In the 1999-2000 fiscal year, the Legal Services Branch handled approximately 147 Boards of Inquiry, 21 Judicial Reviews, and 11 appeals, including two at the Supreme Court of Canada.
The following are highlights of some of the significant decisions and cases over the past year that are noteworthy to all those with an interest in human rights advancement.
M v. H
Supreme Court of Canada (intervention)
The Commission intervened at the Supreme Court of Canada in a case known as M. v. H.. The applicant “M” went to court to obtain an order of support against “H”, her former same-sex partner, after their twelve-year relationship had ended. At the outset of her support motion, “M” argued that the opposite-sex definition of “spouse” in Section 29 of Ontario’s Family Law Act (FLA), which precluded her from making an application for support in the context of a lesbian common law relationship, constituted a denial of the equality rights in Section 15 of the Charter.
Result at Supreme Court: On May 20, 1999, the Supreme Court of Canada found that the opposite-sex definition of "spouse" in Part III of Ontario’s FLA was unconstitutional. The Court found that the exclusion of same-sex couples from Section 29 of the FLA constitutes an infringement of equality rights that cannot be justified as a reasonable limit on constitutional rights under Section 1 of the Charter. The Court declared Section 29 of the FLA to be of no force and effect but suspended the application of its declaration for a period of six months in order to give the Ontario government an opportunity to make the appropriate changes to the law.
Current Status: In response to the Supreme Court’s decision, the provincial government introduced Bill 5 in the Ontario Legislature on October 25, 1999. It received Royal Assent on October 28, 1999 and came into force on March 1, 2000. The Bill amended the FLA, on November 20, 1999, so that its provisions governing support obligations now apply to same-sex partners. The FLA’s provisions relating to domestic contracts and dependants’ claims for damages have also been extended to same-sex partners. Bill 5 also amends a number of other statutes (including the Code) so that they now apply to same-sex partners.
B.C. Human Rights Commission et al. v. Blencoe
Supreme Court of Canada (intervention)
In the summer of 1995, two human rights complaints were filed alleging that Robin Blencoe, a former provincial Cabinet Minister, had sexually harassed them. In late November 1997, Blencoe filed an application for judicial review of the Commission’s referral of the complaints to the British Columbia Human Rights Tribunal. He alleged that inordinate delay in the processing of the complaints had caused him prejudice, amounting to a denial of natural justice.
In February 1998, the chambers judge dismissed Blencoe’s application for judicial review which was subsequently appealed to the British Columbia Court of Appeal.
Result at Court of Appeal: The Court of Appeal held that:
(a) the complaints were "relatively simple ones", involving no complex issues;
(b) any delay in the proceedings of the complaints must necessarily have prejudiced Blencoe;
(c) if Blencoe had been charged in the criminal courts with this type of “sexual nassault”, the charge would very likely have been dismissed on grounds of delay;
(d) the exacerbation of an existing state of affairs may trigger the Section 7 Charter right to security of the person;
(e) if complainants in sexual assault cases are protected by Section 7 of the Charter when facing disclosure of confidential materials, then respondents in sexual harassment hearings, facing protracted intrusion into the intimate details of their lives based on as of yet unproven charges, must also be extended the same protection;
(f) the emerging, preferred view in the Supreme Court of Canada is that Section 7 of the Charter, under the rubric of liberty and security of the person, operates to protect both the privacy and dignity of citizens against the stigma of undue, prolonged humiliation and public degradation of the kind suffered by Blencoe in connection with the complaints against him; and
(g) the delay in this case was so excessive when weighed against the seriousness of the “charge” and the simplicity of the issues that it could never be viewed as reasonable under any test, and was not in accordance with fundamental justice.
Current Status: The appeal of this case was heard in the Supreme Court of Canada on January 24, 2000. The Court’s decision is pending.
