion "that a Board of Inquiry may only proceed and continue a hearing at the direction and carriage of the Commission".
FACTS
[59] Crane J. has referred to the pertinent facts.
STANDARD OF REVIEW
[60] I agree that the standard of review in this application is correctness.
THE ISSUE
[61] Does a Board of Inquiry under the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") have jurisdiction to continue with a hearing, when the complainant will proceed, but when the Commission, having referred the matter to the Board, subsequently decides to withdraw its carriage of the complaint?
CONCLUSIONS
[62] agree that a resolution of the issue depends upon an interpretation of the Code. Crane J. has aptly presented the principles of statutory interpretation: read the Act as a whole to ascertain the intention of Parliament, the object and scheme of the Act; read the relevant individual provisions in their ordinary, grammatical sense in light of the interpretation of the object/scheme; whether the provision's words are unambiguous or ambiguous, read them in harmony with the Act's object/scheme to the extent reasonable.
[63] I interpret the Code differently than Crane J. in two significant respects.
[64] First, while the purpose of the Code is to promote the public interest (in human rights), this is not to say that private interests have little weight. The former requires a consideration of the latter. The public interest can only be promoted through an understanding of various "private" interests. The public interest is shaped by and shapes private interests. The public is comprised of various private or group interests, which may shift and develop over time and in different contexts. The Code creates a scheme which explicitly recognizes that private interests regarding perceived individual rights comprise the foundation for determining the public interest. Thus, the private interest is integral to the Code.
[65] Secondly, there is a clear change in the role of the Commission in furthering what is in the public interest, at the point a matter is referred to a board. The Commission moves from neutral investigator and mediator to prosecutor. Further, there is a clear distinction between the status of private interests before and after a matter is referred to a board. After a referral, that status is greater, as more procedural rights then exist. 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 Procedure Act [R.S.O. 1990, c. S.22], 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. To allow the Commission to effectively determine the outcome at this stage denies the Board's independent status and the duty imposed on it to hold 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.
ANALYSIS
Public Interest Depends on Recognition of Private Interests
[66] What does public interest mean? Which public? And which group and which interest in any given public? Rights and interests between and within groups, and even within individuals, must be considered in order to determine what is most fair and just for any public. Also, what is fair and just in one context or in one period of time, may not be in another. Individual private interests are shaped by and shape so-called public interests. They all shift and change together. In fact, to define what might be in the public interest, it is often necessary to first understand various private interests regarding individual human rights. In my view, a correct interpretation of the Code cannot result in it failing to adequately consider and provide protection to private human rights interests. Human rights legislation is quasi-constitutional. It should be interpreted in a broad and purposive way: see Winnipeg School Division No. 1 v. Craton, 1985 48 (SCC), [1985] 2 S.C.R. 150 [6 C.H.R.R. D/3014].
[67] The Preamble of the Code speaks of dignity and worth, inalienable rights and mutual respect. These are accorded to "all members of the human family", "every person" and "each person". These are private interests each individual has, but they do not exist in a vacuum, rather as members of a community. Thus the Preamble states that these rights are the "foundation of freedom, justice and peace", and the aim is for all to feel "a part of the community and able to contribute fully to the development and well-being of the community". Here is the interrelationship between individuals and community, so-called private and public. Built right into the Preamble is this relationship, and implied therein is the need for balanced consideration. For what might achieve peace could deny freedom, or vice versa.
[68] While the Preamble states that the aims above are public policy, this does not advance the argument that the Code promotes the public interest such that private interests are not protected. "[A]ll public legislation declares public policy. A public statute that did not embody public policy would present a failure of the democratic process": Dale Gibson, "The ”˜Special Nature' of Human Rights Legislation: Re Winnipeg School Division No. 1 and Craton" 1985–86) 50 Sask. L. Rev. 175 at 180.
