Ontario Superior Court of Justice – Divisional Court

Khalil v. Ontario College of Art

Date: 2000-01-06

Counsel: Roger Rowe, for the applicant/appellant; L.B. Roberts, for the respondents, Ontario College of Art, Jan Van Kampen, Norman Hathaway; Margaret Leighton, for the Board of Inquiry; Marvin T.J. Huberman, for the Ontario Human Rights Commission.

(Court File No.: Div. Ct. 461/97)

[1] O'Driscoll, J. [orally]: On Tuesday last, November 23rd, 1999, in the late afternoon, after a recess, this court gave oral reasons dismissing a motion by counsel for the appellant seeking leave to introduce what he termed "fresh evidence". At the end of the ruling I said:

"What I have said above is with regard to material that was in existence prior to the decision of the Board of Inquiry on May 15, 1997. Because of the Notice of Motion served regarding the constitutional issue, we will now hear from other counsel regarding material that has come into existence since that time."

[2] On resuming, counsel for the respondents, counsel for the Board of Inquiry and counsel for the Commission asked for a short recess. They said that they might be able to save the court some time if they could have a brief discussion. A recess was called. On returning, counsel referred us to the letter, dated October 21, 1999, authored by Ms. Margaret Leighton, counsel to the Board of Inquiry. That letter was forwarded to all counsel and filed with the court on October 25, 1999. The letter is a mini factum which provides answers to a host of issues that have surfaced in these proceedings. I should like to incorporate that letter into these reasons.

"I. The Board is Not a Suable Entity

• The Board of Inquiry (Human Rights Code) is not a suable entity. Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board, 1952 16 (ON CA), [1952] O.R. 366 (C.A.); MacLean v. Liquor Licence Board of Ontario (1976), 1975 513 (ON SC), 9 O.R. 597 (Div. Ct.).

"II. Alleged Delay Not a Cause of Action

• Delay in proceeding at the Commission or the Board does not found a claim for relief under s. 7 of the Charter.

Ford Motor Co. v. Ontario (Human Rights Commission), Divisional Court, June 23, 1999, unreported.

• Further, s. 41(5) of the Code is directory not mandatory. It does not assist the s. 7 argument.

Leroux v. Ontario (Human Rights Commission), Divisional Court, January 25, 1999, unreported; Impact Interiors Inc. v. Ontario (Human Rights Commission), Divisional Court May 10, 1995, unreported; reversed on other grounds July 13, 1999 (C.A.).

"III. Divisional Court Has No Jurisdiction to Grant Relief Sought

• Any relief against the Board must be sought by way of a separate action or application commenced in the Superior Court of Justice. It cannot be incorporated into this appeal.

Service Employees International Union, Local 204 and Broadway Manor Nursing Home (1984), 1984 2112 (ON CA), 48 O.R.(2d) 225 (C.A.).

• The Divisional Court is a statutory court. It does not have jurisdiction to award damages.

Seaway Trust Co. and the Queen in Right of Ontario (1983), 1983 1749 (ON CA), 41 O.R.(2d) 532 C.A.).

• The Board of Inquiry is not a party to the human rights complaint which is the subject of this appeal. There has been no finding of a breach of the Code against the Board. There is no basis on which damages can be awarded against the Board.

• The Code permits costs to be awarded in proceedings before a Board of Inquiry only in very limited circumstances; the complaint must have been dismissed; costs may only be awarded to a respondent; and, costs are only payable by the Commission where the Board finds that the requirements of s. 41 (4) have been met. An award of costs to the complainant is ultra vires the Code.

"IV. Board's Involvement in Appeal Entirely at Appellant's Instigation --Costs Not Appropriate

• The Board is not a party to this appeal, has not sought to intervene in this appeal, and its attendance is made necessary entirely as a result of the appellant's s. 24 claim against it. Given these circumstances, an award of costs against the Board arising from the appeal is not appropriate."

[3] Counsel for the Commission points out to us that the Commission is "a party" to this appeal and was a party to the proceedings before the Board of Inquiry by reason of s. 39 and s. 42 of the Human Rights Code. Mr. Huberman also brought to our attention and provided copies to the court and to counsel of the May 21, 1999, decision of the Court of Appeal for Ontario in R. v. Kelly (P.) (1999), 1999 1968 (ON CA), 122 O.A.C. 201; 135 C.C.C.(3d) 449 (C.A.). Those reasons are consonant with this court's ruling on Tuesday when it was said that: this court is not here to second guess judgment calls made by counsel for the Commission at the hearing before the Board of Inquiry.

[4] In the majority judgment in R. v. Kelly, Finlayson, J.A., on behalf of himself and Osborne, J.A., said:

"[172] This brings us to R. v. Palmer (1979), 1979 8 (SCC), 50 C.C.C.(2d) 193 (S.C.C), where McIntyre, J., for the court enumerated four principles governing the acceptance of fresh evidence by a court of appeal. He stated at p. 205:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, 1964 43 (SCC), [1965] 1 C.C.C. 142 …;

(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief, and

(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result."

Again:

"[222] The proposed fresh evidence was available at trial. Indeed, the applicant acknowledges that there is nothing new about it."

And at [223]:

"Where the evidence was available at trial and was not led because the defence, on reasonable grounds, chose not to lead it, to the extent that due diligence is a real issue, the due diligence Palmer criterion has not been met: see R. v. McAnespie (1993), 1993 50 (SCC), 86 C.C.C.(3d) 191 (S.C.C.). In any case, quite apart from the due diligence criterion, or variations of it, the position taken by the applicant at trial is an important consideration which, in this case, must be respected, in the absence of a finding of ineffective representation by defence counsel: see R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C.(3d) 35 (Ont. C.A.). This court set out the general principle in R. v. Lomage (1991), 1991 7228 (ON CA), 2 O.R.(3d) 621 (Ont. C.A.), at 630:

'Defence counsel assumes a great deal of responsibility in a criminal case and when he makes a decision, both he and his client must live with it.'"

