The Ontario Divisional Court released a very important decision in Losenno v. Ontario Human Rights Commission (June 21, 2004, Div. Ct.).
The Human Rights Commission need not proceed with every complaint that is filed nor is the Commission required to refer every complaint to the Tribunal for determination. There are primarily two (2) ways under the Human Rights Code for the Commission to "punt" a complaint.
The first is under section 34 of the Code which provides that the Commission may, in its discretion, decide to not deal with the complaint where:
(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;
(b) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith;
(c) the complaint is not within the jurisdiction of the Commission; or
(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
The second is under section 36 of the Code which provides that:
Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the Tribunal.
The Commission in the Losenno case decided not to refer Mr. Losenno's complaint to the Tribunal for a full hearing. The employer had made an offer of settlement to Mr. Losenno which he rejected. The Commission made a decision under section 36 of the Code that it would not be referring the subject matter of the complaint to a Board of Inquiry because:
(a)the remedy offered by [the employer]was one that [Mr. Losenno]could reasonably expect to receive if the case proceeded to a Board of Inquiry; and
(b)the offer made by [the employer]was reasonable with regard to general, specific and public interest remedies.
The Commission concluded that "the procedure of referral to the Board of Inquiry is not appropriate in this matter".
Mr. Losenno made an application to the Divisional Court to quash the decision of the Commission. The Court refused to overturn the Commission's decision that a "reasonable settlement offer" had been made and rejected and that, in those circumstances, there was no basis for referring the matter to a Board of Inquiry.
I am dealing with this very issue with the Commission and was comforted by the release of this decision. The decision provides employers with a practical way of dealing with a human rights matter and allow them to get out from under it by making a reasonable settlement offer.
If the offer is rejected, the employer can ask the Commission under section 36 of the Code not to refer the matter to a Board of Inquiry. In making this request, the employer should provide the Commission with case law or other authorities that support the reasonableness of its offer. For example, decisions from the Board of Inquiry that suggest that the Company's offer of settlement is in the "ballpark" of what the Complainant would receive from the Board of Inquiry if the complaint is allowed.
This is certainly a case that employers should read.