Bell v. Ontario Human Rights Com'n., [1971] SCR 756

Supreme Court of Canada

Bell v. Ontario Human Rights Com’n. [1971] S.C.R. 756

Date: 1971-02-01

Kenneth S. Bell Appellant; and

The Ontario Human Rights Commission

Respondent;

and

Carl McKay Complainant.

1970: November 3, 4; 1971: February 1.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Administrative law—Prohibition—Board of in­quiry appointed to investigate complaint of alleged housing discrimination Accommodation in question not "self-contained" dwelling unit and therefore not within provisions of Human Rights Code—Whether Court has power, by order of prohibition, to prevent proceedings for investigation of complaint—The Human Rights Code, 1961-62 (Ont.), c. 93, ss. 3 [re-en. 1967, c. 66, s. 1], 13.

The complainant, a Jamaican, filed a complaint with the Ontario Human Rights Commission alleg­ing that the appellant had refused him rental of cer­tain living accommodation because of his race, colour and place of origin. The Commission was unable to resolve the complaint, and, on its recom­mendation, the Minister of Labour appointed a board of inquiry, under the provisions of s. 13(1) of The Ontario Human Rights Code, 1961-62, to conduct a public hearing into the matter. At the commencement of the hearing, the board was asked by the appellant's solicitor to find that it lacked jurisdiction on the basis that s. 3 of the Code, which provides, in part, that no person shall deny to any person occupancy of any self-contained dwelling unit because of the race, creed, colour, nationality, ancestry or place of origin of such person, did not apply to the premises in question because they were not a "self-contained dwelling unit". The board refused to make this finding because at that stage there was no way of knowing whether the accommodation came within s. 3 or not.

An application was then made by the appellant for an order prohibiting the board from inquiring into the complaint. Prohibition was granted by the judge of first instance who found that the accom­modation available for rent was not a self-contained dwelling unit. On appeal, the Court of Appeal allowed

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the appeal primarily on the proposition that the proceedings for prohibition were premature. An appeal from the judgment of the Court of Appeal was then brought to this Court.

Held (Abbott and Hall JJ. dissenting) : The appeal should be allowed and the order of first instance restored.

Per Fauteux C.J. and Martland, Judson, Ritchie and Spence JJ.: The premises leased by the appel­lant (a three-room flat, without a separate entrance, on the second floor and a bedroom on the third floor of the appellant's three-storey house) were not a "self-contained dwelling unit", and, accordingly, did not come within s. 3 of the Code.

The powers given to a board of inquiry are to enable it to determine whether or not there has been discrimination in respect of matters within the scope of the Act. It has no power to deal with alleged discrimination in matters not within the purview of the Act or to make recommendations with respect there-to. Whether the accommodation was covered by the Code raised an issue respecting the scope of the operation of the Act, and on the answer to that question depended the authority of the board to inquire into the complaint of discrimination at all. The Act does not purport to place that issue within the exclusive jurisdiction of the board, and a wrong decision on it would not enable the board to proceed further. The appellant was not compelled to await the decision of the board on that issue before seek­ing to have it determined in a court of law by an application for prohibition.

Per Abbott J., dissenting: The powers of a board of inquiry appointed under s. 13 are to investigate and make such recommendations as it may deem fit. It is not invested with authority to adjudicate upon anything. The Courts are not called upon to determine the desirability or efficacy of such an inquiry or of the inconvenience it may cause to persons concerned.

Per Hall J., dissenting: The appeal should be dismissed for the reasons given by the Court of Appeal.

[Darrall v. Whitaker (1923), 92 L.J.K.B. 882; Smith v. Prime (1923), 129 L.T. 441; R. v. Totten-ham and District Rent Tribunal, Ex p. Northfield (Highgate) Ltd., [1957] 1 Q.B. 103; R. v. Galvin (1949), 77 C.L.R. 432; R. v. Northumberland Com­pensation Appeal Tribunal, Ex p. Shaw, [1952] 1 All E.R. 122, applied; Re Jackson et al. and Ontario Labour Relations Board, [1955] 3 D.L.R. 297;

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Guay v. Lafleur, [1965] S.C.R. 12; Baldwin v. Pouliot, [1969] S.C.R. 577, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1], allowing an appeal from a judgment of Stewart J. granting an order of prohibition against a board of inquiry appointed under The Ontario Human Rights Code, 1961-62, as amended. Appeal allowed, Abbott and Hall JJ. dissenting.

R. N. Starr, Q.C., and W. C. Cuttell, Q.C., for the appellant.

F. W. Callaghan, Q.C., and E. M. Pollock, for the respondent.

The judgment of Fauteux C.J. and Martland, Judson, Ritchie and Spence JJ. was delivered by

MARTLAND J.—This is an appeal from a judgment of the Court of Appeal for Ontario, which allowed the appeal of the present respond­ent, the Ontario Human Rights Commission, from an order, obtained on the application of the present appellant, prohibiting further proceed­ing by a board of inquiry appointed under The Ontario Human Rights Code, 1961-62 (Ont.), c. 93, as amended, to investigate a matter of complaint by the complainant, Carl McKay.

