Federal Court of Appeal Decisions

Date: 20010524

Docket: A-698-00

                                                                                                             Neutral citation: 2001 FCA 161

CORAM:           STONE J.A.

LÉTOURNEAU J.A.

ROTHSTEIN J.A.

BETWEEN:

                                                CANADIAN HUMAN RIGHTS COMMISSION

                                                                                                                                             Appellant

                                                                         - and -

CANADIAN TELEPHONE EMPLOYEES ASSOCIATION, COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA and FEMMES ACTION

                                                                                                                                         Respondents

                                                                         - and -

BELL CANADA

                                                                                                                                          Respondent

                                                                         - and -

ATTORNEY GENERAL OF CANADA

                                                                                                                                           Intervener

Heard at Ottawa, Ontario, on Tuesday and Wednesday, April 3-4, 2001

Reasons for Judgment rendered at Ottawa, on Thursday, May 24, 2001

REASONS FOR JUDGMENT BY:                                                                                          STONE J.A.

CONCURRED IN BY:                                                                                                LÉTOURNEAU J.A.

                                                                                                                                  ROTHSTEIN J.A.

Date: 20010524

Docket: A-698-00

                                                                                                             Neutral citation: 2001 FCA 161

CORAM:           STONE J.A.

LÉTOURNEAU J.A.

ROTHSTEIN J.A.

BETWEEN:

                                                CANADIAN HUMAN RIGHTS COMMISSION

                                                                                                                                             Appellant

                                                                         - and -

CANADIAN TELEPHONE EMPLOYEES ASSOCIATION, COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA and FEMMES ACTION

                                                                                                                                         Respondents

                                                                         - and -

BELL CANADA

                                                                                                                                          Respondent

                                                                         - and -

ATTORNEY GENERAL OF CANADA

                                                                                                                                           Intervener

                                                    REASONS FOR JUDGMENT

STONE J.A.

[1]                This is an appeal from an order of the Trial Division dated November 2, 2000 made on an application for judicial review of the respondent Bell Canada against the decision of the Vice-chairperson of the Canadian Human Rights Tribunal (the "Tribunal") dated April 26, 1999. By that decision, the Tribunal rejected all of Bell Canada's assertions that it would be denied natural justice due to institutional bias and lack of independence of the Tribunal. By the order of November 2, 2000, the decision of the Tribunal was quashed and further proceedings in the matter were prohibited until the problems identified by the learned Motions Judge are corrected.

[2]                There were two bases for the application for judicial review. The first was that the power of the Canadian Human Rights Commission (the "Commission") to adopt the Equal Pay Guidelines, 1986 (the "Guidelines") pursuant to subsection 27(2) of the Canadian Human Rights Act, R.S.C. 1985 c. H-6 as amended by the Statute Law (Canadian Charter of Rights and Freedoms) Amendment Act, R.S.C. 1985 (1^st Supp.) c. 31 (cumulatively referred to as the "Act") and by An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, S.C. 1998, c. 9 ("the 1998 amendments"), creates a reasonable apprehension of institutional bias because the Guidelines are binding on the Tribunal. The second was that the Tribunal lacks institutional independence and impartiality because the 1998 amendments empower the Chairperson of the Tribunal to extend the appointment of a Tribunal member whose fixed term would otherwise expire during the currency of an inquiry into a complaint made pursuant to the Act.

[3]                This appeal is concerned only with the Motions Judge's findings that the Commission's power under subsection 27(2) as amended in 1998 gives rise to a reasonable apprehension of institutional bias, and with whether the authority of the Chairperson under subsection 48.2(2) creates a want of security of tenure and, accordingly, a lack of institutional independence and impartiality.

