IMP Group Ltd. v. Dillman

IMP Group Ltd. v. Dillman Court Court of Appeal Date 1995-07-19 Citation 1995 NSCA 102 Docket CA 111572 Judge/Registrar/Adjudicator Chipman, David (Honourable Justice); Jones, Malachi C. (Honourable Justice) (CA); Pugsley, Ronald N. (Honourable Justice) Document Type Decision Decision Content C.A. No. 111572 NOVA SCOTIA COURT OF APPEAL Cite as: IMP Group Ltd. v. Dillman, 1995 NSCA 102 Chipman, Jones and Pugsley, JJ.A. BETWEEN: ) ) I M P GROUP LIMITED ) John P. Merrick, Q.C. ) and J. George Byrne Appellant ) ) - and - ) ) MICHELLE DILLMAN and NOVA SCOTIA ) B. Lynn Reierson HUMAN RIGHTS COMMISSION ) for the Respondent, ) Michelle Dillman Respondents ) ) ) ) Randall R. Duplak, Q.C. ) for the Respondent, ) Human Rights Commission ) ) ) Appeal Heard: ) May 31, 1995 ) ) ) Judgment Delivered: ) July 19, 1995 THE COURT: The appeal is allowed with costs as per reasons for judgment of Chipman, J.A.; Jones and Pugsley, JJ.A. CHIPMAN, J.A.: This is an appeal by an employer, I M P Group Limited, from a decision of a Board of Inquiry appointed pursuant to the Human Rights Act, R.S.N.S. 1989, c. 214. Such an appeal to this Court lies on a question of law. The respondents are Michelle Dillman, a former employee of the appellant, and Nova Scotia Human Rights Commission. Dillman commenced work with the Company in 1987 as a fabric worker and was at all times a member of the bargaining unit represented by C.A.W. Local 2215. Later, she was transferred to the sheet metal shop and classified as a sheet metal worker. Her immediate supervisor or "lead hand" there was Elliott Pettipas. On June 13, 1989, Pettipas was displeased with Dillman's work and, in her words, started "screaming and hollering" at her. As a result, she asked for, and received, a transfer to a new lead hand. In July, 1989, Dillman and Pettipas had a dispute on the floor. In September of that year Dillman put up a male "pinup" calendar as she was tired of looking at female "pinup" photos which had been posted by male workers. The Company circulated a memo ordering that all such materials were to be removed. In October, 1990, Dillman made a comment to Pettipas relating to money he had given his daughter whereupon Pettipas told her that she was a "tramp" and not "accepted at the work place". Dillman kept a diary in which notations of these incidents were made. In October, 1990 Pettipas complained to a foreman about a radio at Dillman's work station as a result of which the Human Rights Chair of the Union became involved and advised the parties to stay away from each other. That same month, there was a further incident when Dillman and Pettipas encountered one another in the work area, at which time Pettipas used offensive language. He constantly called her a name that does not bear repeating here. Dillman filed a complaint with the Union respecting harassment. A meeting was held among Dillman, Pettipas and two officials of the Union, following which the complaint was dropped. However, Dillman met with the hanger manager of the Company respecting her difficulties with Pettipas. As a result, on November 5, 1990, the hanger manager wrote a warning letter to Pettipas regarding harassment of a female employee. Dillman was advised that this warning letter was to be placed in Pettipas' file and to remain for a minimum of two years. The letter was subsequently removed on instructions of Kenneth Rowe, President of the Company. The next significant incident was the making by Pettipas of a kissing sound in the presence of Dillman and two other employees. Other incidents followed. In the spring of 1991 Dillman met with Glen Mitchell, Manager of Labour Relations of the Company, stating that she could not deal with this situation and at Mitchell's suggestion, she went on short term disability from April 12 to May 1. On May 23 she took a further month of stress leave. In January, 1992 Dillman was transferred to another hanger where she carried out the work normally done by an air frame mechanic. Dillman did this work for about nine months. She was complimented on her work by her foreman but he led her to believe that the Company was watching her closely. Pettipas was not working in this department. In February of 1992, human rights sensitivity training was put on by the Company at its aerospace facility. On March 17, 1992 Dillman filed a complaint under the Act naming the Company and/or Pettipas as respondents and alleging that between June 14, 1989 and May 3, 1991 she was discriminated against in the matter of employment as follows: "In June 1989, I found that I was a continuous target of sexual harassment and that Mr. Elliott Pettipas was the main offender. I attempted with the assistance of my Union, to seek resolution through management. This was not successful. The Company refused to adequately address the situation. In the summer of 1992 Dillman was