Re Burrows and the Salvation Army Cooperation of Bermuda

• Jurisdiction: Bermuda
• Judgment Date: 24 September 2004
• Date: 24 September 2004
• Docket Number: Civil Jurisdiction 2004 No. 175
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Civil Jurisdiction 2004 No. 175

BETWEEN:

Re Burrows and the Salvation Army Cooperation of Bermuda

Mr. J Cooper for the Applicant

Mr. M Douglas for the Ministry of Community Affairs & Sports

Mrs V Telford for the Board of Inquiry

The following cases were referred to in the judgment:

Falkiner v Ontario [1996] CRR Lexis 192

Naraine v Ford Motor Co of Canada (No. 1) (1994) 24 CHRR D/457

Barber v Sears Canada Inc (No. 2) (1993) 22 CHRR D/409

Brown v British Columbia [2001] ACWSJ Lexis 16302

Chapman v Attorney-General 1982 Civil Jur. No.149

Attride-Stirling v Attorney GeneralBDLR [1994] Bda LR 68

Royal Gazette Ltd v Attorney General 1982 Civil Jur. No. 177 & 179

Fubler v Attorney GeneralBDLR [1994] Bda LR 64

Blencoe v British Columbia [2000] 190 DLR (4th) 513

Jaroo v Attorney General of Trinidad and TobagoELR [2002] 1 AC 871

DPP v LebonaUNK [1998] 4 LRC 524

Hall v Attorney GeneralBDLR [2003] Bda LR 57

Tacklyn v Attorney General 1977 Civil Appeal No. 22

Fuller v Attorney GeneralUNK (1998) 56 WIR 337

Minister of Home Affairs v FisherELR [1980] AC 319

Hartman v Czech Republic 533341/99

R v Birmingham City Council, ex parte Ferrero LtdUNK [1993] 1 All ER 530

Carter v Alisan (unreported)

Raynor v LaceyBDLR [2003] Bda LR 58

Eldridge v Attorney General of British ColumbiaUNK [1998] 1 LRC 351

Ulufa'alu v Attorney GeneralUNK [2002] 4 LRC 1

Motola v University of NatalUNK [1995] 2 LRC 429

Human Rights Act 1981

Commissions of Inquiry Act 1935

Bermuda Constitution Order 1968, s. 15

Discrimination on the basis of sex — Wrongful dismissal — Jurisdictional competence of boards of inquiry — Delay — Right to fair hearing within a reasonable time

RULING of Kawaley, Puisne Judge

Background

On June 16, 1998, Stephany Burrows complained to the Human Rights Commission that she had been discriminated against on the grounds of her sex when her employment with the Applicant was terminated two weeks earlier. On the date of her complaint, the Commission communicated the complaint to the Applicant herein, requesting a response by June 24, 1998. The Applicant duly responded by the specified date.

The Commission on May 6, 1999 determined that the complaint had merit and, after seeking to settle the complaint, on June 10, 1999 advised the parties to the complaint that the matter was being referred to the Minister. On September 24, 1999, exactly five years ago, the Minister advised the Applicant that a board of inquiry had been appointed to adjudicate upon the human rights complaint.

An abortive attempt was seemingly made to schedule a preliminary hearing for the board by the responsible Ministry in February, 2000. On July 6, 2000, the Applicant's attorneys advised the Department of Labour and Home Affairs that the complainant had now received substantial compensation for her wrongful dismissal claim and that they presumed the discrimination complaint was no longer being pursued. They further advised that they would be closing their files ‘at the end of this month’. A telephone call was received from the then Executive Officer of the Human Rights Commission on August 23, 2000 indicating that the human rights complaint was still alive.

However, no attempt was seemingly made to actively pursue the complaint before the board of inquiry until December 22, 2003 when Ms. Michelle St. Jane on behalf of the Department of Human Affairs wrote the Applicant requesting convenient dates for a hearing in early 2004. The Applicant's attorneys seven days later informed the Department that they anticipated receiving instructions to seek redress under section 15 of the Constitution on the grounds that, in light of the unexplained delay, the pursuit of the complaint would contravene their clients' constitutional rights.

On January 29, 2004, after further correspondence on the delay issue, the Department of Human Affairs on behalf of the Minister and/or the board of inquiry advised the parties to the human rights complaint that a new board of inquiry had been appointed, comprising one original lay member and a new legally qualified chairperson with a new second lay member. It was asserted that the delay issue could be dealt with at a preliminary hearing of the board of inquiry proceedings. On February 4, 2004, the department indicated that it was seeking advice on the Applicant's constitutional points from the Attorney-General's Chambers, and two days later the Applicant forwarded a draft of its Originating Summons to the Department. On May 12, 2004, the Department indicated that it had now received advice from the Attorney-General's Chambers and that there would be a preliminary hearing of the board. On May 27, 2004, the Applicant commenced the present proceedings.

