Pollock, Kinvig, Gordon, Renard (Winnipeg) File in The Supreme Court of Canada

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SCC Court File No.
IN THE SUPREME COURT OF CANADA

(ON APPEAL FROM THE COURT OF APPEAL OF MANITOBA)
BETWEEN:
RON POLLOCK, DELPHINE KINVIG,
DOUG GORDON and SUSAN RENARD,
(Complainants Under The Human Rights Code),
Applicants
(Appellants/Respondents by Cross Appeal)
-and-
MANITOBA HUMAN RIGHTS COMMISSION,

Respondent
(Respondent)
-and-
WINNIPEG CONDOMINIUM CORPORATION NO. 30,

Respondent
(Respondent/Appellant by Cross Appeal)
-and-
THE GOVERNMENT OF MANITOBA,
Intervener
(Intervener).
____________________________________________________________________________
APPLICATION FOR LEAVE TO APPEAL

(Section 40 of the Supreme Court Act and Rule 25 of the Rules of the Supreme Court of
Canada)
____________________________________________________________________________
Unrepresented Applicants
Please note: In addition to their personal emails below, please also add the following Unrepresented
Applicants’ (Pollock, Kinvig, Gordon, Renard) group EMAIL address in all correspondence for
convenience: pollockkinviggordonrenard@gmail.com
Ron Pollock (unrepresented), 3505-55 Nassau St. N. Winnipeg, MB R3L 2G8,

PHONE: (204)284-7646, PERSONAL EMAIL: xpollock@gmail.com
Delphine Kinvig (unrepresented) P.O. Box 2071, 2351 Coutlee Ave., Merritt, B.C.
V1K 1B8, PHONE: (250)378-5128, PERSONAL EMAIL: delphine.kinvig@gmail.com
Doug Gordon (unrepresented), 504-55 Nassau St. N., Winnipeg, MB R3L 2G8,
PHONE: (204)453-2247, PERSONAL EMAIL: doug@doug-gordon.net
Susan Renard (unrepresented), 2406-55 Nassau St. N., Winnipeg, MB R3L 2G8,
PHONE: (204)284-2627, PERSONAL EMAIL: mar3sue@shaw.ca
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Counsel for Respondents And Intervener

Todd Andres, Counsel for Winnipeg Condominium Corporation No. 30 (Respondent)
Pitblado Law, 2500-360 Main Street, Winnipeg, MB R3C 4H6, PHONE: (204) 956-3575,
EMAIL: andres@pitblado.com
Sandra Gaballa, Counsel, Manitoba Human Rights Commission (Respondent), 7th Floor 175
Hargrave Street, Winnipeg, MB R3C 3R8, PHONE: (204)945-3016,
EMAIL: sandra.gaballa@gov.mb.ca
Michael Bodner, Counsel, Manitoba Justice Dept. (Intervener) Constitutional Law

Branch, Woodsworth Bldg. 1205 -405 Broadway, Winnipeg, MB R3C 3L6,
PHONE: (204) 945-1842, EMAIL: michael.bodner@gov.mb.ca
Table Of Contents
(Tab 1) Notice Of Application For Leave To Appeal Page 4
Lower Court Judgments
(Tab 2) Interim Decision: Manitoba Human Rights Page 15

Adjudicator (under the Manitoba Human Rights Code)
Dated: October 12, 2011
(Tab 3) Reasons for Judgment: Manitoba Court Of Queen’s Bench Page 80

Dated: November 5, 2018
Order (if issued). None. Court of Appeal heard the Appeal under Manitoba Court of Appeal
Rule 11(4) (that allows Notice of Appeal to be filed without a Queen’s Bench order); order
replaced with a letter explaining needless delay signing the order due to Respondent
Condominium Corporation Lawyer
(Tab 4) Reasons for Judgment: Manitoba Court Of Appeal Page 111

Dated: October 28, 2019
Order (if issued). None as yet

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(Tab 5) Memorandum Of Argument Page 125
Part 1 Statement of Facts Page 125
Part II Statement of the Questions at Issue Page 127
Part III Statement of Argument Page 128
Part IV Submissions in Support of Order Page 136

Concerning Costs
Part V Order or Orders Sought Page 136
Part VI Table of Authorities Page 138
Part VII Legislation Page 138

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NOTICE OF APPLICATION FOR LEAVE TO APPEAL

TAKE NOTICE that the unrepresented and disabled Applicants, Ron
Pollock, Delphine Kinvig, Doug Gordon and Susan Renard, apply for
leave to appeal to the Court, under Section 40 of the Supreme Court Act,
RSC 1985, c S-26 and Rule 25 0f the Rules of the Supreme Court of Canada,
SOR/2002-156, from the judgment of the Court of Appeal of Manitoba in
Court File No. AI18-30-09197 (the “Judgment”) made October 28, 2019, for
an order granting leave to appeal from the Judgment, along with costs of this
application, or any further or other order that the Court may deem
appropriate.
AND FURTHER TAKE NOTICE that this application for leave is made on the
following grounds:
1. In order to forcefully remove the Applicants legal representation
despite the Applicants begging them not to, the Adjudicator and Courts had
to ignore the French version of section 34(a) of the bilingual statute (the
Manitoba Human Rights Code) and Supreme Court of Canada precedents.
The issue of public importance (une question d'importance publique)
is: Can an adjudicator and courts override statutes and the Supreme Court?
The Applicants ask this Court to hear this case in the hope it never happens to
anyone else ever again (dans l'espoir que cela n'arrive à personne d'autre).
Section 34(a) says:

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“34 Les parties à un arbitrage en vertu du présent code sont les suivantes :
a) la Commission, qui est responsable de la conduite des procédures

relatives à la plainte;”
The Disabilities Of The Applicants

2. The Queen’s Bench Judge said of Applicant Delphine Kinvig at
Tab 3, page 110, paragraph 152:

“[152] Finally, I would comment on Ms. Kinvig’s comment on systematic
discrimination. I would never presume to understand what her life is
like dealing with her loss of vision. I could easily see the frustration in
her body language. However, I do not find this to be a case of systematic
discrimination. I see this as a case for accommodation, which is precisely what
is to be addressed by the Commission and its adjudicators.”
3. The Court of Appeal decision describes the Applicants at Tab 4,
Page 113, paragraphs 12 and 11
“[12] Ms Kinvig, Mr. Gordon and Ms Renard have limited Vision and are
legally blind. They complained that the tinted windows would impair their
ability to see. Ms Renard also complained that the tinted windows would
exacerbate her epilepsy.”
“[11] Mr. Pollock owns a unit in the complex jointly with his sister, N.P. He
filed his complaint on behalf of NP. who suffers from anxiety and panic
attacks (the Code allows for complaints to be filed by third parties). He
alleged that the new windows would reduce the natural light and air
circulation which would “affect N.P. ’s] disabilities.”
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The Facts/How It Unfolded

4. The Respondent Manitoba Human Rights Commission (“the
Commission”) in tandem with the Respondent Winnipeg Condominium
Corporation No. 30 (“the Condominium Corporation”) tried unsuccessfully
to terminate the Adjudication. When the Adjudicator ruled the Commission
was functus officio and couldn’t terminate - instead of going forward as
normal with the Commission representing the Applicants - the Adjudicator
made an exception sans précédent regarding the human rights legislation -
by giving the Commission a consolation prize of sorts; they did not have to
represent the Applicants at the Adjudication, much to the delight of the
Condominium Corporation (pour le plus grand plaisir de la Condominium
Corporation) whose lawyer easily crushed the unrepresented disabled
Applicants at a 12 day trial.
Legalities
5. Had the Adjudicator considered the French version of 34(a) of the
Manitoba Human Rights Code (as she had a duty to do) instead of only the
English version of 34(a), she would have found she couldn’t get rid of the
Applicants’ legal representation, even if she wanted to. Her discretion would
have been limited by the statute. Her duty to consider the French version of
34(a) stemmed from the ambiguity of the English version.

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6. The Adjudicator’s allowing the Commission’s legal
representation to be forcefully taken away from the Applicants had never
happened before in Manitoba’s Human Rights Code history. How in God’s
green earth were the unrepresented disabled Applicants supposed to know
how to conduct cross examination and other complicated legal trial
procedures by themselves in a lengthy 12 day trial against an experienced trial
lawyer, without the legal representation from the Commission they were
entitled to under section 34(a).
7. How in the world did the Courts find the removal of the
Applicants’ legal representation from the Commission under section 34(a)
reasonable, and not an exception, as stated in Winnipeg School Division No.
1 v. Craton, [1985] 2 S.C.R. 150, at paragraph 8:
“Human rights legislation is of a special nature and declares public policy

regarding matters of general concern.”… “It is, however, of such nature that it may
not be altered, amended, or repealed, nor may exceptions be created to its
provisions, save by clear legislative pronouncement…”.
Adjudicator’s Duty To Consider French Version

8. First of all, the English version of 34(a) is ambiguous. The English
version says:
“34 The parties to an adjudication under this Code are
(a) the Commission, which shall have carriage of the complaint;”

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The Adjudicator’s Unprecedented Ruling

9. In construing whether she could get rid of the Commission as the
Applicants legal representatives, the Adjudicator ruled at at Tab 2, Page
48:
“In doing so, it may also advocate for the interests of the
complainant, but it is not required under the statute to do so…They
cannot rely on that fact however, as creating a legal duty or
requirement on the part of the Commission to represent them or to
adopt and advocate their position at the hearing.”
10. The Queen’s Bench Judge quoted the Adjudicator at Tab 3,
Page 97, paragraph 86:

“[86] The applicants argued that the adjudicator erred in law in Pollock v.
Winnipeg Condominium Corporation No. 30, [2011] M.H.R.B.A.D. No. 1 (MB
HRC) (QL), when she stated (at para. 143):
I recognize that in many, if not most cases, complainants choose
not to be represented by their own counsel, to adduce any evidence
or to make any representations at the hearing, relying instead on
the evidence adduced and submissions made by the Commission or
Commission counsel. They cannot rely on that fact however,
as creating a legal duty or requirement on the part of the
Commission to represent them or to adopt and advocate
their position at the hearing.”
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Stare Decisis Of The Word “Shall”

11. In British Columbia (Attorney General) v. Canada (Attorney
General); An Act respecting the Vancouver Island Railway (Re), [1994] 2 S.C.R. 41
Justice Iacobucci ruled about 4 paragraphs from the end of his decision:
‘At least, it should not if another reasonable interpretation presents itself. So I

answer, to the extent I am compelled to answer, that the word "shall" in s. 268(2)
of the Railway Act is directory and not mandatory in its effect’
12. As shown above, the Adjudicator used the “shall” in the English
version of 34(a) as being equivalent to “may”. She took about 1 ½ years to
decide that construing the ambiguous “shall” to mean “may” gave her the
discretion to take away the Applicants legal representation. This is upheld in
Black’s Law Dictionary Sixth Edition at page 1375:

‘But it may be construed as merely permissive or directory (as equivalent
to “may”) to carry out the legislative intention and in cases where no
right or benefit to any one depends on its being taken in the imperative
sense, and where no public or private right is impaired by its
interpretation in the other sense.’
13. These are the English and French versions of section 34(a) of the
Manitoba Human Rights Code:


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Significant Errors By The Adjudicator And The Courts

14. When the Adjudicator found the English version had more than
one meaning (“shall” construed as “may”, directory as opposed to
mandatory), she and the Courts ignored the following admonition in R. v.
Daoust, [2004] 1 S.C.R. 2004 SCC 6, at paragraph 28 and did not properly
look for a common meaning. Not a single mention of Daoust in all 3 rulings:
‘28 We must determine whether there is an ambiguity, that is,

whether one or both versions of the statute are “reasonably capable of more
than one meaning”: Bell ExpressVu, supra, at para. 29. If there is an ambiguity in
one version but not the other, the two versions must be reconciled, that is, we must
look for the meaning that is common to both versions: Côté, supra, at p.
327. The common meaning is the version that is plain and not
ambiguous: Côté, supra, at p. 327; see Goodyear Tire and Rubber Co. of Canada v. T.
Eaton Co., 1956 CanLII 2 (SCC), [1956] S.C.R. 610, at p. 614; Kwiatkowsky v. Minister
of Employment and Immigration, 1982 CanLII 221 (SCC), [1982] 2 S.C.R. 856, at p. 863.’
15. The Court of Appeal ruled at Tab 4, Page 120:
“[54] The applicants have not persuaded me that, had the adjudicator
considered the French version of section 34(a), her carriage ruling would
have been different. While both versions are equally authoritative, I see no
conflict or discrepancy between the English and French versions that
warrants a bilingual interpretation analysis.”
16. The Queen’s Bench Judge ruled at Tab 3, Page 91:
“[56] The applicants’ argument that there is a difference between the English
and French words is not supported by the common meaning of those words,
and is an attempt by the applicants to create a distinction where none
exists. I reject this argument.”
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The Concept Of Being Responsible In Law

Is Of Great Importance To The Public
17. The Applicants did not make an attempt to create a distinction where
none exists, like the Queen’s Bench Judge said. The word “responsable” being
included in the French version of 34(a), but not in the English, is a huge distinction
between the English and the French versions. It was not reasonable of the
Adjudicator and the Courts to ignore “responsable” in light of the ambiguity of
the word “shall” in the English version of 34(a). It was not reasonable to ignore
the mandatory Daoust interpretation methods. It was not reasonable to ignore
the mandatory Craton admonition against “exceptions” being made in human
rights legislation. It was not reasonable to rewrite the law. By doing all this the
Adjudicator and Courts (by legal standards) deleted the word “responsable”
thereby amending the legislation.
18. In deleting the word “responsable”, and thus amending the statute, the
Adjudicator and Courts violated the following precedents:
(a) Canada (Attorney General) v. Knee, 2011 FCA 301 (CanLII), at

paragraph 9:
“[9] However, tempting as it may be in such cases (and this may well be one),
adjudicators are permitted neither to re-write legislation nor to interpret it in
a manner that is contrary to its plain meaning. “
(b) Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150, at

paragraph 8:
“Human rights legislation is of a special nature and declares public policy regarding
matters of general concern.”… “It is, however, of such nature that it may not be altered,
amended, or repealed, nor may exceptions be created to its provisions, save by clear
legislative pronouncement…”.
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(c) R. v. Daoust, [2004] 1 S.C.R. 2004 SCC 6, at paragraphs 28
and 37:
‘28 We must determine whether there is an ambiguity, that is,

whether one or both versions of the statute are “reasonably capable of more
than one meaning”: Bell ExpressVu, supra, at para. 29. If there is an ambiguity in
one version but not the other, the two versions must be reconciled, that is, we must
look for the meaning that is common to both versions: Côté, supra, at p.
327. The common meaning is the version that is plain and not ambiguous…”
“37 … It would not be fair to propose an interpretation whereby in one language

the elements of the actus reus would be met, but not in the other. If we adopted the
English version, which is broader than the French one, this Court would be
making an undue judicial amendment of the statute. For
these reasons, the Court must favour the French version.”
And It Wasn’t Fair (et ce n'était pas juste)

19. How could the Adjudicator fairly rule the disabled Applicants
didn’t deserve the help from the Commission the Legislature desired. How
could she take it away? How could the Courts find this was reasonable? What
did the Applicants exactly do wrong to deserve such punitive treatment? How
could the Manitoba “Human Rights” Commission, entrusted with human
rights in Manitoba, literally sit by at the Adjudication and watch the disabled
Applicants struggle without helping? How could the Courts ignore Craton
and Daoust? But that’s what happened. And it wasn’t fair (et ce n'était pas
juste)
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Dated at Winnipeg, Province of Manitoba, this _____ day of December, 2019.
SIGNED BY:
Unrepresented Applicants
Note: In addition to their personal emails below, please also add the following
unrepresented Applicants’ (Pollock, Kinvig, Gordon, Renard) group email address in all
correspondence for convenience:
pollockkinviggordonrenard@gmail.com
Ron Pollock (unrepresented), 3505-55 Nassau St. N. Winnipeg MB, R3L 2G8,
PH. (204)284-7646, personal email: xpollock@gmail.com
________________
Ron Pollock
Delphine Kinvig (unrepresented) P.O. Box 2071, 2351 Coutlee Ave., Merritt B.C.
ViK 1B8, PH. (250)378-5128, personal email: delphine.kinvig@gmail.com
________________
Delphine Kinvig
Doug Gordon (unrepresented), 504-55 Nassau St. N., Winnipeg, Manitoba R3L 2G8, PH.
(204)453-2247, personal email: doug@doug-gordon.net
________________
Doug Gordon
Susan Renard (unrepresented), 2406-55 Nassau St. N., Winnipeg, MB. R3L 2G8,
PH. (204)284-2627, personal email: mar3sue@shaw.ca
____________________
Susan Renard
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ORIGINAL TO: THE REGISTRAR
COPIES TO:
Counsel for Respondents And Intervener

Todd Andres, Counsel for Winnipeg Condominium Corporation No. 30 (Respondent)
Pitblado Law, 2500-360 Main Street, Winnipeg, MB R3C 4H6, PHONE: (204) 956-3575,
EMAIL: andres@pitblado.com
Sandra Gaballa, Counsel, Manitoba Human Rights Commission (Respondent), 7th Floor 175
Hargrave Street, Winnipeg, MB R3C 3R8, PHONE: (204)945-3016,
EMAIL: sandra.gaballa@gov.mb.ca
Michael Bodner, Counsel, Manitoba Justice Dept. (Intervener) Constitutional Law

Branch, Woodsworth Bldg. 1205 -405 Broadway, Winnipeg, MB R3C 3L6,
PHONE: (204) 945-1842, EMAIL: michael.bodner@gov.mb.ca
NOTICE TO THE RESPONDENTS AND INTERVENER: A respondent or
intervener may serve and file a memorandum in response to this Application
For Leave To Appeal within 30 days after the day on which a file is opened by
the Court following the filing of this Application For Leave to Appeal or, if a
file has already been opened, within 30 days after the service of this
Application For Leave To Appeal. If no response is filed within that time, the
Registrar will submit this Application For Leave To appeal to the Court for
consideration under section 43 of the Supreme Court Act.

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MANITOBA HUMAN RIGHTS BOARD OF ADJUDICATION
IN THE MATTER OF: The Human Rights Code, C.C.S.M. c. H175
AND IN THE MATTER OF THE HUMAN RIGHTS COMPLAINTS OF:
RONALD FRANKLIN POLLOCK (ON BEHALF OF NATALIE POLLOCK),

DOUG GORDON, SUSAN RENARD and DELPHINE KINVIG,
Complainants,
-against-
Respondent.
REASONS FOR DECISION
Adjudicator: M. Lynne Harrison
Appearances: Ronald Franklin Pollock (on behalf of Natalie Pollock)

Doug Gordon
Susan Renard
Delphine Kinvig (by telephone)
Sarah Lugtig, Counsel for the Manitoba Human Rights Commission

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IN THE MATTER OF: The Human Rights Code, C.C.S.M. c. H175
AND IN THE MATTER OF THE HUMAN RIGHTS COMPLAINTS OF:
RONALD FRANKLIN POLLOCK (ON BEHALF OF

NATALIE POLLOCK), DOUG GORDON, SUSAN RENARD and
DELPHINE KINVIG,
Complainants,
-against-
Respondent.
REASONS FOR DECISION
Introduction
These proceedings arise out of Complaints filed by the four Complainants,

respectively, between December 5, 2006 and August 9, 2007. The Complainants each allege
that the Respondent discriminated against them (or in the case of Mr. Pollock, against his
sister) in the provision of services relating to the replacement of Windows in their
condominium complex, and failed to reasonably accommodate their special needs based
on their respective disabilities, contrary to section 13 of The Human Rights Code, C.C.S.M.
c. H175 (the “Code”).
On April 28, 2010, in accordance with subsections 32(1) and (2) of the Code, I was
designated by the Minister of Justice “as a Board of Adjudication, to hear and decide the
above Complaints.”
17
The Complainants have raised a number of preliminary issues. The primary issues relate
to jurisdiction and, in particular, whether the Manitoba Human Rights Commission (the
“Commission”) can terminate all proceedings, including the adjudication, after the
Complaints have been referred to adjudication, or alternatively, whether the Commission
can withdraw from the proceedings. Other issues include a request by some of the
Complainants to amend their Complaints to include allegations of reprisal, requests for
funding to retain counsel and to pay witness fees and expenses in the event that the
Commission withdraws, and various other requests to accommodate the special needs of
the Complainants and their witnesses with respect to the adjudication hearing.
At the request of the Complainants, and with the agreement of the Commission and
the Respondent, the full day of May 28, 2010 was set aside to deal with preliminary issues
on a separate basis.
The hearing with respect to the Complainants’ preliminary issues was held in
Winnipeg on that date. These are the Reasons for Decision with respect to those
preliminary issues.
Facts
Twenty-four Exhibits were filed at the hearing. These included a Statement of Agreed
Facts (Ex. 13) which was expressly stated to be entered “for the purposes of the
complainants’ joint motion dated May 10, 2010 only and not for any other proceeding or
purposes, without further consent from all parties.”
After some discussion at the beginning of the hearing and between the parties, the
parties also agreed to admit a letter from the Commission to the Board of Adjudication and
a series of correspondence which had been exchanged between the Commission and the
parties in the two days immediately preceding the hearing. (Exs. 16-19). On behalf of the
Commission, Ms Lugtig emphasized, however, that the correspondence was being
admitted for information purposes only, and that the Commission was in no way agreeing
that the Board of Adjudication has jurisdiction to review the decisions of the Commission,
the Commission’s Board of Commissioners or its staff.
No viva voce evidence was called.
The relevant facts with respect to the preliminary issues may be summarized as
follows.
On December 5, 2006, the Complainant Ronald Franklin Pollock filed

a human rights complaint on behalf of Natalie Pollock (the “Pollock Complaint”), alleging
that the Respondent breached section 13 of the Code by failing to reasonably accommodate
Ms Pollock’s special needs based on her disabilities.
18
The Respondent, through counsel, filed its Reply on April 17, 2007, disputing
the Pollock Complaint and requesting that it be dismissed. The text of
the Pollock Complaint and the Respondent’s Reply to that Complaint were filed as Exhibit
2.
Further complaints against the Respondent were filed by Susan Renard, and Doug
Gordon on May 2, 2007 (the “Renard Complaint’ and “Gordon Complaint”, respectively)
and by Delphine Kinvig on July 17, 2007 (the “Kinvig Complaint’). Each of these
Complainants also alleged that the Respondent had discriminated against them and failed
to reasonably accommodate their special needs based on their respective disabilities,
contrary to section 13 of the Code. The Respondent filed Replies to the Renard and Gordon
Complaints on July 30, 2007, and to the Kinvig Complaint on August 17, 2007. The texts of
the Renard, Gordon and Kinvig Complaints, accompanied by the Replies to each of those
Complaints were filed as Exhibits 3, 4 and 5, respectively. Appendices to the Replies to the
four Complaints were filed as Exhibit 6.
On October 27, 2008, following investigation of the Complaints, the Chairperson of

the Board of Commissioners wrote to the parties to the Pollock, Gordon and Renard
Complaints, to advise that the Board had considered their Complaints on October 22, 2008
and passed motions causing mediation to be undertaken pursuant to subsection 29(2) of
the Code.
Similarly, on February 25, 2009, following investigation of the Kinvig Complaint, the
Vice-Chairperson of the Board of Commissioners wrote to Ms Kinvig, to advise that the
Board had considered her Complaint on February 18, 2009 and passed a motion causing
mediation to be undertaken pursuant to subsection 29(2) of the Code.
On October 14, 2009, the Board of Commissioners considered settlement proposals

from the Respondent for the Gordon, Pollock and Renard Complaints. Such proposals had
been made on July 3, 2009 and the reasonableness of the offers had been discussed in
subsequent submissions from the parties. The Board concluded that the offers were not
reasonable and determined that the matters be referred to an adjudicator pursuant
to clause 29(3)(a) of the Code, to hear and decide the Complaints.
On October 16, 2009, the Chairperson of the Board of Commissioners wrote to each
of the Complainants and the Respondent, advising them of the Board’s decision. In those
letters, the Chairperson also stated as follows:
19
If the respondent makes a further settlement proposal in any discussions that

occur, the matter can again be brought back to the Board of Commissioners to
determine if the offer of settlement is reasonable. Should this occur, both
parties will be given a fresh opportunity to address the Board in writing on the
issue of whether the offer is reasonable and may provide additional relevant
information at that time. The Board will then make a fresh determination
based on the information before it, Please note that if the respondent proposes
an offer of settlement in the adjudication process that the Commission
considers reasonable but you reject the Commission must terminate its
proceedings in respect of the complaint pursuant to subsection 29(2) of The
Code.
On or about October 26, 2009, Ms Lugtig, legal counsel to the Commission, advised
Ms Kinvig (who by then resided in British Columbia) by telephone that the Commission
would likely be able to cover her travel costs if she was required to attend the hearing as a
party to her Complaint, but that Ms Lugtig would require approval for this. Ms Lugtig also
told Ms Kinvig that her travel costs would be covered if she was called by the Commission
as a witness for the other Complaints. Ms Kinvig asked whether the Complaints could be
heard together. Ms Lugtig explained that she would need the agreement of the Respondent
and the other Complainants to join the Complaints. Ms Lugtig contacted the Respondent
and on November 23, 2009 was advised that the Respondent agreed to one adjudicator.
On December 21, 2009, Ms Lugtig met with all four Complainants to discuss a
number of issues. During that meeting, Ms Lugtig indicated, among other things, that the
Commission would only cover the witness fees and travel costs of witnesses that the
Commission called to put in its case, and that the Complainants would be responsible for
paying the fees and expenses of any additional witnesses that they wished to call. Ms Lugtig
also advised that the Board of Commissioners had consistently found that it had to
terminate proceedings if it found that a respondent’s offer was reasonable, even after the
matter had been referred to an adjudicator. Ms Lugtig further advised that she had not yet
applied to the Justice Department for adjudicators. The Complainants indicated that they
were not willing to have one adjudicator appointed to hear all four Complaints.
On January 6, 2010, Ms Lugtig told Ms Kinvig that if the Commission needed to call
her as a witness, Ms Lugtig thought that it would have to pay her travel costs.
On January 29, 2010, Ms Renard wrote to counsel for the Respondent, advising her
that she authorized Mr. Gordon to act as her representative for the adjudication of her
Complaint. (Ex. 24)
On March 1, 2010, the Minister of Justice appointed four different adjudicators to

hear the four Complaints.
20
On March 16, 2010, counsel for the Respondent forwarded written settlement offers
for each Complaint to the Commission, and asked that they be forwarded to the respective
Complainants. The Respondent further asked that the Board of Commissioners determine
whether the offers were reasonable at its next meeting should any or all of the
Complainants not accept the offer(s) and that the Commission advise the Complainants of
this request.
The offer with respect to the Gordon Complaint contained the following clauses:
3. the above-referenced complaint will be withdrawn.
4. the Condominium Corporation and its Board members in their personal

capacities, will agree not to pursue the complainant for his impersonation of
the President of the Condominium Corporation with respect to the window
project.
5. the parties will exchange mutual Releases with respect to all current
and pending claims and potential claims or complaints, in a form acceptable
to counsel for the Condominium Corporation.
The offer with respect to the Pollock Complaint contained clauses which were
identical to clauses 3 and 5 above, as well as the following:
4. the Condominium Corporation and its Board members in their personal

capacities, will agree not to pursue the complainants for defamatory
comments which the complainants and/or either of them have made with
respect to the Condominium Corporation and its individual Board members.
On March 16, 2010, Ms Lugtig forwarded the offers to the Complainants. In her cover
letter, Ms Lugtig advised that if the Complainant did not accept the offer, the Respondent
had asked her to place it before the Board of Commissioners at its meeting on April 7, 2010,
to determine whether it was reasonable. Ms Lugtig also asked that the Complainants
provide, in writing, any further information for the Board to consider on or before March
30, 2010.
On March 30, 2010, each Complainant submitted a written request that the Board
of Commissioners adjourn its consideration of the Respondents offer to him or her.
On April 7, 2010, the Board of Commissioners granted one final adjournment to its
meeting scheduled for May 26, 2010 and requested that the Complainants provide their
written submissions no later than April 27, 2010.
21
On April 15, 2010, Ms Lugtig met with all four Complainants. At that meeting, she
advised the Complainants that if they were to challenge the Board of Commissioners’
jurisdiction to terminate proceedings under clause 29(2)(b) after a complaint has been
referred for adjudication, the Board would defend its jurisdiction based on the wording of
the Code, which differs from other jurisdictions. She also advised that the Board would
argue, in the alternative, that it may withdraw from the proceedings, leaving the
Complainants to pursue the Complaints on their own at their own expense, based on case
law which supports that approach in other Canadian jurisdictions. Ms Lugtig forwarded
that case law to the Complainants following the meeting.
On or about April 22, 2010, after one of the adjudicators had had to withdraw, the
Complainants requested that their Complaints be joined and heard by one adjudicator on
the condition that the adjudicator be willing and able to set aside a full day on or near May
28, 2010 to hear preliminary motions prior to the hearing. The date of May 28 had previously
been set for a preliminary hearing with respect to one of the Complaints.
On April 27, 2010, each Complainant provided a written submission for the Board of
Commissioners.
On April 28, 2010, at the Complainants’ request, and with the consent of the existing
adjudicators, the Commission and the Respondent, I was designated by the Minister of
Justice as a Board of Adjudication, to hear and decide all of the within Complaints jointly.
On May 6, 2010, the parties for all four Complaints were served with a joint Notice
of Hearing stating that the hearing would begin on May 28, 2010.
On May 10, 2010, the Complainants submitted a joint Notice of Motion requesting
various Orders, to be heard on a preliminary basis.
A Statement of Agreed Facts and Motions Brief of the Complainants were submitted
on May 14, 2010. Copies of various authorities to be relied on by the Complainants at the
hearing were submitted on May 17, 25 and 27, 2010. A “Time Response Comparison’ was
also submitted by the Complainants on May 25, 2010.
On May 21, 2010, the Commission submitted its Brief in response to the issues raised
in the Complainants’ Motion dated May 10, 2010. That same day, counsel for the
Respondent advised by email that the Respondent would not be filing a written submission
in respect of the May 28, 2010 Motion and agreed with the written submissions filed by the
Commission.
As indicated above, a series of correspondence was exchanged between the parties

on May 26 and May 27, 2010, and was admitted at the hearing by agreement of the parties
for information purposes only.
22
In the first of those letters, dated May 26, 2010 (Ex. 16), the Chairperson of the
Commission advised each of the Complainants that the Board of Commissioners had
considered their respective Complaints and determined that the offer of settlement made
by the Respondent on March 16, 2010 was reasonable, on the condition that only the
Complainant in each case and Ms Pollock would be required to sign a release and that the
release would cover only the allegations contained in their respective Complaints. The
letters went on to state that:
If the Respondent does accept the condition, the Commission will advise you
and the Adjudicator that it has terminated the proceedings under s 29(2)(b) of
the Code and will give you a reasonable period of time to decide whether you
wish to accept the offer.
By letters dated May 27, 2010 (Ex. 17), Ms Lugtig advised each Complainant that the
Respondent had accepted the condition described in the letter of May 26, 2010. The letters
went on to state:
Please advise me by June 18, 2010, whether you accept the offer as revised
by this condition. If you require additional time to respond, please also advise
me of this and the reason by that date. If you do not accept the offer or if I do
not hear from you by the above-noted date, the Commission will be closing its
file.
On May 27, 2010, counsel for the Respondent advised by email (Ex. 18) that she did
not plan to attend the hearing on May 28 regarding the outstanding motions by the
Complainants and that
In light of the decision of the Board of Commissioners to terminate the

complaints, it would appear that the only issue outstanding is the
complainants’ functus argument. I am confident that Ms. Lugtig will make
able submissions on behalf of the Commission on that score, and I doubt that
I would be able to add much, if anything, for your consideration.
On May 27, 2010, Ms Lugtig forwarded a letter from the Executive Director of the
Commission to the Board of Adjudication (Ex. 19), by email and courier, with copies to all
parties, stating that the Commission would be asking that the letter be added to the record
for the hearing on May 28. In that letter, the Executive Director stated as follows:
I am writing to advise you that the proceedings in the above-mentioned

complaints have been terminated by the Board of Commissioners in
accordance with subsection 29(2)(b) of The Human Rights Code. As a result,
the complaints will not be proceeding to an adjudication and our files will be
closed.
23
The hearing commenced on May 28, 2010. Each of the Complainants, with the
exception of Ms Kinvig, attended the hearing in person and made submissions. Ms Kinvig
attended the hearing by conference call and made submissions. Ms Lugtig appeared and
made submissions on behalf of the Commission. No one appeared for the Respondent.
As stated previously, there was a considerable amount of discussion at the beginning

of the hearing with respect to the exchange of correspondence on May 26 and 27, 2010, and
in particular with respect to the June 18 deadline referred to in Exhibit 17 and the reference
to the Commission closing its file. I understand that the parties ultimately agreed to an
extension of the time within which each Complainant was to advise as to whether he or she
accepted the offer, as revised, until two weeks after the decision on this Motion. The
hearing of the preliminary motions then proceeded.
Issues
A number of issues were raised by the Complainants in their Notice of Motion to be dealt
with on a preliminary basis, and may be stated as follows:
1. Does clause 29(2)(b) of the Code require, or alternatively allow, the

