Saturday, July 4, 2015

RE His Worship Massiah: Hearing Panel's Interpretation of the Human Rights Code, Application of Tranchemontangne and Consideration of the Impact of Delay on the Reliability of Evidence


Citation:  Tranchemontagne v. Ontario (Director, Disability Support Program),  [2006] 1 S.C.R. 513, 2006 SCC 14

Date:  20060421
Docket:  30615

Robert Tranchemontagne and Norman Werbeski
Director of the Ontario Disability Support Program of the
Ministry of Community, Family and Children’s Services
Canadian Human Rights Commission, Ontario Human Rights
Commission, Advocacy Centre for Tenants Ontario, African
Canadian Legal Clinic, Empowerment Council — Centre for
Addiction and Mental Health, and Social Benefits Tribunal

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Abella JJ.

Reasons for Judgment:
(paras. 1 to 54)

Dissenting Reasons:
(paras. 55 to 98)

Bastarache J. (McLachlin C.J. and Binnie and Fish JJ. concurring)

Abella J. (LeBel and Deschamps JJ. concurring)

Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14

Robert Tranchemontagne and Norman Werbeski                                     Appellants


Director of the Ontario Disability Support Program of the
Ministry of Community, Family and Children’s Services                        Respondent


Canadian Human Rights Commission, Ontario Human Rights
Commission, Advocacy Centre for Tenants Ontario, African
Canadian Legal Clinic, Empowerment Council — Centre for
Addiction and Mental Health, and Social Benefits Tribunal                    Interveners

Indexed as:  Tranchemontagne v. Ontario (Director, Disability Support Program)

Neutral citation:  2006 SCC 14.

File No.:  30615.

2005:  December 12; 2006:  April 21.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Abella JJ.

on appeal from the court of appeal for ontario

Administrative law — Boards and tribunals — Jurisdiction — Human rights issues — Legislation prohibiting Social Benefits Tribunal from considering constitutional validity of laws and regulations — Whether tribunal has jurisdiction to consider human rights legislation in rendering its decisions — If so, whether tribunal should decline to exercise its jurisdiction in instant cases in favour of more appropriate forum — Human Rights Code, R.S.O. 1990, c. H.19, s. 47(2) — Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B, s. 5(2) — Ontario Works Act, 1997, S.O. 1997, c. 25, Sch. A, s. 67(2).

T and W applied for support pursuant to the Ontario Disability Support Program Act, 1997 (“ODSPA”).  The Director of the program denied their applications and an internal review confirmed the Director’s decisions.  The Social Benefits Tribunal (“SBT”) dismissed T’s and W’s appeals pursuant to s. 5(2) of the ODSPA based on its finding that they both suffered from alcoholism.  In so concluding, the SBT found that it did not have jurisdiction to consider whether s. 5(2) was inapplicable by virtue of the Ontario Human Rights Code.  The Divisional Court upheld the decision.  On a further appeal, the Court of Appeal found that the SBT had the power to declare a provision of the ODSPA inapplicable on the basis that the provision was discriminatory, but that it should have declined to exercise that jurisdiction in favour of a more appropriate forum.

Held (LeBel, Deschamps and Abella JJ. dissenting):  The appeal should be allowed.  The case is remitted to the SBT for a ruling on the applicability of s. 5(2) of the ODSPA.

Per McLachlin C.J. and Binnie, Bastarache and Fish JJ.:  The SBT had jurisdiction to consider the Human Rights Code in determining whether T and W were eligible for support pursuant to the ODSPA.  Statutory tribunals empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the whole law to a matter properly before them.  Here, the ODSPA and the Ontario Works Act, 1997 (“OWA”) confirm that the SBT can decide questions of law.  As a result, when the SBT decides whether an applicant is eligible for income support, it is presumed to be able to consider any legal source that might influence its decision on eligibility, including the Code.  [14] [40]