This Act, as amended, is a consolidation of three earlier statutes, The Racial Discrimination Act, 1944 (Ont.), c. 51; The Fair Employment Practices Act, 1951 (Ont.), c. 24; and The Fair Accommodation Practices Act, 1954 (Ont.), c. 28. Its main purpose is to prevent discrimination, with respect to certain specified matters, on the grounds of race, creed, colour, nationality, ancestry, or place of origin. Section 1 prohibits the publication or display of any notice, sign, symbol, emblem or other representation

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indicating discrimination on any of those grounds. It contains a proviso in subs. (2) that:

Nothing in this section shall be deemed to inter­fere with the free expression of opinion upon any subject.

Section 2 prohibits the denial of accommo­dation, services or facilities available in any place to which the public is customarily admitted, because of any of those grounds, or discrimina­tion, on, any of those grounds, in respect of the accommodation, services or facilities available in such a place.

Section 4 prohibits discrimination, on any of those grounds, in respect of employment or terms of employment. It prohibits such discrimination in respect of membership in a trade union. It prohibits such discrimination in connection with employment applications or advertisements in connection with employment. Subsection (4) contains a proviso making s. 4 inapplicable to a domestic employed in a private home, and to exclusively religious, philanthropic, educational, fraternal or social organisations not operated for private profit, or to any organization operated primarily to foster the welfare of a religious or ethnic group and that is not operated for private profit.

Section 5 prohibits discrimination based on sex in respect of rates of pay for the same work, done in the same establishment.

Section 3, which carries the marginal note "Discrimination prohibited in apartment buildings", is the provision which is involved in the present case and provides as follows:

3. No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall,

(a) deny to any person or class of persons occu­pancy of any commercial unit or any self-con­tained dwelling unit; or

(b) discriminate against any person or class of persons with respect to any term or condition of occupancy of any commercial unit or any self-contained dwelling unit,

because of the race, creed, colour, nationality, an­cestry or place of origin of such person or class of persons.

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This summary of the provisions contained in Part 1 of the Act shows that its purpose is to seek to prevent certain kinds of discrimination in respect of specific fields. It applies only to the fields thus defined.

Part II of the Act provides for the continuance of the Ontario Human Rights Commission, hereinafter called "the Commission", which is responsible to the Minister (the Minister of Labour or such other member of the Executive Council to whom the Act is assigned by the Lieutenant Governor in Council) for the administration of the Act.

Part III of the Act deals with the investigation of complaints of discrimination contrary to the Code, and with the appointment and functions of boards of inquiry. Section 12 and the relevant portions of s. 13 provide as follows:

12. (1) The Commission itself or through any person designated so to do may inquire into the complaint of any person that he has been discrimi­nated against contrary to this Act and it shall en­deavour to effect a settlement of the matter com­plained of.

(2) Every such complaint shall be in writing on the form prescribed by the Commission and shall be mailed or delivered to the Commission at its office.

13. (1) If the Commission is unable to effect a settlement of the matter complained of, the Minister may on the recommendation of the Commission appoint a board of inquiry composed of one or more persons to investigate the matter and shall forthwith communicate the names of the members of the board to the parties to the complaint, and thereupon it shall be presumed conclusively that the board was ap­pointed in accordance with this Act.

(2) The board has all the powers of a conciliation board under section 28 of The Labour Relations Act.

(3) The board shall give the parties full oppor­tunity to present evidence and to make submissions and, if it finds that the complaint is supported by the evidence, it shall recommend to the Commission the course that ought to be taken with respect to the complaint.

(4) If the board is composed of more than one person, the recommendations of the majority are the recommendations of the board.

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(5) After the board has made its recommenda­tions, the Commission may direct it to clarify or amplify any of them, and they shall be deemed not to have been received by the Commission until they have been so clarified or amplified.

(6) The Minister, on the recommendation of the Commission, may issue whatever order he deems necessary to carry the recommendations of the board into effect, and such order is final and shall be com­plied with in accordance with its terms.

Part IV, s. 14, makes it an offence to con­travene any provision of the Act, or any order made under the Act. Section 15 requires the written consent of the Minister for prosecution for an offence under the Act.

The complainant, Carl McKay, filed with the Commission a complaint against the appellant dated at Toronto on December 12, 1968. It alleged that the appellant "allegedly committed an unlawful act relating to housing" on or about December 11, 1968, because of race, colour and place of origin, and set out the following particulars:

On December 10, 1968, I saw an ad in the Toronto Daily Star for a 3 room flat for rent with private bath and kitchen at 30 Indian Road. I phoned the number given and was told the flat was still vacant. The next day when I went to the address in person I was told the fiat was taken by a man I later learned was Mr. Bell, the landlord. However, when my girlfriend, Miss Nancy Sharp applied the same day after me, she was told it was still vacant. I am a Black man from Jamaica and feel that my failure to obtain accommodation was determined by factors of race, colour and place of origin.

The appellant was not furnished with a copy of this complaint until one was enclosed with a letter to him, dated March 7, 1969, by Brett W. Mann, a member of the Commission staff. In the meantime, there had been correspondence be­tween the Commission staff and the appellant and his solicitor, William C. Cuttell.

On January 2, 1969, Mr. Mann said, in a letter to the appellant:

Further to our meeting of December 13, 1968 in which we discussed the concern brought to the

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Commission of a Mr. Carl McKay that he had been discriminated against by you with regard to housing, this will serve to advise you of developments.

