Ontano BOARD OF INQUIRY (Human Rights Code) IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended; AND IN THE MATTER OF the complaint ofAnaliza Deleon, dated October 22, 1999 and amended May 9, 2000, alleging discrimination in employment contrary to sections 5(1), 7(2), 7(3), and 9 of the Code; AND IN THE MATTERS OF the complaints ofDao T. Bui, datedJanuary 30, 2000 and amended May 9, 2000; Cherry Kusi, dated January 30, 2000 and amended May 11, 2000; Lynn McWhirter, dated February 4, 2000 and amended June 9, 2000; LydiaNeves, dated December 1, 1999 and amended May 8, 2000; Patricia O'Brien, dated January 30, 2000 and amended May 8, 2000; and, Noralyn Ogalino, dated January 31, 2000and amended May 9, 2000; all alleging discriminationinemploymentcontrary to sections 5(1), 7(2), 7(3), 8, and 9 ofthe Code. BETWEEN: Ontario Human Rights Commission -and- Dao T. Bui, Analiza Deleon, Cherry Kusi, Lynn McWhirter, Lydia Neves, Patricia O'Brien, Noralyn Ogalino Complainants -and- B & G Foods Inc., 1060283 Ontario Limited, 1060284 Ontario Limited, 870359 Ontario Limited, 1124600 Ontario Limited, 1051044 Ontario Limited, 1119624 Ontario Limited, 1124661 Ontario Limited, Brigitte Foods Inc., Greg Kirkoryan, Brigitte Regenscheit, Alvin Adoptante Respondents INTERIM DECISION Adjudicator: Steven Faughnan Date: Nov 7, 2001 Board File No.: BI-400-00 to BI-0406-00 Decision No.: 01-025-1 BoardofInquiry(HumanRightsCode) 505UniversityAvenue 2ndFloor,Toronto,ON M5G2P3 Phone(416)314-0004 Tollfree 1-800-668-3946 Fax:(416)314-8743 TTY:(416) 314-2379 TTYTollfree: 1-800^24-1168 APPEARANCES Ontario Human Rights Commission P.Rajan, Counsel Dao T. Bui, Analiza Deleon, Cherry Kusi, Lydia Neves, Patricia O'Brien, Noralyn Ogalino, J. Rubin, Counsel Complainants B & G Foods Inc., 1060283 Ontario Limited, 1060284 Ontario Limited, 870359 Ontario Limited, 1124600 Ontario Limited, 1051044 Ontario Limited, 1119624 Ontario Limited, J. Levitan, Counsel 1124661 Ontario Limited, B. Schiller, Counsel Brigitte Foods Inc., Corporate Respondents Greg Kirkoryan, Brigitte Regenscheit, Alvin Adoptante, Personal Respondents INTRODUCTION These arethe Board's reasons fordecision on amotionbroughtby B & G Foods Inc. ("B & G"), 1060283 Ontario limited, 1060284 Ontario Limited, 870359Ontario Limited, 1 124600Ontario Limited, 1051044 Ontario Limited, 1119624 Ontario Limited, 1124661 Ontario Limited, Brigitte Foods Inc. (the "Corporate Respondents"), Greg Kirkoryan ("Kirkoryan"), Brigitte Regenscheit ("Regenscheit") andAlvinAdoptante ("Adoptante") (collectivelyreferredto asthe"Respondents"), seeking an order dismissing or staying the complaints (the "Complaints") ofDao T. Bui, Analiza Deleon, Cherry Kusi, Lynn McWhirter, Lydia Neves, Patricia O'Brien and Noralyn Ogalino (the "Complainants"). In the alternative, the Respondents seek an order removing certain Corporate Respondents as parties to the proceeding. Preliminary Matters At the outset of the motion the Respondents advised the Board that they would be withdrawing their motion to strike certain paragraphs relating to the remedial reliefsought in the Commission's Statement of Facts and Issues. The Board proceeded to hear the balance of the motion. Although the Respondents initially sought to rely on the Canadian Charter ofRights and Freedoms, Part 1 ofthe ConstitutionAct, 1982, ScheduleB to the CanadaAct 1982 (U.K.) 1982, c. 11 (the"Charter") andjurisprudencethatinterpretedtherights setoutinthe Charteras interpretive tools, as the motion progressed the Respondents advised that they would simply rely on administrative law principles in support of their motion for a dismissal or stay. Should the Respondents wish to renew theirmotion onthebasis ofthe applicable sections ofthe Charterthey remain free to do so after giving the appropriate notice. The Respondents also sought in error to rely on section 4.6(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, as amended, (the "SPF'A") as foundation for its motion. Section4.6(1) can onlyberelied onto dismiss aproceeding if, in accordancewith section4.6(6) of theSPPA, theBoardhasmaderulesundersection25.1 oftheSPPA respectingtheearlydismissalof proceedings, whichrules shall includetheitems found