Northwest Territories v. Public Service Alliance of Canada (C.A.) [2001] 3 F.C. 566
Date: 20010524
Docket: A-13-00
Neutral citation: 2001 FCA 162
CORAM: STONE J.A.
LÉTOURNEAU J.A.
ROTHSTEIN J.A.
BETWEEN:
GOVERNMENT OF THE NORTHWEST TERRITORIES
Appellant
AND:
PUBLIC SERVICE ALLIANCE OF CANADA
Respondent
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
Heard at Ottawa, Ontario, Tuesday, Wednesday and Thursday, April 3, 4 and 5, 2001
Judgment delivered at Ottawa, Ontario, Thursday, May 24, 2001
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: STONE J.A.
CONCURRING REASONS BY: ROTHSTEIN J.A.
Date: 20010524
Docket: A-13-00
Neutral citation: 2001 FCA 162
CORAM: STONE J.A.
LÉTOURNEAU J.A.
ROTHSTEIN J.A.
BETWEEN:
GOVERNMENT OF THE NORTHWEST TERRITORIES
Appellant
AND:
PUBLIC SERVICE ALLIANCE OF CANADA
Respondent
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
In the context of an application for judicial review brought by the Government of the Northwest Territories (appellant) and pursuant to an application made by the Canadian Human Rights Commission (CHRC) to deny the appellant standing in the judicial review proceedings, the motions judge proceeded to answer the following question which, the parties agreed, was the point in issue:
Does the Government of the Northwest Territories, by reason of its constitutional status and section 66 of the Canadian Human Rights Act, have the authority and/or lack standing to argue that provisions of the Canadian Human Rights Act or a statutory instrument issued thereunder create a scheme which is contrary to the requirements of natural justice?
He concluded that the appellant lacked the necessary standing. Having so found, he did not, however, address the merits of the other questions that the appellant had also submitted:
a) whether the binding nature of the guidelines issued by the CHRC pursuant to subsection 27(3) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (Act), compromises the institutional independence and impartiality of the Human Rights Tribunal Panel as it existed prior to and after the June 30, 1998 amendments to the Act;
b) whether the remuneration on a per diem basis of the three members of that Tribunal seized with the complaint against the appellant along with the fact that special funding will have to be sought from Treasury Board if the sittings last for more than forty days interfere with their institutional independence and impartiality; and
c) whether these three members should be removed by quo warranto from the case they have been assigned to as their terms of office have expired.
All these questions are now raised on this appeal. The appellant submits that we have jurisdiction to decide them all and that we should do so.
Facts and Procedure
The facts of this case highlight a history of procedural debates not all relevant to the determination of the issues before us, but which enlightens the context of the present appeal.
A complaint was filed on March 28, 1989 by the Public Service Alliance of Canada (PSAC). It was filed with the CHRC and it alleged that the appellant had discriminated in the classification and pay of employees in female dominated groups and subgroups contrary to sections 7, 10 and 11 of the Act. Shortly after, the appellant and PSAC agreed to conduct a joint Equal Pay Study. Meanwhile, the CHRC appointed two investigators who presented their report in 1993. Later that year, the CHRC advised the parties of its decision to refer the sections 7 and 11 aspects of the complaint to a conciliator. The appellant applied for a judicial review of that decision. This application was the first of four judicial review applications made by the appellant.
First Application for Judicial Review. On August 25, 1993, in its application for judicial review, the appellant maintained that the CHRC had no jurisdiction to deal with the complaint on the basis that the Act did not apply to the appellant, or, in the alternative, that there existed a reasonable apprehension of bias on the part of the CHRC. The motions judge found that there was a reasonable apprehension of bias on the part of one CHRC's investigator who was also a member of the respondent PSAC: Northwest Territories v. Public Service Alliance of Canada, [1996] 3 F.C. 182 (F.C.T.D.). That decision was reversed on appeal: (1997), 208 N.R. 385 (F.C.A.), leave to appeal to the Supreme Court of Canada denied on August 28, 1997, [1997] 2 S.C.R. 1X.
Second Application for Judicial Review. On May 27, 1997, the CHRC decided to appoint a Human Rights Tribunal to inquire into the sections 7 and 11 aspects of the complaints. On June 17, 1997, before the Tribunal was appointed, the appellant filed a second application for judicial review seeking to quash the CHRC's decision, alleging that the CHRC exceeded its jurisdiction in requesting the Tribunal to inquire only into a portion of the complaint. The application was dismissed: Northwest Territories v. Public Service alliance of Canada (1999), 162 F.T.R. 50 (F.C.T.D.), the appeal from that decision was discontinued on October 6, 1999 (File A-79-99). On August 7, 1997, a Tribunal was appointed by the President of the Human Rights Tribunal Panel and, after the resignation of one of the original member of the Tribunal, a second Tribunal was appointed on February 20, 1998.