returned to the sheet metal shop, the same area where Pettipas worked. At about this time she applied to enter a competition for an air frame mechanic position but was told that she was not sufficiently qualified to be considered. In November, 1992, Pettipas was moved to another part of the Company's work place, away from Dillman. The Union wrote the Company complaining of this move and requesting that he be returned to his original work station. On December 11, 1992, Dillman settled her complaint under the Act against Pettipas and executed a release in his favour. On December 18, 1992, Dillman initiated a second complaint under the Act against the Company only, alleging that between June 14, 1989 and May 3, 1991 she was a continuous target of sexual harassment and that Pettipas was the "main offender". Following receipt of the second complaint filed by Dillman the Commission carried out an investigation and as a result, exercised its power under s. 32A of the Act to appoint a Board of Inquiry to inquire into the complaint. Michael J. Wood, barrister, was appointed as the Board. The hearing took place before him on October 11 and 12, 1994 and his decision was filed on October 31, 1994. Prior to the hearing before the Board, the Company had both outside and in-house counsel with respect to the matter. On September 19, 1994, a pre-hearing meeting was held among the Chair of the Board and counsel representing the Company and the Commission. At this time counsel for the Company agreed to provide the Commission with a list of witnesses, a summary of their evidence and copies of all documents it proposed to introduce. At approximately 3:30 p.m. on Friday, October 7, 1994 the Board received a letter from outside counsel for the Company that his firm would not be appearing at the hearing. When the hearing commenced as scheduled on October 11 at 9:30 a.m., there was no representative of the Company in attendance. At the Board's request, counsel for the Commission called the Company's offices and was advised that the Company did not intend to participate. The hearing proceeded in the absence of representation or testimony on behalf of the Company. In its decision dated October 31, 1994, the Board recited the Company's failure to attend the hearing notwithstanding its counsel's earlier advice that the matter would be seriously contested and that the Company would be calling up to 20 persons as witnesses. The Board heard from 12 witnesses, including Dillman. Representations were made to the Board by counsel for the Commission. Dillman was not represented by counsel. The Board found that the evidence presented by the Commission witnesses was consistent and persuasive. The Board said: "I should comment that I felt there was evidence and testimony which might have been brought forward by I.M.P. Group which would have been helpful, particularly the testimony of Mr. Elliott Pettipas and Mr. Kenneth Rowe. However, since I.M.P. Group chose not to participate, I did not have the advantage of that information." The Board reviewed the facts at length, detailing the numerous encounters between Dillman and Pettipas at which Dillman was subjected to abusive and demeaning comments. The Board noted that Dillman continued her employment with the Company in the sheet metal shop until January 1993 when she was laid off. She then received unemployment insurance until June of 1994 when she resumed employment elsewhere as a seamstress. The Board reviewed authorities discussing sexual discrimination and harassment and concluded that the conduct of Pettipas towards Dillman was abusive, threatening and intended to cause harm. It accepted that Pettipas' activities were directed at Dillman primarily because she was a woman and that as a result, they constituted sexual discrimination contrary to the provisions of the Act. The Board then noted that counsel for the Commission indicated that the claimant was alleging as well that her failure to obtain the air frame mechanic position was based upon gender. The complaint dated December 18, 1992 alleged discrimination between June 14, 1989 and May 3, 1991. The events relating to the competition for the air frame mechanic position took place in the summer of 1992. The failure to award this position to Dillman was not specifically alleged in the complaint. The Board was not prepared to conclude that the scope of the complaint was broad enough to include the allegations concerning the air frame mechanic position. However, the Board considered that, in light of the discussions at the pre-hearing meeting with counsel and the circulation of a document book by the solicitor for the Commission containing material relating to this subject, the Company knew or ought to have known this issue would be addressed. The Board continued: "Armed with this information, the respondent chose not to attend the hearing and, therefore, was