Great Atlantic & Pacific Co. of Canada Ltd. v. Human Rights Commission (Ont.), (1993) 65 O.A.C. 227 (DC)

• Judge: Montgomery, Carruthers and Campbell, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: June 07, 1993
• Jurisdiction: Ontario
• Citations: (1993), 65 O.A.C. 227 (DC)

Great Atlantic v. HRC (1993), 65 O.A.C. 227 (DC)

MLB headnote and full text

In the Matter of the Judicial Review Procedure Act, R.S.O. 1980, c. 224;

And in the Matter of the Human Rights Code, 1981, S.O. 1981, c. 53;

And in the Matter of complaints by Diane Gale dated November 4, 1985, and August 10, 1989;

And in the Matter of the appointment of a Board of Inquiry under the said Code dated November 12, 1991;

The Great Atlantic & Pacific Company of Canada, Limited (applicant) v. Ontario Human Rights Commission, Constance Backhouse, United Food and Commercial Food Workers International Union, Locals 175 and 633, Steinberg Inc. and Diane Gale (respondents)

United Food and Commercial Food Workers International Union, Locals 175 and 633 (applicant) v. Ontario Human Rights Commission, Constance Backhouse, The Great Atlantic & Pacific Company of Canada, Limited, Steinberg Inc. and Diane Gale (respondents)

(File Nos. RE 668/92; RE 669/92; RE 670/92; RE 671/92; RE 672/92; and RE 673/92)

Indexed As: Great Atlantic & Pacific Co. of Canada Ltd. v. Human Rights Commission (Ont.)

Ontario Court of Justice

Divisional Court

Montgomery, Carruthers  and Campbell, JJ.

June 7, 1993.

Summary:

A woman complained to the Ontario Human Rights Commission (Commission) of acts of sex discrimination by Steinbergs, her employer. Also the Commission filed a complaint against a union of sex discrimination against the woman. The Commission appointed a Board of Inquiry (Board).

The Board added The Great Atlantic & Pacific Co. of Canada (A & P) as a party respondent. A & P had bought certain assets from Steinbergs. Before the Board, the union and the A & P raised issues of delay, and institutional bias and apprehension of bias. The Board refused to dismiss or stay the inquiry on the grounds of delay. Also the Board found that there were no grounds for apprehension of bias and that the complaint of systemic bias by the Commission was not within its jurisdiction. A & P and the union applied for judicial review.

The Ontario Divisional Court allowed the application and quashed the proceedings before the Board. The court found that there was reasonable apprehension of bias, because the Board (Constance Backhouse) had a personal complaint before the Commission in a case similar to the case the Board was hearing (see paragraph 45).

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias, apprehension of - A woman complained to the Ontario Human Rights Commission (Commission) of acts of sex discrimination by Steinbergs, her employer - The Commission appointed a Board of Inquiry (Constance Backhouse) - The respondents at the inquiry complained of apprehension of bias because the Board (Constance Backhouse) had a personal complaint before the Commission in a case similar to the case she was hearing - The Ontario Divisional Court found that there was reasonable apprehension of bias and the court quashed the proceedings before the Board (see paragraphs 36 to 47).

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Bias - Institutional or systemic bias - A woman complained to the Ontario Human Rights Commission (Commission) of acts of sex discrimination by Steinbergs, her employer - The Commission appointed a Board of Inquiry (Board) - The respondents at the inquiry complained of institutional bias on the part of the Commission - The Ontario Divisional Court affirmed that the Board lacked the jurisdiction to hear such a complaint (see paragraphs 26 to 28).

Civil Rights - Topic 7069.01

Federal or provincial legislation - Commissions or boards - Complaints, delay - A woman complained to the Ontario Human Rights Commission (Commission) of acts of sex discrimination by Steinbergs, her employer - The Commission appointed a Board of Inquiry - A respondent at the inquiry complained of inordinate delay (it was nearly eight years since the complaint was filed) - The Board refused to either dismiss or stay the inquiry on the ground of delay because the applicant failed to demonstrate that the passage of time "rendered it impossible for the board of inquiry to determine whether a breach of the Code occurred" - The Ontario Divisional Court affirmed the decision of the Board (see paragraphs 30 to 35).

Civil Rights - Topic 7105

Federal or provincial legislation - Commissions or boards - Practice - Parties - Successor rights - A woman complained to the Ontario Human Rights Commission (Commission) of acts of sex discrimination by Steinbergs, her employer - The Commission appointed a Board of Inquiry (Board) - The Board added The Great Atlantic & Pacific Co. of Canada (A & P) as a party respondent - The Ontario Divisional Court quashed the decision of the Board to add A & P as a party because the Ontario Human Rights Code did not include the power to add as a party a successor organization (see paragraphs 17 to 24).

Civil Rights - Topic 7115

Federal or provincial legislation - Practice - Judicial review - Standard of review - A woman complained to the Ontario Human Rights Commission (Commission) of acts of sex discrimination by Steinbergs, her employer - The Commission appointed a Board of Inquiry (Board) - A respondent at the inquiry applied for judicial review - The Ontario Divisional Court stated that the standard of review on such an application is that of correctness (see paragraph 16).

Cases Noticed:

Canada (Attorney General) v. Mossop (1993), 149 N.R. 1 (S.C.C.), refd to. [para. 16].

Canada (Attorney General) v. Public Service of Canada (1993), 150 N.R. 161 (S.C.C.), refd to. [para. 16].

Planet Development Corp. and Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740, [1990] 3 S.C.R. 644; 123 N.R. 241; 88 Nfld. & P.E.I.R. 15; 274 A.P.R. 15; 91 C.L.L.C. 14,002; 76 D.L.R.(4th) 389; 48 Admin. L.R. 1, refd to. [para. 20].

Barry and Brosseau v. Alberta Securities Commission (1989), 93 N.R. 1; 96 A.R. 241; 57 D.L.R.(4th) 458 (S.C.C.), refd to. [para. 27].

Latif v. Human Rights Commission (Ont.) (1992), 55 O.A.C. 204 (Div. Ct.), refd to. [para. 34].

Committee for Justice and Liberty et al. v. National Energy Board et al. (1978), 9 N.R. 115; 68 D.L.R.(3d) 716 (S.C.C.), refd to. [para. 43].

Statutes Noticed:

Ontario Human Rights Code, R.S.O. 1980, c. 340, sect. 39(2) [para. 17].

Counsel:

D.J. Shields and J.A. O'Donnell, for the applicant;

H.F. Caley, for the Union;

J.M. Haberman and M.P. Tunley, for the Attorney General of Ontario;

G.R. Sanson and K. Joachim, for the Commission;

M. Eberts, for Constance Backhouse.

This appeal was heard on April 21 and 22, 1993, before Montgomery, Carruthers and Campbell, JJ., of the Ontario Divisional Court. The following decision by the court was released on June 7, 1993.