Commission to terminate all proceedings respecting a complaint including
the adjudication of the complaint, where the respondent makes an offer of
settlement which the Commission considers reasonable after the
complaint has been referred for adjudication?
2. If not, and the Commission decides to withdraw from the proceedings, can
the adjudicator require the Commission to continue as a party to the
adjudication?
3. If not, can the adjudicator order the Government of Manitoba to fund or

provide legal counsel to the Complainants for the adjudication of their
Complaints, at no cost to them?
4. Is the Commission required to pay Ms Kinvig’s expenses for attending and

participating at the hearing of the Complaints?
5. Should the Pollock and Gordon Complaints be amended to include

allegations of reprisal?
6. Can Mr. Gordon act as the unpaid agent of Ms Renard in the adjudication?
24
A variety of procedural issues were also raised by one or more of the

Complainants relating to various accommodations for the setting of hearing dates and the
needs of the parties and their witnesses in connection with the adjudication. Finally, the
Complainants refer in their Notice of Motion to sections 7 and 15(1) of the Canadian
Charter of Rights and Freedoms (the “Charter,”) and whether their rights under those
sections have been or are being contravened.
1. Does clause 29(Z)(b) of the Code require, or alternatively allow, the

Commission to terminate all proceedings respecting a complaint, including
the adjudication of the complaint, where the respondent makes an offer of
settlement which the Commission considers reasonable after the complaint
has been referred for adjudication?
To assist in understanding what follows, section 29 of the Code is set out below in
its entirety.
Dismissal of complaint
29(1) The Commission shall dismiss a complaint if it is satisfied that
(a) the complaint is frivolous or vexatious; or

(b) the acts or omissions described in the complaint do not
contravene this Code; or
(c) the evidence in support of the complaint is insufficient to
substantiate the alleged contravention of this Code.
Settlement of complaint
29(2) Where the Commission does not dismiss a complaint under subsection
(1), it may cause mediation to be undertaken between the complainant and
respondent in an attempt to settle the complaint, and
(a) if the complaint is settled on terms satisfactory to the

complainant and respondent, the Commission shall terminate its
proceedings in respect of the complaint in accordance with the
settlement; or
(b) if the respondent proposes an offer of settlement that the
Commission considers reasonable but the complainant rejects, the
Commission shall terminate its proceedings in respect of the
complaint.
25
Adjudication or prosecution
29(3) Where a complaint is not disposed of in accordance with subsection (1)

or (2) and the Commission is satisfied that additional proceedings in respect
of the complaint would further the objectives of this Code or assist the
Commission in discharging its responsibilities under this Code, the
Commission shall
(a) request the minister to designate a member of the adjudication

panel to adjudicate the complaint; or
(b) recommend that the minister commence a prosecution for an
alleged contravention of the Code.
Termination of proceedings
29(4) Where a complaint is not disposed of in accordance with subsection (1)

or (2) and the Commission does not proceed under clause (3)(a) or (b), the
Commission shall terminate its proceedings in respect of the complaint
Position of the Complainants
The Complainants’ position is that the Commission may not consider more offers
from the Respondent after the matter has been referred to an adjudicator. Under section
26 of the Code, the Commission is to investigate a complaint to the extent it regards “as
sufficient for fairly and properly disposing of it in accordance with section 29”. Relying on
dictionary definitions and various court decisions, the Complainants submitted that
“disposing of” a complaint must be interpreted broadly to mean exercising finally one’s
power of control over, or dealing conclusively with, the complaint. The Commission
referred the Complaints to mediation under subsection 29(2) of the Code and had
the right to consider the Respondent’s original offer of settlement. It did so, and rejected
it. The Commission then disposed of the Complaints in accordance with clause 29(3)(a) of
the Code, by asking the minister to designate members of the adjudication panel to
adjudicate the Complaints.
Having disposed of the Complaints under clause 29(3)(a), the Commission is functus
officio; it has no authority to reopen that disposition or to reopen clause 29(2)(b) to
consider other offers by the Respondent. The leading case in Canada on functus officio with
respect to administrative tribunals is Chandler v. Alberta Association of Architects, 1989
CanLII 41 (SCC), [1989] 2 S.C.R. 848 (“Chandler”), where the Supreme Court of Canada said
that the principle of functus officio is not to be as strictly applied to administrative tribunals
as to courts, and identified exceptions to that principle. None of those exceptions exist here.
The Commission made a choice to dispose of these matters as it did, and no one has argued
that it acted wrongly or improperly in doing so or that there was a lack of natural justice.
None of the cases allow for an exception in these circumstances.
26
The statute is very clear, There is no ambiguity and no need to interpret it. The
Complaints are now in the hands of the adjudicator. The Commission has absolutely no
adjudicative duties left. In accordance with section 34 of the Code, the Commission is now
only a party to the adjudication.
The Complainants also raised issues of bias and fairness. They submitted that there
is true bias in these circumstances, that the Commission’s position that it can be a party in
the adjudication, for and against the Complainants on different issues, and still be a judge
of the matter in clause 29(2)(b) is untenable. In the Complainants’ submission, the
appearance of bias would be assumed by reasonable members of the public. The
Complainants (as parties) have a right to oppose actions of the Commission (as a party)
without having to worry that the Commission (acting in a judge like function) will
terminate the Complaints, or withdraw from the adjudication, and leave the Complainants
stranded with no funding to complete the adjudication.
The Commission and the Complainants are supposed to be “on the same team”, and
it is not fair for the Commission to all of a sudden become an adversary when a point of
jurisdiction is raised, and to then terminate the Complaints. It is important that the
Commission be “on board” to assist in advancing these matters through the adjudication,
as it would be much more difficult for the Complainants to proceed on their own.
Position of the Commission
The Commission’s position is that this issue basically involves a question of statutory
interpretation. It is not a simple question and has not been dealt with by the courts or
adjudicators in Manitoba. The Commission cautioned against the Complainants’ approach,
which focuses on the wording in the statute and does not appreciate that Canadian courts
apply the modern principle of statutory interpretation. The modern approach requires a
more contextual and purposive interpretation of statutory provisions. Applying that
approach, it is clear that the legislature intended clause 29(2)(b) to apply both before and
after a complaint has been referred to an adjudicator.
Counsel for the Commission submitted that to understand clause 29(2)(b), the
overall scheme of the Code, the human rights complaint process and the Commission’s and
adjudicators’ roles in the process must be considered. The Commission is the provincial
regulatory agency constituted under the Code that is responsible for the enforcement
of human rights and the prevention of discriminatory practices. Section 29, when read as a
whole, indicates that the Commission’s proceedings, which must be terminated if faced
with a reasonable offer from the respondent, are intended to include adjudications once a
referral has been made to an adjudicator. The process under section 29 includes a series of
decisions that the Commission may take in disposing of a complaint.
27
It is complicated and multi-faceted, but works well and assists the Commission in fulfilling
its responsibilities. Under subsection 29(3), the Commission refers a complaint to
adjudication as long as this will further the fulfillment of its responsibilities. Subsection
29(3) describes an adjudication as “additional proceedings in respect of the complaint”, to
“assist the Commission in discharging its responsibilities under this Code”. (Commission’s
emphasis) Nothing in the Code indicates that the Commission’s proceedings are intended
to exclude adjudications.
It was submitted that other sections, such as section 39, which refer to the duty of an
adjudicator to conduct a hearing, cannot mean that the legislature intended the
adjudicator to hold a hearing on the merits of the complaint in every case. Moreover, the
adjudicator’s jurisdiction under that section and under section 42 is expressly limited by
the other sections of the Code, which would include clause 29(2)(b).
With respect to the principle of functus officio, the Commission submitted that
Canadian courts do not apply that principle strictly to administrative agencies and
tribunals. In other jurisdictions with similar statutory schemes, courts have ruled that
a human rights commission may reconsider a decision disposing of
a human rights complaint to ensure justice to the parties or otherwise properly fulfill its
responsibilities under its enabling legislation. The jurisdiction is an equitable one that
overrides a strict application of the functus officio doctrine and does not require express
authority in the enabling legislation. Commission counsel acknowledged that a different
result had been reached in a couple of decisions, but argued that those decisions are
distinguishable based on, among other things, differences in the relevant statutes.
The Commission submitted that the Complainants have not properly articulated the
relevant test for bias. The Complainants’ allegation is one of institutional bias. The test
therefore is whether a well-informed person, viewing the matter realistically and
practically, would have a reasonable apprehension of bias in a substantial number of cases.
The Complainants have not met that test. They have misconceived the Commission’s role
at an adjudication, where it does not participate as a party in its own interest but rather in
the public’s interest, with a view to ensuring that the objectives of the Code and its
responsibilities under the Code are fulfilled.
The Commission also referred to the historical context as supporting its

interpretation that clause 29(2)(b) applies at the adjudication stage. There was no authority
in the former Act to terminate proceedings based on a reasonable but rejected offer, nor
were the provisions conferring jurisdiction on the board of adjudication made subject to
the other provisions of that Act. While the Legislative Debates did not specifically address
the intention behind clause 29(2)(b), they indicated the values underlying the new
legislation, as shared values of fairness and equality and the rejection of discrimination in
a democratic society, and noted that new provisions were also included to strengthen the
fairness of the legislation.
28
Clause 29(2)(b) was evidently among the new provisions aimed at increasing
fairness. The Complainants’ approach, however, would allow complainants to force a
hearing to proceed in the face of a reasonable settlement offer from the respondent. This
would seem unfair to the respondent and disregard the public’s interest in a fair and
efficient human rights enforcement system. Unlike in some jurisdictions, an adjudicator in
Manitoba has no jurisdiction to terminate the adjudication on the basis of a reasonable
offer by the respondent. Only the Commission is entrusted with this function, which is
exceedingly important and must not be limited unnecessarily.
The Commission concluded that the Complainants’ approach seriously undermines

the legislature’s objective with little added benefit for complainants or for the public’s
interest in remedying and preventing discrimination, while the Commission’s approach
achieves a much more effective balance of the legislature’s objectives of remedying and
preventing discrimination, educating Manitobans about their rights and responsibilities
under the Code, and ensuring fairness in its enforcement.
The Commission therefore requested a ruling that an adjudicator under

the Code may not continue an adjudication if the Commission has terminated
proceedings under clause 29(2)(b), adding that this is the only result that accords with the
wording of the provision read in light of its legislative and historical context and the
expressed intentions of the legislature.
Discussion and Analysis
The Supreme Court of Canada has clearly stated that legislation must be interpreted
in accordance with the “modern principle” of statutory interpretation. That principle, as
set out in Driedger’s Construction of Statutes (2 ed., 1983) and quoted by the Supreme
Court in Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30
(CanLII) (“Vaid”), at paragraph 80, states as follows:
Today there is only one principle or approach, namely, the words of an Act
are to be read in their entire context and in their grammatical and ordinary
sense harmoniously with the scheme of the Act, the object of the Act, and
the intention of Parliament.
In Vaid, the Court added that this approach is reinforced by section 12 of the
federal Interpretation Act. The Manitoba equivalent of that section is section
6 of The Interpretation Act, C.C.S.M. c. 180, which states that “[e]very Act and regulation
must be interpreted as being remedial and must be given the fair, large and liberal
interpretation that best ensures the attainment of its objects.” The Court went on in Vaid to
state that “[s]uch interpretative principles apply with special force in the application
of human rights laws.”
29
This approach to statutory interpretation does not, of course, permit

rewriting or ignoring the words of the legislation. The legislation must be
given a liberal and purposive interpretation, without reading limiting words
out of the statute or circumventing the intention of the legislature.
Under the Code, the Commission is responsible for accepting and investigating
complaints and “disposing of” them in accordance with section 29. Subsection 22(1) thus
provides that any person may file a complaint with the Commission alleging that another
person has contravened the Code. Section 26 states that as soon as reasonably possible, the
complaint must be investigated “to the extent the Commission regards as sufficient for
fairly and properly disposing of it in accordance with section 29.” Under section 28, the
complainant and the respondent have a right to be informed of, and to respond to, the
findings of the investigation after it has been completed and “prior to disposition of the
complaint in accordance with section 29”.
Section 29 then sets out a series of steps which the Commission must or may take
in disposing of a complaint once its investigation has been completed. Subsection 29(1)
provides that the Commission must dismiss a complaint in certain threshold
circumstances, i.e., where it is satisfied that the complaint is frivolous or vexatious, fails to
identify a contravention of the Code or is based on insufficient evidence. Subsection
29(2) provides that where the Commission does not dismiss a complaint under subsection
(1), it may cause mediation to be undertaken in an attempt to settle the complaint and must
“terminate its proceedings in respect of the complaint’ if the complaint is settled on terms
satisfactory to the complainant and respondent (clause 29(2)(a)) or if the respondent
proposes an offer of settlement that the Commission considers reasonable but the
complainant rejects (clause 29(2)(b)). Subsection 29(3) provides that where “a complaint is
not disposed of in accordance with subsection (1) or (2) and the Commission is satisfied
that additional proceedings in respect of the complaint would further the objectives of
the Code or assist the Commission in discharging its responsibilities under the Code”, the
Commission must “request the minister to designate a member of the adjudication panel
to adjudicate the complaint” (clause 29(3)(a)) or recommend that the minister commence
a prosecution (clause 29(3)(b)). Where a complaint is not disposed of in accordance with
subsection (1) or (2) and the Commission does not proceed under subsection (3), the
Commission must terminate its proceedings in respect of the complaint, pursuant
to subsection 29(4).
Subsection 32(1) provides that as soon as reasonably possible after receiving a request
from the Commission under clause 29(3)(a), the minister is required to designate a member
of the adjudication panel “to hold a hearing and decide the validity of the complaint”.
Under subsection 39(1), the adjudicator must then “convene and complete the hearing
without undue delay”.
30
In this instance, the Commission did not dismiss any of the Complaints on a
threshold basis under subsection 29(1). It referred them to mediation. Having done so, it
did not subsequently terminate them under subsection 29(2) based on a settlement or the
settlement offer originally made by the Respondent. It therefore proceeded to the next step,
and under clause 29(3)(a), requested the designation of adjudicators to adjudicate each of
the Complaints. Adjudicators were accordingly designated by the Minister of Justice. There
would appear to be no dispute that the Commissions requests for the designation of
adjudicators constituted a disposition in accordance with section 29. What is in dispute is
the nature or effect of such a disposition.
The Complainants placed considerable reliance on the principle of functus

officio, arguing that the Commission’s disposition of the Complaints was final, that it had
no authority to reopen or revisit that decision. The Commission responded that functus
officio is applied less strictly to administrative agencies and tribunals, and that
a human rights commission may reconsider a decision disposing of
a human rights complaint to ensure justice to the parties or otherwise properly fulfill its
responsibilities under its enabling legislation, without express authority to do so in the
enabling legislation.
The Supreme Court of Canada has drawn a distinction between the application
of functus officio to the final decision of a court, which is based on a reluctance to amend
or reopen formal judgments, and the application of that principle before administrative
tribunals, which is based on the policy ground favouring finality of proceedings.
In Chandler, supra, at pages 861 to 862 (S.C.R.), Mr. Justice Sopinka stated that:
…there is a sound policy reason for recognizing the finality of proceedings

before administrative tribunals. As a general rule, once such a tribunal has
reached a final decision in respect to the matter that is before it in accordance
with its enabling statute, that decision cannot be revisited because the tribunal
has changed its mind, made an error within jurisdiction or because there has
been a change of circumstances, it can only do so if authorized by statute or if
there has been a slip [in drawing up the decision] or error [in expressing the
manifest intention]…
To this extent, the principle of functus officio applies. It is based, however, on

the policy ground which favours finality of proceedings rather than the rule
which was developed with respect to formal judgments of a court whose
decision was subject to a full appeal. For this reason I am of the opinion that
its application must be more flexible and less formalistic in respect to the
decisions of administrative tribunals which are subject to appeal only on a
point of law. Justice may require the reopening of administrative proceedings
in order to provide relief which would otherwise be available on appeal.
31
Accordingly, the principle should not be strictly applied where there are
indications in the enabling statute that a decision can be reopened in order
to enable the tribunal to discharge the function committed to it by enabling
legislation.
…
Furthermore, if the tribunal has failed to dispose of an issue which is fairly

raised by the proceedings and of which the tribunal is empowered by its
enabling statute to dispose, it ought to be allowed to complete its statutory
task. If however, the administrative entity is empowered to dispose of a matter
by one or more specified remedies or by alternative remedies, the fact that one
is selected does not entitle it to reopen proceedings to make another or further
selection. Nor will reserving the right to do so preserve the continuing
jurisdiction of the tribunal unless a power to make provisional or interim
orders has been conferred on it by statute….
(Emphasis added)
Chandler and the principle of functus officio were referred to in

several human rights decisions which were filed by the Commission. In support of its
position, the Commission relied on the decisions in Zutter v. British Columbia (Council
of Human Rights), 1995 CanLII 1234 (BC CA), [1995] B.C.J. No. 626
(C.A.) (“Zutter,”), application for leave to appeal dismissed, [1995] S.C.C.A. No. 243,
and Kleysen Transport Ltd. v. Hunter, 2004 FC 1413 (CanLII) (T.D.) (“Kleysen”).
In Zutter, the issue was whether the British Columbia Council of Human Rights had
the jurisdiction to re-open a complaint which had been discontinued under
B.C.’s Human Rights Act. In the course of the investigation into that complaint, Zutter
instructed his solicitor to file a written response to the investigation report. The council
decided to discontinue the complaint. Zutter was not notified of the decision until two
months later, at which time he discovered that the council had not received any written
response from his solicitor. The council denied two requests to re-open the matter, stating
that it did not have the statutory authority to reconsider its decision and that the required
standard of procedural fairness had been met.
An appeal was ultimately taken to the B.C. Court of Appeal, which found that
“nothing which the law recognized as a breach of procedural fairness arose as a result of
the unfortunate series of events which ultimately deprived Zutter of the opportunity to
present evidence and make submissions”, but that from the point of view of Zutter and of
any reasonable person the result to him was clearly unfair. The Court recognized the broad
purposes of human rights legislation and stated that “it would be an unfortunate irony if
the Council, whose very existence and remedial purpose is characterized by the
fundamental values of fairness and justice, nonetheless lacked the jurisdiction to remedy
that unfairness.” (para. 23)
32
One of the arguments advanced by the respondents in Zutter was based on section 15 of the
B.C. Act, which provided, in part, that “where proceedings are discontinued or the
complaint is dismissed, no further proceedings under this Act shall be taken in relation to
the subject matter of the discontinued proceedings or the dismissed complaint”. The Court
found that it seemed appropriate to confine the scope of the prohibition in section 15 “to
new or fresh proceedings, i.e. further complaints, brought in respect of the same ‘subject
matter’, rather than to construe it as additionally stifling the power to reconsider a decision
or order made in the same proceedings, where it appears . . . that considerations relating to
the fairness of those very proceedings requires some reconsideration” (emphasis added). The
Court stated that when section 15 is so interpreted, there is sufficient indication in the Act
that such a decision or order can be re-opened when, in the opinion of the council which
made it, the interests of justice and fairness in relation to the proceedings themselves
require the re-opening. The Court went on to state that while this jurisdiction would not
be subservient to the policy of functus officio, that policy would govern the manner in
which the jurisdiction to reconsider was exercised by the council, thereby ensuring its
restrictive application, just as the power of the Court to admit fresh evidence is carefully
and restrictively exercised in deference to the same policy: The Court concluded, therefore,
that the council had jurisdiction to reconsider its decision to discontinue Zutter’s
complaints “in the circumstances of this case”.
In Kleysen, the Canadian Human Rights Commission had accepted the

investigator’s recommendation and dismissed Mr. Hunter’s complaint. In doing so
however, it had failed to consider written submissions filed by Mr. Hunter. The commission
subsequently reconsidered the complaint, and referred it to a conciliator. After conciliation
failed, it referred the complaint to a tribunal for a hearing.
On judicial review, Kleysen argued that the commission made a final decision in
dismissing the complaint, and had no authority to reconsider or to make any of the
subsequent decisions relating to it. The Federal Court found that although there was
nothing specific in the Canadian Human Rights Act that gave the commission the power to
reconsider its decisions, the commission had a “very broad discretion to screen and process
complaints” (para. 8). The Court concluded that considering its role and function and its
wide discretion over the handling of complaints, the commission had “the power to
reconsider a complaint in order to be fair to the parties before it.” (para. 13) The commission
therefore had the power to reconsider its decision to dismiss the complaint.
Kleysen further argued that if the commission had the power to reconsider a
decision, the commission had to treat the parties fairly when doing so, and that it had not
been treated fairly. The Court identified a number of serious problems, including that the
commission’s subsequent decision to refer the complaint to a tribunal was made on the
basis of an incomplete record, as it did not have before it some of the materials it had
previously considered. In addition, the commission had before it confidential information
from the conciliation process which it should not have had. The Court concluded that
Kleysen had in fact been treated unfairly and returned the matter to the commission for
reconsideration based on the record that should have been before it.
33
In my view, the Zutter and K!eysen decisions involve significantly different factual
situations, and are distinguishable from the instant case.
Among other things, both Zutter and Kleysen involved the reconsideration of
previous decisions where the fairness of those previous decisions was at issue. In those
cases, the previous decisions had been made based on an incomplete record or in the
absence of evidence and for submissions.
That is not the situation in this case. The Commission made it clear in its submission
that what is involved here is not a reconsideration of its original decision, where it
concluded that the Respondent’s settlement proposal was unacceptable and determined
that the matter be referred to an adjudicator, but a subsequent decision based on a new
settlement proposal from the Respondent.
As indicated above, the Commission provided two decisions in which the courts
reached a different result than in Zutter and Kieysen, but submitted that these decisions
ought not to be relied upon.
The first of these decisions was that of the Ontario Court of Appeal in Mckenzie
Forest Products Inc. v. Ontario Human Rights Commission and Tilberg, 2000 CanLII 5702
(ON CA), 2000 O.J. No. 1318 (C.A.) (“Tilberg”), leave to appeal refused [2000] S.C.C.A. No.
285. In that case, the Ontario Human Rights Commission had referred Mr. Tilberg’s
complaint of discrimination to a board of inquiry. A mediation was held, and a second
mediation date was scheduled. Prior to that date, the commission informed the board of
inquiry, the complainant and the respondent that it had decided that it would “no longer
participate” in the hearing before the board, and that Mr. Tilberg was aware of his right to
proceed with the matter on his own. The respondent moved before the board of inquiry for
an order dismissing Mr. Tilberg’s complaint on the basis that the commission had
withdrawn and “relinquished carriage of the matters” leaving the board of inquiry “without
jurisdiction to entertain the matters”. The board of inquiry ruled that it had retained
jurisdiction and would continue with the hearing of the complaint.
An application by the respondent for judicial review was granted, and there was an
appeal from that decision to the Ontario Court of Appeal. In its decision, the Court of
Appeal found that:
1. The complainant has an independent status as a party before the board of
inquiry. The legislation does not establish a hierarchy of interests in its
protection of human rights; it seeks to protect both the interests of a
complainant and those of society as a whole;
34
2. Once the commission exercises its discretion to refer a complaint to the board
of inquiry, its role fundamentally changes. It no longer acts as an investigative
and screening body, but becomes part of the proceeding. The determination
of the complaint then becomes the responsibility of the board of inquiry. The
commission has a responsibility to advocate its view of the public interest,
and may also advocate for the interests of the complainant. Its role as a party
to the proceeding cannot derogate from the independent status of a
complainant;
3. A board of inquiry is an autonomous tribunal which is not only independent

but must also appear to be independent;
4. The board of inquiry did not lose its jurisdiction to continue with the hearing
of the complaint when the commission decided not to participate further in
the proceedings. Once a complaint has been referred to the board of inquiry,
there is no provision in the Code which limits the board’s obligation to
conduct a hearing into a complaint. It is not unreasonable for the
commission to withdraw from participating in the hearing when its public
interest mandate has been satisfied. The commission’s having “carriage of the
complaint” should relate to procedure and not to substantive rights. An
interpretation of the Code that would not allow the complainant to proceed
in the absence of the commission is inconsistent with both the independent
party status accorded the complainant in the proceedings and the board of
inquiry’s independent status and duty to hold a hearing.
The Court of Appeal therefore allowed the appeal and sent the matter back to the
board of inquiry for a further hearing.
The other decision referred to by the Commission was Canadian Museum of

Civilization Corporation v. Public Service Alliance of Canada, 2006 FC
703 (CanLII) (T.D.) (“CMCC’). In that case, following investigation and a failure to reach a
settlement by conciliation, the Canadian Human Rights Commission referred a complaint
by the Public Service Alliance of Canada (“PSAC”) to the Canadian Human Rights Tribunal.
On reviewing additional materials and the report of a new expert retained by the
commission, the commission concluded that the evidence did not support the complaint
and stated that it would not be seeking any remedy before the tribunal. The respondent
requested that the commission immediately withdraw the complaint from the tribunal,
and brought an application for judicial review, challenging the commission’s refusal to do
so.
35
The Federal Court found that in order to overcome the principle of functus
officio, the respondent would have to show a clear statutory power for the commission to
withdraw the complaint following referral. The commission’s final decision was to refer the
matter to the tribunal. Subject to judicial review quashing that decision or statutory
authority permitting the commission to reconsider its decision, the commission
was functus with respect to making a decision in the performance of its screening role
under the Act. The principle of functus officio and the lack of a statutory power to
reconsider a referral decision negated the submission that the commission should have
decided again, after referral, whether the evidence was sufficient to warrant a continuation
of the tribunal inquiry. It also undercut the notion that the commission has a “continuing
duty” to screen complaints after referral.
Further, even if the commission were to withdraw itself as a party in that case, PSAC
could continue to push forward with its complaint. Finding that the commission could
unilaterally withdraw the complaint would clearly interfere with PSAC’s right to pursue its
own interests as a party before the tribunal. It was PSAC’s, not the commission’s, complaint.
The Court concluded that under the Canadian Human Rights Act, the commission does
not have the statutory authority to unilaterally withdraw a complaint that is before the
tribunal, nor an obligation to do so.
In my view, the circumstances in the Tilberg and CMCC cases more closely resemble
those in the instant case. In those cases, after complaints had been referred to adjudication,
the human rights commission decided not to participate in the hearing or seek any remedy
before the tribunal. In both cases, it was found that the human rights commission was
neither obliged nor entitled under the applicable legislation to withdraw a complaint which
had been referred to adjudication, and that the respective tribunals had jurisdiction to
continue with the hearing .of the complaints after the commissions had decided to
withdraw from the adjudication.
In Manitoba, pursuant to subsection 2(1) of the Code, the Commission is continued

“as an independent agency with the responsibilities assigned to it under this Code and any
other Act of the Legislature.” The Commission is a statutory body. As such, it has only such
jurisdiction as is conferred on it by statute. It may not exercise authority not specifically
assigned to it.
There is no wording in section 29 or any other provision of the Code which expressly
requires or authorizes the Commission to terminate or dismiss a complaint after it has been
referred to adjudication.
Nor, in my view, does section 29, read in its entirety and in the context of the other
provisions and the scheme and purpose of the Code, indicate that the legislature intended
that the Commission would retain any authority under clause 29(2)(b) (i.e., that it would
be required or authorized to unilaterally terminate or dismiss a complaint under that
clause) after the complaint had been referred to adjudication under subsection 29(3).
36
In my view, section 29 sets out a series or sequence of steps to be taken by the

Commission as it moves forward in processing a complaint. I do not understand that
section to indicate in any way that the Commission can go backwards, and revisit or
reconsider a decision or disposition that it has made under a previous subsection, once it
has moved on to the next step in the process.
Thus, for example, subsection 29(1) provides for the dismissal of a complaint on
various threshold grounds. Subsection 29(2) provides that “[w]here the Commission does
not dismiss a complaint under subsection (1)”, it may cause mediation to be undertaken . .
. .“ It would not make sense, in my view, to interpret the wording of subsection 29(2) as in
some way leaving it open for the Commission to go back and dismiss a complaint on
threshold grounds under subsection (1) (such as on the grounds that it is frivolous and
vexatious), once it has caused mediation to be undertaken. To refer a complaint to
mediation, while retaining the option of dismissing it on threshold grounds, would not only
be contrary to the interests of the persons involved and the public, but also a waste of
resources, and cannot be what was intended. The opening wording of subsections 29(3)
and (4) is similar to that in subsection (2), and in my view, must similarly be interpreted as
indicating that the Commission has no authority to go back and rely on previous
subsections, and in particular to go back and terminate a complaint under clause 29(2)(b),
once it has referred the complaint to adjudication under clause 29(3)(a).
The Commission has submitted, however, that section 29, when read as a whole,
indicates that the Commission’s proceedings are intended to include adjudications. I do
not agree.
Clause 29(2)(b) refers to the Commission terminating ‘its proceedings” in respect of

a complaint, as follows:
…if the respondent proposes an offer of settlement that the Commission

considers reasonable but the complainant rejects, the Commission shall
terminate its proceedings in respect of the complaint.
(Emphasis added)
Subsection 29(3) refers to “additional proceedings” in respect of the complaint, and

reads:
29(3) Where a complaint is not disposed of in accordance with subsection (1) or (2) and the
Commission is satisfied that additional proceedings in respect of the complaint would
further the objectives of this Code or assist the Commission in discharging its
responsibilities under this Code, the Commission shall
37
(a) request the minister to designate a member of the adjudication panel

to adjudicate the complaint; or
(b) recommend that the minister commence a prosecution for an alleged
contravention of the Code.
(Emphasis added)
In my view, the phrase “additional proceedings” in subsection 29(3), consisting of

either an adjudication or prosecution, refers to other proceedings, which are, and are
intended to be, separate and distinct from the “Commission’s proceedings”.
I note that the Commission asserted that the adjudication is described in subsection
29(3) as additional proceedings to “assist the Commission in discharging its
responsibilities”. That latter phrase, however, is preceded by the word “or”, and more fully
refers to additional proceedings which “would further the objectives of this Code or assist
the Commission in discharging its responsibilities under this Code” (emphasis added). The
Commission has a number of different responsibilities under the Code, and I do not believe
that such general wording is in any way intended to indicate that the particular duties or
responsibilities assigned to the Commission under section 29 would continue to apply or
could be revisited after the Commission has disposed of the complaints under that section.
It is not a matter, as the Commission suggested in its written Brief, of whether

the Code indicates that the Commission’s proceedings are intended
to exclude adjudications. Rather, it is whether the Code indicates that the Commission’s
proceedings are intended to include adjudications. In my view, it does not. Much stronger
or more specific wording would be required if that was what the legislature intended.
Adjudications (and presumably also prosecutions) are not simply there to assist the
Commission or to be used by the Commission as it sees fit. In other words, I do not agree
that this wording indicates that the legislature intended that an adjudication (or
prosecution) would be included as part of, or subordinated to, the Commission’s
proceedings.
Nor, in my view, do other sections of the Code support such an interpretation

of section 29 of the Code.
In this regard, subsection 32(1) requires the minister, on receiving a request under
clause 29(3)(b), to designate an adjudicator to hear and determine the validity of the
complaint. Subsection 39(1) requires the adjudicator to convene and complete the hearing
of the complaint. These provisions are mandatory. There is nothing in these sections (or in
any other provisions or wording in the Code) which limits the adjudicator’s power or
responsibility to hear and decide the complaint by making it subject to section 29 of
the Code.
38
Adjudicators are members of the adjudication panel who have been appointed
to that panel by the Lieutenant Governor in Council under section 8 of
the Code. Subsection 8(2) of the Code expressly states that members of the Commission are
ineligible to be appointed to the adjudication panel. Subsection 32(3) prohibits the minister
from designating a member of the adjudication panel to adjudicate a complaint if that
member has participated in any capacity in the prior investigation or disposition of the
complaint. In my view, these provisions indicate a clear intention on the part of the
legislature that the investigative and adjudicative stages be kept separate, and that
adjudicators be and are to be seen to be independent of the Commission. There is nothing
in the Code which would indicate that the legislature intended that an adjudicator would
have anything less than a high degree of independence.
An interpretation of the Code which would allow the Commission to unilaterally

terminate the adjudication, at presumably any time prior to its completion, would be
inconsistent with the independent status and statutory duty of an adjudicator to adjudicate
the complaint.
Furthermore, section 34 of the Code expressly identifies who is to be a party to an

adjudication, as follows:
The parties to an adjudication under this Code are
(a) the Commission, which shall have carriage of the complaint