obviously not concerned about the Board dealing with that issue. In these circumstances I cannot conclude that the respondent would be prejudiced by such an amendment . . ." The Board granted the amendment. It briefly reviewed the evidence relating to Dillman's performance in carrying out the responsibilities of the air frame mechanic position and the evidence that other employees with less experience were successful in obtaining air frame mechanic positions. It concluded that there was gender discrimination by the Company against her in the competition. The Board focused on the role of the Company in the harassment of Dillman and concluded that although Pettipas was the person who carried out the acts of harassment, the Company and its senior management was at least as responsible as he, based on its lack of concern for human rights issues in the work place. The Board then addressed the issue of remedies. With respect to the initial complaint of discrimination, the Board awarded general damages of $20,000, noting that this amount did not include anything with respect to the loss of the air frame mechanic position. With respect to the latter, the Board awarded an additional sum of $5,000. The Board also awarded costs of $1,000 and wage losses of $1,040. The total award was thus $27,040. The Board declined to award punitive damages. With respect to the broader issue of the Company's handling of human rights issues and its treatment of women in the workplace, the Board ordered the Company to allow the Commission to carry out sensitivity sessions with respect to its employees as determined by the Commission. Such sessions were mandatory for all employees and officers of the Company including its President and were to be held during normal working hours with no loss of salary. The Company's appeal to this Court seeking to quash the Board's decision raises the following issues: (1) whether the Board erred in granting the amendment to the complaint and if so, what is the appropriate remedy; (2) whether the Commission failed to meet the standards of procedural fairness by not presenting all relevant evidence in its possession and if so, whether the Company may lead such evidence now. In addressing these issues I keep in mind that an appeal lies to this Court on a question of law. This Court has unfettered power to substitute its own opinion for that of the Board on a point of law. See Pezin v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 at 590; Canada (A.G.) v. Mossop, [1993] 1 S.C.R. 554 per Lamer, C.J.C. at pp. 577-8, La Forest, J. pp. 583-5; University of B.C. v. Berg, [1993] 2 S.C.R. 353 at p. 368. ISSUE ONE The Company did not attend the hearing although it was involved in the matter over a period in excess of two years by providing the Commission with access to its premises and information and by participating in the discussions with representatives of the Commission, the Union and the complainant. It is hardly surprising that its decision not to participate in the hearing was the subject of critical comment by counsel for the Commission, the Board and some of the witnesses. The Company's sudden about-face remains a mystery. The Company, of course, was entitled to stay away from the hearing if it wished but it risked the Board making a decision on the basis of unanswered allegations about which it had considerable knowledge. The Company knew the substance of what it had to meet from the terms of the complaint: "I have been employed with IMP Group Limited since February 2, 1987 as a Sheet Metal Technician. This is a non-traditional position for women. Most of my co-workers are male. In June 1989, I found that I was a continuous target of sexual harassment and that Mr. Elliott Pettipas was the main offender. I attempted, with the assistance of my union, to seek resolution through management. This was not successful. The Company refused to adequately address the situation. I allege that I have been discriminated against in being subjected to sexual harassment contrary to Section 12(1)(d) of the Nova Scotia Human Rights Act." Notwithstanding the Company's refusal to attend the hearing, the question is whether the Board had the jurisdiction to amend the complaint in the Company's absence. When a complaint is made under the Act, the Commission has power to instruct the Director of Human Rights or some other officer to inquire into the complaint. The Act gives the Commission through its investigators broad powers to require information, and to enter into the premises to which a complaint refers. The Commission has power to obtain an order from the Supreme Court to permit entry into premises. The Act provides for settlement of a complaint, as well as the inquiry process respecting a complaint. Mr. Wood was nominated as a Board of Inquiry by the Chief Judge of the Provincial Court pursuant to regulations