atsubparagraphs(a)to(c)ofsection4.6(6)of the SPPA. The Board has notmade suchrules. Contraryto the suggestions ofthe Respondents, the rulings made during these proceedings do not qualify as "rules" under section 4.6(6) ofthe SPPA. Finally, theComplainantsrepresentedbyMs RubinadoptedtheCommission's submissions on the motion. Lynn McWhirter, who did not appear on the motion, was content to rely on the Commission's submissions. As a result, where the Board sets out the parties' submissions, the submissions made on behalfofthe Complainants are not set out separately. ISSUES The following issues were before the Board ofInquiry (the "Board"): (1) HastheCommissionfailedtomeetthestatutoryrequirementsundersection33(1)of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") to endeavourto effectasettlementoftheComplaints, orfailedtoproperlyconsiderthe matters set out in section 34 of the Code, thereby failing to meet a condition precedentto avalidreferralto theBoardpursuantto section36(1) ofthe Codel Does theBoardlackjurisdictiontoproceedtoheartheseComplaintsbecauseofanyfailure ofthe Commission to fulfill such a statutorypre-condition? (2) Can the Respondents invoke the doctrine ofResJudicata?. (3) Would itbe an abuse ofprocess fortheBoardto heartheComplaints andshouldthe Complaints be stayed or dismissed because ofthe following circumstances, which took place before the subject-matterofthese Complaints was referred to the Board: a. The delayby certain Complainants in filing their Complaints; b. An alleged failurebythe Commission to endeavourto effect a settlement ofthe Complaints; c. The existence of a settlement of six of the seven complaints brought by the Complainants against TDL Group Ltd. ("TDL"), the franchisor of the Respondents' Tim Horton's franchises; d. TheconductoftheCommissionandComplainants, whichtheRespondents allege is evidence of bad faith and gives rise to a reasonable apprehension of bias against the Respondents. (4) Should the Board remove certain Corporate Respondents from the proceedings? DECISION The motion is dismissed. BACKGROUND This proceeding involves various Complaints alleging that the Respondents breached the provisions of the Code on a number of grounds. The Personal Respondents Kirkoryan and Regenscheit are officers, directors and shareholders ofthe Corporate Respondents. Adoptanteis an employee of the Corporate Respondents. The Complaints allege that the Complainants were subjected to sexual solicitation or advance, reprisal or a threat ofreprisal for rejection ofsexual solicitationoradvance, sexual harassmentanddiscriminationinemploymentonthebasisofsexand, with the exception of the Complaint of Analiza Deleon ("Deleon"), reprisal for claiming and enforcing theirrights under the Code and participating in proceedings under the Code. In addition, Cherry Kusi ("Kusi") also alleges discrimination in employment on the basis ofcreed. The Respondents acknowledge that the grounds for the motion arise from the acts and decisions ofthe Commission and the Complainants leadingup to the Complaints beingreferred to the Board under section 36(1) ofthe Code. 3 FACTS On September 18, 1998, TDL, the franchisoroftheRespondents' TimHorton's franchises, allegedlybecameaware, through an anonymous complaintletter,ofallegationsofsexualharassment by Kirkoryan directed at employees ofB & G. Counsel was retained by TDL to investigate the allegations. Theinvestigatorissued areportingletterdatedNovember26, 1998, concludingthatshe was unableto completetheinvestigationforanumberofreasonsincludinganallegationthatB &G and its principals refused to provide the cooperation required for an effective investigation. By letter dated July 13, 1999, TDL allegedly received formal notification ofallegations of sexual activity and reprisal activity involving Regenscheit, Kirkoryan and Adoptante. Once again, TDL retained an investigator to inquire into these complaints. The Complainants filed Complaints against B & G, Regenscheit, Kirkoryan and Adoptante with the Commission between October 22, 1999 and February4, 2000. The Respondents included at Exhibit "ww" to Regenscheit's Affidavit, a copy ofa draft Complaint signed by LydiaNeves ("Neves") dated October30, 1999. Thecomplainthas