                                            RELEVANT STATUTORY PROVISIONS

[4]                As the history of the relevant provisions is somewhat complicated, it will be useful at this juncture to recite those statutory provisions which lay at the heart of this appeal. The relevant provisions are as follows:

Canadian Human Rights Act, R.S.C. 1985, c. H-6

Statute Law (Canadian Charter of Rights and Freedoms) Amendment Act, R.S.C. (1^st Supp.), c. 31

An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, S.C. 1998, c. 9

Canadian Bill of Rights, R.S.C. 1985, Appendix III

                                                       FACTUAL BACKGROUND

[5]                Between 1990 and 1994, seven complaints were filed against Bell Canada by the respondents Canadian Telephone Employees Association ("CTEA"), Communications, Energy and Paperworkers Union of Canada ("CEP") and Femme Canada. The complaints alleged that Bell Canada was paying its female employees lower wages than its male employees who were performing work of equal value, contrary to section 11 of the Act. The history of these complaints before the Tribunal and the Court is long and storied.

[6]                In May 1996, the Commission requested that the President of the Human Rights Tribunal Panel appoint a Tribunal pursuant to paragraph 44(3)(a) of the Act, to inquire into the complaints. This action was successfully challenged by Bell Canada when, in March 1998, the Trial Division quashed the Commission's request. On November 17, 1998, however, that decision was reversed by this Court.

[7]                In the meantime, in August 1996, the President of the Human Rights Tribunal Panel appointed a three member panel (the "Leighton Tribunal") to inquire into the complaints. On June 4, 1997, the Leighton Tribunal dismissed Bell Canada's motion that the Tribunal was not institutionally capable of providing a fair hearing in accordance with the principles of natural justice.

[8]                Bell Canada then moved in the Trial Division for judicial review of the June 4, 1997 decision. On March 23, 1998, in Bell Canada v. Canadian Telephone Employees Ass'n, [1998] 3 F.C. 244 (T.D.), McGillis J. quashed the proceedings and ordered that no further proceedings take place until the problems she identified "in relation to security of tenure and financial security" were corrected by legislative amendment. McGillis J. was of the view that the need for prior approval by the Minister of Justice to extend a Tribunal member's appointment which expires during the currency of an inquiry created a lack of security of tenure and, accordingly, of institutional independence and impartiality.^* McGillis J. was also of the view that the Tribunal's institutional independence was impugned because the Act left it to the Commission to prescribe the rate of remuneration as well as travel and living expenses for members of the Tribunal. In addition and by way of obiter, McGillis J. intimated "serious reservations" concerning the power of the Commission under subsection 27(2) of the Act, as it stood at the time, "to issue binding guidelines on a Tribunal with respect to ‘the manner in which, in the opinion of the Commission, any provision of this Act applies in a particular case'." Several other issues raised by Bell Canada were not explicitly dealt with by McGillis J. Specifically, these were that the Tribunal lacked institutional independence and impartiality because Tribunal members were paid on a per diem basis; that Tribunal members were assigned to cases on an ad hoc basis; that the Tribunal relied for additional funding from the Treasury Board for hearings lasting more than forty days; and that Tribunal members were allowed to sit on the Tribunal notwithstanding that they may have acted as consultants to the Commission in earlier cases.

[9]                The order of McGillis J. was appealed to this Court. However, the appeal was adjourned sine die on June 1, 1999 having regard to the amendments to the Act which came into force on June 30, 1998. As a result of those amendments the "Human Rights Tribunal Panel" became the "Canadian Human Rights Tribunal" and a number of other changes were adopted with respect to the Tribunal, viz, the power to extend the appointment of a Tribunal member whose fixed term expires during the currency of an inquiry was confided to the Chairperson of the Tribunal, the remuneration of Tribunal members would be fixed by the Governor in Council, and guidelines adopted by the Commission pursuant to subsection 27(2) of the Act would be binding "in a class of cases" rather than in "a particular case". While this legislative action was initiated in 1997 some months prior to the decision of McGillis J., it appears that the amendment of subsection 27(2) was added by Parliament subsequent to the date of that decision.

[10]            As already indicated, by judgment of November 17, 1998, this Court allowed the Commission's appeal of the order quashing the Commission's request that the President of the Human Rights Panel appoint a tribunal to inquire into the complaints. Shortly afterwards, the Commission together with CTEA, CEP and Femmes Action urged that the Chairperson assign a panel and set hearing dates as soon as possible. This was resisted by Bell Canada on a number of grounds including that the 1998 amendments did not cure the problem of security of tenure as identified by McGillis J. and that, as the Guidelines remained binding on the Tribunal, a reasonable apprehension of institutional bias continued to exist.