under the Act with a mandate: " . . . to inquire into the complaint of Michelle Dillman, dated 18th day of December, 1992, against I. M. P. Group Limited, being the complaint to which the request relates." The letter from the Commission to Mr. Wood dated February 4, 1994 advising him of his appointment enclosed a copy of the complaint dated December 18, 1992. This was the only complaint from Dillman against the Company pursuant to the Act, the only complaint the Commission referred to a hearing and the only complaint referred to Mr. Wood. It related to sexual discrimination between June 14, 1989 and May 3, 1991 and named Pettipas as the "main offender". The amendment granted by the Board added a new and separate complaint. It now alleged the Company's failure to give Dillman an opportunity to obtain a job as an air frame mechanic because of sexual discrimination. This took place in the summer of 1992. It bore no relation to the harassment caused by Pettipas, but related to different circumstances which raised a new and different issue. As counsel for the Company says, it was not merely an extension, elaboration or clarification of the sexual harassment complaint already before the Board. To raise a new complaint at the hearing stage would circumvent the whole legislative process that is designed to provide for attempts at conciliation and settlement. This matter did not go through the preliminary stages of investigation, conciliation and referral by the Commission to an inquiry pursuant to s. 32A of the Act. The Board dealt with a matter which had never been referred to it. The Company, in declining to attend the hearing, risked judgment against it on the complaint of which it knew. It cannot be taken to have consented to the adjudication of other matters in its absence. The Board, however, considered that the Company did have adequate notice that this issue would be addressed: "In light of the discussions at the pre-hearing meeting of counsel as well as the circulation of the document book by the solicitor for the Commission . . ." At the pre-hearing meeting on September 19, comments were made by Commission counsel to the effect that the Commission considered that Dillman's complaints as to the job position were included in the scope of the complaint being processed. A letter from the Chair summarizing the meeting made reference to the job in documentation provided by the Commission to the Company in advance of the hearing. However, no attempt was made at the pre-hearing conference to amend the complaint. In these circumstances, the Company did not have sufficient notice of the allegation to give it a fair opportunity to meet the case against it or elect, as it did with the complaint of record, to stay away and let judgment take place in its absence. I am satisfied that it did not have a fair opportunity to defend itself. The Board erred in law. The granting of the amendment was a violation of procedural fairness which mandates the setting aside of the award at least to the extent that it relates to the amended complaint. The Company contends that the breach of procedural fairness in permitting the amendment created such an appearance of unfairness that no part of the Board's decision can stand. It is suggested that had the Company been provided with an opportunity of responding to the new allegations, it may have affected not only the Board's decision in relation to the allegations about the air frame mechanic job itself, but also the Board's interpretation and characterization of the Company's role in relation to the original complaint. I do not accept this submission. While the Board made a legal error in granting the amendment, I do not agree with counsel for the Company that this amounted to a denial of the right to a fair hearing. The error went only to the amendment and the relief granted pursuant thereto. The manner in which the Board conducted itself was otherwise beyond reproach. The allegations forming the subject matter of the amendment differed from the original complaint. The evidence supporting the latter was overwhelming. On reviewing the record I fail to see how the Board could have come to any conclusion other than that which it did. The evidence implicated Pettipas as the main offender and showed that an unhealthy attitude permeated this workplace between 1989 and 1991. The subsequent evidence respecting the position of air frame mechanic did not involve Pettipas and would not, in my view, be reasonably expected to have had any influence on the assessment of the evidence relating to the original complaint. The Board clearly differentiated between the two matters in awarding general damages of $20,000 with respect to the original subject matter of the complaint: "I should note that this amount does not include anything with respect to the loss of the air frame mechanic position. There is no