The Commission has conducted a thorough in­vestigation into Mr. McKay's complaint and has found sufficient evidence supporting Mr. McKay's allegations of discrimination to warrant further in­volvement of the Commission in this matter. The Commission views this matter most seriously and I would seek to meet with you at your earliest con­venience to discuss possible terms of settlement and conciliation.

Mr. Cuttell replied on January 6:

Mr. K. S. Bell has brought in to me your letter of the 2nd of January, in which you invite him to attend at your office to discuss the matter. I will be pleased to accept your invitation on his behalf, but prior to any discussion I would like clarification of the proposed meeting. You suggest a discussion of "possible terms of settlement and conciliation". Will you please, prior to any meeting between us, give me some idea of what you mean by "terms of settlement and conciliation".

From my present knowledge of the circumstances I can not see that Mr. Bell has any liability in the matter which could be the subject of any settlement and I would very much appreciate having you enlarge upon this suggestion.

On January 14, Mr. Mann wrote to Mr. Cuttell, in part, as follows:

An investigation has been conducted by the Com­mission into this matter and has produced sufficient evidence to justify Mr. McKay's complaint.

The Commission routinely attempts to resolve all such complaints in an amicable manner, and more 'formal steps, also provided for under Ontario law, are approached only as a last resort. To this end, I would invite both yourself and Mr. Bell to meet with me at a prearranged time in. the Commission *offices to discuss the kind of assurances that the Commission would ask to resolve such matters. Typi­cal terms of settlement would include a written expression of apology to the complainant from Mr. Bell as well as an offer of the next available accom­modation, and remunerations to the complainant for monies expended as a result of his failure to obtain accommodation at 30 Indian Road.

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Your cooperation will be greatly appreciated, and I invite you to contact me at your earliest conveni­ence at 365-6841 to arrange a meeting for the reso­lution of this matter.

This was followed, on February 12, by a letter from Mr. Herbert A. Sohn, the Assistant Director of the Commission, suggesting a discussion of the matter, and advising that, failing a satisfactory response by February 21, the matter would be submitted to the Commission at its next regular meeting, on February 24.

On February 21, Mr. Cuttell wrote to the Com­mission stating that, after thorough discussion and investigation of the premises, he had advised the appellant that he had not contravened the Code, nor had he made himself liable for the payment of money to any person.

He suggested that the Commission, having said that it had found sufficient evidence to warrant the complaint, if it wished to carry the matter further, should proceed with a prosecution of the appellant.

On February 28, Mr. Mann wrote to the appel­lant to say that the Commission had agreed to seek appointment of a board of inquiry to conduct a public hearing into the matter. A copy of this letter was sent to Mr. Cuttell.

Mr: Cuttell then wrote to the Minister of Labour, on March 3, with a copy to the Commis­sion, reviewing his correspondence with the Com­mission. He requested that the Minister refuse to appoint a board of inquiry, since the Commis­sion had already investigated the matter, and a further inquiry was unnecessary. He suggested that, instead, the Minister authorize a prosecution. In the course of this letter he said:

The Commission has indicated, not only that it has evidence to support a charge under Section 3 of the Statute, but has gone so far as to suggest that it is possible to "settle" the matter by obtaining from Mr. Bell a written apology, an assurance that the accommodation will be made available in future and the payment of money. I can find nothing in the statute that creates any such liability upon any person for the breach of any of its provisions, If evidence has been obtained by the Commission indicating any breach of this Statute, it is surely improper

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to suggest that the breach can be cured by the payment of money to any person, or by the other methods proposed as settlement.

On March 7, Mr. Mann wrote to the appellant, enclosing a copy of the complaint, and advising that Dean Walter Tarnopolsky had been appointed by the Minister as a board of inquiry, and advising as to the date, time and place of the hearing.

In answer to this letter, Mr. Cuttell wrote to the Commission, on March 14, stating, in part, as follows :

In your letter of January 14th you indicate that the proceedings are taken by virtue of Section 3 of the Ontario Human Rights Code. There is nothing in the complaint of Mr. McKay which makes Sec­tion 3 applicable. Furthermore, since you have conducted a "thorough investigation", the Commission must know that Section 3 is in fact, not applicable.

In any event, it is perfectly apparent that if the Commission has made a thorough investigation and has "found sufficient evidence supporting Mr. McKay's allegation ... " that obviously is an end of the matter. As I have pointed out, this remedy is under Sections 14, 15 and 16 of the Statute and any further investigation of the matter is nothing more nor less than persecution directed to achieving a settlement at the expense of my client, or persecu­tion which violates fundamental principles of justice. In either event the Board has forfeited any purported jurisdiction.

At the commencement of the hearing before the board of inquiry, Mr. Cuttell asked the board to find that it lacked jurisdiction, on the basis that s. 3 of the Code did not apply to the premises in question because they were not a "self-contained dwelling unit". Other points were also raised. The board refused to make this finding because at that stage there was no way of knowing whether the accommodation came within s. 3 or not.

An application was then made by the appellant on May 9 for an order of prohibition. In support of this motion the appellant filed his own affidavit, to which there were annexed photographs of the

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appellant's premises. The relevant portions of that affidavit are as follows:

1. I am the owner of No. 30 Indian Road, Toronto and have lived at that address since 1957. From 1957 to 1965 I rented the lower floor of the house and lived there with my wife, during which time the owner and his wife and child occupied the upper floors.