With respect to the Code, there is no indication that the legislature has sought to rebut this presumption.  While s. 67(2) of the OWA clearly prohibits the SBT from considering the constitutional validity of laws and regulations, it is equally clear that the legislature chose not to adopt the same prohibition where the Code is concerned.  The legislature envisioned constitutional and Code‑related issues as being in different “categories of questions of law”.  It is one thing to preclude a statutory tribunal from invalidating legislation, but it is another to preclude that body from applying legislation enacted by the provincial legislature in order to resolve apparent conflicts between statutes.  Two elements of the Code’s scheme confirm this legislative intention to differentiate the Code from the Constitution and to confer on the SBT the jurisdiction to apply the Code.  First, the Code has primacy over other legislative enactments, and the legislature has given itself clear directions as to how this primacy can be eliminated in particular circumstances (s. 47(2)).  Since, in the cases of the ODSPA and the OWA, the legislature did not follow the procedure it declared mandatory for overruling the primacy of the Code, it would be contrary to the legislature’s intention to demand that the SBT ignore the Code.  Second, in light of recent amendments that have removed exclusive jurisdiction over the interpretation and application of the Code from the Ontario Human Rights Commission and as a result of which the Commission may decline jurisdiction where an issue would best be adjudicated pursuant to another Act, it would not be appropriate to seek to restore the Commission’s exclusive jurisdiction.  [31‑42]

Since the SBT has not been granted the authority to decline jurisdiction, it cannot avoid considering the issues relating to the Code in these cases.  Moreover, although this is not determinative, the SBT is the most appropriate forum to decide those issues.  The applicability of s. 5(2) of the ODSPA is best decided by the SBT because the SBT is practically unavoidable for vulnerable applicants who have been denied financial assistance under the ODSPA. Such applicants merit prompt, final and binding resolutions for their disputes.  Where an issue is properly before a tribunal pursuant to a statutory appeal, and especially where a vulnerable applicant is advancing arguments in defence of his human rights, it would be rare for this tribunal not to be the one most appropriate to hear the entire dispute.  [43‑50]

Excerpts of HW Massiah's Written Submissions
on Merits:

[1]    While Justice Massiah acknowledges that he often made complementary comments to court staff, he does not accept that these comments were deliberately "sexualized" or "sexually charged", or intended to cause anyone to feel undervalued or otherwise slighted. They were intended as primarily aesthetic comments which would compliment the recipient and the overall evidence supports a finding that they were welcomed conduct in that workplace at the time they occurred.

.........Since receiving one-on-one gender sensitivity and professional boundaries education and counselling between May 28th and June 6th, 2012 he now recognizes that such comments can constitute sexual harassment and he will conduct himself differently in the future.

[14]   Was the impunged conduct vexatious ?

(a)  Unwelcome

The first essential element of the test is to determine whether the conduct was desired or solicited.  As Professor A. P. Aggarwal in his book Sexual Harassment in the Workplace, this is essential because "sexual conduct" becomes unlawful one when it is unwelcome.  Obviously, consensual relationships by by definition, cannot be regarded as harassment.  In order to determine if the conduct is welcome or unwelcome, the Tribunal will look to the complainant's reaction at the time the incident occurred and assess whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome. if the evidence shows that the complainant welcomed the conduct, the complaint will fail."

CHRC    v.  Canadian Armed Forces 1999 Canli 18902 (FC)

[25]   Respondent notes that with the exception of "leering", none of the behaviour alleged to have been committed by Justice Massiah are included in the list.  No court has ever held that a series of pleasantries and compliments, accepted without comment, without more amounts to sexual harassment.

[27]   The question arises whether Justice Massiah "ought to have known that the comments and behaviour were unwelcome as the statutory definition requires.

[28]   As Cronk J. A. stated for the Ontario Court of Appeal:

[66]   Workplaces become poisoned for the purposes of constructive dismissal only where serious wrongful behaviour is demonstrated.  The Plaintiff bears the onus of establishing a claim of poisoned workplace.  As the trial judge recognized, the test is an objective one.  A plaintiff's subjective feelings about or even genuinely-held beliefs are insufficient to discharge this onus. There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment had been created.

