by S. Pieters, B.A., LL.B.
Selwyn Pieters is a Barrister & Solicitor. He has a special interest in Charter litigation, International and domestic human rights law and policy, administrative law and issues surrounding anti-Black racism including racial profiling. He can be reached at selwyn.pieters@utoronto.ca.
On March 24, 2000, the Ontario Superior Court of Justice heard arguments in a matter involving the Ontario Human Rights Commission, Trustee of Investigations (CHRC) Rod Grainger, Chief Commissioner Keith Norton, Executive Director (OHRC) Remy Beauregard, OHRC Counsel Brian Eyolfson.
The Issues as set out in the Factum of the Ontario Human Rights Commission that the Court had to decide were as follows:
(i)Do the procedures employed by the Commission in processing a complaint deemed by staff to fall within the provisions of ss. 34 (1) (a) of the Code accord with the principles of natural Justice?(ii) Did the Commission commit an error in law by setting aside its own decision (of September 21, 1999) based on the failure to provide the complainant with the Case Analysis?
(iii) Did the Commission commit an error of law by providing the complainant with the case analysis and an opportunity to respond along with the consideration of the matter anew?
The parties basically agreed on the facts but parted ways on the remedies that the Court ought to grant in this case.
In what can be seen as a victory for human rights complainants who are concerned about the misuse and abuse of the Commission's discretionary powers under section 34 of the Ontario Human Rights Code a three judge panel of the Court (O'Driscoll, Yates and Meehan JJ.) has quashed two such decisions and ordered cost against the Commission fixed at $800.00.
Selwyn Pieters, B.A. appeared for the Applicant
Dennis Brown, Q.C., General Counsel, appeared for the Ontario Human Rights Commission et. al.
The Facts and the Parties positions
On January 25, 1996, the Applicant filed a complaint against the Ministry of the Solicitor General and Correctional Services alleging racial discrimination and harassment in employment based on his race, colour, ethnic origin and ancestry.
On March 31, 1997 and May 07, 1997, the Applicant received section 34 Case Analysis from the Commission recommending that the Commission not deal with his human rights complaint on the basis amongst others that the Collective Agreement and CECBA is more appropriate to deal with the issues raised in the complaint.
On or about July 31, 1997, the Applicant wrote to Mr. Remy Beauregard, Executive Director, Ontario Human Rights Commision, bringing to the attention the continuing nature of the impugned conduct of the Ministry and also complaining that the Commissions handling of my complaint is tantamount to a violation of sections 1, 9 and 11 of the Code. In that letter the Applicant stated stated:
On July 29th, 1997, I received several documents in relation to the Toronto Jail which indicates that the concerns which I raised in my amended complaint to the Ontario Human Rights Commission in July 1996 continues unabated. It must be noted in this regard that the racist attacks and display of KKKEsigns at the Toronto Jail is not being adequately addressed by Management and the Union [OPSEU] who are parties to the Collective Agreement and probably involves the Management and the Union itself as a party as the following correspondence and occurrence reports clearly indicated....By letter dated August 18, 1997, the applicant received a letter indicating that the Commissioners had decided not to deal with his complaint against the Ministry of the Solicitor General and Correctional Services pursuant to s. 34(1)(a) of the Code.Despite all of the concerns noted above and in my previous submissions to the Commission, the Commission still refuses to launch a systemic investigation into the personal, systemic and Institutional racism that pervades the Toronto Jail, Ministry of the Solicitor General and Correctional Services. The complainant hereby repeats his request that the Ontario Human Rights Commission investigate his complaint.
In the alternative, if the Ontario Human Rights Commission continues to take the position that it has the discretion under section 34 (1) (a) of the Code to refuse to deal with race based complaints which sets out serious human rights abuse against African Canadians as indicated by the pleading in the complainants documents of January 1996, July 1996, September 1996, April 1997, and June 1997 then the Commission is in violation of section 1 and 11 of the Code and section 15 (1) of the Charter as indicated in my previous notice of Constitutional Question and must accept this letter as a formal complaint against the Ontario Human Rights Commission. (emphasis added).