[11]            These and other issues were considered by the Vice-chairperson of the Tribunal at a hearing held in March 1999, and were disposed of by him adversely to Bell Canada on April 26, 1999. The Vice-chairperson concluded that the problems which had been identified by McGillis J. in her reasons were corrected by the 1998 amendments and that the other issues raised before McGillis J., though not explicitly dealt with by her, could not be made the subject of further litigation.

[12]            Not being satisfied with the Vice-chairperson's decision, Bell Canada soon moved by way of judicial review to challenge its correctness. In doing so, it invoked its right to a fair hearing as guaranteed by paragraph 2(e) of the Canadian Bill of Rights and by natural justice, and asserted errors in law as well as lack or excess of jurisdiction. Its argument, in short, was that the Vice-chairperson erred in finding the Tribunal to be institutionally independent and impartial notwithstanding the Commission's guideline-making power under amended subsection 27(2) and the Chairperson's appointing power under subsection 48.2(2).

[13]            As matters now stand, it would appear that members of the Tribunal have yet to be assigned pursuant to subsection 49(2) of the Act to inquire into the complaints.

                                                             THE ORDER BELOW

[14]            The Motions Judge allowed the application. She concluded that the Commission's amended power under subsection 27(2) to make guidelines binding on the Tribunal gave rise to a reasonable apprehension of bias and fettered the Tribunal's decision-making power. Further, she concluded that the requirement for the Chairperson's approval under subsection 48.2(2) of the 1998 amendments created a lack of institutional independence and impartiality on the basis that the Tribunal would not possess a sufficient objective guarantee of security of tenure. On the other hand, she concluded that the fixing of the remuneration paid to Tribunal members by the Governor in Council pursuant to subsection 48.6(1) had corrected the problem that had been identified by McGillis J., that the disciplinary and remedial measures reposed in the Vice-chairperson of the Tribunal did not give rise to a reasonable apprehension of bias and that the doctrine of res judicata estopped Bell Canada from raising issues that were before McGillis J. although not explicitly dealt with by her.

[15]            The Motions Judge reviewed the principles of judicial independence and impartiality as articulated by the Supreme Court of Canada in recent jurisprudence: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; R. v. Valente, [1985] 2 S.C.R. 673; R v. Lippé, [1991] 2 S.C.R. 114; Canadian Pacific Limited v. Matsqui Indian Band [1995] 1 S.C.R. 3; Katz v. Vancouver Stock Exchange, [1996] 3 S.C.R. 405; 2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; Re Provincial Court Judges, [1997] 3 S.C.R. 3. She also took some guidance from McGillis J.'s analysis in Bell Canada, supra.

[16]            The Motions Judge was of the view that the fact that guidelines would apply and be binding, under amended subsection 27(2), in "a class of cases" only and not "in particular case", had not cured the problem alluded to by McGillis J. Moreover, she was of the view that binding guidelines issued by the Commission, a party before the Tribunal, "is incompatible with the guarantees of constitutional independence and impartiality" and that "it gives the Commission a special status that no other party could enjoy and that it could influence the Tribunal in telling it how to interpret the law." She was further of the view that the Guidelines "fettered the decision-making power of the Tribunal and restricts the Tribunal to adjudicating cases in a direction imposed by the Commission". The Motions Judge viewed the nature of such guidelines as different from subordinate legislation which she described as "normative in nature, and general and impersonal in scope." In her view binding guidelines "put improper pressure on the Tribunal as to the outcome of a decision in a class of cases" by supplying the criteria to be applied by the Tribunal in such cases.