2. I bought the house in 1965 and continued to live on the lower floor as before and rented the upper floors.

3. The upper floors consist of a flat which has its own kitchen and bathroom, a bedroom and sitting room all on the second floor and a bedroom on the third floor; the flat has no separate entrance.

4. The tenants can only get to the upper floors by entering the house through the front door and hall-way and thus reaching the stairs. The hallway and stairway are not closed or separated from my living quarters.

5. Annexed to this affidavit are photographs of the said hallway and stairs. Photograph Numbered 1 is a view of the lower floor and shows my kitchen at the end of the hallway. Photograph numbered 2 is a view of the lower floor and shows the entrance to my living room. Photograph numbered 3 is a view of the second floor and shows the hallway of the tenants quarters and a stairway leading to the third floor room.

6. There are no locks on the doors of the tenants quarters and I have only an ordinary skeleton key operated lock set on the glass doors leading to my living room and a bolt on the kitchen door. I have never used the locks on my doors since 1965.

7. I am employed by Christie Bread Division of Nabisco as a shipper and I have been in that job for 18 years. I work regularly on three shifts which require me to be away from home sometimes on the 4 to 12 shift or the 12 to 8 shift, during which times my wife is alone in the house. For this reason I have to be careful about the kind of tenant I take in for the upper floors.

8. I have had four different tenants since 1965. Three of these have been married couples and the present tenant is a man of about 45 years of age. He is of Egyptian origin and is Semitic. I prefer to take as tenants only married couples or mature people.

9. On or about the 10th of December, 1968, when the flat was advertised for rent, two young negro men came to the house to inquire about it. I judged

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them to be about 20 to 22 years of age and thought they may have been students. I considered them to be too young and accordingly, I turned them down. I told them the flat had been previously rented because this is the simplest method and avoids discus­sion and argument.

10. I did not refuse to rent to the negroes because they were negroes but because they were too young and appeared to be students and I do not want young men or students as tenants, particularly because the flat is not separated from my own living quarters and is not self contained.

The material filed shows that access is available to each of the rooms occupied by the appellant from the downstairs hallway; that access to the second floor of the house is by way of a staircase leading from that hallway; and that access is gained to the upstairs rooms from a hallway there. In other words, the appellant owns a common type of house, in which some of the bedrooms on the second floor have been made into a kitchen and a sitting room.

The learned trial judge found that the accom­modation available for rent was not a self-con­tained dwelling unit. This finding was not con­sidered by the Court of Appeal, because it relied upon other grounds for allowing the appeal from the trial judgment.

Dealing with this issue, the learned trial judge said:

Definitions of the word "self-contained" to be found in the Oxford Dictionary, Funk and Wagnall's Dic­tionary, Webster's Dictionary (third edition) all in­dicate that the second and third storey of Mr. Bell's house do not fall within the word "self-contained". Even aside from any definition contained in any dictionary it seems clear that it is not so. A number of Scottish cases have been quoted me to the same effect including The Trustees' of the late William Cotton, Appellants, Richard Farmer, Surveyor of Taxes (Edinburgh) Respondents, (1912-13) Scottish Session Cases page 1131; Speevack and Robson, (1949) S.L.T. notes of recent decisions on page 39; The Assets Company, Limited and Ogilvie, 34 S.L.R. 195 at 200. There is an English case which may ap­pear to be contrary to the decisions contained in the Scottish cases, namely, Darrall v. Whitaker and another, 92 L.J.K.B. 882, but here it was held that the identity of the whole house had been altered.

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Darrall v. Whitaker, and another English de­cision, by a single judge, Smith v. Prime[2], were both cases in which the Courts were considering the application of rent restriction legislation under the Increase of Rent and Mortgage Interest Act, 1920. In each case, the successful contention of the landlord was that he was not subject to the restrictions imposed by that Act because of his having made substantial alterations to the prem­ises. In the Darrall case it was held that "the landlord cannot be said to increase the rent of a house which has been so substantially altered that it is no longer the same subject-matter as it was in 1914." It was only incidentally that consideration was given to s. 12(9) of the Act which said that:

This Act shall not apply to a dwelling house erected after, or in course of erection on the 2nd day of April, 1919, or to any dwelling house which has been since that date or was at that date being bona fide reconstructed by way of conversion into two or more separate and self-contained flats or tenements...

I am not prepared to accept the views expressed in those cases as to what constituted separate and self-contained flats, for the purpose of that subsection, as governing the meaning of "self-contained dwelling unit" in s. 3 of the Act.

When s. 3 of the Act was first enacted, 1961-62 (Ont.), c. 93, it prohibited the denial of oc­cupancy because of race, creed, colour, etc. "of any apartment in any building that contains more than six self-contained dwelling units."

In 1965, by c. 85, the number. "six" was reduced to "three." It was in 1967, by c. 66, that the present s. 3 was enacted.

It seems clear that the words "self-contained 'dwelling units", as used in the two earlier statutes, referred to dwelling units in the form of apart­ments in an apartment building. The present s. 3 applies to any "self-contained dwelling unit", but, in the light of the past history of the legislation,

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it would appear to me that it includes now either a self-contained house, or self-contained premises similar to an apartment in an apartment house.

