Date: 20010502
Docket: A-491-00
Neutral citation: 2001 FCA 140
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
SEXTON J.A.
B E T W E E N:
BELL CANADA
Appellant
(Applicant)
-- and --
CANADIAN TELEPHONE EMPLOYEES ASSOCIATION
COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA
FEMMES ACTION
-- and --
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
(Respondents)
Heard at Ottawa, Ontario on Wednesday, May 2, 2001
JUDGMENT delivered from the Bench at Ottawa, Ontario on Wednesday, May 2, 2001
REASONS FOR JUDGMENT BY: STRAYER J.A.
Date: 20010502
Docket: A-491-00
Neutral citation: 2001 FCA 140
C O R A M: STRAYER J.A.
ROTHSTEIN J.A.
SEXTON J.A.
B E T W E E N:
BELL CANADA
Appellant
(Applicant)
-- and --
CANADIAN TELEPHONE EMPLOYEES ASSOCIATION
COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA
FEMMES ACTION
-- and --
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
(Respondents)
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
on Wednesday, May 2, 2001)
STRAYER J.A.
[1] This is an appeal from a decision of Pinard J. of July 7, 2000. He dismissed an application for judicial review brought by the appellant Bell Canada ("Bell") to have set aside the decision of a panel of the Canadian Human Rights Tribunal ("the Tribunal") of November 29, 1997 in respect of 3 motions brought then by Bell.
[2] The hearing of the Tribunal is in respect of various complaints filed by the respondent unions and Femmes Action on behalf of certain of their members alleging discrimination by Bell contrary to section 11 of the Canadian Human Rights Act ("the Act") in allegedly not providing equal pay for work of equal value. At the outset of the Tribunal hearing, Bell made several preliminary objections, all of which were dismissed by the panel. Pinard J. rejected the applications to quash the preliminary rulings of the panel on the grounds that judicial review was in the circumstances premature.
[3] Only one of these rulings is now before us; namely the refusal of the Tribunal to dismiss the complaints brought by the unions on the grounds that the unions lack standing to lay complaints. This ground is based on subsection 40(1) of the Act which only authorizes an "individual or group of individuals" to file a complaint.
[4] In our view it would be wrong for the Court to allow Bell to pursue this issue in judicial review at this stage of the proceedings. In 1996 it brought an application for certiorari and prohibition to prevent the Commission from referring these complaints to a panel of the Tribunal. At that time it challenged the status of the unions to file complaints on behalf of its members, but relied for its challenge to that status on subsection 40(2) of the Act, rather than on subsection 40(1) which it now invokes. This Court in 1998 in rejecting the challenge to status specifically noted that Bell had not relied on subsection 40(1) (Bell Canada v. C.E.P. et al [1999] 1 F.C. 119 at 141). It is an abuse of process for Bell to advance now in a further interlocutory proceeding a new challenge to status based on a ground it could have invoked in the earlier proceedings. It is possible that this issue could be raised in judicial review proceedings after the panel has made its final decision, although the argument of res judicata may well be raised at that time and the Court will have to deal with the whole issue then.
[5] We will therefore dismiss the appeal. At the request of each of the respondents we will award costs at the high end of Column V.
(s) "B.L. Strayer"
J.A.