[67]   Moreover, except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intollerable work environment is persistent or repeated: Bobb at para 85-87 Canadian Armed Forces re Franke at para 43-46

General Motors  of Canada Limited   v.  Johnson 2013 ONCA 502

Excerpts of Justice Massiah's written submissions
on abuse of process:

Panel obligated
to apply the whole law:

[4]   In Tranchemontangne  v.  Ontario [2006] 1 S.C.R. the Supreme Court of Canada made it clear that 'statutory tribunals empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the whole law to a matter properly before them.

[9]   IT IS RESPECTFULLY SUBMITTED THAT, when a statutory body such as this Hearing Panel is authorized to refer to human rights principles not specifically contained in its statute (here, the JPA), it must apply the Human Rights Code (hereinafter the Code) in its entirety, including the protective provisions which require that complaints be sufficiently particularized, and in accordance with the limitation period stipulated by the Code.  Anything less would be inconsistent with the quasi-constitutional status and legislative supremacy which the Ontario Legislature stipulated for the Code.

Tranchemontangne, supra

[5]   Both the Human Rights Code and the procedures of the HRTO provide for strict rules with respect to particulars and a limitation period.

[6]   The timeliness of a complaint concerning discrimination of any kind is always highly relevant.  For that reason, both the Federal Human Rights Code(sic) and the Ontario Provincial Code(sic) include a limitation period, which can be overcome in very limited circumstances.

Human Rights Code, s.34

[7]   In Ontario, the Human Rights Code has quasi-constitutional authority.  Where provisions of the Code conflict with other law, it is the provisions of the Code which are to be applied.

Ontario Human Rights Code, s.47(2)

[8]   As the Supreme Court of Canada has stated with reference to s.47(2):

"This primacy provision has both similarities and difference with s.52 of the Constitution Act, 1982, which announces the supremacy of the Constitution.  In terms of similarities, both provisions function to eliminate the effects of inconsistent legislation.  At the end of the day, where there is a conflict with the Code or the Constitution, the ultimate effect is that the other provision is not followed and, for the purposes of that particular application, it is as if the legislation was never enacted."

Tranchemontangne   v.  Ontario, [2006]  1 S.C.R. 513 at par 35

[10]   Under the Ontario Human Rights Code, allegations of gender or other discrimination must be made in a timely fashion, absent a positive showing of good faith.  While this hearing is being held under the Justices of the Peace Act, it is submitted that the underlying principles of human rights jurisprudence are fully applicable to this hearing otherwise HW Massiah is being denied a fundamental right to fairness.

[14]   It is submitted that a Justice of the Peace accused of the violation of human rights principles is entitled to "fairness between the parties" as well.  It would be erroneous to provide a sitting Justice of the Peace or Provincial Court Judge with less procedural protection than is received by a landlord or an employer subject to a human rights complaint.  He or she should not have judicial security of tenure put at risk because of claims that would not pass muster under the Human Rights Code, it is submitted.

Excerpts of Presenting Counsel's 
Reply submissions to these issues:

 [23]                  What is the nature of the “procedural protection” His Worship is seeking by way of this argument? What procedural unfairness has the process subjected him to? His Worship has not said. He has offered a strained legal argument about why the complaints were invalid but has not provided any explanation of why his proposed interpretation actually does promote fairness. Presenting Counsel submits that a reasonable observer would see the process followed in this case as anything but unfair to His Worship. He had full disclosure and an opportunity to respond in writing to the allegations against him, and did so. He had the opportunity to hear the case against him and testify before the Panel. He has brought a number of procedural motions and received a full hearing each time. It is difficult to see any procedural unfairness whatsoever in the full adversarial process His Worship has been accorded. There is no sense in which the interpretation proposed by His Worship would actually enhance the fairness of the proceedings; rather, it would frustrate the goal of maintaining an accessible and responsive judicial conduct regime.