[17]            With respect to security of tenure, the Motions Judge was of the view that subsection 48.2(2) had addressed, but not cured, the problem identified by McGillis J. Despite the fact that the extension of a Tribunal member's appointment would no longer depend upon the prior approval of the Minister of Justice, the power of approval would now reside in the Chairperson of the Tribunal. In the Motions Judge's view, this was not sufficient to satisfy the needs of institutional independence and impartiality. In this connection, the Motions Judge relied on a passage from the judgment of Lamer C.J. in Lippé, supra, to the effect that the concept of "government" has not been limited to the executive or legislative branches but extends to any person who can exert pressure over other judges. She then concluded, at paragraphs 109-111:

The principle of institutional independence requires that a tribunal is structured to ensure that the members are independent. In the case at bar, the ability of a member to continue a case will depend on the discretion of the Chairperson. The difficulty is not necessarily in the manner in which the discretion is exercised but rather in the existence of the discretion itself. As stated by Lamer C.J., "[i]nstitutional independence and the discretion to provide for institutional independence (or not to so provide) are very different things. Independence premised on discretion is illusory." In my opinion, given the high level of independence required, only an objective guarantee of security of tenure will give the necessary protection and afford the member the quietude needed to render a decision free of constraint. There exists no objective guarantee that the prospect of continuance of a tribunal member's duties after expiry of his or her appointment would not be adversely affected by any decisions, past or present, made by that member.                                                                                                                                              [footnote omitted]

                                                               THE ARGUMENTS

[18]            As has been noted, the power of the Commission to make guidelines pursuant to the authority delegated by amended subsection 27(2) extends but is not limited to cases falling within section 11 of the Act. With respect to that section, the Guidelines are to be applied in determining whether an employer has engaged in a discriminatory practice by establishing and maintaining "differences in wages between male and female employees employed in the same establishment who are performing work of equal value". Bell Canada asserts that the modified guideline-making power continues to give rise to a reasonable apprehension of bias and to want of institutional impartiality.

[19]            It is common ground that the test for reasonable apprehension of bias is as was articulated by de Grandpré J. in Committee for Justice and Liberty, supra, at 394-95:

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen from the question above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, the test is "what would an informed person, viewing the matter reasonably and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly. I can see no real difference between the expressions found in these decided cases, be they ‘reasonable apprehension of bias', ‘reasonable suspicion of bias, or ‘real likelihood of bias'. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".

As was pointed out by Cory J. in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at 531, this test has been consistently applied in the intervening years. In that case Cory J. stated, at paragraphs 112-13:

The appellant submitted that the test requires a demonstration of "real likelihood" of bias, in the sense that bias is probable, rather than a "mere suspicion". This submission appears to be unnecessary in light of the sound observation observations of de Grandpré J. in Committee for Justice and Liberty, supra, at pp. 394-95: I can see no real difference between the expressions found in the decided cases, be they ‘reasonable apprehension of bias', ‘reasonable suspicion of bias' or ‘real likelihood of bias'. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience". [Emphasis added]

[20]            The Commission advances several arguments against the Motions Judge's conclusion that the power in amended subsection 27(2) gives rise to a reasonable apprehension of bias and, hence, to lack of institutional impartiality. The first is that amended subsection 27(2) has removed any real concern that a reasonable apprehension of bias exists. Second, while natural justice undoubtedly entitles a person to a hearing before an impartial and independent tribunal, such a right may be modified by Parliament subject, of course, to constitutional constraints. The Commission here contends that if institutional bias exists it is because it is authorized by the 1998 amendments and, therefore, that the intent of Parliament must be respected: Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301. The Commission's guideline-making power is but one of its several responsibilities some of which overlap. Thus, the Commission is authorized to investigate complaints (s. 43), to request appointment of a Tribunal if, in its opinion "an inquiry is warranted" (ss. 49(1), and to participate as a party to an inquiry into a complaint (s. 50). Finally, if the authority delegated to the Commission under amended subsection 27(2) has resulted in a denial of a fair hearing within the meaning of paragraph 2(e) of the Canadian Bill of Rights, the appropriate remedy would not be that which was granted by the Motions Judge but rather a declaration of inoperability consistent with the case law: R. v. Drybones, [1970 S.C.R. 282; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; MacBain v. Lederman, [1985] 1 F.C. 856 (C.A.); In re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C 103 (C.A.). All of the respondents represented on this appeal, with the exception of Bell Canada, support the appellant's submissions on these points. The Attorney General likewise supports them.

