During the 2001-2002 fiscal year, the Legal Services Branch received the following: 6 Board of Inquiry decisions, 30 Board of Inquiry Settlements, 6 judicial review decisions, 10 appeal decisions and one Supreme Court of Canada decision.
At the end of the 2001-2002 fiscal year, the ongoing litigation in the Legal Services Branch comprised of: 87 Board of Inquiry files, 14 judicial reviews, 8 appeals and one case at the Supreme Court of Canada.
The following are highlights of some of the significant decisions and cases over the past year.
Ford Motor Co. of Canada v. Ontario (Human Rights Commission), Ontario Court of Appeal Decision: December 14, 2001
The complainant, Mike Naraine, worked for nine years for Ford as an electrician. During that period of time he experienced continuous racial harassment. Mr. Naraine grew increasingly frustrated and compiled a disciplinary record including counts of insubordination. He was discharged from his job in 1985.
Result at Board of Inquiry: The Board held that Mr. Naraine’s 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 at Divisional Court: In a unanimous decision the Divisional Court dismissed the appeal. On the issue of delay, the Court noted that the Board was in an “excellent position” to determine whether there would be prejudice to Ford. The Court agreed with the Board’s determination that it was appropriate to re-visit the issues addressed by the labour arbitrator in order to make a determination on the human rights issues. The Court held that the Board was entitled to exclude as irrelevant evidence of events subsequent to Mr. Naraine’s termination from Ford. The Court upheld the Board’s decision that Ford would be held liable for the racial harassment on the basis that it failed to do anything to address the racial slurs and graffiti at its Windsor operations. Ford sought leave to appeal the Divisional Court’s decision. Leave was granted on the sole issue of whether the Board erred in ordering Mr. Naraine’s reinstatement given the prior arbitral decision upholding his discharge.
Result at the Court of Appeal: The Court found that the Board had jurisdiction to hear and decide Mr. Naraine’s human rights complaint and was not bound by the prior decision of the arbitrator upholding the discharge. Though the Court recognized that arbitrators are permitted to interpret and apply “human rights and other employment-related statutes” since the 1992 amendment, this did not make the arbitrator’s jurisdiction exclusive or limit the Commission’s jurisdiction in any way. In the case of Mr. Naraine, his complaints pre-dated both the 1992 amendments to the Labour Relations Act authorizing arbitrators to apply the Code, and the amendments to the Code authorizing the Commission to defer to another tribunal in its discretion. The current scheme of concurrent jurisdiction was not available to the arbitrator hearing Mr. Naraine’s grievance. Thus, Mr. Naraine had no choice put to bring his complaint of Code violations to the Commission.
The Court also found that imposing reinstatement could not be upheld in the circumstances of the case. The Court set aside the decision of the Divisional Court with respect to the remedy of reinstatement, and set aside the Board of Inquiry’s order reinstating Mr. Naraine. In all other respects, the Board of Inquiry’s order was sustained.
Current Status: The Commission and the Complainant are seeking leave to appeal to the Supreme Court of Canada on the denial of reinstatement.
OHRC v. Mr. A and Mr. B, Mr. C and D Ltd.
Ontario Court of Appeal Decision: November 14, 2000
Complainant A was an employee of D Ltd. B was vice-president and manager of D Ltd. He was A’s direct supervisor, and also A’s wife’s brother (i.e. A’s brother-in-law). D Ltd. was owned by C, who was also a brother of A’s wife.
A worked for D Ltd. for 26 years without incident. Just prior to the termination of his employment, his daughter told him and his wife that she had recently uncovered a memory in therapy that B had sexually abused her when she was a child. A’s wife and daughter went to confront B (A’s wife’s brother) at his home. While A had driven his wife and daughter to B’s house on that evening, he was not involved in the confrontation. On Monday, A went to work as usual, where B terminated A’s employment.
Result at Board of Inquiry: The Board of Inquiry found as a fact that A was able to keep his personal and employment situations separate from each other. The Board then concluded that, in the absence of any other explanation, A was fired because of the actions of his wife and the accusations of his daughter, and that the facts amounted to discrimination based on marital or family status.
Result at Divisional Court: The Divisional Court upheld these factual findings but said that, even though the parties were related through marriage, this case does not amount to discrimination on the basis of family or marital status.
Result on Appeal: The Court of Appeal allowed the Commission’s appeal, agreeing that the grounds “family status” and “marital status” must include the particular identity of one’s parent, child or spouse.
Current status: The case has been appealed at the Supreme Court of Canada. Both sides have made their arguments and the parties are now awaiting the Court’s decision.
Brillinger and the Canadian Lesbian and Gay Archives v. Imaging Excellence Inc. et al.
Board of Inquiry Decisions: Sept. 29, 1999 and February 24, 2000
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 this service on the basis of his religious beliefs. Scott Brockie believes that homosexuality is contrary to the teachings of the Christian Bible. 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 of Inquiry (First Stage): The Board held that the Archives is protected under 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 and its then president, and because of his association with the Archives. The Board held that the Archives was discriminated against directly and by way of association.