thewords "TDL Group Ltd." handwritten in as a respondent. There was no evidence led that this complaint was ever served. In the complaint filed by Neves on December 1, 1999, and in her amended complaint dated May 8, 2000, TDL is not listed as a respondent. The Complainants filed their complaints against TDL (the "TDL Complaints") between January30, 2000, andFebruary4, 2000. Thesecomplaints allegedthatTDLwasinbreachofsection 5(1) and 9 ofthe Code because TDL had reason to know that Kirkoryan was sexually harassing female employees, but failed to conduct an investigation or make inquires of Kirkoryan or Regenscheit regarding a sexual harassment complaint made to TDL against Kirkoryan, thereby failing to prevent subsequent harassment ofthe Complainants. 4 Byletterdated March 16, 2000, the Respondents askedtheCommissionnotto deal with the complaints pursuant to sections 34(1)(b) and 34(1)(d) ofthe Code. In support ofthis request the Respondents challenged the timeliness ofthe Deleon, Kusi, Patricia O'Brien (O'Brien"), Noralyn Ogalino ("Ogalino") and LynnMcWhirter("McWhirter") complaints, allegingthatthelastincidents of alleged harassment set out in these complaints occurred more than six months before the complaints were filed. The Respondents maintained the challenge to the timeliness of those complaints before the Board. Between May 8, 2000 and June 9, 2000 the Complainants amended their complaints to add some additional wording and other Respondents. The Complaints detail specific behaviour and conduct related to specific allegations ofacts or omissions involving Regenscheit, Kirkoryan and Adoptante that are alleged to be a direct or indirect infringement of sections 5(1), 7(2), 7(3)(a), 7(3)(b), 8 and 9 ofthe Code. TDL was not added as a Respondent to the Complaints. In or about June 2000, Bui, Deleon, Kusi, Neves, O'Brien and Ogalino settled their complaints against TDL. McWhirter was not a signatory to the release nor was she a party to the settlement. Consequently, the TDL Complaints were not referred to the Board. There was no evidence on the record that, prior to the settlement ofthe TDL Complaints, the Respondents were awarethatanycomplaintshadbeenfiled againstTDL. Obviously, theRespondents werenotparties to any settlement or resolution ofthe TDL Complaints. By letters dated August 31, 2000, the Commission denied the Respondents' section 34 request. On October 3, 2000, the Respondents filed anApplication forJudicial Review challenging the Commission's refusal to exercise its discretion under section 34 ofthe Code to dismiss the Complaints. The grounds ofthe Application, to which was addedan additional ground onFebruary 1, 2001, are virtually identical to the grounds the Respondents argued before the Board on this motion. 5 Attached as exhibits to the affidavits filed bythe Commission and the Respondents on the motion are a series ofletters exchangedbetweenMr. Levitan, thesolicitorfortheRespondents and Ms Crowe, Investigation Officer for the Commission. Although there was no examination ofthe drafters oftheletters, the substanceoftheselettersbecameanissueonthemotion. TheCommission asserts that these letters confirm that it endeavoured to effect a settlement ofthe Complaintsbefore referral tothe BoardofInquiry, therebysatisfyingtherequirementsofsection33(1)oftheCode. The Respondents disagree. TheysubmitthatthelettersdemonstratetheRespondents' frustrationwiththe Commission, the Commission's bad faith in dealing with them as Respondents and support the Respondent's assertionthattheCommissiondidnotendeavourto effectasettlement, ratherthatthe Commission was participating in an effort to circumvent the Code. The Respondents' submissions on the section 36 case analysis set out in a letter to the Commission dated December 22, 2000, allege, among other things, that conciliation was not attempted and that the releases signed by the Complainants, with the exception of McWhirter, released the Complaints against the Respondents. As confirmed in a letter dated January 18, 2001, the Commission advised the Respondents thatithad decidedto referthe Complaintsto theBoard andthattheywouldbe combined forhearing pursuant to section 32(3) ofthe Code. OnFebruary 