[21]            Bell Canada contends that the order of the Trial Division must be upheld if the need for institutional independence and impartiality is to be respected in this case. In its submission, the power delegated by amended subsection 27(2) is unique in that it requires a Tribunal to interpret section 11 in accordance with the Commission's opinion under the Guidelines. The Guidelines are not normative in that they are binding only on the Commission and the Tribunal. Moreover, the binding nature of the Guidelines has been criticized as unacceptable by past heads of the Human Rights Tribunal Panel and even by the Minister of Justice in 1992 when introducing Bill - 108, which, if adopted, would have rendered subsection 27(2) guidelines non-binding.

[22]            The Commission also contends that the authority of the Chairperson under subsection 48.2(2) to extend the appointment of a Tribunal member whose appointment would expire during the course of an inquiry does not deny security of tenure and result in lack of institutional independence or impartiality. Such an ability, it argues, is materially different from the discretionary power once possessed by the Minister of Justice. By conferring the power on the Chairperson, it is said, the former objection has been overcome in a way that does not impinge upon institutional independence and impartiality.

[23]            Bell Canada maintains, however, that the substitution of the Chairperson's approval for that of the Minister of Justice has not removed the concern. It contends that the test for judicial independence as articulated in recent Supreme Court of Canada jurisprudence applies equally to the Tribunal. In its submission, subsection 48.2(2) simply does not objectively guarantee security of tenure of a Tribunal member whose appointment is extended by the Chairperson pursuant to the power contained in that subsection.

[24]            All of these arguments merit careful consideration.

                                             INDEPENDENCE AND IMPARTIALITY

[25]            The concepts of independence and impartiality in modern Canadian case law trace back to the Supreme Court of Canada's decision in Valente, supra. In that case, Le Dain J. distinguished judicial independence from the long-recognized principle of impartiality when he stated, at 685:

Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the Tribunal in relation to the issues and the parties in a particular case. The word "impartial" as Howland C.J.O. noted, connotes absence of bias, actual or perceived. The word "independent" in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.

Le Dain J. articulated three essential conditions to judicial independence, namely, security of tenure, financial security and institutional independence of the Tribunal with regard to matters of administration bearing directly on the exercise of the judicial function.

[26]            Le Dain J. also noted that, as in the case of impartiality, actual independence is not always sufficient. A tribunal must also appear to be independent in the mind of a reasonable observer. As he put it, at 689:

Accordingly, Le Dain J. concluded that the test formulated by de Grandpré J. in Committee for Justice and Liberty, supra, applied in determining judicial independence as it did in determining impartiality: whether the tribunal may be reasonably perceived as enjoying the essential conditions of independence.

[27]            While Valente, supra, and some subsequent decisions of the Supreme Court addressed these principles in judicial settings, it now seems clear that much of what has been said in those cases applies to administrative tribunals although its application has been somewhat less rigid. Thus in Valente, supra, at 692, Le Dain J. observed that it "would not be feasible, however, to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirement of independence in s. 11(d) of the Charter, which have to be applied to a variety of tribunals".

[28]            Later, in Matsqui Indian Band, supra, Lamer C.J. noted that the Valente principles have been applied to administrative tribunals although not with the same strictness. However, he emphasized, at 49, that "it is a principle of natural justice that a party should receive a hearing before a tribunal which is not only independent, but also appears to be independent", and added:

Where a party has a reasonable apprehension of bias, it should not be required to submit to the tribunal giving rise to this apprehension. Morever, the principles outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of the parties. However, I recognize that the strict application of these principles is not always warranted.

[29]            Lamer C.J. went on to note, at 51, that "the test for institutional independence must be applied in the light of the functions being performed by the particular tribunal at issue", and that:

The requisite level of institutional independence (i.e. security of tenure, financial security and administrative control) will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office. In some cases, a high level of independence will be required. For example, where the decision of the tribunal affects the security of the person of a party..., a more strict application of the Valente principles may be warranted. In this case, we are dealing with an administrative tribunal adjudicating disputes relating to the assessment of property taxes. In my view, this is a case where a more flexible approach is clearly warranted.