(b) the complainant;
(c) any person, other than the complainant named in the complaint and alleged
to have been dealt with in contravention of this Code;
(d) the respondent; and
(e) any other person added as a party under section 24 or section 40.
Pursuant to that section, not only the Commission, but also the complainant and
the respondent, are parties to the adjudication in their own right.
Subsection 39(4) further specifies that each of these parties is entitled to participate
in the hearing, and reads as follows:
The adjudicator shall give every party attending the hearing a full
opportunity to present evidence and make submissions, and to be
represented by counsel for those purposes.
39
Again, there is nothing to indicate or suggest that these rights are subject to
any continuing power of the Commission to terminate the adjudication under clause
29(2)(b) of the Code. An interpretation of the Code which would allow the Commission to
terminate the adjudication under clause 29(2)(b) over the objection of the complainants in
any case, would surely be inconsistent with the independent party status of the
complainants and their rights of participation at the hearing pursuant to sections
34 and 39(4) of the Code.
The functions which the Commission performs in terms of investigating complaints,

then “disposing of” them pursuant to section 29 of the Code, are the types of functions
which have been referred to in various authorities (including the Kleysen,
Tifberg and CMCC decisions) as screening or gatekeeper functions. The Commission is
obligated under the Code to accept and investigate complaints which are filed with it.
Having done so, it then screens the complaints under section 29, determining how they are
to be disposed of under that section, including whether they are to be referred to
adjudication or prosecution under subsection 29(3). In my view, in determining that a
complaint is to be referred to adjudication, the Commission makes a final determination
and disposition, the effect of which is that its role and responsibilities under section 29 are
thereby exhausted.
The complaints then move on to the adjudication stage. At that stage, under section
34, the Commission assumes the role and responsibilities of a party to the adjudication.
A number of other provisions and arguments were relied on and advanced by the
Commission as supporting its position on this issue.
It was thus submitted that the Commission is the agency responsible for the
enforcement of human rights and the prevention of discriminatory practices. No particular
provision of the Code was referred to in support of this submission. I do note
that subsection 6(1) states that the Commission is responsible to the Minister for the
administration of this Code, but also states that this is “[s]ubject to the powers and
responsibilities expressly vested in other authorities by this Code”. As indicated above, it
is my view that the power and responsibility for deciding the complaint are expressly vested
in the adjudicator once the complaint is referred to adjudication; the Commission’s
responsibility at that stage is as a party as set out in section 34.
40
The Commission also pointed to section 31 as supporting its position that the
proceedings referred to in section 29 are intended to indicate the overall processing of a
complaint under the Code. Section 31 provides that if the Commission determines that
either party to a settlement has failed to comply with the settlement terms,
“notwithstanding clause 29(2)(a)”, the Commission may reopen “the proceedings” and
proceed under section 29 as if no settlement had been reached. I do not agree that section
31 supports the Commission’s position. On the contrary, in my view, its reference to clause
29(2)(a) must be interpreted as referring to the settlement of a complaint before it has been
referred to adjudication, since reopening the proceedings and proceeding under section
29 would involve determining whether the complaint is to be referred for adjudication or
prosecution under subsection 29(3) or terminated under subsection 29(4).
Even if section 31 could be interpreted as applying to a settlement of a complaint

after it has been referred to adjudication, the fact that a specific provision was considered
necessary to allow the Commission to reopen proceedings in these particular
circumstances (i.e., after a complaint has been settled under clause 29(2)(a) but the
settlement has failed), and that this is the only such provision, indicates in my view that
the legislature did not intend that the Commission could revisit or reopen proceedings in
other circumstances where it has disposed of a complaint, and in particular, once it has
disposed of a complaint by referring it to the minister for the designation of an adjudicator
under clause 29(3)(a).
The Commission also argued that provisions such as section 39, which refer to the
duty of an adjudicator to conduct a hearing, cannot mean that the legislature intended that
the adjudicator must hold a hearing on the merits in every case which is referred to
adjudication. Otherwise, it was suggested, the parties could not agree to settle a complaint
and an adjudicator could not refuse to hear a complaint that gives rise to an abuse of
process or is outside the adjudicator’s jurisdiction.
The Commission’s position on this point, as I understand it, is that to interpret these
sections as requiring an adjudicator to hold a hearing on the merits in each case makes no
sense. The legislature must therefore have intended that the Commission would continue
to have jurisdiction to deal with such matters after a complaint has been referred to
adjudication, including to consider further settlement offers from a respondent.
41
In advancing this argument, the Commission appears to focus on particular

sections in isolation, without taking into account other provisions of the Code. Among
these is subsection 43(5), which provides that an adjudicator “may, at any time and with
the consent of the parties to the adjudication, make any order that the parties agree to, and
thereafter the parties are bound by the order.” Thus, for example, if all of the parties to an
adjudication agree to settle or withdraw a complaint, the adjudicator may presumably
make a consent order consistent with what the parties have agreed upon. As for a complaint
which gives rise to an abuse of process, I would expect that the answer to this might at least
partly lie in the gatekeeper functions performed by the Commission prior to the complaint
even being referred to adjudication, where cases would generally be screened out before
they are referred to the minister, and in the adjudicator’s power to control the procedures
to be used at the hearing. With respect to the issue of jurisdiction, an adjudicator cannot
hear and decide a matter which is beyond his or her jurisdiction. An issue as to whether a
matter is within the adjudicator’s jurisdiction or not can be dealt with at the beginning of
the hearing or, as in this case, on a preliminary basis.
In short, I do not interpret the Code as necessarily requiring an adjudicator to hold

a hearing on the merits in each case. In any event, even if the provisions of the Code were
interpreted as requiring a hearing on the merits in each case which is referred to
adjudication, I do not agree that such an interpretation would make no sense, or would be
a proper basis for inferring that the Commission must continue to have the power to
unilaterally settle a complaint under clause 29(2)(b).
The Commission has submitted that the adjudicator has no jurisdiction under
the Code to terminate the adjudication on the basis of a reasonable offer by a respondent
which is not acceptable to the complainant. That issue, of course, is not before me. I may
assume, without deciding, that that is the case. The Commission goes on to state that only
the Commission is entrusted with this very important role in our province, which is an
exceedingly important function and must not be limited unnecessarily. That does not
necessarily follow.
If the legislature considered it so exceedingly important for the Commission to

perform such a function after a complaint has been referred to adjudication, it would surely
have expressly said so. There is no provision which states that the Commission may or must
perform such a function at this stage of the proceedings. Further, I do not believe that such
jurisdiction on the part of the Commission can be inferred based on the adjudicator’s
presumed lack of jurisdiction in this regard. In my view, the legislature did not intend such
extraordinary relief to be available to the Commission at the adjudication stage. This is not
a matter of limiting the Commission’s role unnecessarily. Rather, it is my view that to
accept the Commission’s position on this point would be to expand its role in this regard
far beyond what the legislature provided and intended.
42
It was suggested that the Complainants’ approach would allow any complainant to
refuse to resolve a complaint and force the respondent, Commission and adjudicator to go
through the considerable time and expense of a public hearing, only to arrive at
approximately the same relief as had been offered, and that this not only seems quite unfair
to the respondent but also disregards the public’s interest in a fair and
efficient human rights enforcement system.
There is, however, nothing preventing a respondent from advancing whatever offer
or offers it may wish to make, and the Commission dealing with those offers under
subsection 29(2), at any time up until the Commission refers a complaint to the minister
under subsection 29(3). Presumably the same offer could be made prior to the complaint
being referred to the minister, and if it was found to be acceptable by the Commission but
not by the complainant, the Commission could then terminate its proceedings under clause
29(2)(b). I do not consider it particularly unfair for the process under clause 29(2)(b) to be
available only up until the time at which a complaint is referred for prosecution or
adjudication. Clause 29(2)(b) is an extraordinary provision. The timing of a settlement offer
by a respondent is within the respondent’s control. It is clear from the legislation that the
processing of complaints under the Code is intended to proceed expeditiously, The fact
that an offer could be dealt with in this way before a complaint is referred to adjudication,
but not thereafter, would seem to me to encourage timely and reasonable settlement
discussions on the part of both respondents and complainants. In my view, this would be
consistent with a fair and efficient human rights enforcement system.
The Commission submitted that the Code would not allow an adjudicator to award
costs to a respondent in these circumstances, as the threshold for an award of costs
under section 45 of the Code is high and would not encompass the refusal of a reasonable
offer per se. Assuming, without deciding, that this is the case, in my view, the fact that a
party to an adjudication may only be awarded costs in exceptional circumstances cannot
be relied on as an indication that the legislature intended that the Commission would have
the authority under clause 29(2)(b) to terminate a complaint where the complainant rejects
what the Commission considers to be a reasonable offer made after the complaint has been
referred to adjudication. It would seem at least as likely that it was intended to encourage
settlement discussions and the making of reasonable settlement proposals at an earlier
stage, before a complaint is referred to adjudication.
I appreciate that, for whatever reasons, it is not unusual for parties to be unable to
settle matters until shortly before a hearing. It would seem to me that it would still be open
to the parties to agree to settle a complaint after it has been referred to adjudication. At
that stage, however, a settlement would presumably be based on the agreement of all of
the affected parties.
43
I would add that the above comments with respect to timely and reasonable
settlement offers is in no way intended as a comment on what has transpired with respect
to these Complaints. As part of the Complainants’ submission at the hearing, Mr. Gordon
referred to the Time Response Comparison (Ex. 14) which he had prepared, comparing the
response times of the Respondent with those of the Complainants between the time when
the first of the Complaints was filed in December 2006 and May 2010. The Respondent was
not represented at the hearing, and while counsel for the Commission indicated that the
Commission was not there to defend the Respondent, she nevertheless added that the
Commission did not believe that the response times were unreasonable. The evidence
which was before me did not cover, and was not intended to cover, all that has happened
in respect of these Complaints since they were filed. I am not in a position to comment on
the response times of the parties in this case, and do not intend to do so.
The Commission has also referred to sections 39 and 42, submitting that by virtue
of those sections, the adjudicator’s jurisdiction is expressly limited by other sections of
the Code, including clause 29(2)(b). Subsection 39(2) relates to general procedures at the
hearing before the adjudicator. It states that “[s]ubject to this Code and the regulations, the
adjudicator may determine the procedures to be used at the hearing and may receive at the
hearing such evidence or other information as the adjudicator considers relevant . . . .” The
opening words (“subject to .. .”) indicate that where there is a potential conflict between
the adjudicator’s general powers to determine procedures and receive evidence and what
is set out in other provisions of the Code, the other provisions will prevail. Thus, for
example, the adjudicator must give every party attending the hearing a full opportunity to
present evidence and make submissions, and to be represented by counsel (subs. 39(4)),
and must have the proceedings recorded (subs. 39(5)). The adjudicator must also provide
appropriate interpretation services to a party or witness who is unable to understand all or
part of the proceedings (subs. 39(6)).
Section 42 deals with the decision of the adjudicator, and provides that “[s]ubject to
the other provisions of this Code, every adjudicator has exclusive jurisdiction and authority
to determine any question of fact, law, or mixed fact and law that must be decided in
completing the adjudication and in rendering a final decision respecting the complaint.”
The opening words of that section indicate that certain limits to the adjudicator’s decision-
making jurisdiction are set out in the Code. For example, the adjudicator must apply the
standard of a balance of probabilities in making a decision (subs. 43(1)), there is a limit on
the amount of exemplary damages which may be ordered (subs. 43(3)), a decision or order
generally may not require the removal of any person from an employment or occupation
or the expulsion of any occupant of housing accommodation (s. 44), and the adjudicator
generally may not order a party to pay some or all of the costs of another party (s. 45). A
party to an adjudication may also apply for judicial review of any order or decision of an
adjudicator on the grounds set out in subsection 50(1) of the Code.
44
Clause 29(2)(b), however, has nothing to do with procedure or evidence at

the hearing or with decisions made by the adjudicator at the hearing. In my view, there is
no potential conflict between that clause and sections 39 and 42, and I do not understand
the opening words of those sections to indicate in any way that clause 29(2)(b) was
intended to apply at the adjudication stage or that the adjudicator’s jurisdiction under
those sections is subject to or limited by clause 29(2)(b).
The Commission also referred to its Guidelines for Requests for Reconsideration of
Complaints (“Guidelines”), which it submitted reflect the approach
in Zutter and Kleysen and have never been overturned by a court or an adjudicator.
The Guidelines state, inter alia, that once the Board of Commissioners has made a decision,
“that decision must stand unless it can be shown by the complainant or the respondent
that there now exists new and different material information that was not available when
the original complaint was originally considered.” (Commission’s emphasis) As I
understand it, the Commission’s position is not that the Guidelines apply in this situation,
since reconsideration has not been raised. Rather, it is to show that even where a decision
is “final”, an agency or tribunal is not necessarily functus officio, as long as the statute allows
this. The Commission submitted that nothing in the Code indicates that any particular
decision by the Commission is to be its final decision or that the Commission
may not terminate the complaint proceedings under clause 29(2)(b) once the matter has
been referred for adjudication.
The Guidelines, which are from the Commission’s Policy and Procedures Manual,
reflect the Commission’s policy with respect to the reconsideration of its decisions. That
policy is not part of the statute, and I do not find it to be of assistance in addressing this
particular issue. Again, it is not a question of there being nothing in the Code to indicate
that the Commission may not terminate complaint proceedings under clause 29(2)(b) once
the complaint has been referred for adjudication. Rather, it is a question of whether there
is anything in the Code which indicates that the Commission may terminate complaint
proceedings under clause 29(2)(b) at this juncture. As stated previously, the powers of the
Commission, as a statutory body, must be found in the statute.
Finally, I note that in the October 16, 2009 letters to the Complainants and the
Respondent advising that the Board of Commissioners had determined that the matters be
referred to an adjudicator, the Commission indicated that if the Respondent made a further
settlement proposal, the matter could be brought back to the Commission to determine if
the offer was reasonable, and concluded:
Please note that if the respondent proposes an offer of settlement in the

adjudication process that the Commission considers reasonable but you
reject, the Commission must terminate its proceedings in respect of the
complaint pursuant to subsection 29(2) of The Code.
45
While this reflects the Commission’s position on this issue, the Commission has not
suggested, and properly so in my view, that it could rely on this letter to in some way reserve
jurisdiction to consider further offers.
In conclusion, I am not convinced that clause 29(2)(b) requires or allows the

Commission to terminate all proceedings respecting a complaint, and in particular the
adjudication of the complaint where, after the complaint has been referred for
adjudication, the respondent makes an offer of settlement which the Commission
considers reasonable but the complainant rejects.
I find that the disposition of a complaint under clause 29(3)(a) of

the Code constitutes a final decision and disposition under section 29, the result of which
is that the powers and responsibilities of the Commission under clause 29(2)(b) are thereby
exhausted.
I would add that there is no suggestion in this case that the Commission acted
unfairly in deciding to refer the Complaints to adjudication, or that there was any error or
slip which might entitle it to reopen or revisit its disposition of the Complaints.
Accordingly, having considered the evidence and material filed and argument
presented, I conclude that the Commission is functus officio in terms of its section 29
powers or functions and has no authority to reopen or revisit its disposition of the
Complaints or to unilaterally terminate the adjudication of the Complaints under clause
29(2)(b) of the Code.
2. If clause 29(2)(b) does not require, or allow the Commission to terminate all
proceedings, and the Commission decides to withdraw from the
proceedings, can the adjudicator require the Commission to continue as a
party to the adjudication?
The Complainants’ position is that the Commission’s refusal to participate in the

adjudication if the Complainants succeed in their functus officio motion is unfair and
punitive to them. In their submission, there is no good reason for the Commission to
abandon the adjudication. Their Complaints had to have merit in order to get to this stage.
46
The Complainants were complimentary of the work that the Commission had
done and how helpful the Commission had been up until the point of the Respondent’s
second offers. In their Notice of Motion, the Complainants seek an order finding that “it
would be unfair to the Complainants and against the intent and spirit of the Code for the
Commission to leave the complainants on their own at this point to argue the Complaint
in the adjudication hearing if the Commission is found functus officio in section 29(2)(b)”
of the Code. The remedy sought by the Complainants in their Brief is that, to the extent
that I may do so within my jurisdiction, “I suggest to the Commission that they have a duty
to participate in the adjudication . . .” The Complainants say that they are capable of doing
a fair job at the adjudication, but submit that it would be more difficult for them to do so
without the Commission’s help. They say that they cannot understand why this has become
so adversarial now that they are so close to the finishing line.
In its written submission, the Commission submitted that if I were to find that the
Commission could not terminate the adjudication proceedings and the Commission were
to conclude in the future that it was required to terminate proceedings under clause
29(2)(b), the Commission could and would withdraw from the proceedings. As indicated
above, the day before the hearing of these preliminary issues, the Commission advised that
the Board of Commissioners had terminated the proceedings in accordance with clause
29(2)(b) of the Code and that, as a result, the Complaints would not be proceeding to
adjudication and the Commission’s files would be closed.
The Commission relies on the Tilberg and CMCC cases in arguing that it is entitled
to withdraw from the proceedings. It says that as in those cases, a complainant in Manitoba
is an independent party to the adjudication, in addition to the Commission, and the
adjudicator has no statutory authority to stop the Commission from withdrawing. The
Commission states that it has taken this position and is defending its jurisdiction for
reasons of fairness, and in accordance with the objectives of the Code and its responsibility
to the public interest.
As indicated above, section 34 of the Code mandates that the Commission, the
complainant, any other person named in the complaint and allegedly dealt with in
contravention of the Code, the respondent, and any other person who is added as a party,
are all parties to the adjudication. Subsection 39(4) further mandates that each party has
the right to participate at the hearing and to be represented by their own counsel for those
purposes. Each party thus has a separate and independent status, and their own role to
play, at the adjudication.
47
The role of the complainant and the respondent as parties to the adjudication is
to advance or protect their own individual interests. The role of the Commission is
different. It is not there to advance its own interests. I agree with the Commission that its
role as a party to the adjudication is to represent and advance the public interest. The
different roles and functions to be performed by the various parties are consistent with the
objectives of the Code, which seeks to advance the interests of both the public and
individuals in preventing and remedying discrimination.
In identifying the Commission as a party to the adjudication, clause 34(a) also directs
that the Commission “shall have carriage of the complaint”. “Carriage of the complaint” is
not defined in the Code, and I did not hear any argument with respect to the meaning of
that phrase. In Tilberg, the Ontario Court of Appeal concluded that the proper
interpretation of that phrase as it appeared in a corresponding provision of
Ontario’s Human Rights Code should relate to procedure and not to substantive rights.
Accordingly, the provision was to be interpreted as instructing the tribunal that as between
the human rights commission and a complainant or complainants, carriage was to be
assigned to the commission.
In my view, the same meaning should be attributed to that phrase as it is used

in clause 34(a) of the Code. The fact that the Commission is designated as having “carriage
of the complaint” thus signifies that procedurally, as between it and a complainant, it is the
Commission which is to have carriage of the complaint. As between the Commission and
the complainant, therefore, it is the Commission which takes the lead and has the
procedural burden of advancing the case with a view to establishing that the complaint is
justified.
This does not mean that it has become the Commission’s, as opposed to the
complainant’s, complaint. Nor does it mean that the Commission is required to advance or
adopt the complainant’s position or case. Indeed, such an interpretation would be
inconsistent with the independent party status of the Commission arid the complainant.
I cannot agree with the Complainants’ statement that the Commission is supposed
to be “on the same team” as they are. As indicated above, as parties to the adjudication, the
Commission represents the public interest, and Complainants represent their own
interests. Their interests may or may not coincide. Thus, in some cases, the Commission’s
position may be similar to that of a complainant. In other cases, the Commission may take
a position which differs from or is opposite to that of a complainant just as a complainant
may take a position which differs from or is opposite to that of the Commission.
48
The Commission has a responsibility to advocate its view of

the public interest. In doing so, it may also advocate for the interests
of the complainant, but it is not required under the statute to do so.
I recognize that in many, if not most cases, complainants

choose not to be represented by their own counsel, to adduce any
evidence or to make any representations at the hearing, relying
instead on the evidence adduced and submissions made by the
Commission or Commission counsel. They cannot rely on that fact
however, as creating a legal duty or requirement on the part of the
Commission to represent them or to adopt and advocate their
position at the hearing.
In referring a complaint to adjudication, the Commission must be satisfied that

additional proceedings are warranted to further the objectives of the Code or to assist it in
discharging its responsibilities under the Code. Thereafter, the Commission may
continually assess its position as a party to the adjudication. As the matter moves forward
to adjudication, the Commission may therefore vary its position or take a different position
from one it held at the time of the referral to adjudication.
Although I have previously concluded that the Commission has no authority under
clause 29(2)(b) to terminate the adjudication based on a reasonable offer of settlement once
a matter has been referred to adjudication, that does not mean that the Commission cannot
or should not consider any further offers of settlement at that stage. In my view, where a
respondent proposes a further offer of settlement, the Commission, as a party, is entitled
to consider the reasonableness of that offer and whether it would be in the public interest
to settle the matter on that basis. If it concludes that such an offer is reasonable and that a
settlement is in the public interest, but the complainant, does not agree, can the
Commission then withdraw from the adjudication?
Section 34 of the Code states that the Commission and others “are” parties to the
adjudication. Section 40 of the Code goes on to provide that other persons may be added
as parties to the adjudication. There is no provision in the Code, however, which states that
a party may withdraw or remove itself as a party to the adjudication, or that the adjudicator
may allow a party to cease being a party to the adjudication. In the face of section 34 of
the Code, I am not convinced that the Commission has the authority to withdraw as a
party to the adjudication.
49
I am, however, of the view that a party, including the Commission, may be
entitled to withdraw from actively participating at the adjudication. Subsection 39(4) gives
every party an opportunity to present evidence and make submissions. It does not say that
they must do so. I was not pointed to any statutory provision or case law which suggests
that an adjudicator has authority under the Code to require that a party adopt or argue a
particular position or point or to stop a party from withdrawing from participating at the
hearing.
The Commission’s Board of Commissioners determined that the settlement offers

made by the Respondent were reasonable, subject to one condition which was then
accepted by the Respondent. With the exception of certain clauses which had to be
disclosed for the limited purpose of addressing the proposed amendment of two of the
Complaints (which is dealt with later in these Reasons), I am not aware of the terms of
those offers. I am not in any way suggesting by this that it would have been appropriate to
disclose the contents of those offers. Settlement negotiations and offers are generally
privileged. In any event, I was not pointed to any statutory provision or authority which
would indicate that I have the power under the Code to review the Commission’s
determination of whether the offers are reasonable and whether a settlement based on
those offers would be in the public interest, It is not up to an adjudicator to second guess
such a determination by the Commission.
The Complainants have argued that these settlement offers from the Respondent
were frivolous and vexatious. That argument appears to be based at least in part on their
position that the Commission had no authority to consider any further offers after the
Complaints had been referred to adjudication, and that the making of those offers resulted
in significant delays. I have found, however, that the Commission did have the authority to
consider further settlement offers. Having done so, the Commission determined that the
offers were reasonable. I am not in a position to find otherwise. I cannot agree, therefore,
that the offers were frivolous and/or vexatious.
50
Similarly, I cannot accept the Complainants’ argument that there was no good
reason for the Commission to abandon the adjudication, or that its refusal to participate in
the adjudication is unfair and punitive. It is not a matter in this instance of whether or not
there is some merit to the Complaints. The Commission’s decision to withdraw was based
on its determination that the Complaints should be resolved based on settlement offers
which in its estimation were reasonable. The evidence indicates that before the
Commission made that decision, the Complainants were given an opportunity to provide
further information, and each of the Complainants provided a written submission for the
Board of Commissioners. The Complainants may not like the Commission’s decision, but
there is nothing to suggest that there was no good reason for it.
The Commission says that it made its decision in accordance with the objectives of
the Code and its responsibility to the public interest. It is up to the Commission to decide
how best to carry out its public interest responsibility under the Code. An adjudicator does
not have the statutory authority to go behind that decision. As indicated above,
in Tilberg, the Ontario Court of Appeal concluded that it was “not unreasonable for
Ontario’s) Commission to withdraw from participating in the hearing before the Board of
Inquiry where its public interest mandate has been satisfied.” (para. 42) I similarly find that
it is not unreasonable for Manitoba’s Commission to withdraw from participating in the
adjudication where it concludes that its public interest mandate has been satisfied.
In paragraph 22 of their Brief, the Complainants argue that:

It wouldn’t be fair because the Complainants pointed out an
irregularity in the law and were correct, that the Commission
would pull out of the Adjudication. The Complainants are only
upholding the law. They are being singled out unfairly in violation
of their Charter section 7 and 15(1) guarantees; section
7 regarding unfair process and procedure, and section
15 regarding denial of choice of forum.
51
I am satisfied that the Complainants are not being “singled out unfairly”
because of the position that they have taken with respect to further settlement offers and
the Commission’s ability to withdraw. The Complainants were aware of the Commission’s
position on this issue even before the Complaints were referred to adjudication. When the
Commission wrote to the Complainants and the Respondent advising them that the
Complaints were to be referred to adjudication, it clearly indicated that it could and would
entertain further settlement offers, and expressly stated that if the Respondent proposed
an offer of settlement in the adjudication process that the Commission considered
reasonable but the Complainants rejected, “the Commission must terminate its
proceedings in respect of the complaint pursuant to subsection 29(2)” of the Code. The
Commission’s subsequent consideration and acceptance of offers from the Respondent
were consistent with its advice to the Complainants and the Respondent. Its approach and
actions were also consistent with its policy and approach to the reconsideration of its
decisions as set out in the Guidelines referred to above (at p. 48) There is no evidence to
support the Complainants’ assertion that they are being singled out by the Commission
because of the position they have taken.
The Complainants have stated that the Commission was helpful to them, at least up
until the time the second offers were received. The evidence indicates that the Commission
met with the Complainants at various times after the Complaints were referred for
adjudication, and has kept them informed as matters have progressed towards the hearing.
There was no evidence or suggestion that the Complainants do not have
information or documents which have been gathered to date in connection
with their case and which they might need if they decide to proceed with the
hearing of the Complaints.
In arguing that it would be unfair for the Commission to leave them on

their own at this point, the Complainants’ position is that it would be more
difficult for them to do a fair job at the adjudication without the Commission’s
help. They would prefer to have the Commission’s help in proceeding from
this point forward and advancing the Complaints on their behalf. I have found
that they are not entitled to that help under the Code. To the extent that they
believe that it should be otherwise, that is a matter for the legislature.
In conclusion, I am satisfied that the Commission may not withdraw as

a party to the proceedings. It may, however, withdraw from actively
participating at the adjudication. I conclude that I do not have the authority
to require the Commission to continue to actively participate as a party to the
proceedings.
52
3. If the adjudicator cannot require the Commission to continue as a party to

the adjudication, can the adjudicator order the Government of Manitoba to
fund or provide legal counsel to the Complainants for the adjudication of
their Complaints, at no cost to them?
The Complainants say, in the alternative, that if the Commission is found to

