Date: 20030818
Docket: T-223-03
Citation: 2003 FC 996
Ottawa, Ontario, this 18th day of August, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
LUC FOURNIER
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
and Corrine Stowkowski
Respondents
REASONS FOR ORDER AND ORDER
[1] This Court is seized with a motion filed the 26th day of June, 2003, in which the applicant Luc Fournier seeks the following relief:
1. Imposing a stay on the Canada Human Rights Commission (the Commission) and the Canadian Human Rights Tribunal (the Tribunal) processes in respect of the complaint filed by Corrine Stowkowski against Luc Fournier (the Complaint) on an interim basis until such time as Mr. Fournier's application for judicial review of the Commission's decision to assume jurisdiction over the Complaint (the Application) is heard on its merits;
2. Direction to the parties as to whether Corrine Stowkowski is a necessary party to Mr. Fournier's Application;
3. Hearing the Attorney General of Canada's application dated June 5, 2003, and dismissing same;
4. In the alternative to paragraph 3, granting to the applicant an Order that the within submissions are accepted by the Court as the applicant's response to the respondent Attorney General of Canada's motion dated June 5, 2003, for a summary dismissal of the applicant's judicial review and such further or other relief that is necessarily incidental for the proper hearing and disposition of that application, inclusive of any extension of time that may be necessary;
5. Costs of the within applications in favour of the applicant on a solicitor and client full indemnification basis, payable forthwith.
[2] The applicant's motion takes place in the context of the applicant's judicial review of the decision of the Canadian Human Rights Commission to assume jurisdiction over a complaint filed by the respondent Corrine Stowkowski pursuant to the Canadian Human Rights Act, R.S. 1985, c. H-6 (the Act).
[3] The applicant has consented to the adding of Ms. Corrine Stowkowski as a respondent in the judicial review and leave to add her as a respondent was granted by Lutfy C.J. by order dated July 9, 2003. Further, the Attorney General of Canada's motion requesting that the judicial review application be dismissed, dated June 5, 2003, has been withdrawn. Therefore there is no need to deal with the relief sought in items 2, 3 and 4 of the notice of motion. These reasons will deal only with the stay application.
Background
[4] On November 9, 2001, the respondent Corrine Stowkowski (complainant) filed a Complaint with the Commission concerning the conduct of her co-worker, Mr. Fournier (the applicant). Both the applicant and complainant were correctional officers at the Edmonton Institution and employed by Correction Service Canada (CSC) at the relevant time.
[5] The Complaint raised is in respect of allegations that the applicant had harassed the complainant physically and verbally because she is a woman. The complainant alleged that in February 2000 the applicant made a comment about her anatomy and on March 6, 2000, he pushed a desk she was standing behind, causing injury to her knee. The next day, on March 7, 2000, the complainant filed a Complaint with the CSC and the applicant was subsequently found guilty and penalized with the loss of two days' pay. That decision is being challenged in the Federal Court in a separate judicial review application.
[6] On receiving the Complaint, the Commission appointed an investigator to look into the claim. The investigator concluded on November 19, 2002, that the Commission ought to deal with the complaint because the matter was within the Commission's jurisdiction and "the complainant contacted the Commission within one year of the alleged discrimination." The applicant was later notified by letter dated March 28, 2003, that the Commission had requested that the Chairperson of the Tribunal institute an inquiry into the Complaint as it was satisfied that an inquiry was warranted.
[7] On February 7, 2003, the applicant filed a judicial review application of the Commission's decision to assume jurisdiction in connection with the Complaint wherein the applicant seeks an order declaring that the Commission does not have jurisdiction to entertain the claim. The grounds for the application are that the impugned actions do not constitute a "discriminatory practice" by a person or organization as required under the Act; that the Complaint is time-barred by s. 41 of the Act; and that the Complaint duplicates the subject matter of the CSC disciplinary proceedings and as such is barred by the principle of res judicata. The Tribunal proceeding is scheduled for August 25-29, 2003, and in this motion, the applicant seeks a stay of these proceedings until the judicial review of the jurisdiction decision is heard.
Issue
[8] Should the applicant be granted a stay of proceedings?
Analysis
[9] In order to be granted a stay of proceedings, the applicant must show that he has a prima facie case to be tried, that he will suffer irreparable harm should the stay not be granted, and that the balance of convenience favours the applicant: RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 348.
[10] In RJR MacDonald, supra, the Supreme Court at para. 49 of its reasons in discussing the indicators of "a serious issue to be tried" stated that the threshold is a low one and that the judge had to make a preliminary assessment of the merits of the case. The Court went on to say at para. 50:
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
[11] My preliminary assessment of the merits of the underlying Application is that the Application is neither vexatious nor frivolous. I will refrain from offering my views as to the likelihood of the applicant succeeding on his Application, this would not be desirable given that my assessment of the merits is preliminary. Suffice it to say, for the purpose of this motion that the applicant's argument on the application that the Complaint is time-barred is in my view not vexatious nor frivolous. I will now proceed to consider the second and third stages of the test since I am satisfied that there is a serious issue to be tried.