[69] The entire scheme of the Code is set up to determine what best serves the community, the public interest, largely through representations by and consideration of private interests. The complainant interests relate to some aspect of life and must be captured under a prohibited ground of discrimination as defined in Part I. So private interests take on some sort of group aspect. The process of enforcement is initiated by a complaint from a person or the Commission itself (s. 32). Most complaints are initiated by individuals. Sections 33, 34 and 36 set out the powers and duties of the Commission — to investigate, endeavour to effect a settlement, end the complaint process (on certain listed grounds), or refer the matter to a board of inquiry, or not, upon notice to the parties and reconsideration of the decision if requested.
[70] Built into the Code is explicit consideration of individual circumstances and the balancing thereof, in the form of accommodating the minority interest while preserving the otherwise non-discriminatory practices for the majority (see ss. 11(2), 17(2), 24(2)).
[71] This scheme is therefore designed to define and promote the public interest in any given case, by investigating the positions of complainants and those complained of and by attempting to come to some resolution based on a consideration of, and sometimes a balancing of, these interests. The Commission is entrusted to do this because its staff are trained and experienced. But private interests still tend to power the engine. According to S.N. Lederman and M.E. Grottenthaler, "The Evolving Public Policy Elements of Remedies for Human Rights Code Violations", in Jeffrey Berryman, ed., Remedies: Issues and Perspectives (Toronto: Carswell, 1991) 335, the process is largely driven by disputes between individual parties and the remedies tend to be more "private" than "public". It is significant that damages for both pecuniary and non-pecuniary loss (mental anguish of the complainant), clearly private interests, are expressly provided for in s. 41(1).
[72] Thus, the private interest is integral to the Code's purpose and scheme. The rights of the private complainant must be interpreted in this light. An analysis of these rights at different stages of the Code's process follows.
Different Status and Rights at Different Stages
[73] That the private interest is integral to the Code is demonstrated by the procedural rights afforded the claimant and the respondent.
(a) Stage One: Before Referral to the Board
[74] At the first "stage", that before referral to a board of inquiry, the procedural rights are as follows. The complainant may bring a complaint forward if it relates to a prohibited ground and a type of interest covered by the Code. The complaint shall be investigated and a settlement shall be attempted by the Commission (s. 33(1)), unless the Commission decides not to deal with it based on certain criteria (s. 34(1)). This is the crux of the Commission's "screening" function, to weed out complaints not appropriate for further consideration. But the criteria for weeding out are limited: two relate to jurisdiction (the complaint should be dealt with under another Act, or is not within the jurisdiction of the Commission); one relates to time limitations. These are procedural criteria that do not go to the merits of the complaint. The fourth criterion does address the merits: if the subject matter of the complaint is trivial, frivolous, vexatious or made in bad faith, the Commission will not deal with it. This is a low threshold, addressing only the most clearly unmeritorious complaints. Only those complaints clearly not in the public interest should be discarded; the Commission is bound by this tight definition of "non public interest". All else should be dealt with either by settlement (which requires consent of the individual parties to effect: s. 43), or by referral to a board. Where the Commission decides not to deal with a complaint or not to refer it to a board it must give notice and reasons and inform the parties of the reconsideration procedure in s. 37 (s. 34(2) or 36(2)).
[75] These are procedural protections. It is true that the Commission, at this stage, makes the determinations about what is dealt with or not. But the Commission is not entitled, by the very purpose and scheme of the Code, to make these determinations with unfettered and unguided discretion. The Code intends that the Commission not have absolute power to behave in any way it wishes, such that private interests or individual parties have virtually no status and no rights. However, the Commission does have considerably more power than the other parties at this stage.