be functus officio regarding clause 29(2)(b), then abandons the hearing, leaving them
stranded to argue the cases on their own, they are seeking an order requesting the
Government of Manitoba to fund the hearing and to provide a lawyer to take up where the
Commission’s lawyer left off. The Complainants submit that the adjudicator has the
authority to make such a request of the Government under sections 41(7) and 42 of
the Code. They also rely on sections 57 and 58 of the Code in support of their position. They
submit that this would be a reasonable remedy if the Commission withdraws, that there is
nothing in law that would prohibit it and that the “quasi constitutional basis and
fundamental supremacy of the Code would override any policy that may now divert that
particular funding only to the Commission.”
The Commission submits that the Complainants have pointed to no authority for
their claim that the Government of Manitoba must pay for legal counsel or provide a lawyer
free of charge for the Complainants should the Commission withdraw from the
adjudication. The Code does not provide a right to paid legal representation.
The Commission states that absent a statutory right to counsel, the only other
potential ground for such relief would be under section 7 of the Charter, with respect to
which certain requirements dictated by the Supreme Court of Canada would also have to
be satisfied. In this regard, they refer to the requirements set out by that Court in New
Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 CanLII 653
(SCC), [1999] 3 S.C.R. 46 (“G.(J.)”). The Commission says that the Complainants have not
met those requirements, and that their case is clearly not an eligible one.
53
Boards of adjudication or adjudicators under the Code are statutory tribunals, whose
powers or jurisdiction are confined to those which, are conferred on them by statute. I am
unable to find that either section 42 or subsection 41(7) confers any authority on an
adjudicator to order the Government to provide the Complainants with state-funded legal
counsel. As indicated previously, section 42 provides that, subject to other provisions of
the Code, an adjudicator “has exclusive jurisdiction and authority to determine any
question of fact, law, or mixed fact and law that must be decided in completing the
adjudication and in rendering a final decision respecting the complaint.” That section deals
with the jurisdiction or power of an adjudicator to determine issues. It does not confer on
an adjudicator the power to grant any particular relief, and in particular, to require the
Government to provide funding or legal counsel to the Complainants. Subsection
41(7) speaks to the replacement of an adjudicator, and an adjudicator’s retention of
jurisdiction prior to his or her designation being revoked, and has nothing to do with this
issue.
The Complainants also referred to sections 57 and 58 of the Code. Section 57 provides
that the Code is binding on the Crown. Section 58 states that unless expressly provided
otherwise, the substantive rights and obligations in the Code are paramount over those in
every other Act of the Legislature. The fact that the Code is paramount or that it has been
characterized as quasi-constitutional legislation does not translate into an entitlement to
legal representation at the Government’s expense. Again, sections 57 and 58 do not confer
any authority on an adjudicator to order or request that the Government fund or provide
legal counsel for the Complainants.
I recognize that subsection 39(4) provides that the “adjudicator shall give every party
attending the hearing a full opportunity to present evidence and make submissions, and to
be represented by counsel for those purposes.” Neither that section nor any other provision
of the Code, however, provides that a complainant (or any other party) has any right to be
represented by, or that an adjudicator has authority to require that the Government
provide a party with, state-funded legal counsel. Rather, in my view, subsection
45(1) indicates the opposite, in that it provides that the parties to an adjudication shall
generally bear their own costs.
The Commission referred to section 7 of the Charter. That section was also referred
to by the Complainants in their Notice of Motion, where they stated in general terms that
they were seeking, inter aIia, an order finding that their “rights to fair process under section
7 of the Charter have been contravened” and cited as one of the grounds for their Motion
that the “unfair process by the Commission is unconstitutional”.
54
The Complainants did not expand on this reference to that section in their written
or oral submissions on this issue.
Section 7 of the Charter reads as follows:
7. Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the principles
of fundamental justice.
No authorities were provided by the Complainants with respect to this issue. The
decision in G.(J.), which was filed by the Commission, was a case involving child protection
and custody proceedings. In that case, the New Brunswick Minister of Health and
Community Services applied to extend an order granting him custody of three children.
The children’s parent, who was indigent and receiving social assistance, was denied legal
aid to retain a lawyer to represent her at the custody hearing. The parent brought a motion
seeking relief for a prospective violation of section 7 of the Charter. She argued that the
custody hearing would be unfair if she were not represented by counsel, and requested that
the court order the government to provide her with state-funded counsel pursuant
to section 24(1) of the Charter. The constitutional issue before the Supreme Court was
whether the failure to provide legal aid to respondents in custody applications by the
Minister would have constituted an infringement of section 7 of the Charter, and if so,
whether the infringement would have been justified under section 1 of the Charter.
The Court found that the Minister’s application to extend the custody order
engaged section 7 of the Charter, in that it threatened to restrict the parent’s right to
security of the person guaranteed by section 7; that section 7 guarantees the parent
the right to a fair hearing when the state seeks to obtain custody of their children; and that
for the hearing to be fair, the parent must have an opportunity to present his or her case
effectively. The Court stated that a parent need not always be represented by counsel to
ensure a fair custody hearing, but that in some circumstances, depending on the
seriousness of the interests at stake, the complexity of the proceedings and the capacities
of the parent, the government may be required to provide an indigent parent with legal
counsel. The Court concluded that the government was under a constitutional obligation
to provide the parent with state-funded counsel in the particular circumstances of that
case.
55
In outlining the procedure that should be followed in similar cases in the future,
Chief Justice McLachlin indicated that the parent should have first exhausted all possible
avenues for obtaining legal aid or state-funded legal assistance. If, after that, the parent
wants a lawyer but is unable to afford one, the judge should consider whether the parent
can receive a fair hearing through a consideration of the above three factors, i.e., the
seriousness of the interests at stake, the complexity of the proceedings, and the capacities
of the parent. If the judge is then not satisfied that the parent can receive a fair hearing and
there is no other way to provide the parent with a lawyer, the court should order the
government to provide the parent with state-funded counsel under section 24(1) of
the Charter.
I did not have argument as to why or how section 7 of the Charter may apply in the
circumstances of this case. Even if I were to assume, without in any way deciding, that
the section 7 rights to life, liberty and security of the person are engaged in these
circumstances, I am satisfied, with reference to the criteria set out in G.(J.), that the
Complainants rights to a fair hearing do not require that they be represented by state-
funded legal counsel in this case. Among other things, there is no evidence that the
Complainants cannot afford to retain counsel to represent them in these proceedings,
should they wish to do so.
Further, while the Complainants have said that it would be more difficult for them
to present and argue their cases at the adjudication hearing on their own, they have also
stated that they believe they are capable of understanding the issues and effectively
presenting their positions. Based on their own belief, and their written submissions and
participation at the hearing of these preliminary issues, I cannot conclude that the
Complainants would be unable to participate meaningfully and effectively at the
adjudication of their Complaints. On the contrary, I am convinced that they can receive a
fair hearing without state-funded legal assistance.
In summary, I am satisfied that there is no basis for an order requiring or requesting

the Government to fund or provide legal counsel to the Complainants for the adjudication
of their Complaints.
4. Is the Commission required to pay Ms Kinvig’s expenses for attending and

participating at the hearing of the Complaints?
56
Position of the Complainant
Ms Kinvig now resides in British Columbia. In the Notice of Motion, she seeks
written assurances that the Commission will provide her with funding to travel to and from
Manitoba and maintain a residence in Winnipeg while the Complaints are heard and she
presents her case. In her oral submission, Ms Kinvig stated that she does not have the funds
to pay for the hearing. She emphasized the importance of human rights, and submitted
that she should have the opportunity to fully participate in the full hearing of the
Complaints for her own and everyone else’s benefit.
The Complainants are asking that 20 days be set aside for the hearing on the merits
of the Complaints. Ms Kinvig provided a rough calculation of $5,000.00 as the amount that
she anticipated requiring based on 20 days of hearings and current rates for expenses,
including transportation to and from the airport, airfare, hotel, meals and laundry. She also
asked that such funding be paid to her as early as possible, so that she could make the
appropriate arrangements at discounted rates.
The Commission submits that the Complainants have pointed to no authority for the claim
that the Commission must pay Ms Kinvig’s expenses if it does not call her as a witness. The
Commission submits that with one possible exception, an adjudicator has no authority to
order the Commission to pay Ms Kinvig’s expenses. The only exception may be the
provision for witness fees and expenses at the rate of compensation payable to witnesses in
the Court of Queen’s Bench pursuant to subsection 39(7) of the Code. The Commission
states that it takes no issue with its statutory obligations should it have occasion to call Ms
Kinvig as a witness. It says that it has consistently stated that it will pay the expenses of
witnesses it calls, including a party to a Complaint. It has also made clear, however, that it
would terminate its proceedings if the Respondent made an offer which the Commission
considered to be reasonable.
Subsection 39(7) of the Code states that every witness who is “required to attend a
hearing is entitled to receive from the party requesting his or her presence witness fees and
expenses at the rate of compensation payable to witnesses in the court.”
57
The Commission has not disputed that if it were to call Ms Kinvig as a witness at
the hearing, it would have to pay attendance money as provided in subsection 39(7). The
Statement of Agreed Facts shows that, consistent with that section, the Commission did in
fact advise Ms Kinvig that it would cover her travel casts if it intended to call her as a
witness. The Commission also indicated that it would terminate the proceedings if it found
that an offer from the Respondent was reasonable. The Commission subsequently advised
that it had terminated the Complaints and would be closing its files. At the hearing of the
preliminary motions, the Commission stated, in the alternative, that it would be
withdrawing from the proceedings. In either event, it is clear that the Commission no
longer has any intention of participating in the proceedings or calling any witnesses.
I have already found that the Commission may not terminate the adjudication of
the Complaints, but that it may withdraw from actively participating in these proceedings.
In the circumstances, given the Commission’s stated intention to withdraw and the fact
that it no longer intends to participate at the adjudication or to call Ms Kinvig or anyone
else as a witness, subsection 39(7) can have no application to the Commission. The
Complainants have not identified, and I am not aware of, any other section of the Code or
any authority which would support their claim that the Commission must pay Ms Kinvig’s
fees and expenses for the hearing of the Complaints.
I note that according to the Statement of Agreed Facts, Ms Lugtig indicated, prior to
the Complaints being joined, that the Commission would likely be able to cover Ms Kinvig’s
travel costs if Ms Kinvig was required to attend the hearing as a party to her Complaint,
but that Ms Lugtig would require approval for this. The evidence does not indicate, and I
cannot conclude, that there was any binding agreement or commitment by the
Commission to cover Ms Kinvig’s travel or other expenses in the circumstances.
In conclusion, I find that there is no basis for an order requiring the Commission to
pay Ms Kinvig’s expenses for attending and participating at the hearing of the Complaint.
5. Should the Pollock and Gordon Complaints be amended to include

allegations of reprisal?
The Complainants base their allegations of reprisal on clauses 3 to 5 of the settlement

offers from the Respondent dated March 16, 2010 (see above pp. 7-8). They submit that the
Respondent has clearly threatened to sue Ronald and Natalie Pollock and Doug Gordon
unless their respective Complaints are dropped. They argue that the so-called offers by the
Respondent are ridiculous, frivolous, extremely unreasonable and inequitable, and that
instead of reasonably accommodating the Complainants, the Respondent has resorted to
blatant intimidation tactics and threats to make sure these Complainants know there will
be recriminations against them.
58
The Complainants refer to the Respondent’s use of the word “pursue” in the settlement
offers. Relying on dictionary definitions of “pursue” (meaning, inter alia, to sue, prosecute
or enforce a matter judicially), they argue that the offers clearly indicate that the
Respondent will sue these three individuals if they do not drop their Complaints. The
Complainants rely on the decision in Ketola v. Value Propane Inc., 2002 CanLil 46510, 44
C.H.R.R. D/20 (O. H.R.T.) (“Ketola”) to argue that a threat to sue constitutes reprisal. It is
their position that these threats to sue by the Respondent constitute a reasonable cause of
action in reprisal under section 20 of the Code, and that these Complainants have
the right to have their Complaints amended on a preliminary basis, to enable proper
preparation for the adjudication.
The Complainants assert that settlement negotiation privilege does not apply to
these offers, as any settlement privilege that may have existed under clause 29(2)(b) is
statutory and disappeared when the forum for that privilege became functus. They submit,
moreover, that settlement negotiation privilege is not available for reprisals under section
20 of the Code, that there is no exception in section 20 which allows a reprisal or threat of
reprisal to be made in a settlement offer under clause 29(2)(b).
In the alternative, referring to TDL Group Ltd. v. Zabao Holdings Inc., 2008 MBQB
86 (CanLII) (“TDL”) and the exceptions to settlement negotiation privilege listed therein)
they submit that a threat to sue is an exception to, and not protected by, settlement
negotiation privilege. In their oral submissions, as I understand it, they also argue that any
privilege would have been removed by the communication of the offers. The Respondent
wrote to the Commission, not the Complainants, and the documents were therefore “put
out to the wind”, They further say that the proposed amendments are based on the actual
documents which, having been quoted in the Statement of Agreed Facts, are not, or are no
longer, privileged. They conclude that the amendments would not result in any prejudice
and ought to be allowed.
In her oral submission, counsel for the Commission stated that if I were to decide
that I am functus (as a result of the Commission’s determination that the Respondent’s
March 16, 2010 offers of settlement, as amended, were reasonable and its advice on May 27,
2010 that the proceedings in the Complaints were terminated in accordance with clause
29(2)(b) of the Code), then there would no longer be any complaints to amend and this
issue would be moot.
59
Alternatively, in its written Brief, the Commission submits that the general rule
governing amendments to human rights complaints at the adjudication stage is that an
amendment may be allowed if it does not expand the scope of the factual inquiry, but
merely cites new grounds on which liability might be founded”. That approach is
predicated on the principle that “there can be no prejudice or surprise to respondents in
such circumstances” (Musty v. Meridian Magnesium Products Ltd. (No. 3) (1998), 35
C.H.R.R. D/237 (Ont. Bd. lnq.) (“Musty”), at para. 59). The Commission argues that
prejudice can include the loss of the benefit of the investigation and conciliation processes
provided by a human rights commission.
The Commission acknowledges that some human rights tribunals, including

Ontario’s, have departed from the general rule and allowed amendments alleging reprisals
based on new facts, but submits that such a departure should not be followed in Manitoba,
given the wording of the Code. The Commission submits that if the requested amendments
are allowed, the adjudicator will be deciding not only the validity of the Complaint, but
also that of an entirely new complaint which has not gone through the investigation or
referral processes provided under the Code and has not been referred for adjudication. In
the Commission’s submission, that is not permitted under Manitoba’s Code.
The Commission further asserts that even if the adjudicator has the authority to
make the requested amendments, such amendments ought not to be made if it is plain and
obvious that the allegations cannot succeed. In the Commission’s submission, it is clear
that the reprisal allegations cannot succeed, as the only facts on which they are based are
clauses in a settlement proposal. Those clauses are protected by settlement privilege and
inadmissible as evidence in an adjudication of a human rights complaint. The Commission
submits that the reprisal allegations do not fall within the exceptions listed in TDL.
Commission counsel further submits that even if the clauses were admissible, it is
plain and obvious that an allegation of reprisal based on those clauses must fail, as the
alleged facts do not support the test for reprisal. Proving reprisal requires proving that a
respondent intended to retaliate against a complainant for participating in proceedings
under the Code. There must be facts which, viewed reasonably, could support such an
intention. No such facts are alleged here, and a reasonable person in the Complainants’
situation who takes into consideration the relevant context could not conclude that
retaliation is intended.
60
I previously concluded that the clause 29(2)(b) of the Code does not allow the
Commission to terminate all proceedings respecting a complaint, and in particular the
adjudication of the complaint, after the complaint has been referred for adjudication.
Accordingly, the issue regarding the amendment of the Pollock and Gordon Complaints is
not moot and must be addressed.
An adjudicator has the authority to allow a party to amend a complaint pursuant

to section 40 of the Code, which reads as follows:
40 At any time prior to the completion of the hearing, the adjudicator may,
on such terms and conditions as the adjudicator considers appropriate,
(a) permit any party to amend the complaint or reply, either by adding
parties thereto or otherwise; or
(b) on his or her own initiative, add other persons as parties; but the
adjudicator shall not exercise his or her authority under this section if
satisfied that undue prejudice would result to any party or any person
proposed to be added as a party.
Section 40 must not be interpreted in a vacuum. That section and the scope of an
adjudicator’s amending power must be interpreted in light of the other provisions in
the Code from which the adjudicator derives his or her jurisdiction and in the context of
the Code as a whole.
Under the Code, an adjudicator is charged with the responsibility of adjudicating

“the complaint”. Thus, under clause 29(3)(a), the Commission requests that the minister
designate a member of the adjudication panel to adjudicate “the complaint”. Subsection
32(1) states that on receiving such a request, the minister must designate a member of the
adjudication panel to hold a hearing and decide the validity of “the complaint”. Pursuant
to section 33 of the Code, the adjudicator is provided with a copy of “the complaint” and,
where applicable, the reply. Section 42 provides that subject to other provisions of
the Code, “every adjudicator has exclusive jurisdiction and authority to determine any
question of fact, law, or mixed fact and Jaw that must be decided in completing the
adjudication and in rendering a final decision respecting the complaint.” (emphasis added)
61
In Cook v. Onion Lake First Nation, 2002 CanLII 61849 (CHRT), 2002 CanLIl
45929, 43 C.H.R.R. 77 (“Cook’), Chairperson Groarke considered the scope of the word
“complaint” and of the power of the Canadian Human Rights Tribunal to amend a
complaint under the Canadian Human Rights Act, stating as follows, at para. 11:
The case law focuses on the facts of individual cases, rather than the law. It
establishes that the word “complaint” must be interpreted broadly, in a
manner that captures the full extent of the complainant’s allegations. There
is a point, however, where an amendment of a complaint can no longer be
considered a “mere amendment” and becomes a substantially new complaint.
In such a situation, the Commission cannot be said to have requested an
inquiry and the Tribunal has no jurisdiction to proceed.
In keeping with the nature and purpose of the Code, I am similarly of the view that
“the complaint” must be interpreted broadly, The power to amend the complaint enables
the adjudicator to ensure that the substance of the allegations which have been raised by
the complainant can be fully and properly addressed at the adjudication.
The adjudicator’s jurisdiction is nevertheless circumscribed by the words “the

complaint”. In my view, read in conjunction with the other provisions of the Code, the
adjudicator’s amending jurisdiction under section 40 of the Code would not extend to
adding new or different complaints which do not fall within the substance or scope of the
complaint which has been referred for adjudication. Whether a proposed amendment can
be said to come within the substance or scope of the original complaint would depend on
the facts and circumstances in each case.
The first consideration, therefore, must be whether a proposed amendment falls

within the scope of the original complaint. If an adjudicator is satisfied that it does, the
adjudicator must then consider whether the amendment ought to be allowed. In this
regard, it is clear from the wording of section 40 that the adjudicator’s power to grant such
an amendment is discretionary. Contrary to what was argued by the Complainants at least
at one point during their submission, a complainant therefore does not have
the right under the Code to have the complaint amended at the adjudication stage.
I was not referred to any Manitoba cases dealing with amendments under
the Code or the factors which an adjudicator ought to take into account in exercising his or
her discretion to grant or deny an amendment under the Code.
62
The Musty case, referred to by the Commission, was decided under the
applicable provisions of Ontario’s human rights legislation. I note that the wording of the
legislation in that case differed from that in Manitoba’s Code and was arguably broader, in
that the Board’s jurisdiction to amend derived from its mandate to determine whether
“a right of the complainant” under the Act had been infringed, as opposed to determining
“the validity of the complaint”. In that case, the Ontario Board of Inquiry concluded that
Boards may exercise their discretion to allow an amendment which raises a new ground of
complaint where it is based on the same facts as the original complaint, as this does not
result in prejudice to the respondent. The Board thus stated as follows, at paragraphs 58 to
59:
The Board has the jurisdiction to amend a complaint. That jurisdiction is

exercised having regard to all of the circumstances. Whether to allow an
amendment is thus a discretionary decision. In exercising this discretion,
Boards have considered whether a proposed amendment, which often
involves the assertion of a new ground of contravention, arises out of the
same factual allegations as the original complaint and whether raising it for
the first time at the hearing would prejudice the respondents…
The proposition that emerges is that complaints may be amended where the
amendment does not expand the scope of the factual inquiry, but merely
cites new grounds on which liability might be founded. The underlying
principle behind the proposition is that there can be no prejudice or surprise
to respondents in such circumstances.
In Cook, which was also filed by the Commission, the

Canadian Human Rights Tribunal referred to the fundamental obligation of a tribunal to
hear the substance of the complaint before it, then stated as follows, at paragraph 17:
…The rule of practice is accordingly that issues arising out of the same set of
factual circumstances should normally be heard together. This is a general
legal rule, which improves the efficiency of the process and avoids the
possibility of inconsistent rulings. In the human rights context, it also
recognizes the inevitable fact that complaints are usually filed before a
thorough investigation has taken place, without the benefit of legal scrutiny.
As a result, they are often imprecise. It follows, as a practical matter, that
commissions and tribunals need some authority to amend complaints so that
they are in keeping with the law and evidence.
63
The Tribunal went on to conclude, at paragraph 20, that the general practice:
. . . appears to be that amendments will normally be allowed if they do not

alter the substance of the complaint, as reflected in the material facts of the
case. If the amendment prejudices the case for the respondent, on the other
hand, it should not be allowed. The case law does not discuss how much
prejudice is sufficient but it must be real and significant. There must be
“actual prejudice”, There may also be factors such as delay, which are
implicitly prejudicial. This might include the loss of the investigation and
conciliation processes.
The above passages from the Musty and Cook cases refer to prejudice as one of the
factors to be considered on a motion to amend. Prejudice is specifically referred to in
Manitoba’s Code, where an adjudicator’s power to grant an amendment is expressly limited
by the stipulation in section 40 that the adjudicator shall not exercise his or her authority
to amend a complaint “if satisfied that undue prejudice would result to any party or any
person proposed to be added as a party.” “Undue prejudice” is not defined, but must mean
that at least a certain amount of hardship or prejudice may be expected and would not be
fatal per se to a request for an amendment. A degree of prejudice which is less than
“undue” would nevertheless presumably remain one of the factors to be taken into account
when considering whether an amendment ought to be allowed.
Another factor to be considered on a motion to amend a complaint is whether the

proposed amendment raises a valid, arguable point which has merit. The cases indicate
that where it is plain and obvious that the complainant will not succeed with the allegations
which he or she seeks to add, an amendment will not be allowed. (See, e.g., Bressette v.
Kettle and Stony Point First Nation Band Council, 2004 CHRT
2 (CanLII) (CanLIl) (“Bressette), at para. 6).
In the instant case, dealing first with the question of jurisdiction, I am not satisfied
that I have the authority to grant the amendments being sought by the Complainants on
their Motion.
In my view, the requested amendments not only raise a new ground on which
liability might be founded, but are also based on new and different factual circumstances
from those which form the basis of the Complaints which were referred to adjudication.
The allegation in each of the original Complaints is that the Respondent

contravened section 13 of the Code (discrimination with respect to services,
accommodations, etc.). It is alleged in the Complaints that the Respondent discriminated
against, and failed to accommodate the special needs of, the Complainants, in the provision
of services, being the replacement of windows in their condominium complex.
64
By contrast, the proposed amendments are with respect to alleged breaches

of section 20 of the Code (reprisals). The proposed amendments appear to be based on an
alleged threat by the Respondent (and its Board members in their personal capacities) to
sue certain Complainants based on actions taken by those Complainants, who allegedly
impersonated the Respondent’s President and defamed the Respondent and its individual
Board members.
In this regard, I would note that in the section of their Notice of Motion relating to
the amendment of the two Complaints, the Complainants simply say that they are seeking
an order that “the complaints of Pollock and Gordon will be amended to include reprisal
against the Respondent”. The materials which were filed nevertheless indicate that the
basis for the proposed amendments is three clauses in two of the settlement offers made
by the Respondent, including the alleged threats by the Respondent (and its Board
members in their personal capacities), in their offers, to pursue Mr. Gordon “for his
impersonation of the President of the [Respondent] with respect to the window project”
and the Pollocks “for defamatory comments . . . made with respect to the [Respondent] and
its individual Board members.” Apart from that, the Complainants do not refer to and have
not identified the specific paragraphs which they say should be added, or any other specific
amendments which they say should be made, to these Complaints.
There is no reference in the original Complaints or Replies to certain material facts

on which the Complainants’ proposed amendments would appear to be based. There is
little or no mention of any facts or circumstances surrounding or relating to any alleged
impersonation or defamatory comments. The settlement offers themselves were made
subsequent to the filing of the Complaints, and subsequent to the referral of those
Complaints to the minister for the designation of an adjudicator. The clauses in question
in those offers refer to various individuals who were not mentioned in the original
Complaints, namely the President and Board members of the Respondent. While there is a
reference in one of the offers to Mr. Gordon’s alleged impersonation having been “with
respect to the window project”, I am not satisfied that this one general reference to the
“window project” constitutes a sufficient link or nexus between the proposed amendments
and the original Complaint or Complaints.
I am mindful of the fact that the Complainants are representing themselves at this
point, and as a result that they may not be held to the same standard of “pleading” as if
they were represented by counsel. I am also mindful of the fact that a complaint is not the
same as a “pleading” in court proceedings, and may be less precise or specific. Nevertheless,
having considered all of the materials filed and arguments presented, I cannot conclude
that the facts which would form or potentially form the basis of the proposed amendments
are the same as, or sufficiently related to, those in the original Complaints, such that the
amendments, as proposed, fall within the scope of, or can be considered to be a continuum
of, those Complaints.
65
In the circumstances, I find that the proposed amendments raise new and different
complaints which are outside the scope of the Complaints that have been referred to
adjudication, and are beyond the scope of my jurisdiction.
The fact that the Complainants’ Motion to amend the Complaints is based on
allegations of reprisal does not alter my conclusion with respect to my jurisdiction to grant
the proposed amendments. Whether an adjudicator has the power to grant an amendment
to add allegations of reprisal will depend on the facts and circumstances of the particular
case and the terms of the applicable legislation.
The Complainants referred to the decision of the Canadian Human Rights Tribunal
in Bressette, one of the authorities which was filed by the Commission. In that case, the
Tribunal Member concluded, at paragraphs 5 to 6, that
…[t]here is discretion in the Tribunal to amend the complaint to deal with

additional allegations, provided that sufficient notice is given to the
respondent so that it is not prejudiced and can properly defend itself The fact
that the proposed amendment involves a different section of the Act to that
in the original complaint does not deprive the Tribunal of jurisdiction.
It should not be necessary for individuals to make allegations of reprisal or

retaliation arising after a complaint, by way of separate proceedings. Rather,
an amendment should be granted unless it is plain and obvious that the
allegations in the amendment sought could not possibly succeed. An obvious
example, at least for allegations of retaliation, would be where the alleged
incidents of retaliation were shown to have occurred prior to the filing of the
complaint. The Tribunal should not embark on a substantive review of the
merits of the amendment. That should be done only in the fullness of the
evidence after a full hearing.
The Tribunal went on to grant an amendment to add an allegation of reprisal under

section 14.1 of the federal Act, having found that out of a multitude of incidents referred to
by the complainant, some disclosed a tenable claim for retaliation and that it was not plain
and obvious that the complainant would not succeed with those allegations.
I do not find the Bressette case to be of much assistance in this regard in that, among
other things, there is little or no indication in that case of the nature or scope of the
amendments, or the facts relating to the alleged incidents and their relation to the original
complaint.
66
While the Commission alluded to different or additional considerations having

been applied in certain cases in other jurisdictions in respect of amendments alleging
reprisals, I did not have argument on the scope of any such considerations or exceptions
from the general rule”, or on the particular circumstances of those cases.
I note that in its decision in Cook, the Canadian Human Rights Tribunal did suggest
that the practice may be different with respect to amendments regarding alleged reprisals.
At paragraph 19, the Tribunal thus quoted the reasoning of the Ontario Board of Inquiry
in Entrop v. Imperial Oil Limited (1994), 23 C.H.R.R. D/186 (“Entrop”), as follows:
It would be impractical, inefficient and unfair to require individuals to make

allegations of reprisals only through the format of separate proceedings. This
would necessitate their going to the end of the queue to obtain investigation,
conciliation and adjudication on matters which are fundamentally related to
proceedings already underway. Insofar as reprisals are intended to intimidate
or coerce complainants from seeking to enforce their rights under
the Code, this would thwart the integrity of the initial proceedings and make
a mockery of the Code’s obvious intent to safeguard complainants from
adverse consequences for claiming protection under the Code. The
allegations of reprisal should be dealt with in the context of the original
complaint.
The Tribunal went on to suggest that this “rule regarding allegations of retaliation can
probably be seen as an exception to the general practice regarding amendments.” (para.
20)
The amendment at issue in Cook, however, did not relate to an allegation of

retaliation or reprisal and the Tribunal’s comments with respect to a “rule” regarding
allegations of reprisal were clearly obiter. Further, the quoted passage from Entrop refers to
matters which are “fundamentally related” to the proceedings already underway.
In Entrop, counsel had sought a ruling to permit the Commission to introduce evidence of
reprisals by the respondent against the complainant for making a human rights complaint.
The Board, after referring to the relevant facts as being “integrally related”, found that the
complaint should be amended to include a specific reference to the applicable section of
the Ontario Code, stating as follows, at para. 7:
Although the facts alleged would appear to be integrally related to the

original complaint of employment discrimination, the Commission intends
to argue violation of a separate section of the Code, the reprisal provision in s.
8, and this section should be specifically listed in the complaint.
The Entrap decision therefore appears to be generally consistent with, rather than
an exception to, the general rule.
67
An amendment to add the ground of reprisal was allowed in Kotola, a case

which was relied on by the Complainants. As in Entrop, the facts relating to the allegation
of reprisal would appear to have been integrally related to those concerning the original
complaint. In the original complaint, it was alleged that the respondents treated the
complainant differently, including by terminating his contract for services due to a
disability. In responding to the complaint, the respondents stated, among other things, that
they terminated the complainant’s contract for services because he was caught stealing
propane, and threatened criminal prosecution and retribution. In addition, shortly after
the subject-matter of the complaint was referred to the board, the respondents served the
complainant with a Statement of Claim in Small Claims Court, seeking $10,000.00 in
punitive, exemplary and aggravated damages. The basis of that claim was
the human rights complaint against the respondents and the theft of propane. On the
commission’s motion and on consent of all parties, the board ordered that the complaint
be amended to add the ground of reprisal.
As with Entrop, the Ketola decision thus appears to be consistent with the general rule
regarding amendments described in Musty and Cook.
In any event, based on the facts and circumstances in the instant cases and the
wording of Manitoba’s Code, it is my view that I do not have the authority to grant the
Complainants’ Motion to amend the Complaints to add the proposed claims of reprisal.
If I am mistaken with respect to the question of jurisdiction and I do in fact have

the authority to allow the amendments, having considered all of the facts and
circumstances in these cases, I am not persuaded that the proposed amendments ought to
be allowed and am not prepared to grant the Complainants’ Motion to amend.
The Commission did not argue, and no evidence was adduced to the effect that the
proposed amendments would result in “undue prejudice” to any party such that the
Complainants’ Motion to amend the relevant Complaints could not be allowed. However,
as indicated above, the Commission did argue that prejudice can include the loss of the
benefit of the investigation and conciliation processes.
The Commission has argued that it is plain and obvious that the proposed allegations
of reprisal cannot succeed, given that the only facts on which they are based are clauses in
settlement offers which are protected by settlement privilege. The Complainants say that
settlement privilege does not apply in this case.
68
Settlement privilege or settlement negotiation privilege is a rule of evidence or

common law privilege, according to which settlement discussions or communications are
inadmissible in evidence. The protection afforded by the privilege is said to be justified by
a policy concern which recognizes that “parties be encouraged to resolve their private
disputes without recourse to litigation, or, if an action has been commenced, encouraged
to effect a compromise without recourse to trial”. (See TOL, at para. 23, quoting from
Sopinka, The Law of Evidence in Canada). The privilege recognizes that settlement
discussions would be impossible or much less effective without such protection.
Settlement privilege is a “class” or “blanket” privilege. Documents and

communications which fall within the category of a “class” privilege are prima
facie privileged. A party who resists disclosure must initially establish that the
communications fall within the class of communications in furtherance of settlement. It is
then up to a party seeking to introduce or rely on such communications to establish that
an exception exists, such that the privilege does not or should not apply. (See TOL, at
paragraphs 20-21)
A “class” privilege is to be distinguished from a “case by case” privilege, where

communications are prima facie assumed not to be privileged but may acquire privileged
status in particular cases. Case by case privilege was considered in M. (A.) v. Ryan, 1997
CanLII 403 (SCC), [1997] 1 S.C.R. 157 (“Ryan”), a decision which was relied upon by the
Complainants, and in which the issue was whether a psychiatrist’s notes and records
containing statements made in the course of treatment were protected from
disclosure. Ryan was not concerned with, and did not alter the law with respect to,
settlement negotiation or class privilege.
Whether settlement privilege applies to a communication is determined by

reference to three conditions which are set out in TDL, at paragraph 27, as follows:
(a) a litigious dispute must be in existence or within contemplation;