In 2747-3174 Québec Inc., supra, Gonthier J., after reviewing the earlier jurisprudence, observed at paragraph 63: "There is no question that administrative tribunals do not necessarily have to provide the same objective guarantees of independence as higher courts."

[30]            It would appear that a reason for distinguishing independence of the courts from the independence required of administrative tribunals resides in the different sources of those guarantees. In Re Provincial Court Judges, supra, at paragraph 138, Lamer C.J. concluded that judicial independence finds its origin in the fundamental constitutional principle of separation of powers. On the other hand, administrative tribunals, it would seem, are extensions of the federal executive. The institutional independence required by administrative tribunals arises from the right to a fair hearing guaranteed by the common law requirements of natural justice or by the fair hearing requirements of paragraph 2(e) of the Canadian Bill of Rights. It is well established that the right to a fair hearing is a variable concept whose content depends upon the particular circumstances in which the right arises.

[31]            Also relevant to this appeal is the concept of institutional impartiality recognized by the Supreme Court in Lippé, supra. In that case, Lamer C.J. noted, at 140, that, even where an adjudicator is sufficiently independent, there may nevertheless exist "a reasonable apprehension of bias on an institutional or structural level." Subsequently, in Matsqui, supra, at paragraph 67, Lamer C. J. restated the Lippé test for impartiality as it applied to the administrative tribunal there in issue:

Given that structural impartiality is challenged by the respondents, I would apply the principles elaborated in Lippé, supra, at p. 144 modified for this case: Step One: Having regard for a number of factors including, but not limited to, the potential for conflict between the interests of tribunal members and those of the parties who appear before them, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of case? Step Two: If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis.

The purpose of this test, it seems, is to identify bias arising from the institutional structure as opposed to the personal views or interests of a tribunal member.

[32]            In 2747-3174 Québec Inc., supra, Gonthier J. usefully summarized the application of the Lippé test to an administrative tribunal. Among the issues in that case was whether the directors of the Régie des permis d'alcool du Québec had complied with the guarantees of independence and impartiality set out in section 23 of the Quebec Charter of Human Rights and Freedoms in revoking the respondent's liquor permit. At 951-52, Gonthier J. stated:

As a result of Lippé, supra, and Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267, inter alia, the test for institutional impartiality is well established. It is clear that the governing factors are those put forward by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394. The determination of institutional bias presupposes that a well-informed person, viewing the matter realistically and practically - and having thought the matter through - would have a reasonable apprehension of bias in a substantial number of cases. In this regard, all factors must be considered, but the guarantees provided for in the legislation to counter the prejudicial effects of certain institutional characteristics must be given special attention. This test is perfectly suited, under s. 23 of the Charter, to a review of the structure of administrative agencies exercising quasi-judicial functions. Whether appearing before an administrative tribunal or a court of law, a litigant has a right to expect that an impartial adjudicator will deal with his

                                                                     ANALYSIS

[33]            I turn now to examine the issues raised on this appeal in the light of the principles referred to above.

Institutional impartiality

[34]            The role of the Tribunal under the Act is to examine the facts surrounding the complaint with a view to determining whether or not a discriminatory practice has been engaged in and to make an appropriate remedial order. The Tribunal is not empowered to punish the person complained against. It should also be emphasized that none of the relevant statutory provisions in issue are questioned on constitutional grounds. The argument is limited to the impact of the guideline-making power on the institutional independence and impartiality of the Tribunal.

[35]            Bell Canada argues that amended subsection 27(2) has changed nothing and that just as the pre-June 30, 1998 subsection raised "serious reservations" in the mind of McGillis J., so too should the amended subsection. What needs to be determined, therefore, is whether amended subsection 27(2) gives rise to a reasonable apprehension of bias at the institutional level.