Third Application for Judicial Review. On May 5, 1998, following the decision in Bell Canada v. C.T.E.A. et al., [1998] 3 F.C. 244 (F.C.T.D.), holding that the Tribunal lacked institutional independence and impartiality under the Act, the Tribunal adjourned the matter sine die pending amendments to the Act. The amended Act came into force on June 30, 1998: An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, S.C. 1998, c. 9.
Notwithstanding the amendments, the appellant again challenged the institutional independence and impartiality of the Tribunal. On September 15, 1998, it filed a notice of motion with the Tribunal requesting it to refer the question of its institutional independence and impartiality to the Federal Court. In the alternative, it requested the Tribunal itself to rule on the question. This is the course that the Tribunal followed and, on December 4, 1998, it held that it possessed the requisite independence and impartiality to proceed with the inquiry into the complaint.
Fourth Application for Judicial Review. The appellant sought judicial review of the Tribunal's decision before the Trial Division of the Federal Court. On December 4, 1999, the motions judge dismissed the application. He concluded that the appellant was part of the Federal Crown and, therefore, had, according to the issue as framed, no authority or standing "to argue that provisions of the Canadian Human Rights Act or a statutory instrument issued thereunder create a scheme which is contrary to the requirements of natural justice".
I shall now examine the issues as they were argued on this appeal.
Whether the appellant has standing to argue that provisions of the Act create a scheme which is contrary to the requirements of natural justice
I should state at the outset that throughout the hearing before us there was much confusion as to the real purpose of the judicial review proceedings for which the appellant was denied standing. The appellant's challenge involves subsections 27(3) and 48.2(2) of the Act which I reproduce as well as subsection 27(2):
27(2) The Commission may, on application or on its own initiative, by order, issue a guideline setting out the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act applies in a class of cases described in the guideline.
27(2) Dans une catégorie de cas donnés, la Commission peut, sur demande ou de sa propre initiative, décider de préciser, par ordonnance, les limites et les modalités de l'application de la présente loi.
27 (3) A guideline issued under subsection (2) is, until it is revoked or modified, binding on the Commission and any member or panel assigned under subsection 49(2) with respect to the resolution of a complaint under Part III regarding a case falling within the description contained in the guideline.
27(3) Les ordonnances prises en vertu du paragraphe (2) lient, jusqu'à ce qu'elles soient abrogées ou modifiées, la Commission et le membre instructeur désigné en vertu du paragraphe 49(2) lors du règlement des plaintes déposées conformément à la partie III.
48.2 (2) A member whose appointment expires may, with the approval of the Chairperson, conclude any inquiry that the member has begun, and a person performing duties under this subsection is deemed to be a part-time member for the purposes of sections 48.3, 48.6, 50 and 52 to 58.
48.2 (2) Le membre dont le mandat est échu peut, avec l'agrément du président, terminer les affaires dont il est saisi. Il est alors réputé être un membre à temps partiel pour l'application des articles 48.3, 48.6, 50 et 52 à 58.
I should add that, formerly, subsection 27(2) provided for the adoption of a guideline to be applied "in a particular case or in a class of cases described in the guideline".
The CHRC strenuously argued before us that the appellant could not challenge the validity of a legislation enacted by the Federal Crown. The basis for such position was that the appellant is the Government of a Territory which is part of the Crown in Right of Canada and does not legally have yet acquired the constitutional status of a province. As Her Majesty the Queen in Right of Canada, the argument goes, cannot challenge the validity of Her own statutes, the appellant cannot either since it is a creature of the Federal Parliament which is part of the Federal Crown.
Much discussion ensued as to whether the appellant had de facto attained the status of a province or possessed a quasi-constitutional status which would give it standing, whether constitutional conventions are of assistance in granting standing and whether they could be legally enforced. Both the appellant and the CHRC referred us to authorities to support their diverging views: R. v. Simard (1995), 27 O.R. (3d) 116, at page 129 (Ont. C.A.); R. v. St-Jean, [1987] N.W.T.R. 118 (Y.T.S.C.); Friends of Democracy v. Northwest Territories (Attorney General) (1999), 171 D.L.R. (4th) 551, at page 568 (N.W.T.S.C.); Re Pfeiffer and Commissioner of the Northwest Territories (1977), 75 D.L.R. (3d) 407, at pages 415-17 (N.W.T.S.C.); Morin v. Crawford (1999), 29 C.P.C. (4th) 362, at pages 375, 378-81 (N.W.T.S.C.); Pokiak v. Steen, [1987] N.W.T.R. 272 (N.W.T.S.C.); Bradasch v. Warren, [1990] 3 F.C. 32, at page 36 (F.C.A.); Northwest Territories v. Public Service Alliance of Canada, [1996] 3 F.C. 182, at page 201 (F.C.T.D.); Re Resolution to amend the Constitution, [1981] 1 S.C.R. 7543 at pages 774-884; Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, at pages 259-60. As interesting and challenging as all these questions may be, they are not, however, relevant in this appeal. As a matter of fact, there has been a misapprehension and a mischaracterization of the purpose sought by the appellant in seeking judicial review of the Tribunal's decision. Such mischaracterization has, in my respectful view, led the parties and the motions judge to misapprehend the law applicable in this instance.