(b) the communication must be made with the express or implied intention that
it would not be disclosed to the court in the event negotiations failed; and,
(c) the purpose of the communication must be to attempt to effect a settlement.
69
In this instance, I was not provided with copies of the documents or

communications on which the proposed amendments are based, I did, however, have
before me the Statement of Agreed Facts which states, inter alia, at paragraph 50, that on
March 16, 2010, the Respondent’s counsel:
…forwarded a written offer to settle for each complaint to the [Commission],

asking that they be forwarded to the respective complainants. The
[Respondent] further asked that the Board determine whether the offers were
reasonable at its next meeting should any or all of the complainants not
accept the offer(s) and that the [Commission] advise the complainants of this
request.
(Emphasis added)
The three clauses from the “offer to Mr. Gordon” and the “offer to Mr. Pollock” which
the Complainants rely on in respect of their Motion, are then quoted in the Statement of
Agreed Facts.
In my view, it is clear in this instance that the “written offer[s] to settle” satisfy the
above conditions. They were made in the context of a dispute which had been referred to
adjudication, and are expressly stated to be offers to settle the Complaints. The intention
that they would not be disclosed at the hearing of these Complaints if a settlement was not
concluded should be inferred in the circumstances. (See TDL, at para. 31) They therefore
fall within the category of settlement negotiations and are prima facie privileged.
I do not agree with the Complainants’ reference in this regard to clause 29(2)(b) of
the Code and their assertion that any settlement privilege that may have existed in that
clause disappeared when the forum for that privilege became functus. As indicated above,
settlement privilege is a common law, as opposed to a statutory, privilege. It does not arise
from, or depend for its existence on, clause 29(2)(b). Rather, it is separate and distinct from
that clause. There is nothing in clause 29(2)(b) that abrogates or takes away from that
privilege. If anything, clause 29(2)(b) further promotes and emphasizes the importance of
settlement, by allowing a settlement to be concluded even where all parties are not in
agreement. In any event, clause 29(2)(b) has nothing to do with this issue.
The same applies with respect to section 20 of the Code. As settlement privilege
arises out of the common law, it is not a question of whether there is some exception
in section 20 which allows for settlement privilege to apply. Rather, it is whether there is
language which excludes that privilege. Absent clear language to that effect section
20 cannot be interpreted as abrogating or excluding the common law rule of privilege.
There is no such language in that section.
70
The question remains whether an exception to settlement negotiation privilege

may apply in these circumstances, such that the privilege may yield. A number of
circumstances which might constitute valid exceptions to otherwise protected settlement
communications were listed in a passage from Meyers v. Dunphy, 2007 NLCA 1 (CanLII),
and quoted in TDL, at paragraph 53, as follows:
(1) Whether without prejudice communications have resulted in a concluded

compromise agreement;
(2) To show that an agreement apparently concluded between the parties during the
negotiations should be set aside• on the ground of misrepresentation, fraud or
undue influence;
(3) Where a clear statement made by one party to negotiations, and on which the
other party is intended to act and does in fact act, may be admissible as giving rise
to an estoppel;
(4) If the exclusion of the evidence would act as a cloak for perjury, blackmail or
other unambiguous impropriety, but such an exception should only be applied in
the clearest cases of abuse of a privileged occasion;
(5) In order to explain delay or apparent acquiescence in responding to an
application to strike out a proceeding for want of prosecution but use of the letters
is to be limited to the fact that such letters have been written and the dates at which
they were written;
(6) Whether the claimant had acted reasonably to mitigate his loss in his conduct
and conclusion of negotiations for the compromise of proceedings brought by him;
and
(7) Where an offer is expressly made “without prejudice except as to costs”.
In TDL, the court went on to state, at paragraph 56, that “[absent an applicable
exception, privileged settlement communications must not be used by one party to prove
an ultimate issue for a winning case.”
In arguing that a threat to sue is an exception to settlement privilege, the

Complainants referred in particular to the second and fourth exceptions listed above.
With respect to the second exception, I find that there is simply no factual basis to
support the application of that exception herein.
Similarly, with respect to the fourth exception, there is in my view no factual basis
for its application herein. That exception refers to “perjury, blackmail and other
unambiguous impropriety’ (emphasis added). It also states that the exception “should only
be applied in the clearest cases of abuse of a privileged occasion” (emphasis added).
71
In this situation, the only facts relied upon by the Complainants are the three
clauses in the offers to settle which they allege constitute threats of reprisal under section
20 of the Code; Section 20 of the Code prohibits reprisals (including threats of reprisals) for
enforcing rights or complying with obligations under the Code, and reads as follows:
Reprisals
20 No person shall deny or threaten to deny any benefit, or cause or threaten
to cause any detriment, to any other person on the ground that the other
person
(a) has filed or may file a complaint under this Code; or

(b) has laid or may lay an information under this Code; or
(c) has made or may make a disclosure concerning a possible contravention of
this Code; or
(d) has testified or may testify in a proceeding under this Code; or
(e) has participated or may participate in any other way in a proceeding
under this Code; or
(f) has complied with, or may comply with, an obligation imposed by
this Code; or
(g) has refused or may refuse to contravene this Code.
In Ketola, the Board referred to reprisal as being an “intentional act” and observed
that “there must be intent, willful blindness or recklessness to find reprisal”. The Board
went on to state, at (C.H.R.R.) paragraph 120, that
…suing, or threatening to sue, a complainant may or may not constitute

reprisal or threat of reprisal respectively. It will depend on the intent behind
the action or threat of action and whether a reasonable complainant would
perceive it as retaliation or punishment. The context of the action or threat
of action plays an important part in this determination. There will be
instances where a respondent legitimately and in a bone fide manner
commences a civil action against a complainant, before or during
the Code process. To automatically find otherwise would deprive one from
exercising those rights available in the civil litigation context. This could be
disastrous, inter alia, when limitation periods apply.
72
In this case, the settlement offers do not state that the Respondent will pursue
Mr. Gordon and the Pollocks for filing or pursuing their Complaints or participating in
proceedings under the Code. On the contrary, they state that, as part of the proposed
settlement, the Respondent and its Board members will agree not to pursue these
Complainants for their alleged impersonation of the Respondent’s President and
defamatory comments. On their face, the proposed amendments do not disclose any
intention on the part of the Respondent to retaliate against these Complainants for filing
or pursuing their Complaints. It is not unusual in settlement negotiations to resolve or
attempt to resolve all outstanding or potential issues between the parties. In the
circumstances, I am not persuaded that the proposed amendments disclose the necessary
foundation for advancing a claim that the fourth exception to settlement privilege applies.
In addition, I do not accept the Complainants’ argument that any privilege has been
removed or waived due to the communication of the offers. The offers were not “put out to
the wind” when they were sent to the Commission. Regardless of whether it was functus
officio under clause 29(2)(b) or not, the Commission was a party to the adjudication, with
carriage of the Complaints, and would have been involved in any final settlement of the
Complaints. The Commission had been working with the Complainants, who were not
represented by counsel, and it was not inappropriate for the offers to be communicated to
the Complainants through the Commission. The facts indicate that the Respondent
expected the communications to be disclosed to the parties, but not to anyone else.
Nor has privilege been removed by reason of parts of the offers having been quoted
in the Statement of Agreed Facts. The Complainants themselves raised the issue of whether
the offers were privileged, arguing that they were not. They cannot, simply by raising that
issue, cause privilege to be removed. The issue could not be addressed without reference
to the impugned parts of the offers. Only those portions of the offers which were relevant
to the Complainants’ Motion were quoted in the Statement of Agreed Facts. Further, the
first paragraph of the Statement of Agreed Facts expressly stated that the facts contained
in that Statement were entered by agreement of the parties “for the purposes of the
complainants’ joint motion dated May 10, 2010 only and not for any other proceeding or
purposes, without further consent from all parties.” (original emphasis) The reference to
and quotation from the offers in these circumstances cannot be considered a waiver of
settlement privilege.
Even if I am mistaken with respect to the issue of settlement privilege, such that the
settlement offers or the relevant clauses are not protected by that privilege, I am still not
persuaded that I ought to exercise my discretion to grant the Complainants’ Motion to
amend the two Complaints. As indicated previously, the Complainants raise new grounds
of complaint, based on new and different factual allegations. In such circumstances, the
cases indicate that an amendment will generally not be allowed.
73
In addition, in my view, it is plain and obvious that the proposed claim of

reprisal could not succeed. In reaching this conclusion, I recognize that at this stage, an
adjudicator should not embark on a substantive review of the merits of the amendment.
However, as stated above, I am of the view that on their face, the facts or clauses which the
Complainants rely on in seeking the amendments do not disclose the necessary factual
foundation for such a complaint, including any intention on the part of the Respondent to
retaliate against these Complainants for initiating or participating in proceedings under
the Code.
As a result, I would deny the Complainants’ Motion to amend the Pollock and
Gordon Complaints.
6. Can Mr. Gordon act as the unpaid agent of Ms Renard in the adjudication?
In the Complainants’ Notice of Motion, Mr. Gordon is seeking an order that he be

permitted to act as Ms Renard’s paid agent in the adjudication, on an unpaid basis. A letter
from Ms Renard to Ms Everard, counsel for the Respondent, dated January 29, 2010, and
copied to Commission counsel, was filed as Exhibit 24 at the hearing. In that letter, Ms
Renard authorizes Mr. Gordon to act as her representative for the adjudication of her
Complaint, including any and all communications prior to the hearing.
The Commission’s position on this issue is that the adjudicator has the authority to
allow Mr. Gordon to act in this capacity. The Commission submits that Manitoba case law
supports a non-lawyer acting as an agent for a party in legal matter, provided it is on an ad
hoc basis (i.e. to assist a friend) and unpaid. (See: Law Society of Manitoba v. Pollock, 2008
MBCA 61 (CanLII), at paras. 46-47)
I agree, and conclude that in these circumstances, Mr. Gordon may act as Ms
Renard’s agent for the adjudication of her Complaint, on an unpaid basis.
7. Additional Issues
Hearing Dates
In their Notice of Motion, the Complainants request that hearing dates for the adjudication
of the merits of all four Complaints be fixed at five days per Complainant, or a total of 20
days, and that a specific date be set.
74
In its Brief filed prior to the hearing, the Commission acknowledged the
adjudicator’s authority to set hearing dates, subject to obligations of procedural fairness
and to the Commission’s authority to terminate proceedings under clause 29(2)(b) of
the Code. The Commission went on to note, however, that the Complainants had not said
why they were requesting 20 days for the hearing of the four Complaints and suggested
that there ought to be further discussion and exploration of the number of witnesses, their
availability and the estimated length of their testimony before dates were set.
At the hearing, Commission counsel submitted that as the Commission had stated
previously, if the Commission found itself in the position it was now in, it would be required
to terminate the Complaints. Its first position, therefore, was that the Complaints may not
proceed to adjudication. If it were decided that the Complaints may not proceed, there
would be no point in setting hearing dates. If it were decided otherwise, the Commission
would be withdrawing.
At the conclusion of the submissions by the Complainants and the Commission on

this point I indicated that I believed that it would be premature to set hearing dates, and
that I was not prepared to do so at that time. Assuming that the adjudication proceeds, the
parties will have to consider and address a number of factors, including those raised by the
Commission in its Brief and referred to above (e.g., the number of days reasonably required
for the hearing of the Complaints, the availability of the parties, the number of witnesses,
their availability, the estimated length of their testimony, etc.). In the event that the
adjudications proceed, many of these factors will have to be explored and clarified,
preferably in writing. As indicated at the hearing, a teleconference could then be convened
to address the matter of scheduling further hearing dates.
Accommodations for the Needs of the Parties and Witnesses
In the Notice of Motion, three of the Complainants, namely Ms Kinvig, Mr. Gordon and Ms
Renard, ask that they be allowed to bring to and use at the hearing a number of pieces of
equipment, and that the room in which the hearing is to be held satisfy certain
requirements with respect to lighting. Ms Kinvig requests, for example, that she permitted
to bring a laptop computer, specialized tape recorder and digital recorder into the hearing
“so that she may take appropriate notes and record such information during the hearing
that she feels is needed so she can conduct her portion of the case.” She says that the
specialized tape recorder is to be used “to play any taped evidence she may need to present
at the 20 day hearing.”
75
It is submitted that Ms Kinvig (and Mr. Gordon and Ms Renard) each require
some or all of the above equipment in order to function effectively during the hearing.
Similarly, Ms Kinvig says that the requested lighting, including natural light from clear,
untinted windows, blinds or drapes to control the amount of light, no fluorescent lights,
and lamps with bright white light (or other type of light, if required) set beside each person,
is required to accommodate her extreme sensitivity to light and to enable her and others
to see to their maximum potential and to function effectively.
Ms Kinvig also requests that any of her witnesses who reside in British Columbia be
permitted to testify by telephone, as she says that she cannot afford to pay the airfare to
have them come to Winnipeg to testify. Ms Kinvig refers to three individuals living in
British Columbia whom she wishes to call as witnesses, being a medical doctor who would
testify as an expert witness and two other individuals who would testify about her ability
to function in different lighting situations and her financial situation. She states that any
other witnesses residing in Manitoba will appear as required.
In her oral comments, Commission counsel referred to the submissions in the

Commission’s written Brief with respect to these issues. In that Brief, the Commission
states that the adjudicator has the authority, in controlling the procedures at the hearing,
as well as the responsibility under the Code, to provide reasonable accommodation for the
disability-related needs of parties and their witnesses in adjudication proceedings. On the
basis that Ms Kinvig, Mr. Gordon and Ms Renard appear to require the equipment and
lighting they have requested due to their disabilities, the Commission takes no issue with
their request, subject to the availability of a hearing room with the requested lighting and
the obligations of the parties to engage in further dialogue if needed to arrive at reasonable
accommodation to the point of undue hardship.
Given the Commission’s subsequent decision to terminate the Complaints or

alternatively withdraw from the proceedings, counsel for the Commission went on to add
in her oral submission that the Commission was not taking any position on any of the issues
relating to how the hearing ought to be conducted.
I am satisfied that an adjudicator has authority under the Code to provide reasonable
accommodation for the disability-related needs of parties and their witnesses in
adjudication proceedings, Subsection 39(2) of the Code provides that subject to
the Code and the regulations, the adjudicator may determine the procedures to be used at
the hearing and may receive such evidence or other information as he or she considers
relevant and appropriate, whether or not the evidence is given under oath or affirmation
or would be admissible in a court of law.
However, I am generally not satisfied that there is a sufficient basis on which I can
assess the appropriateness of, and need for, the various accommodations requested by the
Complainants at this time.
76
The Complainants argue that they require certain pieces of equipment in order to
function effectively at the hearing, but have provided little detail in this regard. In the
circumstances, I am unable to properly assess this request, including the need for each
piece of equipment, and the manner and extent to which the Complainants, collectively or
individually, propose to use the various pieces of equipment. I note, for example, that Ms
Kinvig refers to using the specialized tape recorder to “play any taped evidence she may
need to present”. I do not understand this reference to presenting “taped evidence”, and do
not accept that this would be appropriate.
The Complainants made a number of requests with respect to requirements for the
room and lighting in the room where the hearing is to be held, without identifying any
particular room or rooms which might be suitable. I do not know what locations, if any,
may satisfy these requirements, or whether they are otherwise suitable or available.
Counsel for the Commission arranged for the room for the hearing of the Complainants’
Motions, and indicated that the Commission consulted with the Complainants when the
room was booked, and that all had agreed with that location for the hearing of the Motions.
The room was a basement room, with no natural light or windows, and in that regard was
not consistent with the requirements listed by the Complainants in their Notice of Motion.
Yet it appeared from the comments of the Complainants who were present at the
preliminary hearing that the location, and particularly the lighting, were generally
acceptable to all, although there was some suggestion that if the Commission had a list of
possible alternate locations, those locations could be considered.
In the result, while I am not prepared to make an order in this regard, I am prepared
to consult with the parties and consider any further submissions or requests to reasonably
accommodate the needs of the parties in terms of any necessary and appropriate
specialized equipment and of the room and lighting in the room where the hearing is to be
held. With respect to the room and lighting, that may involve making the same or similar
arrangements for the room where these Motions were heard (assuming that that room is
available), or considering an alternate location if one is identified.
As for Ms Kinvig’s request that individuals from British Columbia whom she wishes
to call as witnesses be allowed to give evidence by telephone, the basis for that request is
said to be that Ms Kinvig cannot afford to pay for them to come to Winnipeg to testify. No
evidence was filed to support that assertion. Instead, Ms Kinvig apparently anticipates
having two of those witnesses testify at the adjudication as to Ms Kinvig’s financial
situation. That does not help her on this Motion, nor is there any indication as to how that
evidence might be relevant to the adjudication on the merits of her Complaint.
77
In any event, at this juncture and on the material before me, I am not in a
position to be able to properly assess the nature and extent of the evidence of these three
proposed witnesses, including the relevance and importance of their anticipated evidence
and the extent to which the ability to challenge and assess their credibility might be a
significant consideration. Accordingly, I find that the Motion for an order that these three
witnesses be allowed to testify by telephone is premature and I deny same.
In summary, I am not prepared in these circumstances to exercise my discretion to

grant any orders as sought by the Complainants under this heading at this point.
The Charter
The Complainants refer in their Notice of Motion and their Brief to sections
7 and 15 of the Charter. In their Notice of Motion, they seek orders finding, inter alia:
(i) that the Complainants are entitled to choose a favourable forum (the
adjudication as opposed to section 29(2)(b) when such a choice exists
under section 15(1) of the Charter. [sic]
(j) that the Complainants’ rights to fair process under section 7 of
the Charter have been contravened. …
As referred to earlier (see above, p. 58), the Complainants argued in paragraph 22 of

their Brief that they “are being singled out unfairly in violation of their Charter section
7 and 15(1) guarantees; section 7 regarding unfair process and procedure, and section
15 regarding denial of choice of forum.”
In their oral submission, the Complainants argued that if there is ambiguity,

legislation should be interpreted to accord with the Charter. They submitted that the
Complainants are not asking for Charter remedies, but only that the Charter be taken into
consideration as an interpretive principle.
The Commission’s position is that the Complainants have failed to articulate or

prove in fact or law any violation of any Charter right by the Commission.
I agree with the Commission that the Complainants have failed to articulate or prove
a violation of any Charter right. The Complainants have acknowledged that they are not
seeking any Charter remedies. Accordingly, there will be no order under this heading.
78
Conclusion
In summary, based on the foregoing, and having considered the evidence and
material filed and argument presented, I conclude that:
1. Clause 29(2)(b) of the Code does not require or allow the Commission to
terminate all proceedings respecting the Complaints, and in particular the
adjudication of the Complaints in these circumstances where, after the
Complaints were referred for adjudication, the Respondent has made an offer
of settlement which the Commission considers reasonable.
2. The Commission may not withdraw as a party to the proceedings. It may,

however, withdraw from actively participating at the adjudication. I do not
have the authority to require the Commission to continue to actively
participate as a party to the proceedings.
3. There is no basis for an order requiring or requesting the Government to fund

or provide legal counsel to the Complainants for the adjudication of the
Complaints.
4. There is no basis for an order requiring the Commission to pay Ms Kinvig’s

expenses for attending and participating at the hearing of the Complaints.
5. I do not have jurisdiction to grant the Complainants’ Motion to amend

the Pollock and Gordon Complaints to include the allegations of reprisal
which they are seeking to add. If I am mistaken with respect to the question
of jurisdiction, taking into consideration the facts and circumstances in these
cases, the proposed amendments ought not to be allowed.
6. Mr. Gordon may act as Ms Renard’s agent for the adjudication of her
Complaint, on an unpaid basis.
7. Hearing dates have not been set. In the event that the adjudication of the
Complaints proceeds, the parties will need to consider and address several
factors, including the number of days and witnesses reasonably required,
their availability, etc., following which a teleconference could be convened
to address the matter of scheduling hearing dates.
I am not prepared to grant any of the orders sought by the Complainants with
respect to accommodations for the needs of the parties and their witnesses
at this point. I am, however, prepared to consult with the parties and consider
further requests to reasonably accommodate their needs.
79
The Complainants have not articulated or proven a violation of

any Charter right, and have acknowledged that they are not asking for
any Charter remedies. There will be no order under this heading.
Dated at Winnipeg, Manitoba, this 12th day of October, 2011.
“M. Lynne Harrison” Adjudicator

80
Docket: CI 16-01-03381
(Winnipeg Centre)
Indexed as: Pollock et al. v. Human Rights Commission (Manitoba) et al.
Cited as: 2018 MBQB 170
COURT OF QUEEN’S BENCH OF MANITOBA

IN THE MATTER OF: A judicial review under sections 50(1) and 50(2) of the
Manitoba Human Rights Code and sections 7 and 15(1) of
the Charter
B E T W E E N:
RON POLLOCK and DELPHINE KINVIG, ) Counsel:

(complainants under The Human Rights Code)
)
) RON POLLOCK & DELPHINE
KINVIG
applicants, ) the applicants in person
)
- and - ) DOUG GORDON & SUSAN RENARD
) the potential co-applicants in person
MANITOBA HUMAN RIGHTS COMMISSION, )
AND WINNIPEG CONDOMINIUM ) ISHA KHAN
CORPORATION
NO. 30, ) for the defendant Manitoba Human
) Rights Commission
defendants, )
) TODD C. ANDRES
- and - ) DAVID E. SILVER
) for the defendant Winnipeg
THE GOVERNMENT OF MANITOBA, ) Condominium Corporation No. 30
)
intervenor. ) MICHAEL BODNER
) for the intervenor
) the Government of Manitoba
)
) JUDGMENT DELIVERED:
) November 5, 2018
81
LANCHBERY J.
I. INTRODUCTION
[1] Ron Pollock and Delphine Kinvig (the “applicants”) brought an application for a
judicial review seeking to set aside the decisions of an adjudicator and sending the issue
back for rehearing and redetermination. At issue is whether
the Human Rights Commission (the “Commission”) should have ordered the Winnipeg
Condominium Corporation No. 30 (the “WCC 30”) to install special windows to
accommodate the applicants’ disabilities when all the windows at the condominium
complex located at 55 Nassau, Winnipeg, Manitoba were being replaced.
[2] The applicants are also seeking a judicial review of the interim decision of the
adjudicator on whether the Commission should have been permitted to withdraw from the
adjudication (Pollock v. Winnipeg Condominium Corporation No. 30, [2011]
M.H.R.B.A.D. No. 1 (MB HRC) (QL)).
[3] Natalie Pollock, Doug Gordon, Susan Renard and Delphine Kinvig, collectively, were
referred to as the “complainants” during the adjudication. In this judicial review, they are
collectively referred to as the “applicants”. When these terms are referenced in this
decision, the term chosen will refer to the appropriate proceeding.
II. BACKGROUND
[4] The axiom of “justice delayed is justice denied” is a hot topic in society. A 15-year
saga involving a condominium window upgrade must attract attention in these changing
times. One of Murphy’s Laws states that ‘anything that can go wrong, will go wrong’. It is
clear from the perspective of the WCC 30 Board and the applicants that this is what
happened over the last 15 years.
[5] The applicants filed individual Complaints of Discrimination between December 5,

2006 and August 9, 2007. On April 28, 2010, the Minister of Justice, in accordance
with clauses 32(1) and (2) of The Human Rights Code, C.C.S.M. c. H175 (the “Code”)
designated Adjudicator Harrison to hear and decide the complaints.
[6] The four complaints first came before Adjudicator Harrison on May 28, 2010 for a
hearing with respect to a number of preliminary issues. The main issue being:
[W]hether the Human Rights Commission (the “Commission”) could terminate all
proceedings, including the adjudication, where the [WCC 30] made a settlement
offer after the Complaints had been referred to adjudication, an offer which the
Commission considered reasonable but each complainant rejected, or alternatively,
whether the Commission could withdraw from the proceedings in these
circumstances [leaving the complainants to advance their own claims].
82
[7] The adjudicator’s reasons were delivered on October 12, 2011 (Pollock v. Winnipeg
Condominium Corporation No. 30, [2011] M.H.R.B.A.D. No. 1 (MB HRC) (QL)). This 272-
paragraph decision provided extensive reasons.
[8] The complainants each determined that they wished to proceed with the adjudication
of their complaints.
[9] Prior to the commencement of the hearing before Adjudicator Harrison, the parties
agreed that the issue to be determined in all four complaints was:
Whether the [WCC 30] discriminated against each Complainant on the basis of
disability by failing to make reasonable accommodation for his/her special needs
based on disability when deciding to install or installing new windows in all condos.
[10] Adjudicator Harrison held hearings on the issues and rendered her four decisions on
June 6 and July 14, 2016 (Susan Renard v. Winnipeg Condominium Corporation No.
30, 2016 MBHR 3 (CanLII); Doug Gordon v. Winnipeg Condominium Corporation No.
30, 2016 MBHR 4 (CanLII); Delphine Kinvig v. Winnipeg Condominium Corporation
No. 30, 2016 MBHRC 5 (CanLII); and Ronald Franklin Pollock (on behalf of
Natalie Pollock) v. Winnipeg Condominium Corporation No. 30, 2016 MBHR 6
(CanLII)).
[11] Delphine Kinvig and Natalie Pollock contested the decision within the time frame
required. Susan Renard and Doug Gordon did not. At the commencement of the hearing
of this application before me, Susan Renard and Doug Gordon filed a motion seeking to be
added to the judicial review. The respondent WCC 30 opposed
the Gordon/Renard motion.
[12] Susan Renard and Doug Gordon in support of their motion made oral submissions. I
accept their position that it was always their individual intention to contest the decision
made by Adjudicator Harrison that affects them. I further accept their personal
explanations for why this did not occur within the time limits.
[13] I find that the just, most expeditious and lest expensive determination after applying
the concept of proportionality is that Doug Gordon and Susan Renard shall be added as
parties to the within application. The decisions of Adjudicator Harrison relate to the same
or similar issues and the findings in this judicial review will be equally applicable to Doug
Gordon and Susan Renard as they are for Natalie Pollock and Delphine Kinvig.
[14] Ron Pollock advised the court he is under a restriction imposed by The Law Society
of Manitoba that prevents him from appearing in a courtroom as an advocate. I accept,
given Natalie Pollock’s medical restrictions, including anxiety, that having her brother
appear as her agent does not violate this restriction. I note that some of the
correspondence in this file refers to Ron Pollock. I have treated any reference to
Ron Pollock as referring to Natalie Pollock’s claim.
83
III. ISSUES
[15] The issues raised by this application are:

A. What is the standard of review?
B. Is the decision in Northern Regional Health Authority v.
Manitoba Human Rights Commission et al., 2017 MBCA 98
(CanLII), instructive as to the standard of review?
C. Did the Commission fulfill its duty to have carriage of the complaints advanced
by the applicants?
D. Is the juridical delay involved in this case so egregious that it shocks the
reasonably instructed public?
A. WHAT IS THE STANDARD OF REVIEW
[16] This application was heard over three days, being June 16 and September 22, 2017, and
June 13, 2018. At the June 16, 2017 hearing, all parties agreed that the standard of review
was reasonableness as the adjudicator was interpreting her home statute, which is
contemplated by Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R.
190. This hearing was adjourned by consent of the parties, as there was an expressed
interest in reaching a settlement.
[17] Those negotiations were unsuccessful. An additional hearing was scheduled for
September 22, 2017. In anticipation of that hearing, the applicants submitted a
supplemental brief arguing that the standard of review should be correctness.
[18] Dunsmuir is the leading case on standard of review. Dunsmuir stands for the
proposition that when a tribunal is reviewing its home statute, reasonableness is the
standard of review. However, at paragraph 47 of Dunsmuir, the Court held that:
A court conducting a review for reasonableness inquiries into the qualities that
make a decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the decision-
making process. But is also concerned with whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts and the
law.
[19] The applicants argued that in Dunsmuir, the Court found that the reasonableness
standard could be rebutted making the standard of review correctness if certain conditions
were met.
84
[20] The applicants argued for correctness by proposing that they have rebutted the
reasonableness standard set forth in Dunsmuir, even when the reviewing tribunal is
interpreting its home statute for the following reasons:
a) reasonable accommodation is a private dispute;
b) multiple legalities;
c) concurrent jurisdiction;
d) the respondent WCC 30 encouraged the Commission to abandon the
adjudication improperly;
e) the adjudicator ignored evidence;
f) the adjudicator ignored court findings; and
g) the adjudicator provided for an unreasonable remedy.
[21] The position of the respondents was that the standard of review was
reasonableness. In the exceptions to the reasonableness standard as argued by the
applicants, the respondents argued that the fact circumstances do not support this
position. I note that the positions of the Commission, the WCC 30 and the Government of
Manitoba have not been outlined specific to the arguments of the applicants to elevate the
standard of review to correctness. The respective respondents maintained that the June 16,
2017 agreed position is reasonableness. Therefore, I have not placed this position in the
individual areas raised by the applicants for simplicity.
POSITION OF THE PARTIES
a) Reasonable Accommodation is a Private Dispute
[22] The applicants referred to Multani v. Commission scolaire Marguerite-

Bourgeoys, 2006 SCC 6 (CanLII), in support of their position. The question
in Multani was whether a Sikh child could be prevented from wearing a ceremonial kirpan
to his school in keeping with his religious traditions. The question before the Court was
the whether the intersection between the Charter protected freedom of religion
and human rights raised the standard of review to correctness.
[23] The applicants also argued that the adjudicator, by permitting the Commission to
remain silent during the hearings, exceeded her jurisdiction such that her decision should
be reviewed for correctness, not reasonableness.
85
[24] Further, that by the Commission remaining silent, the adjudicator was delinquent in
protecting the rights of poor people who could not afford a lawyer to present their case. By
denying the applicants an appointed lawyer, the standard of review should be
reasonableness.
b) Multiple Legalities
[25] The applicants argued that the Commission’s attempt to terminate the adjudication
“amounted to a nullity”. In particular, once the Commission decided that it would not take
a position in the proceedings, its only choice was to terminate the proceedings. Further,
the applicants referred to the adjudicator’s reasons on whether s. 22(1) or s. 22(3) of
the Code should be applicable.
[26] The applicants rely on McIntire v. University of Manitoba (1981), 119 D.L.R. (3d)
352, 1981 CanLII 2667 (MB CA) (at para. 29):
There is no provision, under Part III, or anywhere else in the Act, which states that
enforcement is limited to the procedures under Part III. In many instances, the
nature of the complaint is inappropriate to a civil Court action. A complaint of
discrimination need not involve monetary matters, nor require a Court order
capable of enforcement. A complaint to the Commission, followed by a hearing
before a board of adjudication, spares the complainant the cost of investigation, the
cost of preparing and presenting a case, and the hazard of having to pay party/party
costs if the complaint should fail, the responsibility for all of which is assumed by
the Commission. But if a complainant is prepared to pay the cost in order to utilize
some other mechanism of enforcement, I see nothing in the Act which would
preclude the complainant from doing so.
[27] McIntire involved mandatory retirement for university professors. The applicants
argue that the costs of pursuing adjudication without financial assistance being offered to
them so that they could retain counsel was palpable and overriding error, which leads to a
correctness standard of review.
[28] The applicants argued that this court should consider the differences in the English
and French language chosen by the legislature. The French language supports the
applicants’ position that the Commission should have had carriage of the complaint. The
acceptance by the adjudicator of the Commission’s position, is overriding and palpable
error, which leads to a correctness standard of review.
c) Concurrent Jurisdiction
[29] The applicants argue concurrent jurisdiction rebuts

the Dunsmuir standard. Although framed in this manner, the question is better framed
by stating one of the exceptions in Dunsmuir - whether the reasonableness standard is
rebutted by the legislative intent.
86
[30] The applicants argue that Canada (Canadian Human Rights Commission) v.
Canada (Attorney General), 2011 SCC 53 (CanLII), [2011] 3 S.C.R. 471 states (at para. 23):
There is no doubt that the human rights tribunals are often called upon to address
issues of very broad import. But, the same questions may arise before other
adjudicative bodies, particularly the courts. In respect of some of these questions,
the application of the Dunsmuir standard of review analysis could well lead to the
application of the standard of correctness. But, not all questions of general law
entrusted to the Tribunal rise to the level of issues of central importance to the legal
system or fall outside the adjudicator’s specialized area of expertise. Proper
distinctions ought to be drawn, especially in respect of the issue that remains before
our Court.
d) WCC 30 Improperly Encouraged the Commission to Abandon the