[36]            The need underlying the power conferred by amended subsection 27(2) would appear to lie in the bare bones nature of the section 11 right, a right that is lacking in precise guidance of how it is to be implemented in cases falling within the scope of the section. This obvious lack of detail and the underlying purpose of the Guidelines was commented upon in Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (T.D.), where Evans J. (as he then was) stated, at paragraphs 77-79,139-140:

Indeed, Parliament was aware that answers to many questions about the implementation of equal pay for work of equal value were not to be found in the lapidary language of section 11. Thus, in introducing the provisions, the Minister of Justice and Attorney General of the day, the Hon. R.S. Basford, responded to an observation from a member to the effect that there were no objective criteria for determining whether jobs that involve very different tasks were nonetheless of equal value. Noting that some provincial legislation had been deterred by the difficulties of going beyond proscribing sex based wage differentials for equal work, he said: The federal government has adopted a different approach; that we should legislate the principle [of equal pay for work of equal value] and, through the Commission, and through its efforts at setting out guidelines, solve these problems. (Respondents' Joint Record, vol. IV, pp. 1138-1139.) I have no doubt that Mr. Basford would have expressed a similar sentiment with respect to the methodological problems with which the Commission and the Tribunal might have struggled in this case. In short, the correct interpretation of section 11 in my opinion is that Parliament intended to confer on the agencies created to administer the Act a margin of appreciation in determining on a case-by-case basis, and with the assistance of the technical expertise available, how the statutorily endorsed principle of equal pay for work of equal value is to be given effect in any given employment setting. ...

[37]            Not to be overlooked is that the power to make a guideline pursuant to amended subsection 27(2) was not left by Parliament completely to the whim of the Commission. As such a guideline would be "made in the exercise of a legislative power conferred by or under an Act of Parliament", it falls within the definitions of "regulation" and "statutory instrument" in section 2 of the Statutory Instruments Act, R.S.C. 1985, c. S-22, and is thereby rendered subject to the safeguards laid down in that statute including compliance with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.

[38]            In Bell Canada, supra, McGillis J. suggested, at paragraph 154, that "in order to preserve the institutional impartiality of a Tribunal...the preferable and prudent course of action would be to permit the Commission to make guidelines which are non-binding on a Tribunal". Indeed, as already mentioned, views to the same general effect had been earlier expressed by past presidents of the Human Rights Tribunal Panel and, indeed, by the Minister of Justice in 1992 when introducing a Bill in Parliament that, if passed, would have rendered subsection 27(2) guidelines non-binding. These, too, played a part in the Motions Judge's conclusion that amended subsection 27(2) has not responded to McGillis J.'s reservations.

[39]            The difficulty I find with the Motions Judge's conclusion is that it appears to give little or no weight to the true import of the change that amended subsection 27(2) has wrought. By that change, any guideline adopted pursuant to its provisions is no longer to be binding on the Tribunal in a "particular case" but only in a "class of cases", e.g. a section 11 type case. The apparent intent is that any such guideline is to be applied across the board to all cases falling within a class. It seems to me, therefore, that the opportunity formerly possessed by the Commission to inject itself into the determination of a particular case has been largely eliminated. This represents a significant change. Under the earlier version of subsection 27(2), the Commission could, pursuant to its guideline-making power, influence the outcome of a particular complaint, theoretically even to the extent of adopting a tailor made guideline. This is no longer possible. It seems to me that guidelines governing a "class of cases", with general and impersonal application, are considerably less likely to give rise to a reasonable apprehension of institutional bias.

[40]            Furthermore, I am not convinced that the overlap of the Commission's enforcement and guideline-making functions gives rise to a reasonable apprehension of bias. Essentially, Bell Canada argued that the Commission's law-making power under subsection 27(2) is fundamentally incompatible with its quasi-prosecutorial status before the Tribunal. Even accepting this characterization of the Commission, I do not agree that a reasonable apprehension of bias arises. Although these functions are ordinarily separate in criminal trials, where the highest degree of institutional impartiality is required, that fact cannot be determinative in the case of an administrative tribunal. As has already been noted, the Commission is an expert body fulfilling a number of different functions relating to the administration of the Act. It exercises its guideline-making power separate and apart from its role as a party before the Tribunal. This is particularly true given the 1998 amendments which limit the guideline power to "classes of cases".

[41]            Accordingly, in my view, a fully informed person viewing the matter realistically and practically - and having thought the matter through - would not have a reasonable apprehension of bias in a substantial number of cases.

