Date: 20030818
Docket: T-1196-03
Citation: 2003 FC 985
Vancouver, British Columbia, Monday, the 18th day of August, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
CANADIAN IMPERIAL BANK OF COMMERCE
Applicant
- and -
EVE KOLLAR and CANADIAN
HUMAN RIGHTS COMMISSION
Respondent
REASONS FOR ORDER AND ORDER
KELEN J.:
[1] The applicant seeks an interlocutory injunction to prohibit the Canadian Human Rights Tribunal from proceeding with an inquiry into the individual respondent's complaint pending the final disposition of the applicant's judicial review application in Court file number T-935-03. In its judicial review application, the applicant is seeking to have the Canadian Human Rights Commission's decision to refer the complaint to the Tribunal set aside.
[2] The proper legal remedy in this case is an interim order pursuant to section 18.2 of the Federal Court Act staying any further proceedings by the Canadian Human Rights Tribunal pending the final disposition of the applicant's judicial review application in Court file number T-935-03.
[3] The individual respondent is a former employee of the applicant whose employment was terminated on January 15, 1996. She filed a complaint under the Canadian Human Rights Act, R.S.C. 1985, c. H-6, alleging the applicant failed to provide her with a sexual harassment-free work environment and terminated her employment because she rejected sexual advances. The Commission appointed an investigator who issued a report dated September 16, 1999 recommending the complaint be dismissed because the allegations were unfounded. The Commission concurred with the investigator and the complaint was dismissed; however, the individual respondent successfully had the decision judicially reviewed in this Court. O'Keefe J. ordered a new investigation because the original investigation failed to deal with evidence of alleged sexual harassment: Kollar v. Canadian Imperial Bank of Commerce, 2002 FCT 848.
[4] A new investigator was appointed by the Commission and, using the same information contained in the earlier report, concluded that there was sufficient evidence to indicate the individual respondent may have been sexually harassed. After the report was circulated to the parties, the applicant's counsel submitted a letter objecting to the report. Counsel argued the investigator failed to comply with O'Keefe J.'s order by relying solely upon information that was before the first investigator. The Commission reviewed the report and the parties' submissions, and remitted the complaint to the Tribunal for an inquiry.
[5] The individual respondent also filed a wrongful dismissal action in the British Columbia Supreme Court against the applicant. I understand that matter has now been resolved by way of an out-of-court settlement.
[6] In order to be granted the interlocutory injunction it seeks, the applicant needs to satisfy the three-stage test from Manitoba v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110. The first stage of the test is whether there is a serious question to be tried in the application for judicial review. The applicant argues it was not afforded an opportunity to submit new information to the investigator and objects to the Commission's decision to reverse its earlier decision without any new evidence. It argues the Commission must be deemed to have committed a jurisdiction error and breached the rules of procedural fairness.
[7] Because of my findings with respect to the second and third stages of the test, I do not need to decide whether the applicant has raised a serious question to be tried in its application for judicial review. However, I note that it is the Commission's decision, not the investigator's report, which is the proper subject of the judicial review application. The applicant was afforded the opportunity to submit new evidence to the Commission after the investigator circulated her report. It failed to take advantage of that opportunity and cannot now claim it as a ground for judicial review.
[8] The jurisprudence makes clear that the applicant has failed to meet the second stage of the test. The applicant argues it "ought not to be put to major expense and effort to prepare for and defend itself before the Tribunal panel, with its attendant negative publicity and stigmization" [sic]. Similar arguments have been rejected in the past by this Court as insufficient to constitute irreparable harm: Bell Canada v. Communications, Energy and Paperworks Union (1997), 127 F.T.R. 44 per Richard J. (as he then was) at paragraphs 37 to 41. Special circumstances must be present for the Court to treat costs as irreparable harm and there is no evidence that such circumstances are present in this case. It is well settled that the inability of the applicant to recover costs from the Canadian Human Rights Tribunal Inquiry does not constitute irreparable harm.
[9] Finally, the jurisprudence also establishes that the applicant has failed the third stage of the test, namely that the balance of convenience lies in its favour. The balance of convenience involves a determination of which of the two parties will suffer the greater harm from the granting or from the refusing of the stay pending the application for judicial review. First, the Court must consider the public interest in having complaints of discrimination dealt with expeditiously. In this case, the complainant has already waited several years, and a further delay of one or two years is not in the public interest. Second, the Canadian Human Rights Tribunal Inquiry will provide the applicant with the opportunity to make the arguments which it wants to make to the Commission, and which it could have made to the Commission in response to the second investigator's report, but chose not to. Third, a further delay of one or two years will hurt the respondent more than the applicant. In balancing these factors there is no question that the balance of convenience favours the respondent.
[10] Since it is necessary to meet each of the three stages to obtain a stay, and since the applicant has clearly failed to establish either irreparable harm or balance of convenience, it is not necessary for the Court to decide whether the applicant has raised a serious issue so as to satisfy the first stage of the test. For these reasons, the applicant's motion must be dismissed.
ORDER
THIS COURT ORDERS that this motion for a stay is dismissed.
(Sgd.) "Michael A. Kelen"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1196-03
STYLE OF CAUSE: CANADIAN IMPERIAL BANK OF COMMERCE
v. EVE KOLLAR et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: August 18, 2003
REASONS FOR ORDER AND ORDER: KELEN J.
DATED: August 18, 2003
APPEARANCES:
Ms. Kitty Heller FOR APPLICANT
Ms. Eve Kollar FOR RESPONDENT
ON HER OWN BEHALF
SOLICITORS OF RECORD:
Owen Bird FOR APPLICANT
Vancouver, BC