The complainant is aware that the Ontario Human Rights Commission is insensitive to race based complaints made by African Canadian clients including himself and also discriminates against its African Canadian employees. When the complaint turns to the Commission to remedy personal, systemic and institutional discrimination in his employment situation pursuant to section 5(1), 5 (2), 8, 9, and 45 (1) of the Code, the investigative, policy and public education, remedial and conciliatory processes available at the Commission in order to resolve the human rights issues such as that which the complainant has brought before it is a service for the purpose of the Code.
On August 18, 1997, the applicant also received a letter from the Canadian Human Rights Commission which acknowledge receipt of [the applicants] fax of July 31, 1997 to the Ontario Human Rights Commission. For your information, there is a formal agreement with the OHRC wherein the Canadian Human Rights Commission acts as trustee in complaints against the OHRC. Your documents were sent to the CHRC via this agreement.E
On November 14th, 1997, the Applicant, filed a formal complaint pursuant to sections 1, 9, and 11 of the Ontario Human Rights Code of discrimination because of race, colour, religion, and ancestry in the provision of services at the Ontario Human Rights Commission. That complaint was filed with respect of the Ontario Human Rights Commission and their differential use of section 34(1)(a) of the Code based on race.
The Applicant then sought to have the decision (against the Ministry) reconsidered pursuant to section 37(7) of the Code by making an application as provided thereunder.
The applicant was advised on or about December 10th, 1997 that the reconsideration review has been completed and a copy was provided to him. He was also invited to make written submissions with respect to the same.
The application submitted a response.
The Commission advised the applicant on or about January 20, 1998 that it had decided to uphold its original decision.
On February 20, 1998, the Applicant wrote to Panos Petrides, Executive Assistant - OHRC, a letter complaining about the more than six months that has elapsed since the Commission referred his matter to the Canadian Human Rights Commission to be dealt with by them under a reciprocal agreement.
On February 23, 1998, Rod Grainger, Trustee of Investigations, wrote a letter to the Applicant advising him that:
You will soon receive official notification that the Canadian Human Rights Commission has agreed with the Ontario Human Rights Commission that it will act as Trustee of Investigations and that I will be representing the CHRC. Given your concerns about delays in investigating your allegations, I thought it important to let you know what is happening. I will be appointing an independent investigator, based in Toronto, to investigate your allegations. Once I have arranged a telephone and mailing address for him, he will be in touch with you.
On April 02, 1998, Rod Grainger, Trustee of Investigations, wrote the Applicant a letter advising me that:
the Canadian Human Rights Commission has been asked and agreed to act as Trustee of Investigations for the Ontario Human Rights Commission. The undersigned will act as Trustee on behalf of the CHRC and will oversee the investigation of your complaint. Mr. Willoughby Edwards is the investigator assigned to the case and you should contact him with any questions you may have.On June 16, 1998, the Applicant was interviewed by the investigator and at that interview the Applicant provided the Investigator with a voluminous amount of documentary evidence in support of his complaint, in particular reports, cases, press releases and other documents detailing evidence of systemic anti-black racism at the Commission against client and black employees.
On June 19, 1998, the Applicant also provided the investigator with a written statement and documentary evidence in support of that statement.
On January 22, 1999, the Trustee of InvestigationsEInvestigator, Willoughby Edwards wrote a letter to the Applicant stating that he had reviewed my human rights complaint complaint and all the documents you submitted in support of itEand found no discrimination:
This letter is to advise that I have reviewed the subject complaint and all the documents you submitted in support of it.By letter dated February 01, 1999, the Applicant wrote to the Commissioners, Ontario Human Rights Commission and the Trustee of Investigations, Canadian Human Rights Commission, to make submissions with respect to the letter prepared by Mr. Edwards.On page 1 footnote 1 the applicant wrote that The case analysis of the investigator that is being sent to the Commission on which his recommendation to the Commission is based was not disclosed to me as is the usual practice - all I had to rely upon was this four paragraph letter of Mr. Edwards as cited above in its entirety.EMy conclusion is that there is no evidence to support your allegations of discrimination by the respondents in any documents submitted.
Accordingly, I am recommending to the Commission that it not deal with the complaint.
On February 16, 1999, Mr. Rod Grainger wrote a letter to the Applicant which stated:
This is to acknowledge your letter dated February 01, 1999 and your self-drafted complaint.On July 20, 1999, Willoughby Edwards wrote a letter to Remy Beauregard, Executive Director, Ontario Human Rights Commission, which states:I have forwarded this to Mr. Edwards for him to include with the package which he will present to the Commission.