evidence to indicate that that incident caused Ms. Dillman any additional or special distress. The loss of income claim with respect to that position is addressed separately." The Board then proceeded to award $5,000 for general damages representing loss of income due to the failure to obtain the air frame mechanic position. In my opinion, the two matters - the original complaint and the amendment - were founded on different evidence in a different time frame. The failure to award the air frame mechanic position did not involve the conduct of Pettipas which was central to the original complaint. The two matters are clearly severable. I am satisfied that the Board's error in allowing the amendment did not taint its decision on the original complaint. I would therefore grant relief to the Company by setting aside the award of $5,000 respecting damages for failure to appoint Dillman to the air frame mechanic position. ISSUE TWO I agree with counsel for the Company that the Commission is a public body established to represent the interests of the state and the community. It has broad investigative powers under the Act. It may require any person to furnish information or records that may be necessary to further its investigation. It may enter premises to which a complaint refers at all reasonable times in furtherance of its investigations. It has the power to appoint a Board of Inquiry. Under the Act the Commission, the complainant and the person complained against are all parties to a hearing before the Board. The Commission has the function of enforcing the Act and it has the carriage of the proceedings. It has the power to compel the attendance of witnesses and the production of evidence. Under the Act, the Board of Inquiry has the power to render a decision finding a party liable in damages. It can make orders changing the way in which a party conducts its business. Its hearings are public and its decisions can cause public disrepute to a party by the publication of its findings. I accept the argument of counsel for the Company that these attributes impose a duty on the Commission, and hence upon its counsel, to present all material relevant evidence relating to the complaint. We are dealing here with the duty relating to presenting evidence at the inquiry, not the duty of pre-inquiry disclosure. As to the latter, see Re Ontario Human Rights Commission v. House, et al. (1994), 115 D.L.R. (4th) 279 (Ont. Div. C.T.). The Commission's duty here is, I think, similar to that which courts have recognized rests on Crown counsel in criminal proceedings. Such counsel must, in the presentation of a matter, be objective, balanced and fair. The following statements relating to Crown counsel are appropriate in considering the position of the Commission and counsel representing it: In Boucher v. The Queen (1954), 110 C.C.C. 263 (S.C.C.) Rand, J. said at p. 270: "It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings." In R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.) Sopinka, J. said at page 7: "I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done." Human rights legislation and its enforcement is a very important and sensitive area. The processing of a human rights complaint and the conduct of an inquiry under the Act are public duties of great importance. As I have said, the proceedings can be of great consequence to the parties. The proper execution of these functions vitally affects not only the immediate parties to the dispute, but the public at large who must be secure in the knowledge that such complaints are pressed vigorously, but with scrupulous care and fairness to all. While the proceedings are not criminal in nature, human rights complaints are more than a mere matter of compensation between subjects. As with the criminal law, the state has an interest in the proper conduct of such matters. For these reasons, I conclude that the position of the Commission and its counsel is analogous to that of the Crown and its counsel with respect to the presentation of evidence. See House, supra, at pp. 284-6. In saying that the Commission has a duty to present all material relevant evidence, it cannot be expected to produce all possible relevant evidence which might be within its grasp. The duty, as I conceive it, is not to knowingly omit any evidence which would make the case presented by it misleading. Fairness requires that all material relevant evidence be tendered. The Company submits that in this case the Commission did not through its counsel present all material relevant evidence. Before examining this submission and the evidence said to be withheld, it is important to keep the context of this particular inquiry in mind. It was not until the very morning of the hearing that counsel for the Commission found out that the Company did not intend to appear and offer a defence to the complaint. Prior to