Indeed, the appellant is not seeking to challenge the validity of the Act. It actually relies upon the Act itself as enacted to contend and establish that subsections 27(3) and 48.2(2) produce a result which deprives it of its common law right to an independent and impartial tribunal. At the most, what the appellant did in the judicial review proceedings for which it was denied standing was to give these two subsections an interpretation which both respondents disagree with. In other words, the position taken by the appellant with respect to the impugned subsections is one which involves the interpretation and effect of the Act, rather than an attack on its validity.
The appellant has been given by statute, the Northwest Territories Act, R.S.C., 1985, c. N-27 (NWTA), wide powers akin to those conferred upon the provinces by the Constitution Act 1867. Under section 16 of the NWTA, the Commissioner in Council has jurisdiction to make ordinances in the best interest of the Territory and its inhabitants. These ordinances relate to issues or classes of subjects similar to those assigned to the provinces under section 92 of the Constitution. There is no doubt that the appellant has, with respect to the exercise of its statutory powers, standing before the courts to seek recognizance and enforcement of these powers. There is, in my view, also no doubt that the appellant has standing before the courts to defend itself when sued for an alleged abuse or misuse of these powers. This is the situation in the present instance. PSAC complained that the appellant, as an employer, abused or misused its managerial powers by discriminating in the employment. The appellant has standing to defend itself against this complaint. This standing of the appellant extends to its right, as a requirement of natural justice, to seek an independent and impartial Tribunal who will apply and interpret an Act whose validity the appellant does not contest. In my view, the motions judge erred when he denied the appellant standing "to argue that provisions of the Canadian Human Rights Act or a statutory instrument issued thereunder create a scheme which is contrary to the requirements of natural justice".
In so concluding, I want to emphasize that I am not, at this stage, adjudicating on the merits of the appellant's entitlement to natural justice and, therefore, to an independent and impartial tribunal. I am simply stating that the appellant has legal standing to argue before the courts that the rules of natural justice apply to the facts of its case and, accordingly, seek their application.
Counsel for the CHRC, as well as the motions judge, relied heavily upon section 66 of the Act which states that the Act is binding on Her Majesty in Right of Canada, except in matters respecting the Northwest Territories:
66. (1) This Act is binding on Her Majesty in right of Canada, except in matters respecting the Government of the Yukon Territory or the Northwest Territories.
66. (1) La présente loi lie Sa Majesté du chef du Canada sauf en ce qui concerne les gouvernements du territoire du Yukon et des Territoires du Nord-Ouest.
(2) The exception referred to in subsection (1) shall come into operation in respect of the Government of the Yukon Territory on a day to be fixed by proclamation.
(2) L'exception prévue au paragraphe (1) entre en vigueur à l'égard du gouvernement du territoire du Yukon à la date fixée par proclamation.
(3) The exception referred to in subsection (1) shall come into operation in respect of the Government of the Northwest Territories on a day to be fixed by proclamation.
(3) L'exception prévue au paragraphe (1) entre en vigueur à l'égard du gouvernement des Territoires du Nord-Ouest à la date fixée par proclamation.
I honestly fail to see what it really adds or contributes to this debate on standing. As I have already pointed out, the appellant does not contest that the Act is binding upon itself. It simply contends that the relevant provisions of the Act as they read do not say what the CHRC pretends or wishes them to be saying. To put it differently, the appellant agrees that, pursuant to section 66, the Act is binding upon it, but rightly or wrongly disagrees with the interpretation given to it by the CHRC.
Whether this Court should consider the appellant's argument not dealt with by the motions judge
I should now address the appellant's argument that this Court has jurisdiction on this appeal to consider and determine the issues that the reviewing judge never ruled upon as a result of a preliminary objection as to standing. Section 52 of the Federal Court Act enumerates the powers of the Court of Appeal on an appeal from a decision of the Trial Division. More precisely, subparagraphs 52(b)(i) and (iii) stipulate:
52. Powers of Court of Appeal - The Federal Court of Appeal may
(a) quash proceedings in cases brought before it in which it has no jurisdiction or whenever those proceedings are not taken in good faith;
(b) in the case of an appeal from the Trial Division,
(i) dismiss the appeal or give the judgment and award the process or other proceedings that the Trial Division should have given or awarded,
(ii) in its discretion, order a new trial, if the ends of justice seem to require it, or
(iii) make a declaration as to the conclusions that the Trial Division should have reached on the issues decided by it and refer the matter back for a continuance of the trial on the issues that remain to be determined in the light of that declaration; and
[...]