In my opinion, the premises leased by the appellant located in his upstairs floors, may well be "dwelling units", but they were not "self-contained" dwelling units.

This brings me to the main issue in this appeal, which I would state as follows: If a complaint of alleged discrimination is made, which relates to a field which is not within the provisions of the Act, has the Supreme Court of Ontario the power, by an order of prohibition, to prevent proceedings for the investigation of the complaint under s. 13 of the Act?

As has already been pointed out, the purpose of the Act is to seek to obtain equality of treatment without regard to race, creed, colour, nationality, ancestry, or place of origin, and, to assist in achieving that objective, machinery has been created for the investigation of complaints of discrimination on those grounds. But the Act is specifically limited by its terms to dealing with such discrimination when it occurs in relation to defined fields of operation. It states, in terms, that it does not interfere with free expression of opinion on any subject. It does not prevent a householder from refusing to employ a domestic servant because of his antipathy to the race, colour or creed of a person seeking such employment. Similarly, it does not prevent the owner of a house containing dwelling units which are not self-contained from refusing to lease such accom­modation to anyone.

When s. 12(1) states that the Commission "shall endeavour to effect a settlement of a matter complained of" it does not enable the Commis­sion to seek to settle complaints as to discrimina­tion in matters not within the Act because "matter complained of" refers to a complaint of discri­mination "contrary to this Act."

The Minister's authority to appoint a board of inquiry on the recommendation of the Commis­sion arises, and arises only, "if the Commission is unable to effect a settlement of the matter

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complained of", i.e., a complaint of discrimina­tion "contrary to this Act."

The task of a board of inquiry appointed by the Minister is to investigate "the matter", i.e., to determine whether, in a matter within the purview of the Act, there has been discrimination.

In the present case the Commission was of the stated opinion that the complaint was one of discrimination contrary to the Act, and for that reason it recommended the appointment by the Minister of a board of inquiry. The respondent was convinced that the complaint did not relate to a matter within the purview of the Act. Is he precluded from having that vital issue determined in a court of law without waiting until the inquiry is conducted and until the board has determined that issue?

The risk of delay to the appellant is obvious. Under s. 13(3), if the board finds that the com­plaint is supported by the evidence, it must recom­mend to the Commission the course which ought to be taken with respect to the complaint. Under subs. (6) the Minister, on the recommendation of the Commission, may issue "whatever order he deems necessary to carry the recommendations of the board into effect."

Such an order is "final and shall be complied with in accordance with its terms."

There is no provision for any appeal from the board, or from a ministerial order under subs. (6).

In the judgment of the Court of Appeal, it was said that:

This is not to say that the board's decision, if im­plemented by the Minister as prescribed by the Code, or ultimately, by a summary conviction Court, would be immune from judicial review. Counsel for the Attorney-General appearing on behalf of the Commission conceded as much.

When this point was raised in this Court, coun­sel for the respondent did not concede that the proceedings before the board of inquiry could be subject to certiorari, and limited himself to suggesting

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the possibility of an action for a declara­tory judgment. Whether such a right would exist is questionable.

If a ministerial order is made, and a prosecu­tion were instituted for contravening it, the issue before the Court would be only as to whether the order had been contravened and not whether the accused had been in breach of the Act in the first place.

The decision of the Court of Appeal to allow the appeal was based primarily on the proposition that the proceedings for prohibition were premature. The relevant portion of the judgment is as follows:

The learned Judge proceeded to find that the fiat in Bell's premises did not come within section 3, and also held that unless a self-contained dwelling unit was involved a board of inquiry had no jurisdiction. Since Stewart J. was dealing with a motion for prohibition at a stage where the board of in­quiry had merely convened and had not proceeded into the merits, his holding on jurisdiction can only be taken to mean that the board of inquiry could not, even as an initial, albeit subsequently reviewable, matter, embark on its task without having its right to do so cleared in advance, once objection was taken that the premises in question were outside the purview of the Code.

With great respect for the learned Judge, this is error on his part in principle, having regard to the terms of the Code. It is true that he assessed the character of the board of inquiry as revealed by the Code, and concluded that it exercised judicial powers, that it was the first step of a judicial process exposing Bell to a sanction, and hence it was amenable to prohibition. However, the subjection of a tribunal to prohibition cannot be generalized merely because the tribunal is a judicial or quasi-judicial one. There is the additional, highly relevant ques­tion of the defect of jurisdiction on which the claim to prohibition is founded.

In the present case, if no objection can be taken to the establishment or constitution of the board of inquiry it is premature to seek to stall its proceedings at their inception on the ground of an apprehended error of law, i.e. misconstruction of a provision of the Code, which it is assumed the board will make. It appears quite plainly that what the board of inquiry

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would have been obliged to decide if it had been allowed to proceed was (1) whether there was a denial of housing accommodation; (2) whether that accommodation was covered by the Code; and (3) whether the denial in such case was by reason of the race or colour or place of origin of the com­plainant.

It went on to say:

The decision on whether Bell's flat is a self-contain­ed dwelling unit depends on factual as well as cons­tructional considerations; and it is difficult to ap­preciate how the learned Judge could have proceeded to a determination when there was no record taken below bearing on the issue.