Complaints
[31] The applicants argue that the WCC 30 encouraged the Commission to abandon the
filed complaints in its settlement discussions with the Commission.
[32] I must admit that the applicants’ argument is difficult to follow. The complainants
brought a motion to prevent the Commission from actively pursuing this matter. The
Commission filed a brief on May 21, 2010. On May 21, 2010, the WCC 30 Board in an email
stated it “agreed with the written submissions filed by the Commission.” This was a
preliminary issue raised by the complainants. Notwithstanding the difficulty, I will address
this argument in the reasons.
e) Ignoring Evidence
[33] The applicants argued that in paragraph 152 of Adjudicator Harrison’s decision
(Pollock v. Winnipeg Condominium Corporation No. 30, 2016 MBHR 6 (CanLII)), she
ignored the evidence of Mr. Woloschuk on the merits that windows could be designed to
allow for ventilation as required by Natalie Pollock that would comply with the safety
requirements of the building codes in effect at the relevant time. As an example, the
applicants submitted that there could have been a guard or grille installed over the window
to prevent people from falling out. However, Adjudicator Harrison’s reasons did not
include reference to either building code, which amounted to an error in law so as to elevate
the standard of review to correctness from reasonableness.
f) Ignoring Court Findings
87
[34] The applicants argue that the safety of the windows was discussed in Briggs v.
Winnipeg Condominium Corporation No. 30, 2007 MBQB 35 (CanLII), 211 Man. R. (2d)
257 (at para. 75):
In my view, the work does encompass more than what is strictly required for
maintenance. I agree that the windows need to be replaced. Moreover, they need
to be replaced with better and more expensive windows in order to comply with the
Building Code. There is no avoiding that. If the respondent is to properly fulfill the
statutory duty of maintenance that much is inevitable. However, I am not satisfied
that all of the changes and improvements inevitably flow from the act of
maintenance.
[35] By failing to recognize the court finding that the windows were unsafe the
adjudicator’s decision is not owed any deference.
g) Unreasonable Remedy
[36] The applicants argue that by not calling for the installation of modified new windows
in accordance with the suggestion of Mr. Woloschuk, the adjudicator erred in law and,
therefore, her decision is not owed any deference.
[37] In each of these areas, the respondents, collectively, did not agree with the position
of the applicants. Each of them maintained that the Dunsmuir analysis results in the
standard of review being reasonableness.
[38] However, the respondents agreed with the position advanced by the Government of
Manitoba that by citing Multani, the applicants “are muddying the waters” by adding a
constitutional argument when the real issue is whether the standard of review is
reasonableness. The Government of Manitoba encouraged the court not to be distracted
by the applicants’ Charter arguments.
ANALYSIS AND DECISION
a) Reasonable Accommodation is a Private Dispute
[39] The question of whether a young Sikh child should be permitted to wear a kirpan to
his school, does attract consideration of freedom of religion as protected under
the Charter. The question before the adjudicator did not attract
any Charter considerations as suggested by the applicants’ argument. In Doré v. Barreau
du Québec, 2012 SCC 12 (CanLII), [2012] 1 S.C.R. 395, it was held that administrative
decisions must comply with the Charter. The applicants’ argument was difficult to
follow. However, many of its arguments were also advanced in other areas, which I will
address. Therefore, I agree with the Government of Manitoba that this was more an effort
to muddy the waters, and I find that the argument is not persuasive to change the standard
of review to correctness.
88
[40] I also find that the question of accommodation in this case does not rise to the level
of central importance to our legal system. Accommodation is a well-known requirement
in human rights litigation. The question is not whether there should be accommodation,
but whether the accommodation required should be based upon the facts of each case
before the adjudicator.
[41] These adjudications did not establish any new principles of accommodation. In fact,
it was agreed by the respondents that the applicants’ disabilities required
accommodation. It is only a question of what the accommodation should be that is at
issue. The applicants’ argument must fail as the fact circumstances before me do not
support their position.
b) Multiple Legalities
[42] The question raised by the applicants involves an interpretation of ss. 22(1) and (3) of
the Code:
Complaints Plaintes
22(1) Any person 22(1) Une plainte peut être déposée à
may file, at an office un bureau de la Commission par une
of the Commission, a personne qui déclare qu'une autre
complaint alleging personne a contrevenu aux dispositions
that another person du présent code.
has contravened
...
this Code.
...
Plainte déposée par la Commission

ou par le directeur général
Complaint by Commission or
executive director 22(3) La Commission ou le directeur
général qui a des motifs raisonnables de
22(3) Where the Commission or croire qu'une personne a contrevenu aux
the executive director believes on dispositions du présent code peut
reasonable grounds that any person déposer une plainte contre cette
has contravened this Code, the personne. Les dispositions du présent
Commission or the executive code s'appliquent à la plainte, compte
director may file a complaint tenu des adaptations de circonstance.
against the person, and the
provisions of this Code apply with
such modifications as the
circumstances require to the
complaint.
89
[43] The applicants argue that the adjudicator erred by permitting the Commission to
focus on the public interest at the applicants’ hearing and thus relied incorrectly upon a
public interest complaint under s. 22(3) as opposed to the private dispute under s. 22(1). I
do not agree.
[44] The Code creates two methods for a complaint to be brought forward. First,
under s. 22(1), where an individual believes their rights are affected and files a complaint
with the Commission. Second, where an issue comes to the attention of the Commission,
the Commission may initiate a complaint to address the public interest.
[45] This position is supported by s. 34 of the Code, which states:

Parties to adjudication Parties à l'arbitrage
34 The parties to an adjudication 34 Les parties à un arbitrage en vertu
under this Code are du présent code sont les suivantes:
(a) the Commission, which shall have a) la Commission, qui est
carriage of the complaint; responsable de la conduite des
procédures relatives à la plainte;
b) le plaignant;
(c) any person, other than the c) toute personne, autre que le
complainant, named in the plaignant, qui est nommée dans
complaint and alleged to la plainte et qui aurait fait l'objet
have been dealt with in de procédures à la suite d'une
contravention of this Code; contravention au présent code;
(d) the respondent; and d) l'intimé;
(e) any other person added as a e) toute autre personne jointe à titre
party under section 24 or de partie en vertu de l'article 24 ou
section 40. 40
[46] Section 34 of the Code confirms that the Commission and the complainant are both
entitled to be present and make presentations to the adjudicator. The section does not
indicate that the Commission and the complainant need be of like mind. The record is
clear that the Commission believed that the accommodation being offered by the WCC 30
was sufficient. The applicants took a contrary view which was their right. There is nothing
sinister about the Commission being present at the adjudication to ensure that public
interest concerns were properly presented.
[47] The applicants argued that this court should consider the differences in the English
and French language enacted by the legislature. Where there are differences between the
English and French words, the court should resolve the conflict using the more common
use of the word (The Law Society of Manitoba v. Pollock, 2007 MBQB 51 (CanLII)).
90
[48] The applicants submit that the word “responsible” in the English version is defined
as “of a job or position involving important duties or decisions or control over others” and
“duty” is defined as “a moral of legal obligation” and “a task required as part of one’s job”.
[49] In the French version, the word is conduite, or conduct. The applicants offer that
conduct means “the action of conducting; guidance; leading”. If the purpose is to lead, then
it was an error to permit the Commission to withdraw. The Commission was unable to
lead if it was not participating.
[50] The applicants argue that in the event the adjudicator had considered the French
word “conduite”, she would have come to a different conclusion on whether the
Commission could withdraw from the hearing.
[51] The applicants further submitted that the French word “responsable” had been
considered in R. v. Dickson (W. A.), 2013 MBCA 58 (CanLII) (at para. 29):
The responsibility of the Province as owner of the water resources means that we
cannot abandon even if we wished our role in addressing the overall and potentially
widespread impacts of individual water managements decisions. . . .
[52] In Dickson, the court held that if the agency responsible for water management
decisions could withdraw totally, the effect would be recusing itself from the overarching
obligations for water management, which it was constituted to protect. In essence, this
would be abandoning the public interest.
[53] The question of abandonment of a water resource cannot be equated to what

occurred when the Commission and WCC 30 attempted to reach a settlement. The
Commission did not abandon any of its obligations as it was still present at the hearing to
protect the overall public interest. The Commission’s presence still permitted it to ensure
that its legislative function was carried out.
[54] The applicants’ arguments on language are an interesting hypothesis, but it is not
supported by the common meaning of the words chosen, as suggested by Monnin C.J.Q.B.
(as he then was) in The Law Society of Manitoba v. Pollock, 2007 MBQB 51
(CanLII). The conduct of the hearing refers to those procedural decisions made by the
Commission, such as the date of the hearing, the location of the hearing, etc.
[55] It would be an absurdity if the Commission’s “conduite” meant that the Commission
was able to instruct the adjudicator on what their role was, what law the adjudicator should
apply, or indeed what the adjudicator should find as the facts. If the adjudicator had to
follow these types of instructions, the independence that such a hearing implies would be
lost. In essence, there would be no need for the adjudication at all.
91
[56] The applicants’ argument that there is a difference between the English
and French words is not supported by the common meaning of those words,
and is an attempt by the applicants to create a distinction where none exists. I
reject this argument.
[57] The applicants’ argument that they were left without the ability to properly prosecute
their claim absent the assistance of the Commission is not borne out by the facts of this
case. The complainants were able to call witnesses and make submissions over a total of 13
days. The complainants were able to file a motion, submit affidavit material in support of
the motion and make oral arguments on the carriage of the hearing. Their motion required
the adjudicator to write a 272-paragraph decision, which is indicative of their abilities and
the quality of their presentation. They may not have won outright, but the decision
confirmed that the Commission could not totally withdraw. This supports the fact that the
complainants were able to present their collectives cases without representation. I do not
agree with their position that “poor people were left out in the cold” as they have alleged.
[58] The applicants’ argument that the decision of the adjudicator should be ruled a
nullity because of the interaction of ss. 22(1), 22(3) and 34 is also not
persuasive. The Code provides for the applicants to be present at the hearing of their
complaints, and they were. Ron Pollock was able to act as an agent for his sister, and Doug
Gordon was permitted to act as an agent for Susan Renard. The right of self-representation
is well known. It was exercised. I reject this argument.
[59] The fact that there are two ways to file a complaint does not equate to the
Commission being unable to protect the public interest in an applicant-filed
complaint. The Commission’s presence is to ensure that the public interest is
protected. There remains a public interest in any proceeding under the Code as all
decisions of adjudicators have an overall value to the public which are not limited to the
facts of an individual arbitration.
[60] Section 22(3) of the Code does not place restrictions on the Commission as suggested
by the applicants. It permits the Commission to actively pursue complaints that come to
their attention in ways other than by individual complaint. For example, in the event that
a member of the media broke a story concerning systemic discrimination against a group
of people involving a prohibited ground as set forth in the Code, the Commission is not
required to recruit a member of the prohibited group to file a complaint. On its own
initiative, it can file the complaint. The applicants’ argument must fail on this
point. See Northern Regional Health Authority for further comment.
92
[61] There was no evidence before me that the parties were unable to represent themselves
due to an inability to afford or retain counsel. The applicants did not offer any specifics as
to what may have been different if they had been represented by counsel. There is no
evidence before me that they ever intended to retain counsel or were unable to retain
counsel due to financial concerns. It is true that retaining legal counsel may be expensive,
but without any evidence in support, it is impossible to find that they were in any way
disadvantaged after the fact.
[62] I acknowledge that an unrepresented party may be at a disadvantage, but that does
not lead to the conclusion that there was actual prejudice suffered. It certainly does not
flow that being self represented requires the judicial review standard to be elevated to
correctness.
c) Concurrent Jurisdiction
[63] The applicants argued that the presumption may be rebutted if it can be concluded
that Parliament’s intent is inconsistent with its application (Rogers Communication
Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35
(CanLII)).
[64] The applicants further argued that tribunal decisions dealing with
broad human rights principles may result in the standard of review being correctness
(Canada (Canadian Human Rights Commission) v. Canada (Attorney General)).
[65] The applicants submitted in this case that interpretation of the applicable building
code should rebut the presumption of reasonableness.
[66] In reaching my decision, I emphasize a portion of paragraph 23 of Canada

(Canadian Human Rights Commission) v. Canada (Attorney General):
In respect of some of these questions, the application of the Dunsmuir standard of
review analysis could well lead to the application of the standard of correctness. But,
not all questions of general law entrusted to the Tribunal rise to the level of issues
of central importance to the legal system or fall outside the adjudicator’s specialized
area of expertise. Proper distinctions ought to be drawn, especially in respect of the
issue that remains before our Court.
[67] The applicants’ argument could be taken to mean that the permissive “may” equates
the standard of review to be correctness. In fact, I find that this decision only confirms the
standard of review to be reasonableness.
93
[68] The Court found that in all cases, distinctions within cases should be drawn before
reaching a conclusion on the standard of review. I agree. This case concerns the level of
accommodation that should be afforded to persons with disabilities. This is what
most human rights adjudications determine. To suggest that the issues in this case
somehow fall outside the adjudicator’s specialized area of expertise when the question of
accommodation is solely within the adjudicator’s area of expertise is not
supported. Further, this is not a case where the question of general law entrusted to the
tribunal rises to the level of issues of central importance to the legal system. This is about
accommodation after all, which is precisely what the legislation requires. This argument
must fail.
d) WCC 30 Improperly Encouraged the Commission to Abandon the
Complaints
[69] Turning to the applicants’ argument that the Commission and the WCC 30, by
discussing settlement, encouraged the complainants to abandon their complaints. I note
that the complainants made a motion to challenge the Commission’s decision to withdraw
from active participation. This was not an attempt to force the complainants to withdraw
their complaints. The fact that the applicants brought this application indicates that they
were at odds with the Commission. It is equally true that the WCC 30, which had been in
the midst of a then seven-year saga, did not want this matter to be delayed any further. It
actively sought a settlement. This is understandable. The fact that the settlement
discussions did not bear fruit cannot be held against the WCC 30 or the Commission. The
foundation of the applicants’ argument is not in accordance with the facts.
e) Ignoring Evidence; and f) Ignoring Court Findings
[70] I will deal with these two arguments together. The applicants’ characterization of
the deficiencies of the adjudicator are not supported by the evidence before her, nor the
case law upon which they rely. Briggs was not a case about building standards. It involved
whether WCC 30’s Board of Directors was required to hold a vote of all unit owners
approving the project, or could the project be undertaken under general maintenance. The
findings of Jewers J. must be considered in that context. I find that this argument must
fail. A review of the lengthy decisions of the adjudicator for each of the applicants and the
carriage decision determines that the adjudicator did outline the appropriate case law, and
there was no error made in her recitation of the facts.
[71] I find the mere fact that there could have been a new window designed to meet the
requirements of the applicants does not mean that what was provided was not a reasonable
accommodation. The adjudicator’s findings based on the evidence before me is that each
of the applicants had a preference for the style window they wanted installed in their
respective units. She found these were only preferences and not needs which required
accommodation.
94
[72] The attempt to combine these two issues is not supported by the facts of this
case. The adjudicator’s findings were based on the evidence she heard. The applicants’
arguments can be synthesized to we are not in agreement with facts the adjudicator found
to be applicable. Both of these arguments must fail.
g) Unreasonable Remedy
[73] Finally, the applicants noted that in Payne v. Bank of Montreal, 2013 FCA 33
(CanLII), an adjudicator can be reasonable throughout, but the remedy can be
unreasonable. I take no issue with this argument.
[74] Ms. Kinvig advanced the argument that she was forced to move from her home as a
result of the actions of the Commission and the WCC 30. She argued that this is akin to
the circumstances in Multani where a student who wore a kirpan at all times based upon
his religious beliefs, was prohibited from wearing the kirpan to school. The prohibition
deprived him of his right to attend a public school. As I have already determined, a case
based upon the Charter is not comparable, this argument cannot succeed. I find
Ms. Kinvig and all the applicants are passionate advocates for their personal
circumstances. I understand their passion, but passion alone does not elevate the standard
of review to correctness.
[75] I accept that the positions advanced by the respondents and the applicants at the at
the June 16, 2017 hearing were correct. The revised position of the applicants is not
supported. Notwithstanding this change in position by the applicants, I find the standard
of review to be reasonableness.
B. IS THE DECISION IN NORTHERN REGIONAL HEALTH AUTHORITY V.
MANITOBA HUMAN RIGHTS COMMISSION ET AL., INSTRUCTIVE AS TO THE
STANDARD OF REVIEW?
[76] Following the September 22, 2017 hearing, the Manitoba Court of Appeal issued its
decision in Northern Regional Health Authority. Leave to appeal to the Supreme Court
of Canada has been requested. I determined that given the nature of the decision, the
parties should make further presentations.
95
[77] The issues addressed in Northern Regional Health Authority are important in this
case for two reasons. First, did the adjudicator make determinations about the
construction standards, whether these be under National Building Code of Canada or
the Manitoba Building Code, in her decision? Did the adjudicator make findings about the
safety of the existing windows based upon the National Building Code or the Manitoba
Building Code? If so, the applicants argue that the necessity to replace the windows at
55 Nassau for safety reasons would be outside the adjudicator’s area of expertise, and the
standard of review should be correctness.
[78] Second, was the adjudicator’s decision that the Commission could remain silent at
the hearing in contravention of the findings in Northern Regional Health Authority?
[79] The applicants argued the adjudicator made factual determinations about the
suitability of the existing windows at 55 Nassau. She made findings that were outside her
area of expertise. Northern Regional Health Authority determined whether an
employee’s alcohol consumption should be governed by the Commission (as alcohol
dependency is a recognized disability) or whether the matter should be the subject of a
labour arbitration as provided in a collective agreement between the employer and the
employee.
[80] Mainella J.A. stated in Northern Regional Health Authority (at para. 80):
How the complainant defined the dispute in her complaint to the Commission is
not determinative (see Guérin at para 40; and Phillips at para 65). The essential
character of the dispute raised in the complaint to the Commission must be
examined in light of the factual context . . .
[81] The assumptions made by the applicants that the adjudicator made decisions about
building code requirements or safety of the windows is not borne out by the evidence
before me. I would agree with the decision of the adjudicator that the windows could
remain until the time the applicant moved out of the condominium is less than
clear. However, it was WCC 30’s engineer that was required to monitor the
windows. Although there was no determination of what would occur in the event that the
windows became deficient, there was no evidence before me that any of the windows in
any of the applicant’s units were or are now deficient. The fact that the building engineer
was directed to monitor the state of the windows indicates that action would be taken if
the windows were found to be unsafe.
96
[82] Ms. Pollock made statements that she believes the windows to be unsafe, but there
was no evidence before the adjudicator or this court that the windows are indeed
unsafe. There is no evidence before me that inspections of the windows in these units have
been made or have not been made. However, that is for the applicants to argue that the
undertaking of the WCC 30 to inspect the windows as offered by it has not been
done. Therefore, the applicants’ first argument has not been made out as there was no
evidence before the court to support that the adjudicator improperly considered the
provisions of either the National Building Code of Canada or the Manitoba Building Code.
[83] The factual context before me is whether the installation of the windows proposed
by the Board of WCC 30 reasonably accommodated the disabilities of the applicants,
whether by tinting or ventilation. The factual context of the applicants’ complaint is
accommodation or lack thereof. Therefore, the conflict between the two legislative
regimes that was present in Northern Regional Health Authority, is not present in this
case.
[84] Turning to whether the adjudicator erred in law by permitting the Commission to
remain silent, I must consider the comments from Northern Regional Health Authority,
which states:
[74] The Manitoba legislature has provided the Commission with a power to defer
consideration of a human rights complaint in favour of another
forum. Section 29(3) of the Code gives a broad discretion to the Commission as to
whether a complaint should be referred to adjudication (see Halifax (Regional
Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 (CanLII) at
para 21 (Halifax)). Referral to adjudication requires the Commission to be “satisfied”
that further proceedings would either further the objectives of the Code or assist the
Commission in its discharge of responsibilities under the Code. Where no referral
occurs, the Commission must terminate its proceedings in respect of the complaint
(see section 29(4) of the Code). The Commission’s exercise of its referral discretion
under section 29 of the Code is to be reviewed for reasonableness (see Halifax at
para 17; and Korsch at para 6).
[75] In Korsch, the Commission terminated proceedings based on a reasonable

settlement being offered by a respondent, but rejected by a complainant
(then section 29(2)(b) of the Code, (now section 24.1(4))). On the appeal of the
judicial review of the Commission’s exercise of discretion to terminate proceedings,
this Court acknowledged that the legislative scheme of the Code gives the
Commission a “gatekeeper” function as to which complaints are referred to
adjudication (see para 10; and see also Halifax at para 20).
97
[76] The current version of the Code provides for the power of the Commission to
screen out complaints from being adjudicated in the course of its gatekeeper
function where the complaint does not have a reasonable prospect of success
(see section 29(1)) or where, as previously mentioned, the Commission is not
satisfied that it is necessary in the circumstances for an adjudication to take place,
despite its potential merits (see section 29(3)).
[85] It is important to remember that the WCC 30 made an offer to accommodate the
disabilities of the applicants after the matter had been referred to adjudication. The
Commission exercised its “gatekeeper” function when it forwarded the complaints to the
adjudicator. Once the matter had been referred to adjudication, I find the legislation or
the case law does not permit the adjudicator to reject the complaint. Further, I find that
the legislation and the case law provided by the parties does not permit the Commission to
cancel the arbitration. Any argument to abandon, cancel or nullify the arbitration at this
point, which has been advanced by the applicants, cannot succeed for these reasons.
C. DID THE COMMISSION FULFILL ITS DUTY TO HAVE CARRIAGE OF THE
COMPLAINTS ADVANCED BY THE APPLICANTS?
[86] The applicants argued that the adjudicator erred in law in Pollock v.
Winnipeg Condominium Corporation No. 30, [2011] M.H.R.B.A.D. No. 1
(MB HRC) (QL), when she stated (at para. 143):
I recognize that in many, if not most cases, complainants choose
not to be represented by their own counsel, to adduce any
evidence or to make any representations at the hearing, relying
instead on the evidence adduced and submissions made by the
Commission or Commission counsel. They cannot rely on that
fact however, as creating a legal duty or requirement on the part
of the Commission to represent them or to adopt and advocate
their position at the hearing.
[87] To place the applicants’ argument in context, it is important to also consider

paragraphs 144 - 147:
In referring a complaint to adjudication, the Commission must be satisfied that
additional proceedings are warranted to further the objectives of the Code or to
assist it in discharging its responsibilities under the Code. Thereafter, the
Commission may continually assess its position as a party to the adjudication. As
the matter moves forward to adjudication, the Commission may therefore vary its
position or take a different position from one it held at the time of the referral to
adjudication.
98
Although I have previously concluded that the Commission has no authority

under clause 29(2)(b) to terminate the adjudication based on a reasonable offer of
settlement once a matter has been referred to adjudication, that does not mean that
the Commission cannot or should not consider any further offers of settlement at
that stage. In my view, where a respondent proposes a further offer of settlement,
the Commission, as a party, is entitled to consider the reasonableness of that offer
and whether it would be in the public interest to settle the matter on that basis. If
it concludes that such an offer is reasonable and that a settlement is in the public
interest, but the complainant, does not agree, can the Commission then withdraw
from the adjudication?
Section 34 of the Code states that the Commission and others “are” parties to the
adjudication. Section 40 of the Code goes on to provide that other persons may be
added as parties to the adjudication. There is no provision in the Code, however,
which states that a party may withdraw or remove itself as a party to the
adjudication, or that the adjudicator may allow a party to cease being a party to the
adjudication. In the face of section 34 of the Code, I am not convinced that the
Commission has the authority to withdraw as a party to the adjudication.
I am, however, of the view that a party, including the Commission, may be entitled
to withdraw from actively participating at the adjudication. Subsection 39(4) gives
every party an opportunity to present evidence and make submissions. It does not
say that they must do so. I was not pointed to any statutory provision or case law
which suggests that an adjudicator has authority under the Code to require that a
party adopt or argue a particular position or point or to stop a party from
withdrawing from participating at the hearing.
[88] The applicants argued that carriage should be given the meaning as set forth in
Justice Ferrier’s dissent in McKenzie Forest Products Inc. v. Tilberg, 1999 CanLII 15057
(ON SC), which was adopted by the Ontario Court of Appeal. Tilberg states (at paras. 96
– 99):
Section 39(2) also provides that the Commission, as a party, “shall have carriage of
the complaint”. A thorough search of case law, legal and standard dictionaries did
not reveal any single or definitive meaning for the word “carriage” that would assist
me in this case. But what this search did reveal was that the meaning of the word
carriage is derived contextually. It can range from procedural leadership, to acting
in others’ best interest, to outright control. See, for example, Gough v.
Whyte (1983), 56 N.S.R. (2d) 68 (S.C.). where the Court held that for the insured to
have carriage of the action in insurance law means he could prosecute the action,
and he could settle it. In Faulds v. Harper (1886), 1886 CanLII 3 (SCC), 11 S.C.R. 639,
the Court stated that to have carriage of proceedings in estates law means to stand
in a fiduciary position to all the parties and encumbrancers in the
cause. In American Airlines v. Canada (Competition Tribunal), 1988 CanLII 5706
(FCA), [1989] 2 F.C. 88 (C.A.), the Court defined what it meant for the Director of
Investigation and Research to have carriage of a matter: he, together with the
respondents, has the ultimate responsibility of shaping the issues and setting the
matter.
99
The meaning of the word carriage must be derived through the object and scheme
of the Act, which is the “context” in which this word must be interpreted. For all the
reasons above, carriage here can only refer to procedural priority. The Commission
leads its evidence first. It (not the complainant) decides what witnesses it will call
and what relief it will seek from the Board. The complainant has no right to insist
that the Commission call a particular witness nor to seek a particular remedy. To
hold that carriage gives the Commission what would amount to total effective
control over the complainant’s Code-given substantive rights, would offend the
object and scheme of the Code and abrogate the SPPA.
In West End Construction Ltd. v. Ontario (Ministry of Labour) (1989), 1989 CanLII
4088 (ON CA), 70 O.R. (2d) 133 [10 C.H.R.R. D/6491] (C.A.), the Court did state at
140 [D/6494, para. 45724] that the “complainant has no status except that conferred
upon him by the Commission”. But read in context, this phrase can only mean that
the Commission confers status on a complainant by deciding to refer the matter to
a Board. This is true, as the Commission is the decision-maker at this stage, but not
thereafter. It cannot mean that the complainant is but a puppet of the Commission
once the matter is referred, and that the complainant has no separate status at this
stage. The party status created by s. 39(2) precludes this interpretation.
As noted, in my opinion “carriage” is defined by its context. When one looks at the
context of the Code, it is clear that private interests and private parties are integral
to the process, especially after the matter has been referred to the Board. Carriage
therefore, must mean nothing more than procedural leadership. With two parties
on the “same” side, it makes sense that one would be designated the procedural
leader. Further, such a leadership role recognizes the fact that many complainants
do not have the resources available to the Commission.
[89] In McKenzie Forest Products Inc. v. Ontario

(Human Rights Commission) (2000), 48 O.R. (3d) 150, 2000 CanLII 5702 (Ont. C.A.), the
Court of Appeal addressed four issues:
Issue A. Did the Divisional Court err in failing to recognize the independent status
of the complainant as a party before the Board of Inquiry in light of the
policy and procedure of the Code?
Issue B. Did the Divisional Court err in failing to recognize the change in
the Commission's role upon its referral of the subject matter of a
complaint to a Board of Inquiry?
Issue C. Did the Divisional Court err in holding that the Board of Inquiry is not an
autonomous tribunal independent of the Commission?
Issue D. Did the Divisional Court err in finding that the Board of Inquiry lost its
jurisdiction to continue with the hearing of the complaint when the
Commission decided not to participate further in the proceedings?
100
[90] The court answered the first three issues as follows:

[32] … the majority of the Divisional Court did err in failing to recognize the
independent status of the complainant as a party before the Board of
Inquiry. . . .
[33] … once the Commission exercises its discretion to refer a complaint to the
Board of Inquiry [consistent with an adjudicator’s responsibility in
Manitoba], the role of the Commission fundamentally changes. It no
longer acts as an investigative and screening body, but becomes a part of
the proceeding. At this point, the determination of the complaint then
becomes the responsibility of the Board of Inquiry. . . .
[40] I … conclude that the Divisional Court erred in not finding that the Board
of Inquiry is an autonomous tribunal independent of the Commission.
[91] The fourth issue was answered by McMurtry C.J.O as follows:

[41] Once a complaint has been referred to the Board of Inquiry, there is no
provision in the Code which limits the Board of Inquiry's obligation to conduct a
hearing into a complaint.
[42] In my view, it is not unreasonable for the Commission to withdraw from

participating in the hearing before the Board of Inquiry when its public interest
mandate has been satisfied.
[43] The majority of the Divisional Court held that the Commission has a statutory
duty pursuant to s. 39(2)(a) to have the carriage of the complaint ‘and that there was
no authority in the Code for the Commission to delegate such carriage to the
complainant’.
[44] I agree with the submission of the appellant that an interpretation of

the Code that would not allow the complainant to proceed in the absence of the
Commission is inconsistent with both the independent party status accorded the
complainant in the proceedings and with the Board of Inquiry's independent status
and its duty to hold a hearing.
[45] In Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 CanLII 18

(SCC), [1985] 2 S.C.R. 536 at pp. 546-47, 23 D.L.R. (4th) 321 at pp. 328-29, the
Supreme Court of Canada emphasizes the importance of interpreting the provisions
of the Code in a manner which will serve the policy goals of the legislation:
It is not, in my view, a sound approach to say that according to

established rules of construction no broader meaning can be given
to the Code than the narrowest interpretation of the words
employed. The accepted rules of construction are flexible enough to
enable the Court to recognize in the construction of
a human rights code the special nature and purpose of the
enactment . . . and give it an interpretation which will advance its
broad purposes.
101
[46] This purposive approach of interpretation was enunciated again in Action