Enclosed is the Case Analysis for this complaint.On July 29, 1999, Remy Beauregard, Executive Director, Ontario Human Rights Commission, responded to the Case Analysis.Should you wish to submit a response, please do so by Friday August 13, 1999.
Yours truly,
Willoughby Edwards
The Applicant was not provided with a copy of the Case Analysis to which Mr. Beauregard was requested to respond.
By way of letter dated September 22, 1999, the applicant received a decision dated September 21, 1999, indicating that the Commission had decided to exercised its discretion under section 34(1)(a) of the Code to decline to deal with his human rights complaint for two reasons:
The evidence indicates that the provisions of the Ombudsman Act could more appropriately deal with the issues raised in the complaint.The Commissions Enforcement procedures Manual under the section entitled Section 34 of the CodeEobserves under the section entitled disclosureEthat:The evidence also indicated that the Complainant has not availed himself of the Ombudsman Act, and has not advanced any rationale for failing to avail himself of the provisions of that Act.E
Where a complaint is to be forwarded to the Commission for a decision under section 34, whether immediately after intake, after servie, or during the investigation of the complaint, a section 34 package is prepared by the staff. The case analysis is disclosed to all parties named in the complaint. The parties are advised that they have 21 calendar days to forward submissions in response to the section 34 case analysis.On September 23, 1999, the applicant filed an application for reconsideration pursuant to section 37 of Code. In that application the applicant noted at parapraph 7 that:The Commission is provided with the case analysis as well as the partiesEwritten submissions, any legal opinions prepared for the section 34 review.
The Commission in its decision asserts that the evidence indicates that the provisions of the Ombudsman Act could have more appropriately deal with the issues raised in the comlaint and that the evidence indicates that the complainant has not availed himself of the Ombudsman Act. This is the first time this issue was raised by the Commission. In this respect the complainant was denied natural justice and fundamental fairness. As well, the Commissions erroneous finding of fact was made in a perverse or capricious manner or without regard to the material before it.The Commission enjoys a broad discretion to reconsider its decisions. Section 37 of the Human Rights Code provides for reconsideration of a Commissions decision under section 34 of the Code. Section 37 of the Code provides as follows:
(1) Within a period of fifteen days of the date of mailing the decision and reasons therefor mentioned in subsection 34 (2) or subsection 36 (2) or such longer period as the Commission may for special reasons allow, a complainant may request the Commission to reconsider its decision by filing an application for reconsideration containing a concise statement of the material facts upon which the application is based.In the Commissions Enforcement Procedures Manual it sets out the procedures for reconsideration of a Commissions decision as follows:(2) Upon receipt of an application for reconsideration the Commission shall as soon as practicable notify the person complained against of the application and afford the person an opportunity to make written submissions with respect thereto within such time as the Commission specifies.
(3) Every decision of the Commission on reconsideration together with the reasons therefor shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final.
The complainant is... entitled to seek reconsideration of a no deal withEdecision under section 34 within 15 days of mailing od the Commissions decision....The rationale for this test, consistently applied since the Commissions early years, is that the process of reconsideration provides an opportunity to address and to rectify any criticisms with respect to the integrity of the original procedure. Section 37 gives the Commission an unfettered power to reverse a decision under s. 37.E Hall v. Ontario Human Rights Commission (unreported, December 17, 1997); Re: Commercial Union Assurance et al and Ontario Human Rights Commission et al (1978), 59 O.R. (2d) 481 (Div. Ct.) at 487, letters c-d, referred to in the Court of Appeal decision at (1988), 63 O.R. 112 (CA) at 113. See also Pritchard v. Ontario Human Rights Commission [1999] 45 O.R. (3d) 97The existence of a procedural or legal error is not a pre-condition for reconsideration, but may be persuasive.
A request for reconsideration must contain a concise statement of the material facts upon which the request is based. The application for reconsideration is acknowledged and a copy is sent to the respondent for a reply within 15 days. If the respondent fails to respond within the prescribed time, the reconsideration request is processed. An officer other than the one involved in the initial investigation conducts the reconsideration.
