CHRR Doc. 05-472
York Advertising Ltd. and Robin Murphy
Applicants
v.
Ontario Human Rights Commission, Human Rights Tribunal of Ontario, Jane Doe, Richland Marketing Inc. o/a Richland Technical Services
Respondents
and
Ontario Human Rights Commission
Applicant
v.
Human Rights Tribunal of Ontario, Jane Doe, Hetherington and Richland Marketing Inc. o/a Richland Technical Services
Respondents
Date of Decision:
May 9, 2005
Before:
Ontario Divisional Court, Gravely, Matlow and Heeny JJ.
Reasons by:
Matlow J.
Court File No.:
04-DV-990 and 04-DV-001038 (Ottawa)
Appearances by:
Stephen Bird, Counsel for the Applicants
Hart Schwartz, Counsel for the Ontario Human Rights Commission
James C. Morton, Counsel for the Human Rights Tribunal of Ontario
Jane Doe, on her own behalf
APPEALS AND JUDICIAL REVIEW — error of law in determining remedy and in findings on the evidence — findings of fact are patently unreasonable — PARTIES — remedy to party without standing — REMEDIES — reconsideration of decision or order
SETTLEMENT — effect of settlement agreement — NATURAL JUSTICE — right to a fair hearing — PROCEDURE — notice to interested party — procedural fairness — BOARDS OF INQUIRY / TRIBUNALS — broaden scope of complaint
Summary: The Ontario Divisional Court sent a decision back to the Human Rights Tribunal of Ontario for reconsideration.
In this case, the complainant, Jane Doe, filed a complaint of sexual harassment against York Advertising, Robin Murphy and Rick Hetherington. Two of the respondents, York Advertising and Robin Murphy, settled with Ms. Doe, but the Ontario Human Rights Commission referred the complaint against Rick Hetherington to the Tribunal for hearing.
The Tribunal issued its decision which included findings of liability against York Advertising and Robin Murphy. These respondents appealed the decision on the grounds that under the terms of settlement they admitted no liability and the settlement was full and fair conclusion to the complaint with respect to their roles. They were not parties before the Tribunal, and were not able to present any defence.
The Tribunal took the position that Robin Murphy and York Advertising had no standing to appeal the decision. However, the Court found that they did have standing to appeal as otherwise there was no recourse available to them. The Court referred the matter back to the Tribunal directing the adjudicator to amend her decision to remove findings of liability against York Advertising and Murphy.
LEGISLATION CITED
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 29(i): 27
s. 33(1): 19
s. 36(1): 17
s. 39(1): 17
s. 39(3): 9
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22: 16
MATLOW J.
[1] These two related applications for judicial review were heard together by this Court. I will address them in turn.
[2] The first application for judicial review is granted. The Decision and Order of the Human Rights Tribunal of Ontario (the "Tribunal") is set aside and the matter is referred back to the Tribunal for reconsideration by the same member who was the adjudicator at the original hearing and for the issuance by her of an amended Decision and Order in accordance with the directions set out in these reasons. As well, an order will issue, in the terms set out in para. 1a. of the notice of application, prohibiting the publication and other dissemination of the original Decision and Order and, as sought in para. 1f., directing the sealing of the court file of this application subject to further order by a judge of the Superior Court. This order i[s] intended to replace the interim order granted earlier providing similar relief. Submissions regarding costs may be made in writing within one month from the date of release of these reasons. They are to be exchanged between counsel and Jane Doe and then delivered in triplicate to the Registrar of this Court in Toronto.
[3] Because of the unusual nature of the order now granted and because the proceeding reviewed must still be reconsidered by the Tribunal, these reasons and, in particular, my references to the evidence and the facts, will be kept to a minimum.
[4] This proceeding arises out of a complaint filed by the respondent, Jane Doe (her pseudonym was substituted by the Tribunal for her proper surname), with the respondent, Ontario Human Rights Commission (the "Commission") in which she alleged that the applicants and the respondent, Hetherington, had infringed her right to equal treatment with respect to employment without discrimination based on her gender and her right to freedom from harassment in the workplace based on her gender. York was her employer and Murphy was York's data processing manager. Hetherington was formerly employed by York, but during the time frame covered by the complaints he provided services to York as an independent contractor through his company, the respondent Richland Marketing Inc. ("Richland").
[5] At the Commission's invitation, York and Murphy agreed to mediate Doe's complaint. As a result of that mediation, York, Murphy and Doe entered into minutes of settlement which included a provision for a payment by York and Murphy to Doe. The minutes provided that the settlement was in full settlement of all claims by Doe against York and Murphy and recited that Doe had already executed a full and final release. The minutes also recited that the settlement did not constitute an admission by York and Murphy of any violation of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code").
[6] That settlement was then approved by the Commission and thereby became final.
[7] The Commission subsequently exercised its discretion by referring Doe's complaint solely as against Hetherington to the Tribunal so that it "may hold a hearing on the merits of the case". In its letter of referral to the Tribunal, the Commission advised the Tribunal that it had decided not to refer Doe's complaint against York and Murphy to the Tribunal. A copy of the Commission's formal reason for deciding not to refer Doe's complaint as against York and Murphy was attached to the letter. It stated:
The evidence indicates that the complaint against the corporate respondent York and the personal respondent Murphy was settled.
