BOARD OF INQUIRY (Human Rights Code) Ontario 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 by Patricia Musty dated July 21, 1995 and addendum dated November 27, 1995, alleging discrimination and harassment with respect to employment on the basis ofsex and reprisal. BETWEEN: Ontario Human Rights Commission - and - Patricia Musty Complainant - and - Meridian Magnesium Products Limited Ed Waters, Paul Walker, Ron Doan and Willi Kammerer Respondents - and - Attorney General for Ontario Intervener INTERIM DECISION Adjudicator Mary Anne McKellar : Date : February 13, 1998 Board File No: BI-0140-97 Decision No 98-002-1 : BoardofInquiry(HumanRights Code) 150 EglintonAvenueEast 5thFloor, Toronto ON M4P 1E8 Phone (416) 314-0004 Fax: (416) 314-8743 Tollfree 1-800-668-3946 TTY: (416) 314-2379/ 1-800-424-1168 APPEARANCES ) Ontario Human Rights Commission Roger Palacio, Counsel ) ) ) Patricia Musty, Complainant Harry Kopyto, Legal Agent ) ) Meridian Magnesium Products ) Limited, Corporate Respondent ) Ed Waters, Personal Respondent ) Paul Walker, Personal Respondent Barbara Humphrey, Counsel ) Ron Doan, Personal Respondent ) Willi Kammerer, Personal Respondent ) Attorney General for Ontario, Intervener ) Jennifer August, Counsel ) INTRODUCTION Pursuant to s. 35(6) ofthe Human Rights Code, R.S.O. 1990, c. H-19, as amended ( "the Code" ), I was assigned to hear the complaints of Patricia Musty ("the Complainant") that, contrary to the Code, Meridian Magnesium Products Limited, Ed Waters, Paul Walker, Ron Doan and Willi Kammerer ("the Respondents") discriminated against her in her employment on the basis ofsex ("the Original Complaint"), and subsequently took reprisal action against her in respect ofher raising the Original Complaint ("the Reprisal Complaint"). The Respondents have conceded that the Original Complaint discloses a contravention ofthe Code, for which an award of$10,000.00 in respect of damages for mental distress is appropriate. The Complainant has served and filed a Notice of Constitutional Question on the parties to this proceeding and on the Attorneys General for Canada and Ontario. The constitutional question raised by the Complainant is whether s. 41(l)(b) ofthe Code, which imposes a cap of$10,000.00 on the amount the Board ofInquiry ("the BOI") can award in respect ofdamages for mental anguish, is inconsistent with s. 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the CanadaAct 1982 (U.K.) 1982, c. 11 ("the Charter"). THE ISSUE & THE PARTIES POSITIONS ' The issue before me is whether the BOI has jurisdiction to entertain the Constitutional Question posed by the Complainant. The moving parties, the Ontario Human Rights Commission ("the OHRC") and theRespondents, take the position that the BOI does not havejurisdiction. They are supported in this position by the intervener, the Attorney General for Ontario. The Complainant takes the position that the BOI does havejurisdiction to consider the Constitutional Question. THE DECISION The following decision was communicated by the Deputy Registrar, Tribunals' Office, to the parties by facsimile transmission on February 10, 1998 and again on February 11, 1998: While the Board of Inquiry does have jurisdiction to entertain the Constitutional Question, the Ontario Court (General Division) is a more appropriate forum for its resolution. In my discretion, I am staying the hearing on the Constitutional Question to permit the Complainant to proceed before the more appropriate forum. The hearings scheduled for February 11, 1998 and February 27, 1998 are hereby adjourned. Should the Complainant decide to make application to the Ontario Court (General Division) with respect to the Constitutional Question, she is directed to advise the Board ofInquiry and the other parties ofher decision within thirty days ofthe release ofthe Board's reasons on thesejurisdictional motions. All ofthe parties (excluding the intervener) are directed to identify in writing to the Board byFebruary 27, 1998, those issues with respect to the Original Complaint that remain outstanding and require adjudication by the Board. Written reasons for this decision will follow. THE REASONS 1. The Jurisprudence The moving parties and the Attorney General submit that the recent decision ofthe Supreme Court ofCanada in Cooper v Canada (Human Rights Commission) [1996] 3 S.C.R. 854 is determinative , ofthe issue before me. In Cooper, a majority ofthe Court held that neither the Canadian Human Rights Commission nor the Canadian Human Rights Tribunal possessed thejurisdiction to consider the constitutional validity ofs. 15(c) of the Canadian Human RightsAct, R.S.C. 1985, c. H-6, as amended. Prior to rendering its decision in Cooper, the Supreme Court ofCanada in three previousjudgments specifically dealt with the issue ofthejurisdiction ofadministrative boards and tribunals to interpret and apply the Charter, and, in particular, to refuseto apply those provisions oftheir enabling statutes which they found to be inconsistent with the Charter. The earlier decisions are: Douglas/Kwantlen FacultyAssociation v. Douglas College, [1990] 3 S.C.R 570; Cuddy ChicksLtd. v. Ontario (Labour RelationsBoard) [1991] 2 S.C.R. 5; Tetreault-Gadoury v. Canada (Employment andImmigration , Commission), [1991] 2 S.C.R. 22. Because the majority in Cooper purports to apply the above decisions, some