2001 theRespondentsprovidedtheCommissionwithanAmendedAmended 1, , Notice ofApplication for Judicial Review, which, although Boards are no longer appointed, now OHRC asked foran interim orderstayingthe investigation". .includingtheappointmentofaBoard . ofInquiry", and addingbad faithbythe Complainants, withtheexceptionofMcWhirter,to continue with their complaints against the Respondents in light ofthe releases with TDL as a ground for review. In support oftheir submissions that theysuffered prejudice as a result ofthe conduct ofthe Commission and theComplainants, theRespondentsrelyontheaffidavitofRegenscheit, filedonthe 6 motion. Reviewing the Actions or Conduct of the Commission Prior to Referral The Parties' Submissions The Respondents urge the Board to review and consider the conduct ofthe Commission in this case. TheCommission submitsthattheBoard shouldnotconsidertheCommission'sconduct in this case unless such conduct results in an abuse ofthe Board's process. Analysis TheBoardhas no supervisoryjurisdictionovertheCommission, andunlesstherehasbeenan abuse oftheBoard's process, theBoard'sroledoesnotincludeareviewoftheactions orconductof the Commission or its handling ofa case leading up to a referral to the Board. The Board's task is notto determinewhetherthe Commissionhas exceededorfailedtoexerciseitsjurisdictionbyacting unfairlyorfailingto satisfyastatutoryprerequisiteorpre-condition. ThatisthejoboftheDivisional Court on judicial review. This statement ofprinciple, which the Board adopts in this case, has previouslybeen accepted in a numberofcases before the Board. (SeeAnonuevo v. GeneralMotors of Canada Ltd., [1998] O.H.R.B.I.D. No. 7 at paragraph 91 and Jeffrey v. Dofasco, [2000] O.H.R.B.I.D. No. 1 1 at paragraph 9 and the authorities mentioned therein. It is implicit in adopting this approach that this panel of the Board prefers the reasoning ofMember Abramsky in Joe v. UniversityofToronto (No.l), (1995) 25 C.H.R.R. D/472 (Ont. Bd. Inq.) atpagesD/477toD/478 and is not following the majority decision in Findlay v. Mike's Smoke and Gifts (No.4), (1993) 21 C.H.R.R. D/19(Ont. Bd. Inq.)) The Divisional Court confirms this analysis in Payne v Ontario (BoardofInquiry, Human Rights Code) [2000] O.J. No. 1896 (Q.L.), when it states at paragraph 5 ofthat decision: The Board does not havejurisdiction to overrule or exercise appellate or review 7 judgment as to what the Commission decided to do undersection 36 and 37 ofthe Code. Asthe Ontario CourtofAppealhas stated, onceacomplainthasbeenreferredtotheBoardof Inquiry, there is no provision in the Code that limits the Board ofInquiry's obligation to conduct a hearing into a complaint. (See McKenzie Forest Products Inc. v. Ontario (Human Rights Commission) et al. [2000] O.J. No. 1318 (Q.L.), at paragraph 41) Whileitis not fortheBoardto determineifthejurisdictionalprerequisites orpre-conditions to referral have been satisfied, or to say ifthe Commission exceeded its jurisdiction or failed to satisfyastatutoryprerequisiteorpre-condition, theBoardremains in control ofits ownprocess and mayberequired to considerand assesswhatlastingimpactmattersthatoccurredpriortothereferral have had on the fairness ofthe proceeding before it and whether continuing with the proceeding would be an abuse ofthe Board's process. (See Jeffrey v. Dofasco, supra; Anonuevo v. General Motors ofCanada Ltd., supra) Reviewing the Commission's Process under Section 34 of the Code Parties' Submissions TheRespondents arguethattheperiodoftimeundersection34(1)(d) ofthe Codeisakintoa limitationperiod andthattheCommissionfailed toproperlyconsiderthis andotherrequirementsof section 34(1)(d) before the Complaints were referred to the Board. The Respondents do not argue that the Commission did not receive and review its submissions on section 34 ofthe Code or the section 36 case analysis. The Respondents, however, object to the Commission dealing with the Complaints in the face ofthe delay ofsome ofthe Complainants in the filing oftheir Complaints. This delay, the Respondents allege, was not incurred in good faith and resulted in substantial prejudice to them. Withrespectto the signingofthereleaseoftheTDL Complaints, the Respondents reliedon 8