[8] The Tribunal understood the limitation of the complaint that was referred to it. In § 2 of its Decision and Order it stated that "The Complaint was against Rick Hetherington only. The Commission had decided not to refer the subject-matter of the Complaint against York". This is confirmed in the affidavit of Christine McCloy, a legal assistant at the Legal Services Branch of the Commission, sworn on January 19, 2005.
[9] Pursuant to s. 39(3), the Tribunal ordered that "Richland Marketing Inc. o/a Richland Technical Services be added as the Corporate Respondent". That amendment is reflected, albeit imperfectly, in the title of proceeding shown in the Tribunal's Decision and Order and in the documents filed in this Court. The applicants were never added as parties to the proceedings before the Tribunal.
[10] The only appearances at the hearing before the Tribunal were a student-at-law on behalf of the Commission and Doe on her own behalf. There were no appearances on behalf of the applicants or Hetherington and Richland. Carol Murphy, the vice-president of York, gave evidence at the hearing. According to her affidavit sworn on February 5, 2004, she attended at the hearing in her personal capacity in response to a subpoena served on her by the Commission to give certain evidence. She stated in her affidavit that she had never been advised "that the Commission was seeking or that the Tribunal was considering rendering any decision, which might adversely affect the interests of either York or Robin Murphy".
[11] At p. 2 of its Decision and Order, the Tribunal characterized the issues before it as follows:
· Was the Complainant's right to equal treatment with respect to employment without discrimination based on her gender infringed by the Respondents contrary to section 5(1)?
· Was the Complaint's [sic] right to freedom from harassment in the workplace based on her gender, by her employer, agent of the employer or another employee infringed by the Respondents contrary to subsection 7(2)?
· Based on the findings of the Tribunal, what is the appropriate order under section 41?
All of the statutory references here and following, except where stated to be otherwise, were to the Code.
[12] The Tribunal then went on to make various findings of fact and concluded that Hetherington had violated ss. 1, 5(1) and (2), 7(2), 7(3)(a) and (b), 8 and 9. It then made a number of orders against Hetherington pursuant to s. 4(1).
[13] In addition, however, the Tribunal also made various adverse findings of fact against York and Murphy and concluded that they too had violated various sections of the Code. It is those findings and conclusions that are the focus of the applicants' attack in this application before us.
[14] It is the applicants' position that they have status to bring this application, even though they were not parties to the proceeding before the Tribunal. The Commission supports this position and the Tribunal opposes it. It is my view that the applicants are entitled to bring this application. There is no right of appeal or other procedure available to them to obtain the relief sought. I am also satisfied, on the evidence contained in the affidavit of Carol Murphy, the vice-president of York, sworn on February 5, 2004, that both applicants have an identifiable personal interest in the Decision and Order. As well, I am satisfied that they would likely suffer substantial losses, both economic and other, if it were to be released and made accessible in the usual way. I am also satisfied that an award of damages would be an inadequate remedy.
[15] It is the applicants' position that they are not seeking judicial review of the "reasons" of the Tribunal but, rather, of the "decision" of the Tribunal and that the Tribunal's findings and conclusions against the applicants were a separate "decision" in itself. The Commission supports this position and the Tribunal opposes it. It is my view that the applicants' position is correct. The Tribunal's adverse findings and conclusions against the applicants were not, as articulated, a reasonably necessary part of the narrative set out to explain its findings and conclusions against Hetherington. Despite the restraint of the Tribunal in not imposing any penalties on the applicants, the Tribunal's adverse findings and conclusions were tantamount to findings of guilt.
[16] It is the applicants' position that it was not open to the Tribunal to make the adverse findings and conclusions against them for the reason that they had not received any prior notice that their interests might be affected by the outcome of the hearing. If they were to be in such jeopardy, they were entitled to participate in the hearing to attempt to protect those interests. In support of their position, their counsel submits that the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the "SPPA") applies and that they were entitled to the safeguards set out in that Act. The Commission supports this position and the Tribunal opposes it. It is my view that the applicants' position is essentially correct and, subject to the qualification set out below, should be upheld. The making of the adverse findings and conclusions against the applicants in the circumstances of this case constituted a violation of natural justice and due process.
[17] It is the applicants' position that it was not open to the Tribunal to expand its authority to inquire into issues beyond those referred to it by the Commission, namely, issues involving only Doe and Hetherington and that, by doing so, it exceeded its statutory jurisdiction. The Commission supports this position and the Tribunal opposes it. It is my view that the applicants' position is correct. The Tribunal's adverse findings and conclusions against the applicants reveal the over-reach by the Tribunal beyond what had been referred to it by the Commission in violation of the limits of its authority as set out in ss. 36(1) and 39(1). By making findings and conclusions of wrongdoing against the applicants, the Tribunal was, in effect, adjudicating a complaint that had not been referred to it by the Commission. In so doing, it exceeded its jurisdiction. Sections 36(1) and 39(1) read as follows:
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 Tribunal
39(1) The Tribunal 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,
and the hearing shall be commenced within thirty days after the date on which the subject-matter of the complaint was referred to the Tribunal.