[24]   In sum, His Worship’s interpretation of the Act is inconsistent with its clear terms as well as its motivating purpose. This Panel has jurisdiction to hear the case – as it has been doing for well over a year now – and should proceed to a decision on the merits.

The “Abuse of Process” Issue

[25]   There appears to be considerable overlap between this issue and the “in writing” argument.

[26]   His Worship contends that the Human Rights Code is directly applicable to this proceeding and that the presumptive one-year limitation period in s. 34(1) of the Code should bar the witness’ complaints. He also appears to make the startling claim that the prohibition against sexual harassment applies only to employers like Durham Region and not to judicial officers like himself. (Tab 2, para. 

[27]   There is no merit to these submissions. The Panel is applying the Justices of the Peace Act, not the Human Rights Code. In any event, this same argument was raised by His Worship at the previous hearing and rejected. The previous Panel wrote:

[211]   Furthermore, concern was expressed that some of the complaints before this Panel might have been subject to limitation periods under the Ontario Human Rights regime.

[212]   The Panel is of the view that the aforementioned points have no particular bearing on this hearing. We agree with Presenting Counsel’s submission that the issues herein are not being adjudicated pursuant to the Ontario Human Rights Code, R.S.O. 1990, Chapter H.19 (the “Code”) as amended but rather pursuant to the Justices of the Peace Act as it relates to possible judicial misconduct. References to the Ontario Human Rights Commission, Policy on Sexual Harassment and Inappropriate Gender Related Comments and Conduct might very well provide assistance to the Panel when considering what constitutes harassment and inappropriate behaviour in the workplace but the recommendations as contained in the material are specific to the Code itself.

[213]   The Panel is aided in its deliberations by the Code’s definition of “harassment” as found in Section 10(1)(e). “Harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

[214]   It should also be noted that although there is a the one-year limitation period in Section 34(1)(a) of the Ontario Human Rights Code, a Tribunal as constituted under the Code, pursuant to Section 34(2), may proceed if it is satisfied that the delay was incurred in good faith and that no substantial prejudice will result.

[215]   A number of the complainants at this hearing testified that they did not report Justice of the Peace Massiah’s actions for a variety of reasons including: their belief that Justice of the Peace Massiah’s conduct was treated as a joke, their newness to their workplace, they would not be believed and the embarrassing nature of the complaint.

[216]   This Panel is not governed by the procedural directions of the Human Rights Code. However, if we were so governed, we would have allowed the complaints to proceed in the current case. The reasons for the delay in reporting combined with the fact that these allegations are not particularly dated do not put Justice of the Massiah in a prejudicial position. In fact, Justice of the Peace Massiah’s evidence demonstrated his familiarity with the events in question.

28.   It should be noted that this argument was not raised by His Worship before the Divisional Court.  Therefore, the previous panel's holding is binding.  Moreover, it is clearly correct in law.

Excerpts of Panel Decision 
on Abuse of Process:

[107]   Counsel for His Worship submitted that pursuant to the Tranchemontangne (see bow) decision, we have concurrent jurisdiction with respect to human rights principles and the Human Rights Code (HRC) applies to this hearing.  Counsel then relied on s. 34(1) of the HRC to argue that the allegations contained in the Investigators' Report should have been reported within one year of the actual alleged events which is the time limit set out in the Code for persons to seek remedies under that Act.  Mr. House submitted that this Panel should interpret the HRC so as to apply the one year restriction for new allegations to His Worship, as a member of the judiciary.  He also submitted that several of the witnesses were acting in bad faith by not coming forward sooner.

[108]   Presenting Counsel Henein argued that the time limits under the HRC cannot be extended to His Worship.  Rather, there is no time limit for allegations of judicial misconduct under the Act.