Travail des Femmes v. Canadian National Railway Co., 1987 CanLII 109 (SCC), [1987]
1 S.C.R. 1114, 40 D.L.R. (4th) 193, by Dickson C.J.C. at p. 1134 S.C.R., p. 206 D.L.R.:
Human rights legislation is intended to give rise, amongst other

things, to individual rights of vital importance, rights capable of
enforcement, in the final analysis, in a court of law. I recognize that
in the construction of such legislation the words of the Act must be
given their plain meaning, but it is equally important that
the rights enunciated be given their full recognition and effect. We
should not search for ways and means to minimize those rights and
to enfeeble their proper impact.
[47] In my opinion, the narrow interpretation given to s. 39(2)(a) of the Code by

the majority of the Divisional Court that would require the presence of the
Commission for the complaint to proceed would unduly frustrate the fundamental
policy goals of the Code. I therefore agree with the minority opinion of Ferrier J.
who stated that ‘[t]o hold that carriage gives the Commission what would amount
to total effective control over the complainant's Code given substantive rights,
would offend the object and scheme of the Code and abrogate the SPPA’.
[48] The word "carriage" is not defined in the Code. To give it a restrictive and
narrow interpretation would indeed do violence to the overall scheme of
the Code. It is therefore essential to interpret the word "carriage" in a manner that
best relates to the statutory context.
[49] I therefore conclude that the proper interpretation of s. 39(2)(a) of

the Code with respect to the Commission having "carriage of the complaint" should
relate to procedure and not to substantive rights. I agree with the appellant that
the s. 39(2)(a) provision should be interpreted as instructing the Board of Inquiry
that, as between the Commission and a complainant or complainants, carriage is to
be assigned to the Commission. It is therefore my view that the Divisional Court
erred in finding that the Board of Inquiry lost its jurisdiction to continue with the
hearing of the complaint when the Commission decided not to participate further
in the proceedings.
[92] It is interesting to note that leave to appeal was dismissed on November 9, 2000.
[93] The applicants submitted that if the adjudicator had considered Ferrier J.’s dissent
in Tilberg, the Commission would have been “on their side”. The applicants further
submitted that the adjudicator erred by permitting the Commission to make a final
submission re-involving itself in the process after it had withdrawn.
[94] The applicants referred to a number of other provincial human rights legislation
where it is possible for the applicants to have carriage of a complaint when the Commission
withdraws from the process.
102
[95] They also argued that if the Commission was present to only protect the “public
interest” as is set forth in s. 51 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6, then
the Commission should have adopted their position, and not taken the contrary view:
51 In appearing at a hearing, presenting evidence and making representations,
the Commission shall adopt such position as in its opinion, is in the public
interest having regard to the nature of the complaint [emphasis added].
[96] The applicants in support of its position cite Filgueira v. Garfield Container
Transport Inc., 2006 FC 785 (CanLII). Although the court dismissed the judicial review
sought, it made the following comments in obiter (at para. 5):
It is apparent to me that a better job of this could have been done had the
Commission continued in its practice in that role. There may well never have been
a motion for non-suit had the Commission assumed carriage of the case. I may well
never had to hear this application but now I must deal with it as it is.
[97] The WCC 30 referred the court to the Ontario Court of Appeal’s decision
in McKenzie Forest Products Inc. v. Ontario (Human Rights Commission) to counter
the applicants’ arguments.
[98] I find the applicants’ argument to be without merit. I prefer the WCC 30’s position
that the Ontario Court of Appeal decision in McKenzie Forest Products Inc. v. Ontario
(Human Rights Commission) when read in its entirety, supports the respondents’
argument on carriage. There should be a broad and purposeful interpretation given to the
legislation. Any effort to grant the Commission broad rights to limit a complainant’s ability
to pursue a complaint, even if the Commission is not in agreement with the substance of
the complaint, would be an error.
[99] In the case at bar, the Commission did not take an active role at the adjudication,
nor did it interfere with these complainants’ ability to pursue their complaint. The matter
was heard and reasons were delivered.
[100] The applicants’ arguments that other provincial human rights legislation grants a
complainant the right to advance an individual complaint and to have the carriage of the
complaint are without merit. The fact that another provincial legislature by legislation
permits a complainant to have carriage of a complaint is not relevant. Provincial
legislatures are permitted to make the rules concerning complaints. There has not been a
constitutional argument advanced by the applicants and, therefore, I am not prepared to
make any findings as suggested by the applicants.
103
[101] The applicants attempted to use the obiter comments in Filgueira to imply that the
actions of the Commission, by withdrawing from the hearing, were not in compliance with
the legislation. However, in Filgueira, the question before the court was non-suit. The
context was whether a 70 year-old person fluent in Spanish with limited English skills,
should have been provided with an interpreter at the hearing. The court also stated that it
was permissible for the Canadian Human Rights Commission to withdraw in accordance
with s. 51 of the Canadian Human Rights Act. A purposeful reading of the decision is not
helpful to the position of the applicants. It only indicates that
the Canadian Human Rights Commission may have acted more appropriately if it had
considered the need for an interpreter. However, the court did not find that this deficiency
was sufficient to interfere with the findings of the adjudicator. The applicants’ argument
on these facts is not supported by the evidence before me.
D. IS THE JURIDICAL DELAY INVOLVED IN THIS CASE SO EGREGIOUS THAT IT SHOCKS
THE REASONABLY INSTRUCTED PUBLIC?
[102] At first blush, one could argue that a 15-year saga must be the very definition of
delay. This is especially true when considered in the context of the comments of the
Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 (CanLII).
[103] The applicants submit that the timeline for consideration is as follows:
a) the Commission process started in 2006;
b) the matter was referred to adjudication in 2010, after the Commission
attempted to terminate the adjudication;
c) on May 28, 2010, the adjudicator heard the motion to terminate the
adjudication;
d) on October 12, 2011, the adjudicator released her interim decision; and
e) the four decisions on the merits were released in June and July 2016.
[104] The applicants submitted that the record clearly states that the Commission
expressed concerns as early as 2013 about the delay. The applicants characterized these
letters as hostile between the Commission and the adjudicator, which may have affected
the outcome.
[105] The applicants submitted that 10 to 14 months, not years, is considered appropriate
for a human rights complaint to be disposed of (Nisbett v. Manitoba
(Human Rights Commission) (1992), 1992 CanLII 8662 (MB QB), 80 Man. R. (2d) 1
(Q.B.)). [106] Nisbett cited, with approval of Bayda C.J.S.
in Saskatchewan Human Rights Commission v. Kodellas (1989), 1989 CanLII 284 (SK
CA), 60 D.L.R. (4th) 143, [1989] 5 W.W.R. 1 (Sask. C.A.) where a delay of three years and 11
months in one instance and three years and two months in another, is “prima facie,
unreasonable, having regard to the time requirements.”
104
[107] The applicants attempted to draw comparisons between:

a) the presumptive ceiling of 18 or 30 months in a criminal matter as set forth
in Jordan;
b) passage of time in Wewaykum Indian Band v. Canada, 2003 SCC 45
(CanLII); and
c) failing to take out a court order without explanation for 10 years (Chartier v.
Manitoba Public Insurance, 2014 MBCA 113 (CanLII)).
[108] The Commission, the WCC 30 and the Government of Manitoba cited Blencoe v.
British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 S.C.R.
307, to counter the question of delay in administrative law tribunals (at para. 101):
In my view, there are appropriate remedies available in the administrative law
context to deal with state-caused delay in human rights proceedings. However,
delay, without more, will not warrant a stay of proceedings as an abuse of process at
common law. Staying proceedings for the mere passage of time would be
tantamount to imposing a judicially created limitation period (see: R. v.
L. (W.K.), 1991 CanLII 54 (SCC), [1991] 1 S.C.R. 1091, at p. 1100; Akthar v. Canada
(Minister of Employment and Immigration), [1991] 3 F.C. 32 (C.A.). In the
administrative law context, there must be proof of significant prejudice which
results from an unacceptable delay.
[109] The respondents argue that there is no state-caused delay and in fact, there has been
no prejudice suffered by the applicants.
[110] As I stated at the outset, 15 years to resolve a dispute among condominium owners as
stated by Bayda C.J.S. in Kodellas, is prima facie unreasonable delay. It is well known
that prima facie, or on its face, does not prevent the decision maker from looking at the
reason for the delay. In fact, the responding party is provided with the opportunity to
explain the delay. The decision maker would then make a decision on whether the delay
was sufficient to grant relief, or whether, notwithstanding the delay, the matter should be
heard on the merits.
[111] The question of delay is now first and foremost in the minds of the pubic and the
courts. Courts in Manitoba are changing its rules in order to offer timely justice in all areas
of adjudication.
105
[112] By the admissions of all the parties to this action, this is an unusual case. I note that
the WCC 30 changed its position as the action unfolded. At first it argued that for aesthetic
or performance purposes all windows in the building needed to be the same. By the time
this matter was heard by the adjudicator, it ended up determining that the originally
installed windows were a form of proper accommodation. Although unusual, these facts
do not make the argument incorrect. After all, a lot of things changed over nine years.
[113] The question of delay is unique to these fact circumstances. The applicants were
granted a hearing. They were permitted to call evidence and make their submissions. The
adjudicator reached a conclusion and issued her decisions.
[114] Jordan was about the delay caused in getting the matter to trial where the guilt or
innocence of an accused person could be decided. Blencoe involved the delay in getting a
criminal charge to trial that also had implications to a
filed human rights complaint. Chartier involved the delay in placing a court order in
written form.
[115] In this instance, the delay from 2010 to 2016 was occasioned by two matters. First, a
complicated preliminary motion launched by the applicants on whether the Commissions
could withdraw. Second, delay in the adjudicator issuing her reasons. It was acknowledged
that the health of the adjudicator was an issue. The extent of the health issue is not clear
from the record.
[116] In R. v. K.G.K., 2017 MBQB 96 (CanLII), Joyal C.J.Q.B. made the following comments
on juridical delay:
[79] It need be recognized that judicial delay which may be “undue”, is nonetheless
not necessarily delay which is constitutionally unreasonable. In most cases,
judicial delay in the rendering of a decision will remain an ethical not
a juridical matter. In that majority of cases, any undue judicial delay is properly
overseen and regulated by the court’s Chief Justice, Associate Chief Justice or Senior
Regional Judge, who would be best placed to appreciate, balance and regulate the
professional and personal factors that surround any given judicial delay.
[80] Having determined that judicial delay ought not to be specifically considered
in the context of the presumptive ceiling set out in Jordan, and having also
determined that judicial delay that can be characterized as ‘shocking, inordinate
and unconscionable’ is delay which is violative of a s. 11(b) and thus is unreasonable.
[117] Joyal C.J.Q.B. found that delay, in most cases, is an ethical matter and not a juridical
matter. If this is an ethical matter only, then this should be a matter for the Commission
to resolve.
[118] However, is this one of those cases where judicial intervention is required? Here
context is everything. Do the facts of this case rise to the level of being “shocking,
inordinate and unconscionable”?
106
[119] The uniqueness of these circumstances is that the applicants were not required to
move out of their residence. It can be argued that Ms. Kinvig did move out of her residence,
but I will address her specific concerns later. Further, a motion to prevent WCC 30’s Board
of Directions from acting unilaterally was ultimately resolved in favour of all the condo unit
holders. This removes four years from the timeline.
[120] It is interesting to note that the applicants made their complaints to the Commission
in 2006. This was after the project had been proposed and windows had been made
available for viewing to determine their suitability. None of the applicants contested the
suitability of the windows. It was only after the initial opportunity to view the windows
that concerns were raised. In Doug Gordon v. Winnipeg Condominium Corporation
No. 30, 2016 MBHR 4 (CanLII), one of the windows had been installed in his unit and he
did not advance a complaint. It appears from the record that the initial concern was related
to the cost of the project, not suitability.
[121] That is not to say that a person who suffers a disability may not fully comprehend the
effect of windows, especially for those persons with limited sight or anxiety issues, until the
windows were installed. Even seeing a window of the exact tinting in another building may
not truly reflect the experience when it is installed in your unit. This alone could not be a
reason to refuse the request for accommodation at a later date.
[122] The personal circumstances of the adjudicator needs to be considered. In K.G.K., the
court mentions an illness of the decision maker as a factor that must be considered in
determining juridical delay. The extent of the illness of the adjudicator in this case is not
known to the court, but there was communication between the Commission and the
parties on this topic. Therefore, I find this to be relevant to the question of delay.
[123] The most important question that I must consider after evaluating all of the above is
what prejudice did the applicants suffer by having to wait for the adjudicator’s decision?
[124] First, Ms. Kinvig sold her unit and now lives in British Columbia. She sold her condo
unit prior to the complaint and application being filed. I accept her explanation that she
sold her unit due to the stress she believed she was under, however, clearly, she is not
prejudiced by the delay.
107
[125] As for Ms. Pollock, Ms. Renard and Mr. Gordon, they remain in their respective
condo units. This must be distinguished from the argument as to whether the applicants
were properly accommodated. That is the question that will be addressed in the
conclusion. Although there is mention that the windows are so old that they could fall out
of the unit, there is nothing before me to indicate that this was a real risk. I am not
downplaying these concerns, but the evidence is uncertain in this regard. It would be an
error to intertwine the issue of whether the windows are safe or unsafe and the question of
delay and order a new hearing as suggested by the applicants. I prefer the comments of the
respondents that after 15 years, ordering a new hearing based on delay violates the
proportionality principle enunciated by the courts.
[126] The applicants have not demonstrated any prejudice that would justify any form of
relief due to delay.
[127] I am also reluctant to create rules on delay in administrative proceedings based upon
the facts of this case. This is such an unusual case that any findings should not create any
precedent upon which other litigants could rely. Mr. Pollock suggested that this should be
a “test case”. It is anything but a test case. This case is the outlier due to the unusual fact
circumstances.
[128] Therefore, I find that the applicants’ position on delay is not supported based upon
these facts.
IV. CONCLUSION
[129] The applicants presented a thorough case. Mr. Pollock recognized after the initial
hearing that if the standard of review was reasonableness as he had agreed, that the result
may have been preordained. After all, by the reasonableness standard, I would be
examining whether the outcome was one of the conclusions available to the adjudicator
after considering all the evidence.
[130] The effort to ‘walk back’ his position was an interesting twist to these
proceedings. The motion brief filed prior to the September 22, 2017 hearing was
ambitious. It covered the proverbial “kitchen sink” of potential errors in law. I find within
each of them there are nuggets of truth, however, as I have stated in these reasons, the
foundation for the arguments crumbled upon analysis.
[131] The applicants argued that counsel should have been provided to them to avoid these
types of difficulties. I find that this argument is outside my jurisdiction as any decision on
funding should be made by the Province of Manitoba through its elected representatives,
and not by a court imposed edict on these unique fact circumstances.
108
[132] I also note that Mr. Pollock, on behalf of the applicants, was able to navigate his way
through the entirety of this 15-year saga. Although prohibited from practising law, he was
and is an able presenter.
[133] The applicants argued that there were distinctions in the language between the
English and French versions of the Code, and by not considering the differences made
errors in law. This is one of the arguments advanced by the applicants after closing their
case at the June 16, 2017 hearing.
[134] This argument should have been made at the initial hearing on their motion for
judicial review. I reviewed the material filed, but did not find the suggestions illustrative
of errors in law.
[135] I agree that statutory interpretation requires an analysis of whether the words used
in each of the two official languages are consistent.
[136] The respondents argue that the applicants should have been more vigilant in
questioning the delay. This argument must be considered in the context that the
applicants are self represented. I take judicial notice of the many pronouncements of the
courts where an enhanced duty is owed to self-represented litigants. It is presumed that
they may not be familiar with the intricacies of the process. To suggest these applicants
should have complained is not supported by the facts in this case, especially when the
Commission did not share its concerns with the applicants. If the Commission had
included the complainants on its correspondence with the adjudicator, I am certain that
the complainants would have been more vocal in expressing their concerns.
[137] In this case, the applicants made their presentation to this court. It appeared that a
settlement could be reached, and the motion was adjourned to permit those settlement
discussions to occur. When the discussions did not bear fruit, an additional half day was
set aside.
[138] Although the applicants had closed their case, I permitted them to make further
submissions. If they had been represented, I may have taken a different approach. Here,
the applicants argued that although they had agreed that the standard of review was
reasonableness at the first hearing, it would be unfair to them to deny them an opportunity
to re-open their case.
[139] The issuance of the Northern Regional Health Authority decision also required the
court to ensure that not just the self-represented party specifically, but all parties be given
an opportunity to make further argument.
109
[140] Turning to the standard of review, I find that the adjudicator was reviewing the home
statute, and by applying Dunsmuir, the standard of review is reasonableness. Having
reviewed the applicants’ arguments, I find that none of their suggestions rise to the
exceptions set forth in Dunsmuir to change the standard of review to correctness.
[141] In reviewing the findings of the adjudicator in each of the four cases, it is clear that
her conclusions were one of the possible outcomes of the adjudication.
[142] The key finding in the adjudicator’s decisions was that the applicants had
demonstrated a disability, but the applicants had not satisfied her on a balance of
probabilities that the absence of window tinting and/or providing for ventilation as
requested was a necessary accommodation.
[143] This is the task the adjudicator was assigned. This was one of the reasonable
conclusions she could have reached based upon the evidence before her. There is no reason
for me to interfere with her findings.
[144] In obiter, the parties invited me to make comments about this 15-year saga. The
Commission should have been more active in ensuring these decisions were delivered far
earlier than four years.
[145] Litigants who bring cases based upon principle should consider what they wish to
obtain from a court. At the first hearing, the applicants indicated that they wished to have
their concerns accommodated. This has always been a case of accommodation. For the
WCC 30, accommodation may mean that not every window unit would have the same
exterior appearance.
[146] The adjudicator commented that the applicants were getting along well with the
Commission until it recommended the second offer of settlement be accepted. Then the
“gloves” came off. This state of affairs in any litigation does not bode well for justice.
[147] I can only speculate on the amount of time and money that has been spent on this
adjudication and judicial review. This should serve as a caution to litigants as to the costs,
both human and financial, of protracted litigation.
[148] I also examined what would happen if I had decided differently. What if I had found
errors in law? Would the remedy have been to order that the process start over? How
many more months or years would it take to reach a decision?
110
[149] This case must end. The costs, both financial and personal, far outweigh any benefit
that may accrue to any of the litigants. The adjudication of
future human rights complaints will not provide any clarification of the law, are not of
significant importance to the legal system, and the adjudicator did not make the errors
complained of by the applicants.
[150] Now that the WCC 30 is of the opinion that all units may have different windows, its
argument that every window in the condo need to be identical is lost. The parties should
be able to resolve this issue without further direction from the court.
[151] The applicants paid an assessment for new windows and they should now be provided
with the new windows. Any increased costs should be subject to negotiation, not court
orders.
[152] Finally, I would comment on Ms. Kinvig’s comment on systematic

discrimination. I would never presume to understand what her life is like
dealing with her loss of vision. I could easily see the frustration in her body
language. However, I do not find this to be a case of systematic
discrimination. I see this as a case for accommodation, which is precisely what
is to be addressed by the Commission and its adjudicators.
[153] The adjudicator found that Ms. Kinvig’s arguments were made after she closed her
case. There was no evidence led by her during her hearing. There was nothing for the
adjudicator to base any finding of systemic discrimination.
[154] Therefore, the applicants’ application for judicial review is denied. Given my obiter
comments, each party shall bear their own costs.
_______________________________J.
111
Citation: Pollock et al v Human Rights Commission Date: 20191028

(Manitoba) et al, 2019 MBCA 110 Docket: AI18-30-09197
IN THE COURT OF APPEAL OF MANITOBA
Coram: Madam Justice Barbara M. Hamilton

Madam Justice Jennifer A. Pfuetzner
Madam Justice Lori T. Spivak
BETWEEN:
RON POLLOCK, DELPHINE KINVIG, ) R. Pollock,

DOUG GORDON and SUSAN RENARD ) D. Kinvig,
) D. Gordon and
(Applicants) Appellants/Respondents ) S. Renard
by Cross Appeal ) on their own behalf
)
- and - ) I. Khan
) for the Respondent
MANITOBA HUMAN RIGHTS ) Manitoba Human Rights
COMMISSION ) Commission
)
(Respondent) Respondent ) T. C. Andres
) for the Respondent/Appellant
- and - ) by Cross Appeal
) Winnipeg Condominium
) Corporation No. 30
WINNIPEG CONDOMINIUM
CORPORATION NO. 30 )
) M. A. Bodner
(Respondent) Respondent/Appellant ) for the Respondent
by Cross Appeal ) The Government of
Manitoba
)
- and - ) Appeal heard:
) June 11, 2019
THE GOVERNMENT OF MANITOBA )
) Judgment delivered:
(Intervener) Respondent ) October 28, 2019
On appeal from 2018 MBQB 170 (CanLII)

112
HAMILTON JA
[1] Over 12 years ago, the appellants, Ron Pollock, Delphine Kinvig, Doug
Gordon and Susan Renard (collectively, the applicants), filed complaints of discrimination
under The Human Rights Code, CCSM c H175 (the Code), asserting discrimination based on
disability and a failure to reasonably accommodate their special needs based on their
disabilities.
[2] Their complaints related to the decision of the respondent, Winnipeg

Condominium Corporation No. 30 (the condo corporation), to replace the exterior
windows in its condominium complex (the complex) where the applicants lived.
[3] This appeal and cross appeal are from the applicants’ unsuccessful
application to the Court of Queen’s Bench for judicial review of the decisions of the
adjudicator dismissing their complaints.
[4] At the heart of the applicants’ appeal is the adjudicator’s preliminary

ruling that the respondent, Manitoba Human Rights Commission (the Commission), was
not required to have carriage of the applicants’ complaints at the hearing before her. The
applicants seek a new adjudication of their complaints.
[5] The essence of the condo corporation’s cross appeal is its assertion that
the reviewing judge in the Court of Queen’s Bench denied it procedural fairness by not
hearing its submission with respect to costs. The condo corporation seeks an order of costs
against the applicants for the proceedings in the Court of Queen’s Bench.
[6] For the reasons that follow, I would dismiss the appeal and allow the
cross appeal.
Background
[7] In 2004, the condo corporation’s board of directors decided to replace

the exterior clear glass windows in the complex with tinted glass windows (the
project). There was much debate and controversy about the project and its costs. The
condo corporation levied a special assessment and filed liens and notices of exercising
power of sale against the units of owners who did not pay the special assessment, including
the units owned by the applicants.
[8] As well, Mr. Pollock and other unit owners commenced various
proceedings in the Court of Queen’s Bench to stop the project. These proceedings were
either struck, dismissed or withdrawn.
113
[9] All the windows in the complex have been changed except for the
windows in the applicants’ units (Mr. Gordon’s bedroom window was changed in 2007 as
part of the project). The condo corporation decided to permit the applicants to keep their
existing windows while they lived in the units. Ms Kinvig sold her unit on May 1, 2007 and
moved. The other applicants continue to own and live in their respective units.
The Proceedings Under the Code
[10] The applicants filed their complaints in 2006 and 2007.
[11] Mr. Pollock owns a unit in the complex jointly with his sister,
N.P. He filed his complaint on behalf of N.P. who suffers from anxiety and
panic attacks (the Code allows for complaints to be filed by third parties). He
alleged that the new windows would reduce the natural light and air
circulation which would “affect [N.P.’s] disabilities.”
[12] Ms Kinvig, Mr. Gordon and Ms Renard have limited vision and
are legally blind. They complained that the tinted windows would impair
their ability to see. Ms Renard also complained that the tinted windows would
exacerbate her epilepsy.
[13] After an investigation, the Commission referred the complaints to the

Human Rights Adjudication Panel for a final decision and remedial order, as appropriate.
[14] After the Commission determined that the complaints would be referred
to an adjudicator, the condo corporation offered to remedy each of the complaints in a
manner that the Commission determined was reasonable. The applicants rejected the
offers. The Commission then moved, pursuant to section 29(2)(b) of the Code (which was
subsequently repealed by section 13(1) of The Human Rights Code Amendment Act, SM
2012, c 38), to terminate the proceedings before the adjudication could proceed. The
applicants objected, arguing that the Commission did not have the authority to terminate
the proceedings.
[15] The adjudicator rejected the Commission’s argument that section 29(2)(b)
provided the Commission with the right to terminate the proceedings both before and after
a complaint was referred to an adjudicator. She ruled (the carriage ruling) that, because
the complaints had been referred to adjudication prior to the communication of the offers
of settlement: the Commission was functus; the hearing of the complaints could proceed;
and the Commission was still a party to the adjudication but could withdraw from actively
participating in the adjudication.
114
[16] Therefore, while the Commission was required to be a party to the

proceedings, it was not required to have “carriage” of the complaints on behalf of the
applicants, as asserted by them.
[17] As a result, the Commission engaged in a limited way during the 12 days of
hearing in 2012. The Commission attended each day of the hearing but did not call
evidence. It made closing submissions with respect to the various onuses and legal tests
and addressed certain public-interest remedies.
[18] In her decisions dismissing the complaints, which were delivered in 2016,
the adjudicator noted that there was no issue that each applicant (N.P. in the case of the
Pollock decision) suffered from a disability and had special needs. However, she concluded
that none of the applicants had established a need for non-tinted windows, nor had they
established a duty on the condo corporation to investigate such a need. Furthermore, she
found, in the alternative, that the applicants had been reasonably accommodated by the
condo corporation.
The Proceedings Before the Reviewing Judge
[19] Each applicant represented themselves. They relied on one motion brief.
[20] The Commission and the Government of Manitoba (Manitoba) were also
parties. Manitoba was a party because the applicants raised arguments asserting breaches
of their rights under the Canadian Charter of Rights and Freedoms (the Charter).
[21] The hearing took two and one-half days. On the first appearance, the
reviewing judge encouraged the parties to settle and the matter was adjourned. When the
parties did not settle, they reconvened before the reviewing judge to present their
submissions. During the submissions, counsel for the condo corporation had the following
exchange with the reviewing judge:
[COUNSEL:] . . . no matter what the decision is that you make, I would

ask that we be entitled to return and make submissions on the issue of
costs. Obviously there’s without-prejudice correspondence that . . . we
would submit, but we can’t do that before a decision has been
rendered. So --
THE COURT: Whatever, whatever decision I make, depending on

who is successful, there’s always the clause that if the parties cannot agree
on costs they may make an appointment to speak to costs with me. So . .
. yeah.
115
The Decision of the Reviewing Judge
[22] The central issue before the reviewing judge was the adjudicator’s carriage
ruling which called for the interpretation of certain sections of the Code.
[23] The applicants argued that the adjudicator erred in her interpretation of
the Code and that the applicable standard of review was correctness. They also asserted
that they were entitled to a rehearing of their complaints, at which the Commission would
have conduct of the hearing, because of the delay in resolving their complaints.
[24] The essence of the reviewing judge’s decision with respect to the carriage
ruling is that:
1. the standard of review applicable to the adjudicator’s carriage ruling,

being a matter of statutory interpretation of her home statute, is
reasonableness;
2. the adjudicator’s carriage ruling was one of the possible outcomes open
to her and was therefore reasonable; and
3. while the delay was extraordinary, the applicants have not demonstrated
“any prejudice that would justify any form of relief due to delay” (at para
126).
[25] At the conclusion of his reasons, the reviewing judge indicated he could
“only speculate” about the “time and money” (at para 147) spent by the parties and stated
that “[t]his case must end” (at para 149). He concluded that, “Given my obiter comments,
each party shall bear their own costs” (at para 154).
The Applicants’ Appeal
Position of the Applicants
[26] The applicants filed one factum under their respective names. They each
spoke at the appeal hearing. Mr. Pollock spoke first and Ms Kinvig, Mr. Gordon and Ms
Renard endorsed and augmented his remarks.
[27] They assert that the reviewing judge should have applied the correctness
standard of review for the carriage ruling and that the adjudicator’s interpretation of
the Code was incorrect. In the alternative, they say that the carriage ruling was
unreasonable if the standard of review is reasonableness.
116
[28] More specifically, they submit that the adjudicator incorrectly

interpreted section 34(a) of the Code and rely, in part, on the French version of that
section. As a result, they say that the adjudicator wrongly allowed the Commission to
abandon its responsibilities to have conduct of the hearing and represent their interests.
[29] At the appeal hearing, the applicants’ argument with respect to delay was
only that the extraordinary delay in this case should not preclude a new hearing.
[30] The applicants seek costs of the appeal against the condo corporation and
the Commission. At the appeal hearing, Ms Kinvig specifically asked for enhanced costs
against the Commission for “abandoning” the applicants.
Position of the Condo Corporation
[31] The condo corporation asserts that the reviewing judge correctly
determined that the standard of review was reasonableness and that he applied it
correctly. In holding that the adjudicator’s conclusions were possible outcomes, the condo
corporation says that the reviewing judge followed precedent that the Commission does
not have to play an active role in the proceedings when the public-interest mandate is
satisfied.
[32] As for the delay, the condo corporation says that the reviewing judge’s
finding that the applicants had not suffered any prejudice as a result of the delay, justifying
any relief, is entitled to deference because the reviewing judge did not make a palpable and
overriding error.
[33] The condo corporation seeks dismissal of the appeal with costs.
[34] The Commission’s position is that the reviewing judge correctly selected
and applied the standard of review of reasonableness and did not err in finding that the
adjudicator’s decision with respect to the Commission’s role was reasonable.
[35] As for the delay, the Commission says that a new hearing is not in the
interests of justice and would not further the objectives of the Code or assist the
Commission with discharging its responsibilities.
[36] In its factum, the Commission seeks dismissal of the appeal with costs but,
at the hearing, counsel indicated that the Commission would be prepared to forego costs.
[37] The Commission takes no position with respect to the cross appeal.
Position of Manitoba/Intervener
117
[38] Manitoba’s role was minimal given that the applicants’ argument at the
appeal hearing with respect to delay did not involve an argument relying on
the Charter. Its position is that there is no reviewable error with respect to delay.
[39] Manitoba takes no position with respect to the carriage ruling.
Analysis and Decision for the Applicants’ Appeal
Standard of Review
[40] The parties appropriately agree that the question on appeal has two parts:
1. whether the reviewing judge was correct when he chose the standard of
review of reasonableness for the carriage ruling and, if so;
2. whether he applied that standard properly.
[41] This is a question of law and, as such, no deference is owed to the reviewing
judge’s selection and application of the standard of review (see Dr Q v College of Physicians
and Surgeons of British Columbia, 2003 SCC 19 (CanLII) at para 43; Friesen (Brian Neil)
Dental Corp et al v Director of Companies Office (Man) et al, 2011 MBCA 20 (CanLII) at
para 78; Korsch v Human Rights Commission (Man) et al, 2012 MBCA 108 (CanLII) at para 8;
and The Armstrong’s Point Association Inc v The City of Winnipeg et al, 2013 MBCA 110
(CanLII) at para 3).
[42] Deference is owed to the reviewing judge’s original findings of fact (based
on the standard of palpable and overriding error) and exercise of discretion unless there
has been an error in principle or the decision is so clearly wrong as to amount to an injustice
(see Northern Regional Health Authority v Manitoba Human Rights Commission et al, 2017
MBCA 98 (CanLII) at para 39). This applies to the reviewing judge’s determinations with
respect to delay which was an issue raised for the first time before the reviewing judge.
Selection of the Standard of Review by the Reviewing Judge
[43] The principles for selecting the applicable standard of review

for a decision of an administrative tribunal were first established in the
leading case of Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII). The
application of the Dunsmuir principles typically leads to the conclusion that
the appropriate standard of review for most decisions of administrative
decision-makers is reasonableness (see Loewen v Manitoba Teachers’
Society, 2015 MBCA 13 (CanLII) at paras 39-41).
118
[44] Here, the adjudicator, sitting as the human rights tribunal, was the
administrative decision-maker and she was dealing with her home statute, the Code. The
presumptive standard of review for a decision of a human rights tribunal with respect to
the evaluation of the evidence or interpretation and/or application of the Code is
reasonableness (see Korsch at para 9; and Northern Regional Health Authority at para 42).
[45] Therefore, the reviewing judge correctly identified that the standard of
review for the carriage ruling was reasonableness. This standard calls for deference and “is
concerned mostly with the existence of justification, transparency and intelligibility within
the decision-making process” (Dunsmuir at para 47). It calls for a reviewing court to
determine whether the decision is “within a range of possible, acceptable outcomes which
are defensible in respect of the facts and the law” (ibid).
[46] As explained by Rothstein JA (as he then was) in Prairie Acid Rain Coalition
v Canada (Minister of Fisheries and Oceans), 2006 FCA 31 (CanLII), leave to appeal to SCC
refused, 31370 (20 July 2006), to decide whether the reviewing court applied the appropriate
standard of review correctly, the appellate court must step “into the shoes” (at para 14) of
the reviewing court and consider the decision of the administrative tribunal.
Application of the Standard of Review of Reasonableness to the Carriage Ruling by the

