: BOARD OF INQUIRY (Human Rif^hts 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 complaints by Maurice Commanda dated April 16, 1997 alleging discrimination in employment because of race, ancestry, colour and marital status; by Bemie Commanda and Robert Commanda dated April 18, 1997 and April 25, 1997, respectively, alleging discrimination in employment because ofrace, ancestry, colour and family status; and by John Goulais, Doug Chevrier and Gilbert Anishnabie dated April 17, 1997, April 20, 1997 and April 23, 1997, respectively, alleging discrimination in employment because of race, ancestry and colour. BETWEEN Ontario Human Rights Commission - and - Maurice Commanda, John Goulais, Bemie Commanda, Robert Commanda, Doug Chevrier, and Gilbert Anishnabie Complainants - and - Rainbow Concrete Industries Ltd., Boris Naneffand Jack Myers Respondents INTERIM DECISION Adjudicator Mary Anne McKellar Date January 25, 2002 Board File No BI-0305-00 to 0310-00 Decision No 02-002 BoardofInquiry (Human Rights Code) 505 University Avenue 5th Floor, Toronto ON M5G 2P3 Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946 TTY: (416)314-2379/ 1-800-424-1168 ONTARIO WORKPLACE TRIBUNALS LIBRARY 505 University Avenue, 7th Floor Toronto, ON M5G 2P2 « APPEARANCES Ontario Human Rights Commission William Holder Rainbow Concrete Industries Ltd., Boris Naneff and Jack Myers GeoffJeffrey INTRODUCTION The six Complainants are all native Canadians. They are former employees of the Corporate Respondent, Rainbow Concrete Industries Ltd. ("Rainbow" or "the Corporate Respondent"). All of Rainbow's employees were laid off effective October 25, 1996. Unlike other ofthe Corporate Respondent's employees, the Complainants were never recalled to work. The Complaints allege that non-native employees were recalled, and that the failure to recall the Complainants constitutes unlawful discrimination on the basis of race, colour and ancestry contrary to the Human Rights Code, R.S.O.1990, c. H. 19 as amended ("the Code'). All of the Complaints name Rainbow and its Vice-President, Boris Naneff("Naneff') as respondents. The Complaint of Robert Commanda also names Jack Myers ("Myers") as a respondent. The Respondents contend that the decision not to recall the Complainants was made without regard to their ancestry. Their stated rationale for not recalling each Complainant is specifically set out below in this decision. The Board notes that the parties have consented to having the Board amend the Complaint of Maurice Commanda to add the ground of discrimination on the basis of marital status, and the Complaints of Bemie Commanda and Robert Commanda to add the ground of discrimination on the basis offamily status. The Complaints are so amended. THE ISSUE This decision deals with the Respondents' preliminary motion in which they sought the following reliefas set out in the Notice ofMotion dated March 13, 2001: 1. An Order staying the proceedings against the Respondents; 2. In the alternative, an Order staying the proceedings against the individual respondents, Mr. Naneffand/or Mr. Myers; 3. An Order directing the Commission to give written reasons for its decision pursuant to section 36 ofthe Human Rights Code; 4. An Order requiring the complainants to provide full disclosure and particulars of the efforts made by them to secure alternate employment, or otherwise mitigate their alleged damages within a reasonable period prior to the hearing ofthis matter; 1 ( i 5. The Respondents [sic] costs; and, 6. Such further and other reUef as the Respondents may request or this Board of Inquiry may deem just. By the time the motion was heard on April 24 and 25, 2001, the Respondents had amended the above remedial requests. The Board understands that the Commission has undertaken to provide the information sought pursuant to Paragraph 4 above. Consequently, that matter was not argued before the Board. Additionally, the Commission advised that it would not oppose a motion to remove the Personal Respondents, Naneff and Myers, provided Respondents' counsel undertook to assure the Board and the parties that Naneff and Myers were acting within the scope of their employment at all times. Consequently, the plea for relief set out in paragraph 2 above was not specifically pursued before the Board. The Board notes that Respondents' Counsel has not yet provided the requested undertaking, nor has the Commission indicated that it would be willing to dispense with this undertaking. Consequently, the Board has not removed the Personal Respondents to the Complaints. The Board heard no evidence or argument with respect to the request for costs set out in paragraph 5 above. As a result, this decision does not address that issue. In his submissions on the motion. Respondents' Counsel altered his position somewhat with respect to the Commission's obligation to provide reasons. He did not take the position that the Board could order the Commission to provide reasons, but rather that the Commission's failure to provide reasons constituted an abuse ofprocess. Rather than seeking to have the Complaints stayed, at the hearing Respondents' Counsel relied on s. 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S. 22, as amended (the 2 Digitized by tine Internet Arcliive 2014 in https://archive.org/details/boi02_002_l . ''SPPA") and sought to have the Board dismiss them as constituting an abuse ofprocess. That is the sole issue addressed in these reasons. PARTICIPANTS An oral hearing with respect to this motion was held on April 24 and 25, 2001 The Respondents led evidence and made submissions in support ofthe motion. The Commission opposed the motion. The Commission cross-examined Naneff and Myers and made legal submissions. The Complainants' counsel did not attend this hearing. FURTHER SUBMISSIONS Following the completion of the oral hearing into this matter, counsel for the Respondents wrote to the Board on June 4, 2001 to advise that Myers had passed away suddenly. By decision dated July 9, 2001, the Board directed the parties to set out their positions with respect to how the Board ought to proceed having regard to Myers' death. The Complainants advised the Board that they still did not wish to participate or make any submissions with respect to the Respondents' abuse ofprocess motion. The Commission and the Respondents agreed that the Respondents would provide a supplementary affidavit from Naneff setting out how Myers' death would impact on these proceedings, that the Commission would decide whether to cross-examine on that affidavit, and depending on that decision, that the oral hearing would either be reconvened or the Commission and the Respondents would simply provide the Board with written submissions. The ( (