The reconsideration officer will prepare his/her analysis and, if necessary, investigation, and will prepare a report. Each party is entitled to disclosure of the report, and has the right to make submissions under the same procedure utilized for the original recommendation. Similarly, the Commission is then provided with a new recommendation to uphold its original decision or to request a board or to deal with a complaint, together with related reasons as well as the partiesEsubmissions to the reconsideration report and relevant material from the original package.
The decision of the Commission on reconsideration is final. Its decision and the reasons for it must be provided by the Commision to the parties in writing,
Any decision of the Commission, which would include a reconsideration decision, may, of course, be the subject of an application for judicial review by a party before the Divisional Court.
The Commission then notes its test on page 3 and the facts will be sufficient in limited circumstances:
- When an issue as to the integrity of the Commissions process has been established.
- when the circumstances have materially changed; or
- when new relevant facts are established
On September 24, 1999, the applicant filed an application for Judical Review of the September 21, 1999 decision with this court.
On September 27, 1999, the applicant received a letter from Peter McLeman, Executive Assistanct to the Chief Commissioner in which he wrote:
Please be advised that the application for reconsideration in the above noted matter has been receieved and the contents duly noted.On October 01, 1999, the applicant received a letter from Rod Grainger in which he advised that due to a failure to provide the applicant with the Section 34 Case Analysis prior to the Commissions consideration and decision in this matter of September 21, 1999, a copy of the section 34 case analysis was being provided for reply. A date of October 23, 1999 was given as the date by which submissions should be received.A copy of your application for reconsideration has been forwarded to the Reconsideration Officer.
The Commission will continue to correspond with you at the above noted address. It is your responsibility to advise the Commission of any changes in your mailing address.
The applicant refused to provide a reply to the unsigned and undated Section 34 Case Analysis which was presented for his response.
On October 26, 1999, Dennis W. Brown, Q.C. Counsel for the Trustee and the Commission in this application wrote that:
Mr. Granger has advised me that he has provided you with a copy of the case analysis and provided you an opportunity to respond to same. He further indicates that reconsideration of your complaint will be undertaken by the Commission in the next short while. In light of the relief sought in your application, I would have thought that the action of the Trustee has satisfied your concerns therein. Accordingly I see no reason for your application proceedings as presently constituted. I therefore expect that you will be advising the Court as to the abandonment of the application.On October 29, 1999, the applicant responded to Mr. Brown advising that:
All of the issues raised in the Notice of Application and Notice of Constitutional Question are live issues to be determined by the Divisional Court.On November 17, 1999, the applicant received a second section 34 decision from the Commission. The reasons in that decision was similar to that rendered on September 21, 1999.Further all of the remedies which are sought in the Notice of Application remains outstanding.
In respect to the Section 34 Case Analysis which was released to me on October 01, 1999, 10 days after the Commissions decision, please see footnote 1, page 1 of my submissions dated February 01, 1999 (page 77 of the Applicants record). Providing me with an opportunity to respond to a document upon which a decision was made subsequent to that decision runs contrary to the avalance of jurisprudence on natural justice and procedural fairness. I will not be responding to a section 34 case analysis for the reasons contained in paragraphs 31 to 41 of my factum dated October 05, 1999 and for the reasons explained above.
With respect, the actions of the Trustee of Investigations, Rod Grainger, has not satisfied my concerns therein, rather it supports my view that the intervention of the Court is required to grant a declaration as set out in paragraph 4 (a) - (g) of my Notice of Application. Please advise Mr. Grainger that since he has retained counsel, he should not under any circumstances be contacting me directly.
On January 25, 2000, the applicant wrote to Counsel for the Commission asking that he provide him with the following information:
12. In this case subject to Judicial Review, please provide documentary evidence as to who reviewed work of Willoughby Edwards and following his letter of January 22, 1999 who directed the officer to prepare a report recommending that subsection of section 34 (1) (a) be applied to the complaint.On March 22, 2000, the applicant received from Dennis W. Brown, Q.C. a letter dated March 21, 2000. In that letter Mr. Brown, Q.C. wrote:13. Documentary evidence indicating when the case Analysis was completed and the documents which indicates the evidence relating to the case which was considered, what established case law was considered and the what Commission's procedures were considered when preparing the case analysis (report).