[109]   We accept, pursuant to Tranchemontangne  v.  Ontario Director, Disability Support Program, [2006] 1 S.C.R. 513 that we have concurrent jurisdiction to look beyond the Act and to consider the law on sexual harassment and sexualization in the workplace as defined under the Human Rights Code to assist us in determining whether there was judicial misconduct:

[49]   The intersection of the ODSPA regime with human rights law in the present dispute only accentuates the importance of the SBT deciding the entire dispute in front of it.  In Zurich Insurance Co.  v.  OHRC 1992 Canliii 67 (SCC), [1992] 2 S.C.R. 321 at p. 339, Sopinka J. described human rigths legislation as often being the "final refuge of the disadvantaged and the disenfranchised" and the "last protection of the most vulnerable members of society".  But this refuge can be rendered meaningless by placing barriers in front of it.  Human rights remedies must be accessible to be effective.

Tranchemontangne   v.  Ontario (Director, Disability Support Program) [2006] 1 S.C.R. 513 at para 49

[110]   We also agree that we have the authority to determine questions of law, including violations of the Human Rigths Code (see Exhibit 17, Legal Opinion -- Stockwoods LLP dated May 23, 2014)

[112]   A plain reading of these two sections in context shows that a person who is seeking a remedy under s.45.2 must make an application under s.34 within one year or show good faith as to why the deadline should be extended.

[113]   No witness heard by this Panel is seeking any s.45.2 remedy.  Therefore, on its face the s.34 time limit is not applicable, whether a witness acted in good faith or not.

[114]   His Worship relied on Tranchemontangne.  The case, however, is not authority for special status.  His Worship's claim of special status is at odds with the concepts that the judiciary is not above the law, that a member of the judiciary is accountable to the public for his or her conduct and that a disposition should be imposed to restore public confidence if the confidence has been lost as the result of judicial misconduct.  There is no basis for Justice Masiah's position on this issue.

[115]  Our responsibility is not limited to considering whether actions and comments of His Worship Massiah constituted human rights violations.  Nor is the remedy one that applies only to persons who were the subject of his actions.  We may, as Tranchemontangne indicates, decide whether there has been human rights violations.  However, our responsibility is broader.  We must determine whether the alleged acts took place and whether those acts constitute judicial misconduct.  If there was judicial misconduct, the remedy imposed would be intended to benefit the public at large - to preserve and restore public confidence in the judiciary in general.  The Act imposes no time limitation on bringing forward an allegation of judicial misconduct and it would be inconsistent with the objective of the complaints process and the goal of human rights legislation of protecting vulnerable members of society to try to import a one-year time limit into this framework.

[116]   We find there is no time limit for allegations of judicial misconduct to be filed as a complaint with the Review Council.

[119]   The ability of each witness, including His Worship, to recall events and provide accurate testimony on events of years ago is an issue to be assessed when we consider and weigh the evidence on its merits.  In our opinion, a passage of time that may cause memory to fade does not, however, form a basis to conclude there has been an abuse of process.  No legal basis or actual prejudice on the facts of this case was presented which counters that view.

Excerpts from panel's
Reasons for Decision:

[206]   His Worship's evidence that his compliments, which we accept objectified and sexually harassed women, were simply part of his  "management style" demonstrated complete lack of insight or callous disregard for the women in his workplace.  Given his depth of experience working in the area of human rights law, and his position as a judicial officer, His Worship would have known or ought to have known that such behaviour could cause offence, harm, discomfort and/or undermine the dignity of female staff and prosecutors.

[207]   We note that the Ontario Court of Justice Discrimination and Harassment Policy for Judges and Justices of the Peace was not established until 2009.  However, we find that His Worship acted in a manner inconsistent with the Human Rights Code. His actions constituted sexual harassment and he failed to treat others in the justice system with mutual respect and dignity.  He also acted in a manner inconsistent with the Principles of Judicial Office of Justices of the Peace of the Ontario Court of Justice that articulate the public's expectation of a high level of conduct from justices of the peace.

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