Result at Board of Inquiry (Second Stage): The Board ordered the respondents to provide printing services to gays and lesbians and to organizations in existence for their benefit. She accepted the Commission’s and the Complainant’s concession that such an order contravenes Brockie’s religious rights under s. 2(a) of the Charter, but held the infringement is reasonably justified under section 1 of the Charter.
The Board ordered Brockie and Imaging Excellence to pay general damages in the total amount of $5,000 to Ray Brillinger and the Archives. She held that order of this magnitude is necessary to indicate the seriousness of the breach that occurred.
Current status: The decision was appealed by the Respondents to the Divisional Court. The Divisional Court made a preliminary decision that the Board exceeded its jurisdiction by adding the Canadian Lesbian and Gay Archives as a Complainant. However, the Divisional Court ruled that the deletion of the Archives did not dispose of the appeal. Both sides have made their arguments and the parties are now awaiting the Court’s decision.
Service Employees International Union, Local 528 v. Ontario Jockey Club
Divisional Court Decision: November 8, 2001
The Ontario Jockey Club and the Service Employees International Union applied for judicial review of conflicting decisions of two arbitrators. The case concerned two employees who suffered the gradual onset of work-related injuries. Their Collective Agreement did not cover such injuries. The employees and the union argued that this constituted discrimination on the prohibited ground of handicap (now disability) under the Ontario Code.
The first arbitrator had found that an insurance plan that provides benefits only to employees with “identifiable incident” injuries does not violate the Code. The second arbitrator held that employees who were injured gradually experience the same debilitating conditions as employees injured by identifiable incidents, and thus possess the same income replacement needs. The arbitrator ruled that the insurance plan was discriminatory on the basis of the grievor’s handicap (now disability) contrary to subsection 5(1) of the Ontario Code.
Result at Divisional Court: The Commission intervened on behalf of the Union. The Court delivered a unanimous decision to allow the Union’s application to quash the unfavourable decision and to dismiss the Jockey Club’s application. The findings of the second arbitrator were upheld.
Current Status: The decision of the Divisional Court was not appealed.
Board of Inquiry
Turnbull, Chapman, Fragale, Wong-Ward, Macaulay v. Famous Players Inc.,
Board of Inquiry Decision: September 10, 2001
The five complainants use wheelchairs and alleged that Famous Players violated the Code by failing to provide wheelchair-accessible theatres, by having a policy of non-admittance for patrons in wheelchairs at its inaccessible theatres, and by having a “sign-in” policy for attendants who receive free passes when accompanying persons using wheelchairs.
Result at Board of Inquiry: The Board found that Famous Player’s failure to provide accessible facilities constituted a prima facie violation of section 1 of the Code. The Board found that the defence of undue hardship in making the theatres accessible was not established and thus, failed. In terms of the non-admittance policy, the defence of undue hardship based on health and safety was also dismissed. Conversely, the “sign-in” policy for companions was not found to violate the Code because users of free passes are entitled to refuse to give their name and telephone number and still get the pass. The Board also found that other holders of free passes were asked to “sign-in”, thus companions of persons in wheelchairs were not singled out by this policy.
As part of the remedy, the Board ordered that Famous Players make the impugned theatres wheelchair-accessible on a phased-in basis. The Board ordered that any film being shown exclusively at an inaccessible theatre must be shown at an accessible theatre at the request of a patron who uses a wheelchair. The Board also ordered that Famous Players review its training program for employees regarding the accommodation of persons with disabilities. The award included damages for the loss arising from the infringement of each of the Complainants’ rights ranging from $8,000 to $10,000 and $2,000 as damages for mental anguish for one of the Complainants as a result of the Respondent’s reckless conduct.
Current Status: Certain matters concerning remedy remain before the board.
Fuller v. Daoud and Desquilbet
Board of Inquiry Decision, August 17, 2001
The Complainant, a Black man, became a tenant of the Respondents, renting out a basement apartment from them in March of 1999.
Shortly after moving in, the Complainant was subjected to unauthorized entries into his apartment, racial harassment and his ceiling (the Respondent’s floor) being stomped upon. The Complainant was eventually evicted from the apartment based on false accusations.
Result at Board of Inquiry: The Board of Inquiry found that the Complainant had been harassed and discriminated against because of his race. In calculating the award, the Board adopted a global approach to the assessment of quantum of damages. The Board found that a plain reading of subsection 41(1)(b) of the Ontario Code does not impose an upper limit on the monetary compensation the Board may order for loss arising from the infringement of the right to be free from discrimination and harassment. The only limit as imposed by the section is the amount awarded for mental aguish. This sum must not exceed $10,000 and is granted only if the Board finds that the Respondent has infringed the right in a wilful or reckless manner. The award included damages for the loss arising from the infringement of subsections 2(1) and (2) of the Code in the amount of $15,000 and damages for mental anguish in the amount of $10,000.
Current status: The decision of the Board of Inquiry was not appealed and the Commission is taking steps to ensure compliance with the Board order.