Bui et al v. B & G Foods Inc., Board of Inquiry, November 2001 BOI 01-025-I

32 Pages·2001·1.7 MB·English

by  Human Rights Tribunal of Ontario/Board of Inquiry

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[phone] Tollfree 1-800-668-3946 Fax:[phone]
TTY:[phone] 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.
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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.
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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.
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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
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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
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