(b) Stage Two: After Referral to the Board
[76] The provisions of the Code make it clear that when the matter is referred to a board of inquiry, the complainant has greater. status in this next stage. I note that in Imperial Oil Ltd. v. Entrop(1998), 108 O.A.C. 81 [1998 14954 (ON SC), 30 C.H.R.R. D/433] (Gen.Div.) the Court called for an expansive interpretation of complainants' rights, and quoted [at D/436, para. 12] Dickson C.J.C. in Action travail des femmes v. Canadian National Railway Co., 1987 109 (SCC), [1987] 1 S.C.R. 1114 at 1134 [8 C.H.R.R. D/4210 at D/4224, para. 33238]:
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 ... We should not search for ways and means to minimize those rights and to enfeeble their proper impact ...
Further, the Board has independent authority to consider the interests of the Commission, complainant and respondents, all of whom are accorded independent party status. An examination of the status of each supports this conclusion.
(I) STATUS OF THE BOARD
[77] The Code intends for the Commission to refer matters to the Board that cannot be settled, that are appropriate for this procedure and where evidence warrants it (s. 36(1)). In other words, where a matter is referred, the Commission is taken as having completed its screening role of weeding out unmeritorious or unsupported cases. The completion of the screening process has, at the point of referral, resulted in the Commission's decision that the complaint must be heard by an autonomous board because there is some potential public interest involved. But the public interest as perceived by Commission members may not be the same as that represented by the complainant; it is however enough that there is some potential public interest to the claim.
[78] The Commission passes the wand of authority to the Board. This makes sense. The Commission has moved on a continuum from being a neutral observer/investigator/mediator, to prosecutor before the Board. Prosecutors cannot be judges. Once the Commission makes a referral to a board, its "bias" as soon-to-be prosecutor is obvious (bias in the sense of seeking a particular result) and it cannot then perform any adjudicator (neutral) function.
[79] It is a matter of basic logic and common sense that the Board must be independent of the Commission, otherwise one could ask what the point of having a board would be at all. If not independent, why not let the Commission make the final determination, for that is what one would effectively be allowing. Further, the board is established through s. 35, and its power to "make rules regulating its practice and procedure" (s. 35(5)), reinforces its independent status.
[80] In MacBain v. Canadian Human Rights Commission(1985), 1985 5548 (FCA), 22 D.L.R. (4th) 119 [6 C.H.R.R. D/3064], the Federal Court of Appeal found that the requirement for the Commission to appoint the Board created an apprehension of bias. In Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, the Court found that the Board member's previous involvement in a distant aspect of the matter before him created apprehension of bias. In Bell Canada v. Communications, Energy and Paper workers Union of Canada (No. 3), 1998 8700 (FCA), [1999] 1 F.C. 113 [33 C.H.R.R. D/1] (C.A.), the Court held that the Board was not bound by any interpretations of the Act made by the Commission, as it had independent status to make such determinations itself. In sum, there exists strong precedent that the Board must be independent such that it must act autonomously, without any actual, perceived or institutional bias. This must mean that the Board must decide on the entirety or any aspect of the matter, and that the Commission cannot.
[81] This independence not only entitles the Board to decide the case and the appropriate remedy. Section 39(1) of the Code states that the Board "shall hold a hearing" to do so. This requirement engages the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, which binds the Board.
[82] Section 3(1) of the latter statute provides:
3(1) ... this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.
[83] By s. 1 of the Statutory Powers Procedures Act, a "tribunal" is defined as:
- ... one or more persons, whether or not incorporated and however described, upon which a statutory power of decision is conferred by or under a statute;
[84] A "statutory power of decision" is defined as:
- ... a power or right, conferred by or under a statute, to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not;
[85] Section 39(1) of the Code provides:
39(1) The board of inquiry shall hold a hearing,
(a) to determine whether a right of the complainant under this Act has been infringed;
(b) to determine who infringed the right; and
(c) to decide upon an appropriate order under section 41 ...
[86] Thus the Board has a statutory power of decision and, as noted above, the Statutory Powers Procedures Act is engaged.