examination ofthem is necessary in order to assess the parameters ofthe Cooper analysis. - J - Douglas/Kwantlen InDouglas/Kwantlen the Court considered whether an arbitrator under a collective agreement had thejurisdiction to determine whether a provision ofthat collective agreement contravened s.15(1) A ofthe Charter. panel ofsevenjustices sat. AlthoughWilson, J. and L'Heureux-Dube, J., disagreed with their five colleagues on another point, all sevenjustices agreed that the arbitrator did have such jurisdiction: The question here is whether an arbitrator in deciding a grievance under a collective agreement may apply the Charter and grant the reliefsought for its breach. I have no doubt that he can. The arbitratoris under s. 98 ofthe Labour Code, supra, expressly granted authority "to provide a final and conclusive settlement ofa dispute arising under a collective agreement" (emphasis added), and it gives a wide range of appropriate remedies for that purpose. In accomplishing his task, the arbitrator is empowered by s. 98(g) to interpret and apply any Act intended to regulate employment. ... I cannot accept the college's contention that the interpretation and application ofthe Charter is vastly different from the application ofordinary statutes for which arbitrators are responsible. For example, there is little difference in certain provisions of the Human Rights Codes which arbitrators may hold to override provisions in collective agreements, (per La Forest, J., at p. 596) La Forest, J. then concluded at p. 597, "A fortiori, I think, there cannot be a Constitution for arbitrators and another for the courts." He went on in his reasons to articulate why, as a practical matter, it made sense for arbitrators to deal with the Charter. Although Douglas/Kwantlen does not deal with a tribunal's jurisdiction to scrutinize the constitutional validity ofits enabling statute, it does deal with the analogous situation: thejurisdiction ofan arbitratorto scrutinize the constitutional validity ofthe instrument pursuant to which he derives his authority to adjudicate. Cuddy Chicks Cuddy Chicks was heard by a full panel ofthe Court. It involved the Court's consideration ofthe jurisdiction of the Ontario Labour Relations Board ("OLRB") to entertain a challenge to the constitutional validity ofa provision in its enabling statute. The issue arose in the context ofa trade union's application for certification as the exclusive bargaining agent for a group ofworkers whom the OLRB found to be agricultural workers. Under theLabourRelationsAct, certifications may only be granted in respect of bargaining units of "employees", which term was defined to exclude agricultural workers. The constitutional issue was whetherthe exclusion ofagricultural workers from the ambit of "employees" contravened the Charter. The OLRB held that it had jurisdiction to determine this constitutional issue. Once again, all nine justices agreed that the OLRB had such jurisdiction. LaForest, J. wrote the majority decision. He commenced his analysis by citing Douglas/Kwantlen for the basic principle that an administrative tribunal which has been conferred the . . . power to interpret law holds a concomitant power to determine whether that law is constitutionally valid" (at p. 13) After observing that tribunals possess only the powers conferred upon them by statute, La Forest J. noted that authority to applythe Charter must be found in the tribunal's enabling statute. In the case ofthe OLRB, he wrote: The legislature expressly, and without reservation, conferred authority on the Board to decide points oflaw. (at p. 15) LaForest, J. went on to set out why, as a practical matter, it made sense for the OLRB to deal in the first instance with issues respecting the constitutional validity ofits enabling statute. OLRB Intheir concurring reasons, Wilson, J. and L'Heureux-Dube, J. agreed that the hadjurisdiction to deal with the Charterissue, but did not view itsjurisdiction to do so as being necessarily grounded in its enabling statute: The absence oflegislative authority to deal with the Charter issue in the governing statute is not, in my view, necessarily determinative ofa tribunal'sjurisdiction, since the authority and obligation to apply the law may be grounded elsewhere (per . . . Wilson, I, at p. 20) Tetreault-Gadoury Thejurisdictional issue involved in Tetreault-Gadoury was whether a Board ofReferees under the Unemployment Insurance Act had the jurisdiction to apply the Charter and decline to apply the provision in its enabling statute that precluded the receipt of ordinary unemployment insurance benefits by persons 65 years ofage or older. The statutory scheme here is worth noting: applicants for benefits whose claims are denied by the Commission have a right of appeal to a Board of Referees. From the Board ofReferees' decision there is a right ofappeal to an Umpire, appointed from the panel ofjudges ofthe Federal Court. All ninejustices agreed that the Board ofReferees did not have jurisdiction to apply the Charter and scrutinize the constitutional validity of the disentitling provision ofthe UnemploymentInsurance Act. La Forest, J. wrote the reasons for eight of them. He commenced his analysis by citing the proposition that emerged from Douglas/Kwantlen and Cuddy Chicks: In both these cases, the Court held that an administrative