[12] The applicant submits that he will suffer irreparable harm in a number of ways if the stay is not granted: that he will be required to submit to the Tribunal process, which process is being challenged and which may ultimately be found to be unlawful; that his right to be "free from state interference" would be affected by the continuing proceedings; and, that he would have to suffer considerable expense and personal hardship. The respondent Corrine Stowkowski submits that the applicant has not met the second stage of the test for a stay of proceedings. She argues that the applicant has not shown, with clear and non-speculative evidence, that he will suffer irreparable harm. The respondent Corrine Stowkowski suggests that the harm to the applicant's right to be free from state interference and the necessity of the applicant taking time off work and incurring expenses do not constitute irreparable harm. The respondent Corrine Stowkowski submits that the jurisprudence shows that a party's costs of appearing before the Tribunal and alleged disruptions do not constitute irreparable harm but are merely an inconvenience: Bell
Canada v. Communications, Energy and Paperworks Union, [1997] F.C.J. No. 207 (QL) at para. 37-41.
[13] The only evidence adduced in support of irreparable harm is found in the applicant's affidavit wherein he attests that the process he will be forced to respond to, if the stay application is not granted, will cause him financial hardship and inconvenience. The applicant argues that there is a real possibility that he will be successful on his judicial review application and consequently irreparable harm will ensue if the proceeding moves forward. This very argument was addressed in Canadian National Railways v. Leger, [2000] F.C.J. No. 243 (QL), in which Hansen J. stated at para. 16:
...In its [the applicant's] submission, once the inquiry has been allowed to proceed, the judgment ultimately rendered on the judicial review application will be ineffective, untimely, and will therefore result in irreparable harm. I agree with counsel for the Respondent that this is a circular argument. It assumes that which still remains to be decided on the judicial review application. In any event, as Reed J. has noted in ICN Pharmaceutical Inc., supra, even in the event of a successful judicial review application, the applicant's participation in the inquiry will have constituted an inconvenience, not irreparable harm. At issue is the actual concrete harm to be suffered by the applicant, and CN has not established that it would suffer irreparable harm warranting a stay of proceedings.
[14] I agree with Justice Hansen's assessment of the law on this issue. In the case at bar, by responding to the process, the applicant will certainly be inconvenienced and the proceeding could well prove to be a financial burden on him. However, in my view, this does not constitute irreparable harm warranting a stay of proceeding. The applicant has not met the second stage of the tripartite test and consequently, the stay of proceedings requested by the applicant will not issue.
[15] Concerning the third branch of the test, the applicant argues that the Court must weigh the public interest in allowing the Commission and Tribunal to pursue an investigation when their ability to do so is challenged and any further delay that may be caused by granting the stay against the harm caused to the applicant by not granting the stay. The applicant contends that weighing the financial loss and inconvenience he will suffer far outweigh the relatively short delays which may be caused in the process should the stay be granted.
[16] I disagree with the applicant's contention. In Bell Canada, supra, at para. 42, Richard A.C.J., as he then was, stated that:
...[i]n arriving at a decision on the balance of convenience, the Court must consider the public interest in having complaints of discrimination dealt with expeditiously....
[17] I am satisfied that the granting of a stay will cause significant delays to the Tribunal process. I am satisfied that the strong public interest in having Human Rights Tribunal hearings proceed as expeditiously as possible outweighs the applicant's interests in having the process stayed. Consequently, I find that the balance of convenience favours the respondents.
[18] For the above reasons the motion will be dismissed.
[19] Since the respondents have not requested costs, no order for costs will issue.
ORDER
THIS COURT ORDERS that:
1. The motion to stay the Canada Human Rights Commission and the Canadian Human Rights Tribunal processes in support of the Complaint filed by the respondent Corrine Stowkowski against the applicant Luc Fournier on an interim basis is dismissed.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-223-03
STYLE OF CAUSE: Luc Fournier v. The Attorney General of Canada and Corrine Stowkowski
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: August 13, 2003
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: August 18, 2003
APPEARANCES:
Melodi E. Ulku FOR APPLICANT
Mr. Andrew Raven FOR RESPONDENT Corrine Stowkowski
Mr. Rick Garvin FOR RESPONDENT Attorney General of Canada
SOLICITORS OF RECORD:
Bishop & McKenzie LLP FOR APPLICANT
2500-10104 - 103 Avenue
Edmonton, Alberta T5J 1V3
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Edmonton, Alberta T5J 3Y4
Raven, Allen, Cameron & Ballantyne
1600-220 Laurier Avenue West
Ottawa, Ontario, K1P 5Z9 FOR RESPONDENT Corrine Stowkowski