With respect, I do not agree that the board could not embark on its task without having its right to do so cleared in advance once objection was taken that the premises in question were outside the purview of the Code. That objection alone would not be sufficient. The appellant might have raised the issue, but have elected to have the in­quiry proceed and to await its decision. That point was dealt with in the judgment of Lord Goddard C. J. in R. v. Tottenham and District Rent Tribunal, Ex p. Northfield (Highgate) Ltd.[3] In that case, the tenants of a flat applied to the rent tribunal to consider the rent of the fiat. The tenants were assignees of a lease made by the owner to their assignor. Section 2(1) of the Furnished Houses (Rent Control) Act, 1946, provided:

Where a contract has, whether before or after the passing of this Act, been entered into whereby one person (hereinafter referred to as the "lessor") grants to another person (hereinafter referred to as the "lessee") the right to occupy as a residence a house or part of a house situated in a district in which this Act is in force in consideration of a rent which includes payment for the use of furniture or for services ... it shall be lawful for either party to the contract or for the local authority to refer the contract to the tribunal for the district...

The owner applied for an order of prohibition to prohibit the tribunal from entertaining the

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application on the ground that the tenants were not "party to the contract" within that provision.

The order was granted. At the end of his reasons, Lord Goddard said, at p. 107:

There is only one other word I need add. Mr. Winn, who appears for the tribunal, has taken no part in the argument except to express a view, as amicus curiae, that it would be difficult to say that the grounds on which Mr. Ackner moved were wrong. But Mr. Winn asked us to express some opinion whether it was right for the applicants to apply to this court for prohibition or whether they ought not to have gone to the tribunal and taken the point there. Of course, they could have taken the point before the tribunal, and if the tribunal had decided in their favour, well and good. If the tribunal had decided contrary to their contention, then they would have had to come here and, instead of asking for prohibition, asked for certiorari; but I think it would be impossible and not at all desir­able to lay down any definite rule as to when a person is to go to the tribunal or come here for prohibition where the objection is that the tribunal has no jurisdiction. Where one gets a perfectly simple, short and neat question of law as we have in the present case, it seems to me that it is quite convenient, and certainly within the power of the applicants, to come here for prohibition. That does not mean that if the tribunal, during the time leave has been given to move for prohibition and the hearing of the motion, like to continue the hearing they cannot do so; of course, if prohibition goes it will stop them from giving any decision, and if pro­hibition does not go they can give their decision. For myself, I would say that where there is a clear question of law not depending upon particular facts —because there is no fact in dispute in this case—there is no reason why the applicants should not come direct to this court for prohibition rather than wait to see if the decision goes against them, in which case they would have to move for certiorari. For these reasons, I think that prohibition must go.

It is also clear in that case that the facts giving rise to the issue of law were placed before the

Court for its consideration of the motion and that they could not have been found in a record taken

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by the tribunal below because it had not embarked on a consideration of the matter.

In R. v. Galvin[4], the High Court of Australia considered an application for prohibition. It arose as a result of an application by a trade union to a conciliation commissioner appointed under the provisions of the Commonwealth Conciliation and Arbitration Act for the variation of an award fix­ing weekly working hours at 40, by making provi­sion for a 15-minute tea break. Section 13 of that Act provided that a conciliation commissioner was not empowered to make an order altering the standard hours of work in an industry. Sec­tion 16 provided that a conciliation commissioner might at any stage of a matter before him refer any question of law or any question as to whether he had jurisdiction in the matter before him for the opinion of the Commonwealth Court of Conciliation and Arbitration.

At p. 444, the judgment of the High Court, referring to s. 16, says this:

It is argued that these provisions enable a conciliation commissioner to proceed, where his jurisdiction is challenged, subject to a reference to the Arbitration Court of the question whether he has jurisdiction or not. That court will then make a binding determination of the question and upon this his jurisdiction will depend. If the decision is that he has no jurisdiction his provisional award must be altered by him to accord with the decision. If the decision is that he has jurisdiction, then under sub-s. (5) (a) he obtains jurisdiction by virtue of the decision. What ground, it was asked, is there for supposing that the conciliation commissioner will exercise the power the summons seeks to in­voke without first proceeding to obtain the decision of the Arbitration Court upon the question whether he possesses jurisdiction? If he does refer the ques­tion to the Arbitration Court then his jurisdiction will depend on the decision of that court. The answer to this argument is to be found in a number of considerations. The commissioner is not bound to refer the question to the Arbitration Court. There already exists a pronouncement of that court in favour of his jurisdiction upon which he might well be expected to act without making a reference. What the summons asks him to do is to make an order

[Page 774]

which the prosecutors allege is outside his power. A person against whom a non-existent jurisdiction is invoked is not bound to wait until the tribunal de­cides for itself whether it has jurisdiction or obtains a decision of the question by a reference or case stated or the like. He may move at once for a pro­hibition.

In that case, no objection could be taken to the establishment or constitution of the tribunal concerned. The application for variation of the order was being made to a conciliation commis­sioner duly appointed pursuant to statutory provi­sions. The Act, under whose provisions he was appointed, made specific provision to enable him to refer a jurisdictional issue to the Commonwealth Court of Conciliation and Arbitration. None the less, the Court felt free to decide the issue of law raised as to the powers of the tri­bunal, without awaiting its decision on that point, or the decision of the Court of Conciliation and Arbitration to which it might have been referred.