[87] By s. 6(1) of the Statutory Powers Procedure Act, all parties to a proceeding are to be given notice of the hearing. Once having given such notice, a tribunal may proceed with a hearing in the absence of a party (see s. 7(1)). By s. 10(1) of the Statutory Powers Procedure Act, a party may call and examine witnesses and cross-examine other witnesses. Important to the case at bar, the tribunal may dispose of a proceeding without holding a hearing if the parties consent (see s. 4.1). Here, the applicant takes the position that the proceeding may be disposed of without the complainant's consent and without the consent of the tribunal.
[88] Section 4.1 provides as follows:
4.1 If the parties consent, a proceeding may be disposed of by a decision of the tribunal given without a hearing, unless another Act or regulation that applies to the proceeding provides otherwise.
[89] I interpret that to mean that even if the parties so consent, the Act under which the proceeding arises may nevertheless prohibit disposing of the matter by consent without a hearing. Such is not the case here. The Code contains no such prohibition. Therefore, a proceeding may be disposed of without a hearing, but all parties must consent. Further, s. 4(1) provides that any procedural requirement in the Statutory Powers Procedure Act or the Code may be waived, but only with the consent of the parties and the tribunal.
[90] In Wassilyn v. Ontario Racing Commission (1993), 10 Admin. L.R. (2d) 157 (Ont. Ct. (Gen.Div.)) the Court held that since the statutory rule mandated that the Board shall hold a hearing, the Commission could not waive by consent (nor, suggest, deny) this requirement. This case is not about human rights, but the principle is applicable here.
[91] While it is clear that the Board cannot, by itself, decide when to hold a hearing absent a referral, it is just as clear that, once a referral is made, the Board is the decision-maker, independent of the Commission. If it is accepted that by established law the Board must be independent, it follows that at no point following the passing of the wand through referral — either two days or two weeks thereafter — could the Commission negate this independence and override this autonomous authority by deciding the matter shall not proceed further. This would be to deny in advance any authority of the Board to determine the merits and would flaunt the provisions of the Statutory Powers Procedure Act.
[92] Thus, as provided by the Code and the Statutory Powers Procedure Act, the Board must hold a hearing, even in the absence of one party (with proper notice), unless all parties consent to a disposition without a hearing. The Board is now the decision-maker — the adjudicator — not the Commission. An analysis of the rights of the parties — the complainant and the Commission — bolsters this opinion.
(II) STATUS OF THE PARTIES
[93] In clear, unambiguous language, s. 39(2) of the Code states that the parties to a proceeding before the Board are the Commission, the complainant, and any person alleged by the Commission or appearing to the Board as having infringed the right.
[94] While a human rights commission has been referred to as a "prosecutor" (Ross v. New Brunswick School District No. 15(1990), 1990 4041 (NB CA), 78 D.L.R. (4th) 392 [13 C.H.R.R. D/161] (N.B.C.A.)), there is obviously a very real difference between a prosecutor in criminal law and that under the Code. In criminal cases, complainants do not have party status; under the Code, they do. This distinction is noteworthy. The complainant may call evidence, examine and cross-examine witnesses, make submissions and be represented by his or her own counsel (see ss. 10 and 10.1 SPPA and, for instance, Gohm v. Domtar Inc. (No. 2)(1988), 1988 8866 (ON HRT), 10 C.H.R.R. D/5972 (Ont. Bd.Inq.)). It is the party status that makes a significant difference.
[95] The Board determines the remedy and as stated, a remedy specific to a private interest of the complainant by way of damages is expressly permitted (s. 41). Further, by s. 19 of the SPPA, any party including the complainant may file a Board order or decision with the Superior Court of Ontario and it is then enforceable as a court order. The private interest is alive at this stage. However, this is not to say that these remedial privileges would constitute a civil cause of action outside the Code, should the Commission withdraw from the proceeding. The remedies and process do not exist outside the Code: Seneca College of Applied Arts and Technology v. Bhadauria(1981), 1981 29 (SCC), 2 C.H.R.R. D/468 (S.C.C.).