To that agreed factual background must be added one possibly contested factual issue. By letter dated January 7, 2004, the Applicant's attorneys forwarded a January 5, 2004 letter from the Applicant stating that their key witness retired early in 2002 due to Alzheimer's disease, and would now be incapable of testifying on the Applicant's behalf. By letter dated February 2, 2004 to the Department and copied to the complainant, the Applicant's attorneys asked whether verification of the contents of the January 5, 2004 Salvation Army letter would be required. Although there is no suggestion that any such verification has ever formally been demanded, it emerged in the course of argument that such a demand may, albeit belatedly, at some juncture be made.

The Applicant seeks, by way of its Originating Summons as amended pursuant to my Order dated June 29, 2004, the following principal relief. Firstly, a declaration is sought that the holding of a hearing by a board of inquiry would contravene its right to a fair hearing within a reasonable time as required by section 6(8) of the Bermuda Constitution. And, secondly, the Applicant seeks a permanent stay of the pending board of inquiry proceedings.

With the concurrence of all Counsel who appeared in Chambers on June 29, 2004, I ordered that the issue of whether the Applicant was precluded from seeking this relief by the proviso to section 15(2) of the Constitution (on the grounds that it had adequate means of redress under some other law) be dealt with as a preliminary issue.

While the operation of the proviso to section 15(2) of the Bermuda Constitution will often turn on the facts of individual cases, the lack of Bermudian caselaw considering in a global sense the principles applicable to this discrete constitutional provision, independently of the merits of the main application, made this preliminary issue a difficult one. It was further complicated by the absence of any judicial authority laying down guidelines as to the jurisdictional competence of boards of inquiry appointed under section 18(2) of the Human Rights Act 1981. This issue was central to the determination of the preliminary issue in the present case, but may also have ramifications for other human rights complaints which may be pending before other boards of inquiries.

Thus what was thought to be a half-day hearing understandably lasted thrice as long, and an issue which one might expect to be capable of summary determination ended up demanding that judgment be reserved.

The point to be determined boiled down to this: should the Applicant's complaint that the unexplained delay breaches his right to a fair hearing within a reasonable time under section 6(8) of the Bermuda Constitution be determined by this Court in these proceedings, or is such relief precluded by the fact that adequate means of redress exist under some other law?

The Minister's submissions

Mr. Douglas made two peripheral points, which should be noted before turning to the meat of his submissions. Firstly, he submitted that the form of the originating Summons was defective because the heading did not describe the parties, and it was unclear who the Respondents were. Secondly, he submitted that the Summons purported to complain about the decisions of the Minister to refer the complaint to a board of inquiry in 1999 and 2004; yet the real complaint was against the failure of the board of inquiry to deal with the complaint.

On the merits of the preliminary issue, Mr. Douglas' position was essentially as follows : (a) the board of inquiry was competent to deal with the constitutional point as a question of law at a preliminary hearing; (b) the board was in any event competent to deal with the broad issue of delay on non-constitutional grounds; (c) the Applicant further had adequate means of redress through the statutory right of appeal against a board decision to the Supreme Court; and (d) as a matter of judicial policy the statutory board of inquiry mechanism for dealing with human rights complaints should be respected and not usurped by this Court, even with respect to constitutional matters.

In terms of the competence of the board of inquiry to deal with the delay issue, Mr. Douglas relied in part on statutory authority but primarily on persuasive Ontario authority. Section 8 of the Commissions of Inquiry Act 1935, applied to boards of inquiry by section 19 of the Human Rights Act 1981, enabled the board to determine its own procedure. Accordingly, it was submitted, the tribunal could hold a preliminary hearing and deal with the delay arguments, adopting as its own procedural rules those which applied to boards of inquiry under the Ontario Statutory Powers Procedure Act 1990.

Moreover, since Bermuda's Human Rights Act was substantially based on the Ontario Human Rights Code, Counsel submitted that Ontario caselaw on boards of inquiry and constitutional delay issues were highly relevant and apposite. Firstly, it was wrong to consider an application for constitutional relief before the tribunal had an opportunity to ascertain the relevant facts and determine whether or not any ground for...