Reviewing Judge
[47] The adjudicator rejected the applicants’ argument that section 34(a) of
the Code required the Commission to have conduct of the proceedings before her. Section
34 reads as follows:
Parties to adjudication
34 The parties to an adjudication under this Code are
(a) the Commission, which shall have carriage of the complaint;
(c) any person, other than the complainant, named in the

complaint and alleged to have been dealt with in
contravention of this Code;
(d) the respondent; and
(e) any other person added as a party under section 24 or

section 40.
[emphasis added]
119
[48] In her carriage ruling, the adjudicator reviewed the remedial purpose of
the Code, rightly noted that it was entitled to a broad and liberal interpretation, and
explained that the Commission had a gatekeeper role in the complaint process and a
mandate to represent the public interest.
[49] She reviewed the positions of the parties in detail and correctly identified
and applied the modern principle of statutory interpretation, requiring the words of an act
to be read in their entire context and in their grammatical and ordinary sense harmoniously
with the scheme of the act, the object of the act and the intention of the Legislature.
[50] With respect to the Commission’s role at the hearing, she wrote (at
paras 136-37):
Each party . . . has a separate and independent status, and their own role
to play, at the adjudication.
The role of the complainant and the respondent as parties to the

adjudication is to advance or protect their own individual interests.
The role of the Commission is different. . . . I agree with the Commission
that its role as a party to the adjudication is to represent and advance the
public interest. The different roles and functions to be performed by the
various parties are consistent with the objectives of the Code.
[emphasis added]
[51] As for the words “carriage of the complaint” in section 34(a) of the Code,
she attributed a procedural meaning to the words, not a substantive one, relying
upon Tilberg v McKenzie Forest Products Inc, 1999 CarswellOnt 4676 (Sup Ct J (Div Ct)).
[52] The adjudicator correctly understood that the interests of the Commission
did not necessarily coincide with those of the applicants and rejected the applicants’
assertion that they were on the “same team” as the Commission (at para 141).
[53] The applicants say that the adjudicator’s interpretation was not one that
was reasonably open to her, particularly when the French version of the section is
considered. It reads as follows:
120
Parties à l’arbitrage
34 Les parties à un arbitrage en vertu du présent code sont les
suivantes:
(a) la Commission, qui est responsable de la conduite des

procédures relatives à la plainte.
[54] The applicants have not persuaded me that, had the

adjudicator considered the French version of section 34(a), her carriage ruling
would have been different. While both versions are equally authoritative, I
see no conflict or discrepancy between the English and French versions that
warrants a bilingual interpretation analysis.
[55] The carriage ruling by the adjudicator was reasonable, intelligible and
transparent and resulted in a result that fell within a range of possible outcomes available
to her. The reviewing judge did not err when he dismissed the application for judicial
review.
Delay
[56] Given my conclusion about the carriage ruling, the argument that the delay
should not preclude a rehearing of the complaints is moot.
Dismissal of the Appeal
[57] I would dismiss the applicants’ appeal with costs in favour of the condo
corporation under the applicable tariff in the Manitoba, Court of Appeal Rules, Man Reg
555/88R (the CA Rules). The applicable tariff in this case is Tariff C which allows $2,000 for
the determination of the appeal and $1,000 for the factum fee, as well as reasonable
disbursements. I would set costs (inclusive of disbursements) at $3,000.
The Cross Appeal
Background
[58] Just prior to the appeal hearing, counsel for the condo corporation appeared
before the reviewing judge to ask him to reconsider the matter of costs. The reviewing
judge declined to do so for the reason that he was “functus.”
121
[59] For the appeal, the condo corporation filed a notice of motion to adduce
fresh evidence with respect to the matter of costs in the Court of Queen’s Bench. After the
panel questioned counsel for the condo corporation whether the matter of costs should be
sent back to the reviewing judge if the condo corporation’s procedural fairness argument
was successful, the condo corporation abandoned its motion to adduce fresh evidence and
requested that the panel address the matter of costs.
[60] The panel asked the condo corporation to file a further brief outlining its
position with respect to the costs that it was seeking in the Court of Queen’s Bench. The
applicants were given a month to file their response brief.
Position of the Condo Corporation
[61] The condo corporation asserts that the reviewing judge erred in law by
denying it the opportunity to be heard on the matter of costs, thus breaching the duty of
procedural fairness.
[62] As for the amount of costs to be awarded, the condo corporation seeks
costs in excess of the tariff (enhanced costs) or, in the alternative, costs on the basis of
double the tariff or, in the further alternative, costs on a party-and-party basis.
[63] The condo corporation submits that the applicable tariff under the
Manitoba, Court of Queen’s Bench Rules, Man Reg 553/88 (the QB Rules), is the one for
Class 3 proceedings. Under this tariff, it says that its counsel fee is $6,600 and the amount
for allowable disbursements is $279 for photocopying its application brief and book of
authorities.
[64] It argues that enhanced costs are appropriate because it made a settlement
offer in 2010 that the Commission deemed to be objectively reasonable, which was rejected
by the applicants, and that the applicants changed their positions throughout the course
of the proceedings from wanting to keep their old windows to demanding new ones.
[65] The condo corporation also argues that Mr. Pollock’s leadership role in this
litigation is a circumstance that warrants enhanced costs. It notes that Mr. Pollock is not
a lawyer and is subject to an order in favour of the Law Society of Manitoba prohibiting
him from carrying on the practice of law (see The Law Society of Manitoba v Pollock, 2007
MBQB 51 (CanLII)). The condo corporation argues that his conduct during these
proceedings should be punished by a significant award of costs.
Position of the Applicants
[66] The applicants assert that the reviewing judge made no error with respect
to costs and his ruling is entitled to deference.
122
[67] As for Mr. Pollock’s role, Ms Kinvig, Mr. Gordon and Ms Renard stated
that, while they worked together with Mr. Pollock, they each represented themselves and
were fully aware of the order against Mr. Pollock.
[68] As for the determination by the Commission that the condominium

corporation made a reasonable offer in 2010, they say that the settlement offer was too late,
as evidenced by the adjudicator’s decision, and should have no bearing on the matter of
costs in the Court of Queen’s Bench.
[69] In their additional brief, the applicants indicated that, in the event costs
need to be addressed, they prefer that this Court address the issue rather than sending it
back to the reviewing judge.
[70] They also say that the condo corporation did not obtain leave from the
reviewing judge under section 90(1) of The Court of Queen's Bench Act, CCSM c C280, to
bring this cross appeal.
Position of the Commission and Manitoba
[71] The Commission and Manitoba take no position on the cross appeal.
Decision
[72] Section 90(1) states:
Consent order, costs not appealable

90(1) An order that is made
(a) with the consent of the parties; or
(b) as to costs only;
is not subject to an appeal except by leave of the judge making the order.
[73] While a question arose about whether the cross appeal concerned only the
matter of costs, I agree with the condo corporation that section 90(1) does not apply in this
case because the cross appeal concerns the alleged legal error that the reviewing judge
breached procedural fairness when he did not hear the condo corporation’s submissions
with respect to costs. The amount of costs, if any, to be awarded to the condo corporation,
and who should decide that, are questions of remedy.
123
[74] A party’s right to be heard is a fundamental principle of a fair hearing. The

Court has a duty to ensure procedural fairness which includes ensuring that those affected
by a decision are given the opportunity to be heard (for example, see A (LL) v B (A), 1995
CanLII 52 (SCC), [1995] 4 SCR 536 at para 27; Director of Child and Family Services (Man) v
JA, 2006 MBCA 44 (CanLII) at para 30; and Aquila v Aquila, 2016 MBCA 33 (CanLII) at
para 27). In this case, the record of the proceedings before the reviewing judge establishes
that the condo corporation had the legitimate expectation that it would be heard by the
reviewing judge on the matter of costs. Counsel for the condo corporation specifically
requested an opportunity to make a submission on costs and was led to believe that this
would be provided. The reviewing judge erred in law by not providing the condo
corporation with that opportunity. As a result, the reviewing judge’s ruling that the parties
bear their own costs cannot be sustained. The remedy is for the parties to be heard on the
matter of costs and for a decision to be given.
[75] The condo corporation and the applicants all expressed the desire that this
Court address the matter of costs if it became necessary to do so. Given this, the
submissions already made and the extraordinary passage of time, I agree that the matter of
costs to be awarded in the Court of Queen’s Bench should be addressed by this Court.
[76] The condo corporation was successful before the reviewing

judge. Normally, the successful party is entitled to costs (see Gabb v Gabb, 2001 MBCA 19
(CanLII); and 232 Kennedy Street Ltd v King Insurance Brokers (2002) Ltd, 2009 MBCA 22
(CanLII)). I see no reason to deny the condo corporation its entitlement to costs. The
question then is, what is the appropriate amount to be awarded?
[77] The incredible delay in this case occurred before the proceedings in the
Court of Queen’s Bench, as did the offer made by the condo corporation under the Code in
2010. In my view, the focus for the issue of costs is more appropriately on the proceedings
in the Court of Queen’s Bench and not what occurred prior to that time.
[78] As for Mr. Pollock’s involvement, while I accept that the proceedings were
complicated and lengthier because the applicants were self-represented, I do not accept
that Mr. Pollock’s involvement is a reason to award enhanced costs. In fact, proceedings
were extended in the Court of Queen’s Bench because the reviewing judge urged the parties
to try to settle the case. This required the parties to re-engage in out-of-court discussions
and re-attend to court to present their submissions when settlement was not possible.
[79] In my view, an award of costs that reflects proceedings under Class 3 of the
applicable tariff in the QB Rules is a reasonable and just award. The applicants should bear
the costs on a joint and several basis. I accept the condo corporation’s submissions as to
the calculation of their counsel fee and disbursements. Therefore, I would order costs in
the Court of Queen’s Bench in favour of the condo corporation in the amount of $7,000
(inclusive of disbursements) against the applicants on a joint and several basis.
124
Costs in the Court of Appeal
[80] Costs in the Court of Appeal are a separate matter from the costs in the
Court of Queen’s Bench.
[81] As is usual, the successful party in an appeal is entitled to costs under the
applicable tariff in the CA Rules. As indicated above, the applicable tariff in this case is
Tariff C which allows $2,000 for the determination of the appeal and $1,000 for the factum
fee, as well as reasonable disbursements.
[82] The condo corporation, as the successful party in the cross appeal, is
seeking costs of $3,000 based on Tariff C and photocopying and printing costs of $802.50
(for the appeal and cross appeal). The material filed was extensive and I accept that the
costs for photocopies and printing fairly reflects what is allowable.
[83] I would order costs in the Court of Appeal in favour of the condo
corporation in the amount of $4,000 (inclusive of disbursements) against the applicants on
a joint and several basis.
Conclusion
[84] With respect to the applicants’ appeal, the reviewing judge correctly
identified the standard of review of reasonableness and correctly applied it to the
adjudicator’s decisions.
[85] I would dismiss the applicants’ appeal and order costs in favour of the
condo corporation in the amount of $3,000, inclusive of disbursements, to be paid by the
applicants on a joint and several basis.
[86] With respect to the condo corporation’s cross appeal, the reviewing judge
erred in law when he did not give the condo corporation an opportunity to be heard on the
matter of costs. Therefore, the reviewing judge’s order that each party bear its own costs
must be set aside.
[87] I would allow the condo corporation’s cross appeal and order costs in the
Court of Queen’s Bench in favour of the condo corporation in the amount of $7,000
(inclusive of disbursements), to be paid by the applicants on a joint and several basis. I
would order costs in this Court in favour of the condo corporation in the amount of $4,000,
inclusive of disbursements, to be paid by the applicants on a joint and several basis.
JA
I agree: JA
I agree: JA
125
Memorandum Of Argument
PART 1
Statement Of Facts
Issues Of Public Importance
1. What happened in this case shouldn’t happen ever again.
2. Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, has
given Adjudicators awesome powers. But the question here is does Dunsmuir
go so far as to allow adjudicators to ignore other Supreme Court stare decisis
such as Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150, and R. v.
Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6, which is what happened here.
3. Both Courts gave in – instead - to the overall popular trend of the
awesome power of Adjudicators discretion (Dunsmuir) that they have
interpreted exists; in reality, “typically” adjudicators can almost do no wrong.
The Court of Appeal said at Tab 4 Page 117:
“Selection of the Standard of Review by the Reviewing Judge
[43] The principles for selecting the applicable standard of review for
a decision of an administrative tribunal were first established in the leading case
of Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII). The application of
the Dunsmuir principles typically leads to the conclusion that the appropriate
standard of review for most decisions of administrative decision-makers is
reasonableness (see Loewen v Manitoba Teachers’ Society, 2015 MBCA 13
(CanLII) at paras 39-41).”
126
4. That is the well known part of Dunsmuir, but that in fact is not all
of Dunsmuir: that is just what the popular position is. Dunsmuir also says at
paragraph 129 the following, which was not followed in this case:
‘[129] Thirdly, a fair procedure is said to be the handmaiden of

justice. Accordingly, procedural limits are placed on administrative bodies by statute
and the common law. These include the requirements of “procedural fairness”, which
will vary with the type of decision maker and the type of decision under review. On such
matters, as well, the courts have the final say. The need for such procedural safeguards is
obvious. Nobody should have his or her rights, interests or privileges adversely dealt
with by an unjust process. Nor is such an unjust intent to be attributed easily to
legislators. Hansard is full of expressions of concern by Ministers and Members of
Parliament regarding the fairness of proposed legislative provisions. There is a
dated hauteur about judicial pronouncements such as that the “justice of the common law
will supply the omission of the legislature” (Cooper v. Wandsworth Board of
Works (1863), 14 C.B. (N.S.) 180, 143 E.R. 414 (C.P.), at p. 420)…’
5. Justice Binnie in Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 38, wrote:

“[38] … It has been truly remarked in the context of bilingual legislation that
“Canadians read only one version of the law at their peril”: M. Bastarache et
al., The Law of Bilingual Interpretation (2008), at p. 32…”
6. English and French versions of section 34(a) of the Manitoba
Human Rights Code:


127
PART II
Statement Of The Questions At Issue
Illegal Exception? Illegal Amendment?
7. Did the Adjudicator create an exception by taking away the
Applicants 34(a) legal assistance entitlement, contrary to Winnipeg School
Division No. 1 v. Craton, [1985] 2 S.C.R. 150 at paragraph 8?
“Human rights legislation is of a special nature and declares public

policy regarding matters of general concern.”… “It is, however,
of such nature that it may not be altered, amended, or repealed,
nor may exceptions be created to its provisions, save by clear legislative
pronouncement…”.
8. Did the Adjudicator interpret Section 34(a) in a manner contrary
to its plain meaning and thus amend the legislation as in Canada (Attorney
General) v. Knee, 2011 FCA 301 (CanLII), at paragraph 9?
“[9] However, tempting as it may be in such cases (and this may well be
one), adjudicators are permitted neither to re-write legislation nor to
interpret it in a manner that is contrary to its plain meaning. “
9. Did the Adjudicator make an illegal amendment– by ignoring
the ambiguity of the word “shall” in the English version of 34(a) - and by
ignoring the bilingual nature of the statute entirely - and by choosing the
broad English version over the more narrow and specific French version of
section 34(a) - and by ignoring R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC
6 where it says at paragraphs 27 and 37?

128
“27 There is, therefore, a specific procedure to be followed when

interpreting bilingual statutes.”
“37 …If we adopted the English version, which is broader than the
French one, this Court would be making an undue judicial amendment
of the statute. For these reasons, the Court must favour the French
version.”
Part III
Statement Of Argument
The Adjudicator Knew She Could Not Ignore

The Words Of The Legislation But Did It Anyway
10. The Adjudicator quoted the following admonition and then
totally ignored it. At Tab 2 Page 29 she said:
“This approach to statutory interpretation does not, of course, permit

rewriting or ignoring the words of the legislation. The legislation must be
given a liberal and purposive interpretation, without reading limiting words out
of the statute or circumventing the intention of the legislature.”
11. Here instead is the rationale the Adjudicator gave for getting rid
of the Applicants legal representation (at Tab 2 Page 51):
“…There was no evidence or suggestion that the Complainants do not have

information or documents which have been gathered to date in connection with their
case and which they might need if they decide to proceed with the hearing of the
Complaints.
129
In arguing that it would be unfair for the Commission to leave them on their own at
this point, the Complainants’ position is that it would be more difficult for them to do a fair
job at the adjudication without the Commission’s help. They would prefer to have the
Commission’s help in proceeding from this point forward and advancing the
Complaints on their behalf. I have found that they are not entitled to that help under
the Code. To the extent that they believe that it should be otherwise, that is a matter for
the legislature.
In conclusion, I am satisfied that the Commission may not withdraw as a party to the
proceedings. It may, however, withdraw from actively participating at the adjudication. I
conclude that I do not have the authority to require the Commission to continue to
actively participate as a party to the proceedings.”
12. Had the Adjudicator considered the French version of 34(a) (Si
l'arbitre avait envisagé la version française) she would have found that what
she said could not be done (as shown in paragraph 11 above) in fact had already
been dealt with by the Legislature, and as such, she would have had the
authority “to require the Commission to continue to actively participate
as a party to the proceedings.”
Unambiguous
13. Larousse French Dictionary (at page 520) defines the French
“responsable” as “responsable (de) responsible for” “[légalement] “liable
(for)” “[chargé de] in charge (of), responsible (for)”
14. Black’s Law Dictionary Sixth Edition (at page 1312) defines
“responsible” as “Liable; legally accountable or answerable”.

130
Words Can Make A Difference

15. Daoust at paragraph 56 hinged on the interpretation of one term;
“convert”.
“56 The mens rea of the offence of laundering proceeds of crime has two
elements: (1) intent to conceal or convert property or proceeds of property, and (2)
knowledge or belief that the property or proceeds were derived from an enterprise
crime offence or a designated substance offence. The issue raised in the present
case hinges on the meaning of the word “convert”.”
16. What if the Supreme Court had brushed off the term “convert” in
R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6 like the Manitoba Adjudicator and
Courts ignored or brushed off the French term “responsable”? Why was the
French word “responsable” in the statute in the case at bar less important than
the French word “convertir” ?
17. Similarly, the issue raised in the case at bar hinges on the meaning
of the words “shall” in the English version of 34(a) and “responsable” in the
French section of 34(a) of the Manitoba Human Rights Code.
18. The first step the Adjudicator should have taken is to determine
whether there is discordance between the English and French versions.
Instead that first step never happened. Daoust says;

131
“27 There is, therefore, a specific procedure to be followed

when interpreting bilingual statutes. The first step is to determine
whether there is discordance. If the two versions are irreconcilable, we must rely
on other principles: see Côté, supra, at p. 327. A purposive and contextual
approach is favoured: see, for example, Bell ExpressVu Limited Partnership v.
Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 (CanLII), at para. 26; Chieu v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3
(CanLII), at para. 27; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2 (CanLII), at
para. 33.
19. The Applicants rely on R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC
6, which is very specific on bilingual interpretation in paragraphs 26 through
37, and which the Adjudicator and Courts ignored. If this Court thinks
Daoust is worthy - despite the awesome power of Dunsmuir given to
Adjudicators discretion - then the Applicants urge this Court to consider that
these principles of bilingual interpretation in Daoust are just as important.
Paragraphs 26-37 of Daoust say:
“(1) Principles of Bilingual Statutory Interpretation”
“26 The Court has on several occasions discussed how a bilingual statute
should be interpreted in cases where there is a discrepancy between the two versions of the
same text. For example, in Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269,
2002 SCC 62 (CanLII), at para. 56, LeBel J. wrote:
132
where one
A principle of bilingual statutory interpretation holds that
version is ambiguous and the other is clear and
unequivocal, the common meaning of the two versions
would a priori be preferred; see: Côté, supra, at p. 327; and Tupper
v. The Queen, 1967 CanLII 14 (SCC), [1967] S.C.R. 589. Furthermore,
where one of the two versions is broader than the
other, the common meaning would favour the more
restricted or limited meaning: see Côté, supra, at p. 327; R. v.
Dubois, 1935 CanLII 1 (SCC), [1935] S.C.R. 378; Maurice Pollack Ltée v. Comité
paritaire du commerce de détail à Québec, 1946 CanLII 17 (SCC), [1946]
S.C.R. 343; Pfizer Co. v. Deputy Minister of National Revenue for Customs and
Excise, 1975 CanLII 194 (SCC), [1977] 1 S.C.R. 456, at pp. 464-65; and Gravel v.
City of St-Léonard, 1977 CanLII 9 (SCC), [1978] 1 S.C.R. 660, at p. 669.
As well, in R. v. Mac, [2002] 1 S.C.R. 856, 2002 SCC 24 (CanLII), at para. 5, I stated the
following:
The Criminal Code is a bilingual statute of which both the English and
French versions are equally authoritative. In his Interpretation of Legislation in
Canada (3rd ed. 2000), at p. 327, Pierre-André Côté reminds us that
statutory interpretation of bilingual enactments
begins with a search for the shared meaning between
the two versions.
would also draw attention to the two-step analysis proposed by Professor Côté in The
Interpretation of Legislation in Canada (3rd ed. 2000), at p. 324, for resolving discordances
resulting from divergences between the two versions of a statute:
Unless otherwise provided, differences between two official versions of the same
enactment are reconciled by educing the meaning common to both. Should
this prove to be impossible, or if the common meaning seems incompatible with
the intention of the legislature as indicated by the ordinary rules of
interpretation, the meaning arrived at by the ordinary rules should be retained.
133
27 There is, therefore, a specific procedure to be followed when

interpreting bilingual statutes. The first step is to determine whether there is
discordance. If the two versions are irreconcilable, we must rely on other principles: see
Côté, supra, at p. 327. A purposive and contextual approach is favoured: see, for example,
Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 (CanLII), at
para. 26; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84,
2002 SCC 3 (CanLII), at para. 27; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2 (CanLII), at
para. 33.
28 We must determine whether there is an ambiguity, that is,

whether one or both versions of the statute are “reasonably capable of more than
one meaning”: Bell ExpressVu, supra, at para. 29. If there is an ambiguity in one version
but not the other, the two versions must be reconciled, that is, we must look for the
meaning that is common to both versions: Côté, supra, at p. 327.
The common
meaning is the version that is plain and not ambiguous: Côté,
supra, at p. 327; see Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co., 1956 CanLII 2
(SCC), [1956] S.C.R. 610, at p. 614; Kwiatkowsky v. Minister of Employment and Immigration,
1982 CanLII 221 (SCC), [1982] 2 S.C.R. 856, at p. 863.
29 If neither version is ambiguous, or if they both

are, the common meaning is normally the narrower
version: Gravel v. City of St-Léonard, 1977 CanLII 9 (SCC), [1978] 1 S.C.R. 660, at p. 669;
Pfizer Co. v. Deputy Minister of National Revenue For Customs and Excise, 1975 CanLII 194
(SCC), [1977] 1 S.C.R. 456, at pp. 464-65. Professor Côté illustrates this point as follows, at
p. 327:
There is a third possibility: one version may have a broader

meaning than another, in which case the shared meaning is the more
narrow of the two.
30 The second step is to determine whether the common or

dominant meaning is, according to the ordinary rules of statutory
interpretation, consistent with Parliament’s intent: Côté, supra, at pp. 328-329. At
this stage, the words of Lamer J. in Slaight Communications Inc. v. Davidson, 1989 CanLII
92 (SCC), [1989] 1 S.C.R. 1038, at p. 1071, are instructive:
134
First of all, therefore, these two versions have to be reconciled if

possible. To do this, an attempt must be made to get from the two versions of
the provision the meaning common to them both and ascertain whether this
appears to be consistent with the purpose and general scheme of the Code.
31 Finally, we must also bear in mind that some principles of interpretation

may only be applied in cases where there is an ambiguity in an enactment. As Iacobucci J.
wrote in Bell ExpressVu, supra, at para. 28: “Other principles of interpretation — such as
the strict construction of penal statutes and the ‘Charter values’ presumption — only
receive application where there is ambiguity as to the meaning of a provision.”
(2) Application to this Case
32 In this case, it is quite simply not possible to say, as the appellant would
have us do, that the English text is more consistent with Parliament’s intent.
In this
appeal, we must apply the rules of statutory interpretation to
determine whether or not there is an apparent discordance,
whether there is a common meaning and, finally, how
consistent the common meaning, if there is one, is with
Parliament’s intent.
(a) Discordance
33 Each version of s. 462.31 Cr. C. presents a variation of the offence of

laundering proceeds of crime. While the French version simply lists the acts constituting
the actus reus of the offence, that is, “utilise, enlève, envoie, livre à une personne ou à un
endroit, transporte, modifie ou aliène des biens ou leurs produits — ou en transfère la
possession —”, the English version lists these same acts and adds a prohibition against any
other dealings with respect to the property or its proceeds. The addition in the English
version of the expression “or otherwise deals with” would appear, in effect, to leave the door
open to other acts of laundering, thus avoiding the need to provide an exhaustive list.
34 Although the two versions are obviously irreconcilable, given the

complete enumeration of the elements of the actus reus in the French version and the
non-exhaustive enumeration in the English version, both versions taken individually are
nevertheless clear, inasmuch as they are not reasonably capable of more than one
meaning. Given that the versions are irreconcilable but not individually ambiguous, the
next step is to consider their common meaning.
135
(b) Common Meaning
35 As I have already mentioned, when one of the two versions of a

provision of a bilingual statute has a broader meaning than the other, the
common meaning of the two versions is normally the one that
is derived from the version with a more restricted
meaning. This rule is especially relevant in a criminal context, as the accused may,
depending on which version he or she reads, form a different conception of the elements
of the offence in question.
36 Here, the only possible common meaning is the

most restrictive one. This common meaning is easily derived, as the two versions
list similar prohibited acts, with the exception of the added phrase which appears in the
Since the English version cannot represent the
English version only.
common meaning, the French version must. Thus, we are restricted
to the elements of the actus reus enumerated in the French version.
37 As mentioned earlier, it is important to ensure that all accused persons,
regardless of the official language in which they read s. 462.31, have the same understanding
of the elements of the offence of laundering proceeds of crime. The two versions must
therefore publicize exactly the same description of the offence. It would not be fair to
propose an interpretation whereby in one language the elements of the actus reus would
If we adopted the English version, which
be met, but not in the other.
is broader than the French one, this Court would be making an
undue judicial amendment of the statute. For these reasons,
the Court must favour the French version.
136
Part IV
Submissions In Support Of Order Concerning Costs
20. The Applicants respectfully request that costs of the present
Application For Leave be awarded to the Applicants regardless of whether
leave is or is not granted. The Applicants have been through sheer misery
with this case.
Part V
Order Or Orders Sought (Costs)
21. In addition, the Applicants respectfully request that if leave is
granted to appeal the judgment of the Manitoba Court of Appeal in the matter
of AI18-30-09197 rendered on October 28, 2019, that this Court quash the
Adjudication and order a new one with a new adjudicator, with costs, and
further, to quash the decisions and costs against the Applicants in all lower
Courts, with costs, and if the Applicants do not succeed that costs be awarded
to them regardless of whether they are successful or not, because they have
been so grossly mistreated by the Respondents for so many years.

137
The whole respectfully submitted this ______ day of December, 2019.
_______________________
Ron Pollock
(unrepresented)
_________________________
Delphine Kinvig
(unrepresented)
__________________________
Doug Gordon
(unrepresented)
__________________________
Susan Renard
(unrepresented)
138
Part VI
Table of Authorities
page 1312 in Black’s Law Dictionary Sixth Edition - definition of “responsible” Page 129 - par. 14
page 1375 in Black’s Law Dictionary Sixth Edition - definition of “shall” Page 9 – Par. 12
page 520 in Larousse French Dictionary - definition of “responsable” Page 129 – Par. 13
British Columbia (Attorney General) v. Canada (Attorney General); Page 9 – Par. 11

An Act respecting the Vancouver Island Railway (Re), [1994] 2 S.C.R. 41
Canada (Attorney General) v. Knee, 2011 FCA 301 (CanLII) at paragraph 9: Page 11 – Par. 18
Page 127-Par. 8
R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6, paragraphs 26-37 Page 10 – Par 14
Page 11-Par. 18 (con’t on page 12 at “c”)
Page 131 – Par. 19
Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150 at paragraph 8: Page 7– Par. 7
Page 11-Pars.17, 18
Page 12 - Par. 19
Page 125 – Par. 2

Page 127-Par.7
Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, Page 126 – Par. 5
at paragraph 38,
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 Page 125 Par 2
Page 126 Par 4
Part VII
Legislation
Both the English and French of Section 34(a) of the Manitoba Human Rights
Code

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1

SCC Court File No.

IN THE SUPREME COURT OF CANADA

MANITOBA HUMAN RIGHTS COMMISSION,

WINNIPEG CONDOMINIUM CORPORATION NO. 30,

APPLICATION FOR LEAVE TO APPEAL

Ron Pollock (unrepresented), 3505-55 Nassau St. N. Winnipeg, MB R3L 2G8,

Counsel for Respondents And Intervener

Michael Bodner, Counsel, Manitoba Justice Dept. (Intervener) Constitutional Law

(Tab 1) Notice Of Application For Leave To Appeal Page 4

Lower Court Judgments

(Tab 2) Interim Decision: Manitoba Human Rights Page 15

(Tab 3) Reasons for Judgment: Manitoba Court Of Queen’s Bench Page 80

(Tab 4) Reasons for Judgment: Manitoba Court Of Appeal Page 111

Order (if issued). None as yet

(Tab 5) Memorandum Of Argument Page 125

Part 1 Statement of Facts Page 125

Part II Statement of the Questions at Issue Page 127

Part III Statement of Argument Page 128

Part IV Submissions in Support of Order Page 136

Part V Order or Orders Sought Page 136

Part VI Table of Authorities Page 138

Part VII Legislation Page 138

NOTICE OF APPLICATION FOR LEAVE TO APPEAL

SOR/2002-156, from the judgment of the Court of Appeal of Manitoba in

1. In order to forcefully remove the Applicants legal representation

Manitoba Human Rights Code) and Supreme Court of Canada precedents.

The issue of public importance (une question d'importance publique)

Section 34(a) says:

a) la Commission, qui est responsable de la conduite des procédures

The Disabilities Of The Applicants

Tab 3, page 110, paragraph 152:

3. The Court of Appeal decision describes the Applicants at Tab 4,

Page 113, paragraphs 12 and 11

The Facts/How It Unfolded

Commission”) in tandem with the Respondent Winnipeg Condominium

Corporation No. 30 (“the Condominium Corporation”) tried unsuccessfully

to terminate the Adjudication. When the Adjudicator ruled the Commission

was functus officio and couldn’t terminate - instead of going forward as

normal with the Commission representing the Applicants - the Adjudicator

made an exception sans précédent regarding the human rights legislation -

represent the Applicants at the Adjudication, much to the delight of the

Condominium Corporation (pour le plus grand plaisir de la Condominium

Corporation) whose lawyer easily crushed the unrepresented disabled

Applicants at a 12 day trial.

34(a) stemmed from the ambiguity of the English version.

6. The Adjudicator’s allowing the Commission’s legal

representation to be forcefully taken away from the Applicants had never

happened before in Manitoba’s Human Rights Code history. How in God’s

green earth were the unrepresented disabled Applicants supposed to know

how to conduct cross examination and other complicated legal trial

procedures by themselves in a lengthy 12 day trial against an experienced trial

entitled to under section 34(a).

Applicants’ legal representation from the Commission under section 34(a)

reasonable, and not an exception, as stated in Winnipeg School Division No.

1 v. Craton, [1985] 2 S.C.R. 150, at paragraph 8:

“Human rights legislation is of a special nature and declares public policy

Adjudicator’s Duty To Consider French Version

“34 The parties to an adjudication under this Code are

(a) the Commission, which shall have carriage of the complaint;”

The Adjudicator’s Unprecedented Ruling

10. The Queen’s Bench Judge quoted the Adjudicator at Tab 3,

Page 97, paragraph 86: