ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-00376619
DATE: 20120711

BETWEEN:

DONNA MOORE
Plaintiff

– and –

CHRY COMMUNITY RADIO INCORPORATED
Defendant

P. Summers, for the Plaintiff
P. S. Haynes, for the Defendant

HEARD: March 26 – 29, 2012

WHITAKER, J.

What This Case is About

1 . The plaintiff Donna Moore (“Moore”) was a volunteer at the defendant community radio station (the “station”). She complains that she was harassed and mistreated by another volunteer who worked with her on a particular program.

2 . Moore complains that the station failed to enforce policies designed to deal with and address, harassment. Moore seeks an injunction requiring the station to adhere to their harassment policies. Moore seeks damages, punitive and exemplary.

3 . The station agrees they owe Moore some duty of care. The station maintains and argues they have complied with their policies. The station asserts the court should not intervene.

4 . Following trial, I conclude the station did not technically comply with the letter of their written harassment policies, but did substantially comply with the spirit of the policies. In the circumstances the court should not intervene.

5 . For the following reasons, this action is dismissed

What Happened?

6 . The significant facts are not in dispute.

7 . Moore testified on her own behalf. Mr. Winston LaRose was called in her support.

8 . The station called as witnesses Danae Peart, Eitan Shami, Jacqueline Tuinstra Harrison, Kemba Byam and Clive Braham.

9 . The station is incorporated under provincial law without share capital. It carries on business as a “not for profit” community radio station.

10 . The station is located at York University in north west Toronto.

11 . The station has a formal relationship with the University. All students of the University are members of the station and contribute an annual levy to financially support the station.

12 . The station’s mandate is to provide alternative programming (both spoken word and music), not heard elsewhere or on commercial radio. The work of the station is heavily informed by principles of social justice and is concerned with issues that affect the black community - particularly young people.

13 . Although there is a small paid staff of about 7 persons, the vast majority of work performed in the station (both on air and off) is done by volunteers from the community. Volunteers and active members number about 150. This includes students and non-student members of the broader community. The station has a board of directors.

14 . The station has an abundance of written governing documents and policies. These include by-laws, a code of conduct, a complaints policy, a discipline policy, a harassment policy and guidelines for directing complaints. As a condition of participation, all station members and volunteers agree to abide by these policies and guidelines.

15 . Moore lives in Peel Region, adjacent to the University.

16 . Moore was a volunteer at the station although not a formally registered volunteer as that term is understood in station policies. This means that she did not formally enter into any agreement to abide by the governing policies of the station, nor did she undergo the usual orientation protocol provided to registered volunteers.

17 . Under the station’s policies there are two types of status or standing; members who are all students and registered volunteers who receive orientation and training and then agree to work within the policies of the station. Moore (as did others) belonged to neither category but performed work within the station in any event.

18 . At the time of trial, Moore was an engineering student at the University of Toronto.

19 . Before volunteering, Moore listened to the station. She was particularly interested in a program called “You Got Soul” (the “program”). The hosts of the program would from time to time invite listeners to volunteer on the program. Moore responded to that invitation.

20 . Moore started volunteering at the station and on the program in late 2004. As indicated earlier, Moore was not a registered volunteer and did not take the orientation or training. Moore informally integrated herself into the work of the station and the program.

21 . The programming model used by the station in the case of You Got Soul, was to designate one person to be the principal and leader of the program. It was then left to that principal to invite other co-hosts to participate on air.

22 . Clive Braham (“Braham”) was the principal and leader of the program. Braham invited Moore to participate as a co-host after she demonstrated an interest in the program by taking other off air responsibilities.

23 . By 2005, Moore was one of four co-hosts on the program. The program aired once a week on Friday for a three hour slot.

24 . Besides Braham and Moore, there were two other co-hosts. One of these two others was Jennifer Huntley (“Huntley”). When Moore joined at Braham’s invitation, Huntley had already served as a co-host for a number of years.

25 . In the first half of 2005, Moore and Huntley began to interact negatively. Moore felt that she was being harassed and mistreated by Huntley on and off the air.

26 . On a number of occasions Moore complained to senior members of the station that she was being harassed by Huntley.

27 . The alleged harassment took various forms including rude and inappropriate personal remarks, bullying, being hit by small thrown objects, bearing the brunt of various demeaning and intentionally hurtful comments while on air, yelling and screaming, rough or violent touching,

28 . There is no doubt that this treatment of Moore by Huntley if proven, would be considered inappropriate and culpable misconduct in this or any other workplace.

29 . In the summer of 2005, Moore attempted unsuccessfully to persuade Braham to intervene and to stop the harassment. According to Moore, Braham ignored her and continued to avoid the issue. He took no steps to discipline, guide, sanction or counsel Huntley.

30 . The harassment (in Moore’s view) continued unabated.

31 . In response to Moore’s complaints, a meeting to discuss Moore’s concerns was arranged with Michelle Cho who was the station manager in September of 2005. Attendees were Moore, Cho, Braham and Huntley. At the meeting, Braham told Huntley that she was not acting appropriately and that she would have to change her behaviour or leave the program.

32 . After this meeting the situation deteriorated further. Huntley would not speak to Moore and not much changed in terms of inappropriate conduct and harassment.

33 . In February of 2006, there was another meeting to deal with the situation. Attendees were Cho, Moore, Huntley and Braham. During the meeting, Cho tried to mediate between Moore and Huntley. When that effort broke down Cho left the meeting. The meeting ended with nothing further accomplished and just more of the status quo.

34 . There were two more meetings in 2006. In one of these meetings, Moore was accompanied by Mr. Winston LaRose. Mr. Larose is a highly regarded community worker with experience in mediation and conflict resolution. Mr. Larose is the Executive Director of the Jane Finch Concerned Citizens Association. Mr. LaRose was familiar with Moore and the work of the station. Unfortunately nothing really came of these meetings.

35 . Moore then began to have further problems with Huntley and Braham. According to Moore, both Huntley and Braham were now against her and acting inappropriately.

36 . Moore persisted in maintaining her complaints. At various times she met with both the outgoing and incoming Board Chairs and their designates. Moore met with the volunteer and programming directors. It appears that Moore met and discussed her concerns and issues with most of the station’s leadership over the course of two years. Various proposals and solutions were suggested, none of which lasted or remained viable.

37 . In early 2007 the station conducted a program review of You Got Soul. Although not expressly stated, the program review appears to have been undertaken in part to deal with the continuing climate of discord and friction within the program. As a result of the program review, the station decided to disband the program. Braham was left to do what he wished with the time slot.

38 . Shortly after the disbandment, Braham invited Richard Anthony (existing co-host) back to the new version of the program. Braham invited Huntley back to the program within four weeks of the disbandment. Moore was not invited back to the new version of the program.

39 . At this point, the station provided Moore with a copy of the conduct guidelines and told Moore that if she wished, she could submit a written complaint. The station’s conduct guidelines required a written complaint to proceed with at first instance. This is acknowledged by Moore.

40 . For a variety of reasons, Moore did not submit a written complaint as contemplated by the guidelines. At trial, Moore explained that one of the reasons for failing to provide a written complaint was that she was caring for her terminally ill father. It is not clear whether this was communicated at the time to the station.

41 . In an effort to deal with Moore’s concerns, the station offered Moore a position on another radio program called Womyns Word Collective with principal host Kemba Byam. There was clearly an overlap of subject matter between You Got Soul and Womyns Word Collective.

42 . Moore was given training and an opportunity to work on air on Womyns Word. Kemba Byam was initially impressed with Moore, but found over time that Moore had challenges committing to the program.

43 . After an initial period on this show and for reasons which remain unapparent, Moore decided that the new show wasn’t for her and she wanted to move back to You Got Soul.

44 . Moore left the organization in the summer of 2007 and has not returned. She had still at that point not filed a written complaint.

45 . Moore retained counsel who was then provided with all of the harassment and complaint policies. Moore and her counsel engaged in a series of meetings with the station for purposes of resolving her complaints. These efforts proved unsuccessful.

Policies

46 . There are a variety of written guidelines and directions that are relied upon by Moore. In particular, counsel for Moore in opening remarks indicated that Moore relies on three documents: the Station Harassment Policy, the Complaints policy and the Discipline Policy.

47 . With respect to the CHRY Guidelines for Directing Complaints, these set out the process for directing a complaint to the appropriate party and further, that all complaints must be in writing.

48 . With respect to the Code of Conduct, there is really no issue that the allegations made by Moore were if proven, breaches of the Code of Conduct.

49 . Complaints Procedures 2007 Policy clearly indicates that it does not apply to issues regarding harassment and there is a separate comprehensive policy dealing with that subject matter.

50 . The Harassment Policy is an extremely detailed code designed as a comprehensive procedural guide.

51 . The Discipline Policy is in substance a procedural policy which outlines the discipline process and refers to and incorporates the Code of Conduct.

52 . The Complaints Process is a comprehensive protocol for proceeding with a harassment complaint. Under this policy, the Board has a discretion to consider and investigate complaints.

Analysis

53 . There is no issue that the conduct of Huntley if proven could amount to misconduct on her part as contemplated by the code of conduct. Counsel for Moore reiterated during the trial that the court was not being asked to find that Huntley was at fault, but rather the station should be compelled to follow their own policies dealing with harassment.

54 . It is apparent that Huntley’s alleged misconduct could be in breach of the “harassment” portion of Part 1 of the station harassment policy draft guidelines, in which case the Part II procedural portions would be engaged.

55 . I say that it “could” be in breach of the policy as the policy may on one reading be limited to harassment based on one or more of the prohibited grounds under the Human Rights Code of Ontario RSO 1990, c.H.19. It does not appear that Moore alleged harassment contrary to the Code.

56 . Huntley could certainly be at risk of discipline as contemplated by the discipline policy.

57 . There is also no issue that Moore did not formally provide a written complaint even though she was aware that this was a requirement and was advised of this on several points in the process. Nonetheless, the station concedes that Moore was entitled to access the harassment policy even though there was no written complaint until counsel was retained.

58 . In opening remarks and closing submissions, counsel for the station confirmed that Moore could access the provisions of the harassment policy, the complaint process and the discipline policies even though she was not a member or even a registered volunteer who had obtained the requisite volunteer training.

59 . In argument and as indicated above, the central and critical issue is whether the court should intervene where the station has not strictly complied with the harassment policy.

60 . The parties put before me a number of authorities dealing with the issue of the court’s role when reviewing an internal decision made by a private volunteer and amateur organization.

61 . Most of these cases involved either expulsion or a failure to admit to membership, dealing with private clubs and religious organizations; Lakeside Colony of Hutterian Brethren v. Hofer , [1992] 3. SCR 1955; McCaw v. United Church of Canada , (1991) 1991 7048 (ON CA) , 4 OR (3d) 481 ; Davis v. United Church of Canada , (1992) 1992 7731 (ON SC) , 8 OR (3d) 75 ; Mott-Trille v. Steed , (1995) 1996 7955 (ON SC) , 27 OR (3D) 486 ; Senez v. Montreal Real Estate Board , 1980 222 (SCC) , [1980]35 NR 545 SCC; and Sahayadkivski v/ YMCA of Greater Toronto , 2006 10747 (ON SC) .

62 . The parties candidly admitted that neither could find any authority dealing squarely with the type of fact situation before me.

63 . Notwithstanding a dearth of jurisprudence dealing with comparable circumstances, the parties in argument were generally in agreement as to the appropriate considerations.

64 . My review of the jurisprudence suggests the application of the following propositions;

(a) the courts retain a discretion to intervene in or supervise the internal affairs of private and volunteer organizations;

(b) internal decision making should be accorded a degree of deference;

(c) the court’s discretion to intervene should be exercised cautiously;

(d) the courts may more likely intervene where the internal dispute deals with the determination of property rights, professional certification or the threshold category of membership itself ( see McCaw , Hutterian Bretheren mentioned above).

(e) the courts may more likely intervene if the conduct of the organization is unlawful or where there is an obvious unfairness, breach of natural justice or intention to harm, ( see Davis mentioned above ).

(f) the courts should consider the nature of the organization, its resources and practical circumstances;

(g) the courts should consider the nature of the relationship between the organization and the affected persons;

65 . Applying these propositions, I note that the organization is almost exclusively dependant on volunteer work and is funded only on the basis of donations from the University and occasionally those in the listening community. Resources are limited and those that work or provide leadership are not professionals. In these circumstances the station cannot be held to the same practical standards as a business operated by professionals. The station can only reasonably commit limited and proportionate resources in attempting to investigate and resolve this type of complaint.

66 . Moore’s status was that of an unregistered volunteer, that being the lowest level of integration into the organization, after member and registered volunteer. While there is a duty of care acknowledged by the station (even to a listener), it must be considered a minimal one.

67 . There is no suggestion that the station acted unlawfully, unfairly, arbitrarily or in bad faith. While certainly the station could have done a better job and did not formally act according to all of the provisions in the harassment policy, it was attempting in good faith to do its best to resolve Moore’s complaints.

68 . The station was not dealing with property, professional certification or membership rights. Indeed the station wished to keep Moore on as a volunteer and found another placement for her with Womyns Word which in their view was appropriate for her. Not once was it suggested that Moore leave the station. The station continued over a period of years, to attempt to solve Moore’s concerns.

69 . While the station clearly did not provide Moore with all of her strict procedural entitlements under the harassment policy, it spent an inordinate amount of administrative time and expense, trying to find a solution to her concerns. It must be remembered that the station has a discretion to investigate and apply its policies.

70 . In hindsight, it may have been more efficient to have immediately invoked the procedural provisions of the harassment policy, but in this case, the station made one informal attempt after another to find a solution without necessarily assigning fault.

71 . There is no doubt that the station failed to strictly apply its own policies and handled Moore’s concerns in what turned out to be ineffective from her perspective. The station was well intentioned. The underlying motivation appears to have been to avoid conflict and to settle the discord by pursuing a mediated outcome without findings of wrongdoing.

72 . In terms of the resources committed by the station, many dozens of volunteer and paid employee hours were spent in finding a resolution for Moore.

73 . In the circumstances, I conclude that it is not appropriate for the court to intervene here. The station acted in good faith and in effect satisfied the spirit of the harassment policies if not the letter. The station spent much of its scarce volunteer and paid time and labour on this matter.

Outcome

74 . The action is dismissed.

75 . The parties may make brief written submissions as to costs within ten days.

Whitaker, J.

Released: July 13, 2012

COURT FILE NO.: CV-09-00376619
DATE: 20120711

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DONNA MOORE Plaintiff – and – CHRY COMMUNITY RADIO INCORPORATED Defendant

REASONS FOR JUDGMENT

Whitaker, J.

Released: July 13, 2012