In that case it appears that material was placed before the Court to which the motion for prohibi­tion was made, in the form of an affidavit.

Dealing with the writ of certiorari, Denning L. J., in R. v. Northumberland Compensation Appeal Tribunal, Ex p. Shaw[5], said:

When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary.

In my view, it is also admissible for the purpose of raising an issue of law, on a motion for prohibition, in respect of the jurisdiction of a tribunal.

The present case raises a question of law as to the meaning of the phrase "self-contained dwel­ling unit." The facts involved in relation to whether or not the appellant's premises available for rent were within that phrase relate only to the structure of a building and do not involve

[Page 775]

choosing between the conflicting testimony of witnesses. In a case involving a conflict of evi­dence a Court to which an application for prohibi­tion was made might well decline to interfere. The position of the Court of Appeal in the present case, however, appears to be not that the learned trial judge should not have exercised his discretion to grant prohibition, but, rather, that he had no discretion to exercise.

With respect, I do not agree with this view. The powers given to a board of inquiry are to enable it to determine whether or not there has been discrimination in respect of matters within the scope of the Act. It has no power to deal with alleged discrimination in matters not within the purview of the Act or to make recommendations with respect thereto.

The Court of Appeal judgment says that the board, had it been allowed to proceed, would have been obliged to decide (1) whether there was a denial of housing accommodation, (2) whether that accommodation was covered by the Code, and (3) whether the denial was by reason of the race, colour, or place of origin of the complainant. In my opinion, item (2) would have had to be considered first, and, if the accom­modation was not covered by the Act, the board would have no authority to proceed further.

Item (2) raises an issue of law respecting the scope of the operation of the Act, and on the answer to that question depends the authority of the board to inquire into the complaint of discrimination at all. The Act does not purport to place that issue within the exclusive jurisdiction of the board, and a wrong decision on it would not enable the board to proceed further.

In my opinion the appellant was not compelled to await the decision of the board on that issue before seeking to have it determined in a court of law by an application for prohibition, and the Court had jurisdiction to deal with the matter.

I would allow the appeal and restore the order made by the learned trial judge. The appellant should be entitled to his costs throughout.

[Page 776]

ABBOTT J. (dissenting)— This is an appeal by leave, from an order of the Court of Appeal for Ontario, dated November 20, 1969, allowing the appeal of the respondent Ontario Human Rights Commission from an order of prohibition made by Stewart J., dated May 9, 1969, whereby Walter S. Tarnopolsky, sitting as a board of inquiry ap­pointed pursuant to the provisions of The Ontario Human Rights Code, 1961-62, as amended, was prohibited from inquiring into the complaint of one Carl McKay that he was discriminated against contrary to the provisions of the said Code with respect to the rental of certain living accom­modation.

The accommodation in question is part of a three-storey dwelling, No. 30 Indian Road, Toronto, which has been owned by the appellant since July 1965. The appellant and his wife live on the lower floor and rent the upper floors. The upper floor accommodation consists of a kitchen and bathroom, a bedroom and sitting-room on the second floor, and a bedroom on the third floor. Access to the second floor is through a common entrance leading to a staircase to the upper accommodation.

On December 10, 1968, the complainant, a Jamaican, and another, in response to an adver­tisement placed in the daily press, sought to rent the accommodation above described and were told by the appellant it was already rented. In fact the said accommodation was not rented at that time.

On December 12, 1968, McKay filed a complaint with the Ontario Human Rights Com­mission alleging that the appellant, Kenneth S. Bell, refused him rental of a flat at No. 30 Indian Road, Toronto, because of his race, colour and place of origin.

On January 2, 1969, the Commission wrote the appellant with a view to arranging a meeting to endeavour by conciliation to effect a settlement of the matter complained of. The appellant, through his solicitor, requested advice as to possible terms of settlement and conciliation and was advised by the Commission that typical terms of settlement would include a written expression of apology to

[Page 777]

the complainant from the appellant as well as an offer of the next available accommodation and remuneration to the complainant for moneys ex­pended as a result of his failure to obtain accom­modation at the said premises.

On February 12, 1969, the Commission further attempted to arrange an opportunity to discuss the possibilities of settlement with the appellant who, through his solicitor, suggested that if the Com­mission wished to carry the matter further, they proceed by way of prosecution under The Ontario Human Rights Code, 1961-62.

On February 24, 1969, pursuant to s. 13 of the said Code, the Commission recommended to the Minister of Labour the appointment of a board of inquiry to investigate the complaint of McKay. On March 3, 1969, the appellant, through his solicitor, requested that the Minister of Labour ignore the recommendation for appointment of a board of inquiry and instead give his consent to the prosecution of the appellant, pursuant to s. 15 of the Code.

By letter dated March 13, 1969, the Minister of Labour refused to accept the suggestion of the solicitor of the appellant to prosecute, and advised the solicitor of his appointment of a board, pursuant to the provisions of the Code, to inquire into the complaint. The appellant was notified of the said appointment in accordance with s. 13 of the Code.

On April 21, 1969, a hearing of the board of inquiry was convened by the said Walter S. Tarno­polsky at the Parliament Buildings at Queen's Park, Toronto, at which time the appellant, through his solicitor, objected to the jurisdiction of the board and moved that the board either disband or request the Minister of Labour to direct the prosecution of the respondent.