[18] It is perhaps ironic that this application, which itself raises issues related to human rights, is brought in the context of a dispute between the two major actors in the enforcement of human rights legislation in Ontario. It is also worthy of observation that this application is unusual, perhaps even unprecedented, in that the positions advanced on behalf of the applicants are substantially supported by the Commission and opposed by the Tribunal.
[19] What may be a major source of this dispute relates to the primary duty of the Commission pursuant to s. 33(1) to investigate and endeavour to effect settlements of complaints. Section 33(1) reads as follows;
33(1) Subject to section 34, the Commission shall investigate a complaint and endeavour to effect a settlement.
This requirement is likely imposed on the Commission on the assumption that settlements generally produce better resolutions to complaints than resolutions that are imposed on them. As well, settlements clearly serve the public policy of helping to reduce the cost of maintaining the work of the Tribunal.
[20] Recognizing that the Code explicitly encourages the making of settlements, it is important that the reasonable expectations of parties engaged in the complaints process who enter into settlements in good faith be protected by the Tribunal. Without such protection, the work of the Commission in promoting settlements would be severely compromised.
[21] In the circumstances of this case, the applicants were entitled to assume that, once the terms of the settlement reached had been fully finalized, they could safely disengage themselves entirely from the complaints process without fear of being in jeopardy of being the subject of adverse findings and conclusions by the Tribunal. It would be incomprehensible, and contrary to law, that a statutory procedure for the resolution of human rights complaints in Ontario could lead to findings of wrongdoing against a party who had been released from the complaints process through a settlement, and who had no formal notice of the hearing, was not a party to it, and did not participate.
[22] The crafting of an appropriate remedy in this case presents a substantial challenge. Although the Commission concedes that the applicants are entitled to some relief, its counsel submits that it would be sufficient for this Court to grant a declaration that the Tribunal's adverse findings and conclusions against the applicants were "rendered in breach of natural justice". With respect, it is my view that such relief would not be adequate.
[23] Rather, I have strived to create a unique remedy that would require the Tribunal to conduct a reconsideration of the subject complaint strictly within the scope of its statutory jurisdiction and in accordance with law. This includes the requirement that the Tribunal confine itself strictly to matters falling within its statutory jurisdiction and that it respect the settlement made by the applicants. Despite the failure of the Tribunal to comply with the SPPA and the rules of natural justice in relation to the original hearing, I would not order that the entire hearing now be set aside and repeated.
[24] As well, I have strived to provide, to the fullest extent reasonably possible, protection to the applicants from the likely consequences of the Tribunal's Decision and Order.
[25] Accordingly, when this matter returns before the Tribunal, it will be the duty of the adjudicator to reconsider all aspects of her original Decision and Order and it will be her duty, as stated above, to issue an Amended Decision and Order in accordance with the directions contained in these reasons. I would not assume to amend the original Decision and Order and thereby alter the quasi-judicial product of a member of a statutory tribunal. That should be left to her. However, I would respectfully direct the Tribunal as follows:
(a) the parties to the proceedings before the Tribunal should be given a reasonable opportunity to make prior submissions regarding the content of the Amended Decision and Order;
(b) the settlement made by the applicants and Doe should be respected and nothing should be said or done by the Tribunal that would be inconsistent with the rights of the applicants pursuant to the settlement;
(c) no findings or conclusions adverse to the applicants reasonably amounting to a finding of a violation of the Code should be made;
(d) however, if it is reasonably necessary to make adverse findings against the applicants solely to explain findings and conclusions against Hetherington, those findings should not be articulated in terms that amount to a finding of violations of the Code;
(e) the other rights and reasonable expectations of all of the persons involved in the complaints process should be respected. For example, just as the Tribunal chose to refer to the complainant by a pseudonym in order to protect her anonymity, similar consideration should be given to the applicants. Accordingly, unless there is some compelling reason to the contrary, each of the applicants should also be given pseudonyms, perhaps unrelated letters of the alphabet, so that they cannot be identified with an adverse finding that might be made against them and so that they may receive protection similar to that afforded to the complainant.
[26] That part of the relief granted intended to prevent any further disclosures of the offending portions of the original Decision and Order of the Tribunal is incidental to the specific statutory authority conferred on this Court and is necessary to ensure that the relief granted is effective in the circumstances of this case.
[27] The second application for judicial review is also granted. That part of the Tribunal's Decision and Order requiring the Commission to file the Order of the Tribunal with the Superior Court of Justice in the event of failure of compliance is set aside. It is the exclusive responsibility of the Commission pursuant to s. 29(i) to enforce the Code and orders of the Tribunal and the Tribunal has no authority to make any order against the Commission.
[28] The Tribunal is further respectfully directed not to include such a provision in its Amended Decision and Order.