that time, counsel for the Commission had every reason to believe that the Company was going to seriously and vigorously contest the matter by calling witnesses. In fairness to the Commission and its counsel, it was entitled to assume, up until the very commencement of the hearing, that the Company would be presenting its side of the story. It is not as if the Commission had known all along that the matter would either go uncontested or would be defended by a party without the benefit of such counsel as had been representing the Company. Upon learning of the Company's intention not to appear at the hearing, counsel for the Commission did not have the opportunity to pore over the files looking for every last bit of evidence which might be helpful to the Company. It is not suggested that by imposing a duty on the Commission to present all material relevant evidence that it must make efforts to build a defence for the party complained against. Specifically, I reject the Company's submission that there was in the circumstances a duty on the Commission to call Pettipas. Counsel for the Company points to the fact that the Commission, through its counsel, led evidence to the effect that the Company made no effort to address Dillman's complaint and that both Dillman and the Union were frustrated by the Company as they tried to address her concerns. Counsel for the Company points out that the Commission introduced evidence that Kenneth Rowe, President of the Company, unilaterally removed a letter of reprimand from the file of Pettipas and that the Company made no serious effort to move Pettipas away from Dillman. Counsel for the Company's major complaints are centred around the presentation by the Commission of the Union's position in the dispute. The Company submits that rather than facilitate settlement of the matter, the Union offered resistance by intervening on behalf of Pettipas and, in particular, that the Union had a hand in the removal of the letter of reprimand by Mr. Rowe from Pettipas' file. The Company has offered a booklet consisting of 33 documents not introduced at the hearing, which it contends proves that the Commission presented a misleading picture. Of the 33 documents only seven came into existence during the period alleged in the complaint. The other 26 came into existence later; three in 1991, 15 in 1992, five in 1993 and three in 1994. These subsequent documents add nothing to the evidence relating to the original complaint. Many of them relate to the subject matter of the amendment. They do not present a materially different picture of the roles played by the Union and the Company during the relevant time period. As to the seven documents generated during the complaint period, six were forwarded to the Commission by in-house counsel for the Company on April 13, 1992: (a) an undated memorandum from Dillman outlining a number of incidents between June 4, 1989 and October 25, 1990. The entries are consistent with Dillman's evidence at the inquiry. (b) the complaint letter of November 5, 1990; (c) a letter from Pettipas to the Company dated November 6, 1990 setting out his denial of the allegations and complaining that Dillman was harassing him. He claimed that the Company was not thorough in its investigation of the complaints. He demands that the warning letter be withdrawn immediately. (d) a second letter from Pettipas to the Company dated November 6 complaining in general terms about management's reaction to his dispute with Dillman. (e) a letter dated November 9, from Glen Mitchell, Manager of Labour Relations of the Company, to Larry Wark, area Director of the Union agreeing to his request to withdraw the warning letter from Pettipas' file in two years provided that there were no recurrences of the incidents in question. (f) a grievance from the Union dated November 23, 1990 asking that the warning letter be erased from Pettipas' record. This contained the Company's reply dated November 29, 1990 that the letter would be removed six months after its date provided that there were no further incidents. The Company also produced a letter written by A. W. Gillespie, Vice-President Aircraft Production, to Pettipas on December 18, 1990 dealing with the warning letter from the Company dated November 5. The letter said: "The warning letter dated 05 November 1990 shall be removed from your file on the understanding that you are to stay away from the complainant. Any complaint put forth by the complainant after this date will result in immediate disciplinary action." Roger Cruickshank testified before the Board. At the time, he was an aircraft mechanic in the employ of the Company. He was unit chair person in the Union during the time frame covered by the complaint. He testified that the Company was on the defensive with respect to the complaint against Pettipas. He testified that the Company had refused