The consequences of an unsuccessful appeal in this case would be quite far- reaching for the Ontario Human Rights Commission, and indeed for the Commissions in other jurisdictions. In all likelihood, it would open the door for respondents to raise Section 7 arguments in cases where the allegation was not that of sexual harassment.
OHRC and Mike Naraine v. Ford Motor Company of Canada Ltd., et. al.
Superior Court of Justice, Divisional Court, June 23, 1999
The complainant worked for nine years for Ford as an electrician. During that period of time he experienced continuous racial harassment. The Board of Inquiry held that this harassment poisoned the complainant’s work environment and was responsible, in part, for the discipline he received at Ford. The Board held that Mr. Naraine’s ultimate dismissal was improper because Ford had failed to consider the effect the poisoned environment was having on the complainant.
Ford appealed the Board decision to the Divisional Court.
Result on Appeal: In a unanimous decision the Divisional Court dismissed the appeal. In part, the Court held the following:
- The Court noted that the Board was in an "excellent position" to determine whether there would be prejudice to Ford, having heard all the evidence, and therefore its decision on this matter ought to be given deference.
Res Judicata /Issue Estoppel
- The Court agreed with the Board's determination that it was appropriate to re-visit the issues addressed by the labour arbitrator - particularly the issue of the final alleged assault between Mr. Naraine and a co-worker - in order to make a determination on the human rights issues.
"Exclusion" of Evidence
- The Court held that the Board was entitled to exclude as irrelevant evidence of events subsequent to Mr. Naraine's termination from Ford. In any event, the Court noted that the Board did not exclude this evidence, but rather admitted it and then, as it was entitled to do, gave it no weight.
- The Court upheld the Board's decision that Ford could be held liable for the racial harassment on the basis that it failed to do anything -- indeed was indifferent to -- the racial slurs and graffiti at its Windsor operations.
Current Status: Appeal pending in the Court of Appeal
McKenzie Forest Products Inc. v. Adam Tilberg et al.
Divisional Court Decision, Judicial Review - May 31, 1999
McKenzie Forest Products Inc. sought judicial review of an interim decision of the Board of Inquiry made in the course of a hearing into the complaint of Adam Tilberg. In his complaint, Tilberg alleges that McKenzie refused him employment because he was born without thumbs.
The Commission referred Tilberg’s complaint to the Board. Subsequently, the Commission advised the Board and the parties that it had reached a settlement of the public interest issues between it and McKenzie Forest Products would “no longer participate” in the hearing. Tilberg was aware of his right to proceed on his own. The Commission requested, “as a condition of its withdrawing from the proceedings,” a letter of assurance from McKenzie which McKenzie provided.
The hearing into Tilberg’s complaint resumed in the absence of the Commission. McKenzie then brought a motion 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.” The Commission was put on notice and opposed McKenzie’s motion.
Result at Board: The Board ruled that it had jurisdiction to continue with the hearing of Tilberg’s complaint, notwithstanding the steps taken by the Commission to abandon active carriage of the complaint before the Board. McKenzie then brought an application for judicial review of the Board’s interim ruling.
Result of Judicial Review: The majority of the Divisional Court granted McKenzie’s application for judicial review. The Court held that the Commission has a statutory duty, pursuant to Section 39(2) of the Code, to “have the carriage of the complaint” and that where the Commission had taken steps to surrender active carriage of the complaint, the Board no longer had jurisdiction to hear the complaint. The Court held that, in the absence of the Commission’s involvement in the proceedings, no other party has the statutory authority to have carriage of the complaint. The Court also held that the public interest represented by the Commission prevails, in the event of conflict, over the private interests and rights of individual complainants.
Result at Court of Appeal: The Court of Appeal overturned the decision of the Divisional Court and allowed the appeal by the Commission. The Commission as the party with carriage of the case before the Board of Inquiry, may decide not to participate in the proceedings where a settlement offer has been made by a respondent and that offer, in the view of the Commission, satisfies the public interest. The complainant, as a separate party before the Board of Inquiry, may continue the proceedings before the board notwithstanding the Commission's decision not to call evidence.