[5] After we heard those submissions from counsel for the respondents, counsel for the Board of Inquiry, and counsel for the Commission, counsel for the appellant gave us his reply. Then, I announced that at the opening of court on Friday, today, a ruling would be made based on the submissions heard.

[6] This morning we heard further submissions from all counsel on these matters and concerning a matter which arose during the day that we did not sit, a matter that I will come to in a few minutes.

[7] It is the decision of this panel of this court that:

1. The Board of Inquiry is not an entity that can be sued. Thus, the appellant has no right to make one or more claims against the Board of Inquiry.

2. Delay by the Commission or the Board of Inquiry does not sound in a claim for relief under s. 7 of the Charter.

3. Section 41(5) of the Human Rights Code is directory and not mandatory and does not assist the s. 7 Charter argument.

4. The Divisional Court is a statutory court. This court does not have jurisdiction to award damages. Any relief sought against the Board of Inquiry or the Commission must be sought by way of action or application in the Superior Court.

5. Under the Human Rights Code, the Board of Inquiry may order costs to a respondent but not to a complainant. Under the Code, the Commission pays costs only in the circumstances set out in s. 41(4) of the Code.

6. The Board of Inquiry is not a party to this appeal. It has not sought to intervene. Counsel for the Board of Inquiry is and has been in attendance solely as a result of counsel for the appellant's s. 24 Charter claim against the Board of Inquiry.

7. Counsel for the appellant has served a Notice of Constitutional Issue; it is not a Notice of Motion seeking relief or naming anyone. If and insofar as that notice purports to be a claim for damages and/or costs against the Commission and/or the Board of Inquiry, the same is quashed for the reasons already given.

[8] As counsel for the respondent points out, there is no Charter claim against the respondents. Counsel for the respondents submits that her clients have suffered prejudice as a result of these proceedings which have dragged along over many, many years and any delay, she submits, is not attributable to her clients.

[9] The appeal will now proceed to be heard on its merits as between the appellant and the respondents. There will be, at the end of the day, no order for or against either the Commission or the Board of Inquiry. Those counsel, if they choose to do so, will be free to leave.

[10] Before we proceed, it should also be stated that all counsel agree that the decision of the Divisional Court in the McKenzie Forest Products Inc. v. Tilberg, 1999 35213 (ON SCDC), [1999] O.J. No. 2813 (Div. Ct.) (leave to appeal to the Court of Appeal granted, and Notice of Appeal filed on November 10, 1999), has no affect on any aspect of this appeal.

[11] On Wednesday, November 24, 1999, the day after the court had sat for one day of the two days set aside for this appeal, counsel for the appellant delivered by facsimile a letter to the Registrar of this court. It said, in part:

"We attended yesterday for the hearing of the above referenced appeal before O'Driscoll, J., Epstein, J., and Cosgrove, J. Appellant's counsel was caught off guard by the raising by the court for the first time near the end of the day of the issue of jurisdiction to grant a Charter remedy. The court apparently ruled that it lacks such jurisdiction in the context of the within appeal. The matter is returnable Friday November 26th, 1999.

"In view of the court's position, appellant's counsel wishes to request an adjournment on Friday November 26th, 1999 for the purpose of preparing and filing a companion application for judicial review to enable the appellant to access a court of competent jurisdiction in respect of the Charter issues she seeks to raise in this appeal. The appellant would seek in such an application, to rely on all of the materials already prepared and filed in the within appeal. For the sake of reducing costs and time, counsel for the appellant would request that the proceedings be joined."

[12] The Registrar provided a copy of that letter to each judge of this panel and faxed a copy to the other counsel. Counsel for the Board sent a fax to the Registrar, with copies to the other counsel, and advised that she did not consent. Counsel for the respondents did likewise. Counsel for the respondents also sent a facsimile to counsel for the appellant with copies to the other counsel and to the Registrar; that letter said, in part:

"The respondents vigorously oppose the appellant's request for an adjournment on the following grounds

i) You were not 'caught off guard' by the issue of the court's jurisdiction to grant a Charter remedy. This issue was not raised for the first time by the court on November 23rd. The inapplicability of s. 7 of the Charter to human rights proceedings was clearly set out in the respondents' factum dated May 14th, and Ms. Leighton expressly dealt with the issue of the court's jurisdiction to grant a Charter remedy in her letter of October 21st: in particular, her submissions at page 2 of her letter, under the heading, 'Divisional Court has no jurisdiction to grant relief sought'.

ii) The proposed application for judicial review is irrelevant to the appeal and should not be joined to or impede the hearing of the appeal.

iii) The proposed adjournment and application for judicial review are an abuse of the court's process."

[13] We are of the view that Mr. Rowe has not been taken by surprise. He was the one who initiated the Charter matters; counsel for the respondents put him on notice by her challenge in her factum of May 14, 1999. Counsel for the appellant is free to bring whatever application in whatever court he wishes as and when he chooses, but there will be no adjournment of this appeal. It will proceed forthwith.

[14] Hopefully, all the extraneous collateral matters have been laid to rest and the merits of the appeal will now be addressed by Mr. Rowe.

[15] At this time, we reserve the issue of costs.

Order accordingly.