to accede to his suggestion that Pettipas be moved. He was speaking with reference to the time frame of the complaint. Indeed, by November 1992, the Company did in fact move Pettipas to another location and in fact did so despite opposition from the Union. This took place in November, 1992 over a year and a half after the expiry of the time span which was the subject of the complaint. The correspondence on this subject in November of 1992 does not contradict or make misleading the evidence led by the Commission respecting the events between June 14, 1989 and May 3, 1991. The only documents offered by the Company to cast a different light upon the evidence presented during the relevant time period were those that I have summarized. The evidence of Cruickshank touched upon the Union's efforts at the material time to have the warning letter to Pettipas removed and the fact that in the end it was agreed that the letter was to remain for six months. The fact that the Union's grievance resulting in the compromise was not specifically placed before the Board by the Commission does not distort the picture. The letter from Gillespie to Pettipas dated December 18, 1990 does not materially change the effect of the evidence that it was the Company's President who, at the request of Pettipas, removed the letter from the file. This was a finding of the Board which was not challenged by the Company on this appeal. There was evidence that Pettipas openly boasted of the fact that he had accomplished this by "going to the top", and that the matter was common knowledge in the workplace. The removal by Mr. Rowe of the warning letter from Pettipas' file was viewed very seriously by the Board in its decision: ". . . Mr. Rowe, the most senior executive officer and owner of the Company, had the letter of reprimand removed from Mr. Pettipas' file. The only reasonable interpretation that Mr. Pettipas and other employees could place on this conduct was that Mr. Rowe approved of Mr. Pettipas' treatment of Ms. Dillman. Knowledge of this incident was widely spread among the employees. The message which this would send to all female employees was that the rules governing their employment which were set by management permitted sexual harassment." After examining the testimony of the witnesses, I am satisfied that this conclusion by the Board was amply supported by the evidence and that nothing in the letter from Gillespie to Pettipas dated December 18, 1990 or any of the other material now submitted by the Company materially adds to or subtracts from the picture painted respecting the attitude of Company's management. The Company's factum also notes in passing that the settlement release by Dillman of Pettipas respecting her complaint against him entered into on December 11, 1992 was not placed before the Board. That is so, but Dillman testified: "Q. There was a prior complaint to the Human Rights Commission, wasn't there? A. Yes, and his name was - named also with IMP. Q. Alright. And that was resolved by agreement. Is that - A. Yes. Q. - Correct? A. Yes. I removed Elliott's name off of the complaint with the Human Rights Commission." Even granted that her decision to settle a complaint with Pettipas personally was germane, it was amply disclosed to the Board. I am satisfied that the 33 documents tendered by the Company (26 of which were subsequent to the period to which the complaint refers) cast no new light upon the record before the Board. Their non‑production by the Commission does not amount to a withholding or failure to produce material relevant evidence, nor does their absence from the record render the remaining evidence on the record misleading. In short, the Commission did not fail to present all material relevant evidence. It follows that the Company's application to adduce fresh evidence pursuant to Rule 62.22 must be denied on the ground alone that it could not reasonably, when taken with the other evidence adduced at the hearing, be expected to have affected the result. See R. v. Palmer (1979), 50 C.C.C. (2d) 193; R. v. Stolar (1988), 40 C.C.C. (3d) 1 (S.C.C.); and Thies v. Thies (1992), 110 N.S.R. (2d) 177 (N.S.C.A.). It is not necessary to address the other conditions relating to the admission of fresh evidence. In the result, I would allow the appeal by reducing the award of damages to Dillman to the sum of $22,040. I would not disturb the Board's order with respect to the Company carrying out sensitivity sessions with respect to its employees. Success on the issues between the Company and the Commission was divided. I would make no order as to costs between them. With respect to Dillman, counsel for the Company indicated during the argument that she should have her costs of the appeal. I would fix these at $2,500.00 plus disbursements, to be recovered from the Company. Chipman, J.A. Concurred in: Jones, J.A. Pugsley, J.A.