body, which by virtue ofits legislative mandate has expressly been given the power to interpret or apply any law necessary to reaching its findings, has the power to apply the Charter to determine that a particular provision ofan Act is without force or effect. I do not propose to repeat the analysis that led to this conclusion here, (at p. 3 1) La Forest, J. then went on to identify the issue before the Court as whether a tribunal without the express power to consider all relevant law could apply the Charter. He began by examining the mandate the legislature gave to the Board ofReferees. He noted that, although the Board ofReferees is not giventhe express powerto determine all questions oflaw, the Umpire is. Although he stressed that the expressio unius estexclusio alterius maxim ofstatutory interpretation should be applied with caution, he nevertheless concluded that the difference in wording between the statutory mandate of the Board and that ofthe Umpire made it unlikely that the failure to provide the Board ofReferees with a power similar . . . . . . to that given to the umpire was merely a legislative oversight (at p. 33) In looking at the practical considerations, La Forest, J. did not disagree with the Federal Court of Appeal's conclusion that the Board of Referees was capable of dealing with the Charter issue, however, he found that that ability or competence did not cloak the Board withjurisdiction: notwithstanding the practical capabilities ofthe Board ofReferees, the particular . . . scheme set up by the legislature contemplates that the constitutional question . . . should more appropriately have been presented to the umpire, on appeal, rather than to the Board itself, (at p. 35) L'Heureux-Dube concurred in the result, but would have left open the issue ofthe circumstance in whichjurisdiction to decide questions oflaw including constitutional issues might be found to have been conferred on a tribunal. Weber The agent for the Complainant referred to Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, but none of the parties presented any arguments with respect to it. Although Weber does not involve a Charter challenge to enabling legislation, I nevertheless think the decision is worth considering to the extent that it illustrates the Court's approach to the application ofthe principles emerging from the three decisions discussed above. The Weber facts are complicated, and not relevant for the purposes ofthis decision. Suffice it to say that one of the issues the Court addressed was whether a labour arbitrator under a collective agreement hasjurisdiction to award damages to remedy a breach ofthe Charter, in this case the right to be secure from unreasonable search or seizure. Weber was heard by sevenjustices. Iacobucci, J., writing for himselfand two others, acknowledged that arbitrators are bound to apply the law and the Charter, and must not apply provisions that they find to be in violation of the Charter, but he distinguished that situation from one in which an arbitrator purports to provide a remedy for the Charter violation. An arbitrator is not a "court of competentjurisdiction" under s. 24(1) ofthe Charter, and may not provide a remedy for its breach absent expressjurisdiction to do so. After concluding that the accepted meaning of "court" does not include arbitrators, Iacobucci, J. rejected the notion that he should interpret the term more expansively. His rejection was premised on several considerations: It is the characteristics of a "court" the rules of procedure and evidence, the : independence and legal training ofitsjudges, the possibility ofhearing from a third party intervener such as an Attorney General or an amicus curiae, which make it the most suitable forum to hear a s. 24(1) application, (at p. 942) Earlier, he mentioned another reason why "court" in s. 24(1) ought to be construed narrowly to exclude tribunals: Courts must decide cases according to the law and are bound by stare decisis. By contrast, tribunals are not so constrained. ... In labour arbitration, the arbitrator is not bound to follow the decisions of other arbitrators, even when similar circumstances arise. ... In the area ofCharter adjudication, it is quite important to ensure a relatively constant application and interpretation of Charter rights and remedies. As the Charter forms part of the supreme law of the country, it is in keeping with its status to have Charter claims decided by a system ofadjudication that tries to be relatively uniform (both in the interpretation of Charter rights and Charter remedies), that is to say, by the courts ofjustice, (at pp. 940-41) In addition, Iacobucci, J. found that tribunals, even ifthey could be considered "courts", did not possess "competentjurisdiction" to award the remedy sought here under s. 24(1): damages in tort for breach ofCharter rights: In the case at bar, it is completelywithin the power ofthe arbitrator to decide that the actions ofthe employer in this case violated s. 8 ofthe Charter. It can decide on this basis that where the Charter has been violated, this is evidence that can assist the tribunal in concluding that the collective agreement has also been violated. However, deciding that the employer has violated s. 8 ofthe Charter does not open the door to the arbitrator awarding a remedy for the s. 8 violation itself, (at p. 948)