The board of inquiry rejected the motion of the appellant, ruling that the matters in issue were properly within its jurisdiction.

After this ruling and before any evidence was called in the matter, a notice of motion for an application for prohibition was served and the matter was adjourned sine die pending the disposi­tion of the said motion.

On May 9, 1969, the motion was heard before Stewart J. and an order was made prohibiting

[Page 778]

Walter S. Tarnopolsky from further proceeding as a board of inquiry pursuant to s. 13 of The Ontario Human Rights Code, 1961-62.

Stewart J. was of the opinion that the board of inquiry was a judicial body and subject, as such, to an order of prohibition; that the premises of the appellant were not "self-contained" within the meaning of s. 3(a) of the Code and that the board was therefore without any jurisdiction to entertain submissions; that the views of the Com­mission officers on the meaning of s. 3(a) and on the question of the appellant's violation thereof could be imputed to the board and, consequently, that the board was constituted for an improper purpose and that no prior erroneous determina­tion by the board was a necessary precondition for the issuance of the order sought.

A motion by way of appeal from the order of Stewart J. was brought before the Court of Appeal for Ontario by counsel on behalf of the Ontario Human Rights Commission, for an order setting aside the order of prohibition.

On November 20, 1969, the Court of Appeal allowed the application by way of appeal and set aside the order of prohibition. The judgment of the Court was delivered by Laskin J.A. (Gale C.J.O., Schroeder, Kelly and Evans JJ.A., con­curring), and it held that since it was within the discretion of the Minister to appoint a board of inquiry rather than to proceed by way of prose­cution, since the board was properly constituted under s. 13(1) of the Code, since no determina­tion of any kind had been made by the board, which was a distinct and independent body to whom neither the views nor the conduct of the Commission officers could be attributed, and since the character of the premises herein was a question of mixed law and fact upon which no evidence had been submitted to the board, the application for prohibition was premature.

On January 27, 1970, leave was granted to appellant to appeal to this Court from the order of the Court of Appeal for Ontario.

[Page 779]

The relevant portions of s. 13 of The Ontario Human Rights Code, under which the board was appointed are:

13. (1) If the Commission is unable to effect a settlement of the matter complained of, the Minister may on the recommendation of the Commission appoint a board of inquiry composed of one or more persons to investigate the matter and shall forthwith communicate the names of the members of the board to the parties to the complaint, and thereupon it shall be presumed conclusively that the board was appointed in accordance with this Act.

(2) The board has all the powers of a concilia­tion board under section 28 of The Labour Rela­tions Act.

(3) The board shall give the parties full op­portunity to present evidence and to make submis­sions and, if it finds that the complaint is supported by the evidence, it shall recommend to the Com­mission the course that ought to be taken with res­pect to the complaint.

(6) The Minister, on the recommendation of the Commission, may issue whatever order he deems necessary to carry the recommendations of the board into effect, and such order is final and shall be com­plied with in accordance with its terms.

It is trite to say, of course, that Courts should refrain from invading territory properly reserved for the Legislature. That principle has often been given judicial expression, seldom better perhaps, than by McRuer C.J.H.C. in Re Jackson et al. and Ontario Labour Relations Board[6]:

It is not for the Courts to legislate. Under our form of Government the power of legislation is conferred on the duly-elected members of the Legislature or of Parliament within their respective jurisdictions, and it is for those duly-elected members to decide what jurisdiction will be conferred on an adminis­trative tribunal when an administrative tribunal is set up. It is no business of the Courts to consider whether it was wise or unwise to confer the jurisdiction that has been conferred by the legislative authority. The responsibility for that rests with the electors and not with the Judges. It is, however, the duty of a superior Court to be vigilant at all times to see that the jurisdiction conferred by the Legislature

[Page 780]

or by Parliament on an administrative tribunal is adhered to by the tribunal, and that it does not enter upon an inquiry that is not within its jurisdic­tion, or, if it enters upon an inquiry within its jurisdiction, that it does not exceed its jurisdiction, and that it does not deprive itself of jurisdiction to make a decision by doing an act that it is not authorized to do or by refusing to exercise the jurisdiction that has been conferred upon it by the legislative author­ity.

The language of s. 13 of The Human Rights Code is not ambiguous and it has not been sug­gested that the statute was beyond the legislative competence of the provincial legislature.

The powers of a board of inquiry appointed under s. 13 are to investigate and make such recommendations as it may see fit. It is not invested with authority to adjudicate upon anything. I can see no difference in principle between such an inquiry and those which were considered by this Court in Guay v. Lafleur[7], and Baldwin v. Pouliot[8].

Whatever view one may take of the desirability or efficacy of such an inquiry or of the incon­venience it may cause to persons concerned, these are questions which the Courts are not called upon to determine. The language of s. 13 is plain and, in my opinion, effect must be given to it.

In agreement with the judgment in the Court below, I would dismiss the appeal with costs.

HALL J. (dissenting)—I am in agreement with the reasons given by Laskin J.A. (as he then was) who delivered the judgment of the Court of Appeal. Accordingly, I would dismiss the appeal as proposed by my brother Abbott.

Appeal allowed with costs, ABBOTT and HALL JJ. dissenting.

Solicitor for the appellant: William C. Cuttell, Toronto.

Solicitor for the respondent: F. W. Callaghan, Toronto.

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