[96] Section 39(2) also provides that the Commission, as a party, "shall have carriage of the complaint". A thorough search of case law, legal and standard dictionaries did not reveal any single or definitive meaning for the word "carriage" that would assist me in this case. But what this search did reveal was that the meaning of the word carriage is derived contextually. It can range from procedural leadership, to acting in others' best interest, to outright control. See, for example, Gough v. Whyte(1983), 1983 5122 (NS SC), 56 N.S.R. (2d) 68 (S.C.), where the Court held that for the insured to have carriage of the action in insurance law means he could prosecute the action, and he could settle it. In Faulds v. Harper(1886), 1886 3 (SCC), 11 S.C.R. 639, the Court stated that to have carriage of proceedings in estates law means to stand in a fiduciary position to all the parties and encumbrancers in the cause. In American Airlines v. Canada (Competition Tribunal), 1988 9456 (FCA), [1989] 2 F.C. 88 (C.A.), the Court defined what it meant for the Director of Investigation and Research to have carriage of a matter: he, together with the respondents, has the ultimate responsibility of shaping the issues and setting the matter.
[97] The meaning of the word carriage must be derived through the object and scheme of the Act, which is the "context" in which this word must be interpreted. For all the reasons above, carriage here can only refer to procedural priority. The Commission leads its evidence first. It (not the complainant) decides what witnesses it will call and what relief it will seek from the Board. The complainant has no right to insist that the Commission call a particular witness nor to seek a particular remedy. To 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.
[98] In West End Construction Ltd. v. Ontario (Ministry of Labour)(1989), 1989 4088 (ON CA), 70 O.R. (2d) 133 [10 C.H.R.R. D/6491] (C.A.), the Court did state at 140 [D/6494, para. 45724] that the "complainant has no status except that conferred upon him by the Commission". But read in context, this phrase can only mean that the Commission confers status on a complainant by deciding to refer the matter to a Board. This is true, as the Commission is the decision-maker at this stage, but not thereafter. It cannot mean that the complainant is but a puppet of the Commission once the matter is referred, and that the complainant has no separate status at this stage. The party status created by s. 39(2) precludes this interpretation.
[99] As noted, in my opinion "carriage" is defined by its context. When one looks at the context of the Code, it is clear that private interests and private parties are integral to the process, especially after the matter has been referred to the Board. Carriage therefore, must mean nothing more than procedural leadership. With two parties on the "same" side, it makes sense that one would be designated the procedural leader. Further, such a leadership role recognizes the fact that many complainants do not have the resources available to the Commission.
[100] But should the Commission effectively withdraw its leadership, this does not preclude the complainant from continuing. A new leader in pursuit of the complaint arises at the resignation of the former. This is the only conclusion that fits with the purpose and scheme of the Code. Within the scheme of the Code, every reasonable opportunity should be afforded for a complaint to be heard and adjudicated
[101] Chief Justice Laskin, writing the unanimous decision of the Supreme Court of Canada, in denying that an independent civil right of action springs directly from a breach of the Ontario Human Rights Code, said that: "The reason [for dismissing the civil claim] lies in the comprehensiveness of the Code in its administrative adjudicative features, the latter including a wide right of appeal to the courts on both fact and law". See Bhadauria, supra, at para. 4226 [D/469]. The preamble to the Code at that time [the 1974 Code] was similar to the present Code.
[102] The scope of appeal to or review by the courts is now more limited, but Chief Justice Laskin's description of the 1974 Code, with some modification, applies as forcefully in describing the present Code.
[103] Adjudicator Laird was correct to conclude that the Board has jurisdiction to proceed with the hearing in the absence of the Commission.
[104] I would dismiss the application.
NOTE
1 I acknowledge that s. 8 may be understood to have a different meaning, or at least, emphasis, if the "and" is read as strongly conjunctive.