Current Status: McKenzie is seeking leave to appeal to the Supreme Court of Canada.
Board of Inquiry Hearings
Brillinger and the Canadian Lesbian and Gay Archives v. Imaging Excellence Inc. and Scott Brockie
Board of Inquiry Decision: Sept. 29, 1999
The complainant, Ray Brillinger, sought printing services - envelopes, letterhead and business cards - from the respondent Imaging Excellence Inc. for the Canadian Lesbian and Gay Archives (the “Archives”). The president of Imaging Excellence, Scott Brockie, denied the service on the basis of his religious beliefs. Scott Brockie believed that homosexuality is contrary to the teachings of the Christian Bible. Mr. Brockie argued that his right to freedom of religion under Section 2(a) of the Canadian Charter of Rights and Freedoms (the “Charter”) acts as a defence to the denial of services.
The hearing proceeded in two stages: the first stage dealt with an infringement of the Code and the second stage addressed the Section 2(a) Charter defence.
Result at Board (First Stage): The Board held that the Canadian Lesbian and Gay Archives is protected under the sexual orientation ground of the Code. She held that organizations like the Archives are “so imbued with the identity or character of their membership, or so clearly representative of a group that is identified by a prohibited ground under the Code, that they cannot be separated from their membership and the organization itself takes on the protected characteristic”.
The Board held further that both Ray Brillinger and the Archives were denied printing services contrary to Section 1 of the Code. She held that Ray Brillinger was discriminated against indirectly as a member of the Archives, as was its then president, because of his association with the Archives. The Board held that the Archives was discriminated against directly and by way of association.
Current Status: Argument on the Charter proceeded on November 1, 1999. The Board reserved her decision.
Nicole Curling v. The Victoria Tea Company Ltd., A. Torimiro and The Torimiro Corporation
Board of Inquiry Decision: December 22, 1999
The Complainant, Nicole Curling, filed a complaint against her employer, Alexander Torimiro and The Victoria Tea Company on April 15, 1994, alleging sexual harassment and sexual solicitation contrary to Section 7(2) and 7(3)(a) of the Code. In 1998, the complaint was amended to include discrimination in employment because of sex contrary to Section 5(1) and 9.
During the course of the hearing in September 1999, an allegation of Section 8 reprisal was added to the complaint as a result of a defamation law suit launched by the Personal Respondent and his new corporate entity, The Torimiro Corporation, which was also added as a respondent.
Result at Board: The Board found that Nicole Curling was subjected to a poisoned work environment due to the sexualized workplace climate. The Board found the Personal Respondent’s behaviour towards the Complainant, such as unwanted touching, kissing and comments about her body, constituted sexual harassment.
The Board held that the Personal Respondent’s persistent pursuit of a relationship with the Complainant constituted sexual solicitation. Expert evidence was led that sexual harassment should also be understood in the terms “relational advances”. The typical traits of this latter type of harassment being where the respondent harasser pressures the target to form an intimate relationship, usually starting with gifts, special attention and invitations for dates. The Board noted that “relational advances” are often not seen as harassment and are treated lightly by co-workers and employers because the conduct has the semblance of a courtship and infatuation.
With respect to the previous finding of sexual harassment by the Personal Respondent, expert evidence was led that clearly revealed the Respondent to be a “repeat offender, who did not recognize his responsibility and who engaged in a pattern of escalating behaviour.”
The Respondents launched a civil action against the Complainant seeking $1.5 million for damage to reputation arising out of the human rights complaint process. The Board found that reprisal was clearly a factor in the Respondents’ lawsuit. The Board held that in making threats against the Complainant, her family, the Commission and its witnesses, the Respondents’ conduct was a form of retaliation.
Current Status: A decision with respect to remedies is pending.