[42]            Having concluded that no reasonable apprehension of bias arises with regard to the Commission's subsection 27(2) power, it is not necessary to consider whether the doctrine of statutory authorization applies as it did in Brosseau, supra. Likewise, it is not necessary to consider what effect, if any, paragraph 2(e) of the Canadian Bill of Rights might have had and, accordingly, to determine the appropriate remedy were the provisions of that paragraph applicable to the case at bar.

Institutional independence

[43]            The Motions Judge was also concerned that the 1998 amendment reflected in subsection 48.2(2) of the Act had not overcome the problem identified by McGillis J. in Bell Canada, supra. As a result of that amendment, a member of the Tribunal whose appointment expires during an inquiry "may, with the approval of the Chairperson, conclude any inquiry that the member has begun". Of paramount concern to the Motions Judge was that the amendment left the Chairperson with a discretion to either grant or withhold approval and, therefore, gave rise to a perception that the Tribunal lacks an objective guarantee of security of tenure. As the case law makes clear, independence includes a perception that a tribunal be independent.

[44]            I am not persuaded that the Chairperson's power under subsection 48.2(2) is fatal to the independence of the Tribunal. The Chairperson is, after all, the chief executive of the Tribunal with responsibility under subsection 48.4(2) of the 1998 amendments for the supervision and direction of its work "including the allocation of work among the members and the management of the Tribunal's internal affairs". By subsection 48.1(3) of the Act, the Chairperson must be a member in good standing of a provincial bar for at least ten years. Moreover, by subsection 48.2(1), the Chairperson is to be appointed by the Governor in Council for a term of not more than seven years "to hold office during good behaviour" and removable only "for cause". Thus the Chairperson may not be capriciously removed from office because of decisions made by him in the administration and operation of the Tribunal including the exercise of the subsection 48.2(2) power.

[45]            It is also to be noted that if the Chairperson were to abuse his power in extending or refusing to extend the appointment of a Tribunal member for reasons wholly extraneous to the proper administration of the Tribunal, his decision would be reviewable pursuant to section 18.1 of the Federal Court Act. I would add that, as a practical matter, the Chairperson would appear to have a strong disincentive for refusing to extend a Tribunal member's appointment in appropriate circumstances since to do so would require starting the case afresh. Given that many cases before the Tribunal take years to litigate, frustrating the process in this manner would inevitably tend to discredit the Tribunal and, by implication, the Chairperson himself.

[46]            In Valente, supra, legislation permitted a provincial court judge who had reached the age of retirement to continue in office, with the annual approval of the chief judge of the court, until the age of seventy and to continue in office thereafter until the age of seventy-five, with the annual approval of the Judicial Council for Provincial Judges. It was argued that this provision was not sufficient to guarantee security of tenure and, therefore, that a lack of independence resulted. This argument was rejected by LeDain J., speaking for the Court at 704:

[47]            Likewise, although the statutory scheme is not precisely parallel to that which obtained in Valente, supra, it seems to me that the Chairperson is sufficiently insulated from the executive under the scheme of the Act as not to give rise to a reasonable apprehension that he would abuse his discretion under section 48.2(2) of the Act and thereby fail to act in good faith and in the best interests of the Tribunal and its independence. While Bell Canada is entitled to a hearing before an independent Tribunal, the Tribunal's powers are remedial rather than punitive and its ultimate decision would be reviewable by the Court. On balance, therefore, I am satisfied that the subsection 45.2(2) power does not compromise the Tribunal's independence or impartiality in the circumstances.

                                                                   DISPOSITION

[48]            I would allow the appeal with costs payable by Bell Canada to CTEA and CEP, set aside the order of the Trial Division dated November 2, 2000 and dismiss Bell Canada's application for judicial review with costs. Femmes Action did not participate in the appeal and, accordingly, is not entitled to costs. As the Commission does not seek costs none should be awarded to that party.

                                                                                                                                       "A.J. STONE"                        

                                                                                                                                                       J.A.

"I agree

   Gilles Létourneau J.A."

"I agree

   Marshall Rothstein J.A."

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