14. Documentary evidence as to who reviewed the applicants submissions dated February 01, 1999
15. Documentary evidence as to what, if anything was done between February 01, 1999 to September 21, 1999 in dealing with the applicants submission on February 01, 1999 that The case analysis of the investigator that is being sent to the Commission on which his recommendation to the Commission is based was not disclosed to me as is the usual practice - all I had to rely upon was this four paragraph letter of Mr. Edwards as cited above in its entirety.E
16. In the case under judicial review, please provide the minutes of the Commission and Panel meetings which record the Commission's decision inluding the names and/or title of the Commissions staff members (and other persons) who were present at the meeting.
I am delivering the Record of the Ontario Human Rights Commission. The Commissions factum will follow under a separate cover. It would appear from the Record that following the Commissions decision in September of 1999, you filed an application for reconsideration.The Commission's PositionThe application was not dealt with due to the Commission having become aware of the failure to provide you with a case analysis prior to its decision. As you are aware, the Commission treated the September decision as a nullity and provided you with the case analysis on October 01, 1999.
Although the aforementioned application for reconsideration relates to a decision which was subsequently voided the Commission wishes to avoid any misunderstanding on your part as to the consideration of the said application for reconsideration. Accordingly, the Commission is prepared to afford you an opportunity to make such an application having regard to its decision rendered on November 17, 1999.
In the event you wishes to file an application for reconsideration, kindly advise the writer.
There has been no lack of procedural fairness afforded to the Applicant.
It is further submitted that the procedures provided under the Enforcement Procedures Manual clearly provided the Applicant with a full opportunity to identify the basis for a section 34 recommendation and respond to same, in particular:
(a) respond to the case analysis;The Applicant's Position
(b) make application for reconsideration of the Commission's decision (s. 37 of the Code);
(c) make written submissions to a new recommendation to be placed before the Commission in response to the Application for Reconsideration.
In this case the Commission issued a section 34 decision in a manner which violated the applicants rights to procedural fairness and natural justice. It then embarked upon a procedure outside of the scope of the Human Rights Code which the applicant refused to be a part. The Commission then by way of letter two days before this Application for Judical Review was scheduled to be heard wrote to the applicant advising that Although the aforementioned application for reconsideration relates to a decision which was subsequently voided the Commission wishes to avoid any misunderstanding on your part as to the consideration of the said application for reconsideration. Accordingly, the Commission is prepared to afford you an opportunity to make such an application having regard to its decision rendered on November 17, 1999.E
The applicant rejected the Commission's offer stating to the Court that "I am not prepared to accept the offer to file a reconsideration as it amounts to throwing a bone at a dog and I refuse to accept it."
The Court then asked again whether the Applicant is prepared to accept Commission's offer and the applicant replied "no."
The Court took a brief recess and when it reconvened O'Driscoll J. delivered the Court's judgment orally from the bench.
The Court's Ruling
On September 24, 1999 the applicant launched an application for judicial review. On page 4, tab 1 it said that:
1. The Applicant makes an application for an order quashing and setting aside the decision of the Respondent, the Ontario Human Rights Commission (hereinafter "the Commission"), dated September 21, 1999, in which the Commission refused to deal with the Applicant's human rights complaint (TI-98-0046) pursuant to section 34(1)(a) of the Ontario Human Rights Code (the CodeE.
The Commission conceded that the applicant was not provided with a copy of the Case Analysis and accordingly, the Commission is prepared to have the applicant make an application for reconsideration having regard to its decision rendered on November 17, 1999.
The Applicant rejected the Commission's offer.
Result
The Decisions of the Commission dated September 21, 1999 and November 17, 1999 are hereby quashed.
The Application for Judicial Review is allowed and the Orders quashed.
Cost
Cost of this Application is fixed at $800.00 payable by the Respondent Commission to the Applicant.
This page was Created on March 24, 2000.
Updated on March 26, 2000.
1997 - 2000 All rights reserved.
|| Decision of the Superior COurt of Justice, Divisional Court | Ontario Human Rights Commission homepage | Dysfunction at the Ontario Human Rights Commission homepage | International Day for the Elimination of Racial Discrimination: Racial Minorities, particularly Blacks, in Ontario Have nothing to Cheer about or Celebrate | Home Page | Sign Guestbook ||