52. Pouvoirs de la Cour d'appel - La Cour d'appel peut:
a) arrêter les procédures dans les causes qui ne sont pas de son ressort ou entachées de mauvaise foi;
b) dans le cas d'un appel d'une décision de la Section de première instance:
(i) soit rejeter l'appel ou rendre le jugement que la Section de première instance aurait dû rendre et prendre toutes mesures d'exécution ou autres que celle-ci aurait dû prendre,
(ii) soit, à son appréciation, ordonner un nouveau procès, si l'intérêt de la justice paraît l'exiger,
(iii) soit énoncer, dans une déclaration, les conclusions auxquelles la Section de première instance aurait dû arriver sur les points qu'elle a tranchés et lui renvoyer l'affaire pour poursuite de l'instruction, à la lumière de cette déclaration, sur les points en suspens;
[...]
I think subparagraph 52(b)(i) authorizes this Court to deal with the issues not considered by the motions judge that were before him. It authorizes the Court of Appeal to give the judgment that the Trial Division should have given which entails that the Court of Appeal can consider the arguments that were before the motions judge to consider and, in delivering the judgment that should have been delivered, state the reasons that should and would have been given by the motions judge. The power to do that is one thing, the advisability of doing it is, however, another which depends on the circumstances of each case. In the present instance, I do not think that it would be in the interest of justice to leave these matters unanswered or to send the matter back to the motions judge for adjudication. The history of the case clearly indicates that they will certainly become another ground of dispute almost guaranteed to delay the hearing on its merits and resurface before us. Accordingly, I shall deal with the three questions that the application for judicial review raised before the motions judge.
Whether a quo warranto should issue
The appellant challenges the Tribunal's decision that, pursuant to subsection 33(3) of the amending act (S.C. 1998, c. 9), it had the authority to carry on with PSAC's complaint. The thrust of its argument runs as follows. The appointments of two of the members of the Tribunal expired on June 30, 1998 and July 5, 1998. The appointment of the third member came to an end on March 31, 2000. Nothing in the Act as now amended extends the terms of office of these members who kept on sitting on the case beyond the expiry dates of their appointments. Therefore they have no jurisdiction to hear the complaint against the appellant and should be removed by quo warranto from an office that they improperly occupy. I believe it is necessary at this point to reproduce in its entirety section 33 of the amending act which is a transitional provision. It reads:
PART 3
TRANSITIONAL PROVISIONS,
CONSEQUENTIAL AMENDMENTS AND
COMING INTO FORCE
Transitional Provisions
33. (1) In this section, "commencement day" means the day on which this section comes into force.
PARTIE 3
DISPOSITIONS TRANSITOIRES,
MODIFICATIONS CORRÉLATIVES ET
ENTRÉE EN VIGUEUR
Dispositions transitoires
33. (1) Pour l'application du présent article, "entrée en vigueur" s'entend de l'entrée en vigueur de celui-ci.
(2) Subject to subsections (3), (4) and (5), the members of the Human Rights Tribunal Panel cease to hold office on the commencement day.
(2) Sous réserve des paragraphes (3), (4) et (5), le mandat des membres du Comité du tribunal des droits de la personne prend fin à la date d'entrée en vigueur.
(3) The members of any Human Rights Tribunal appointed under the Canadian Human Rights Act before the commencement day have jurisdiction with respect to any inquiry into the complaint in respect of which the Human Rights Tribunal was appointed.
(3) Les membres du tribunal des droits de la personne constitué en vertu de la Loi canadienne sur les droits de la personne avant la date d'entrée en vigueur conservent leurs pouvoirs à l'égard de la plainte qu'ils ont été chargés d'examiner.
(4) The members of any Review Tribunal constituted under the Canadian Human Rights Act before the commencement day have jurisdiction with respect to any appeal against a decision or order of a Human Rights Tribunal.
(4) Les membres du tribunal d'appel constitué en vertu de la Loi canadienne sur les droits de la personne avant la date d'entrée en vigueur conservent leurs pouvoirs à l'égard de l'appel dont ils sont saisis.
(5) The members of any Employment Equity Review Tribunal established under section 28 or 39 of the Employment Equity Act before the commencement day have jurisdiction over any matter in respect of which the Tribunal was established.
(5) Les membres du tribunal constitué en vertu de l'article 28 ou 39 de la Loi sur l'équité en matière d'emploi avant la date d'entrée en vigueur conservent leurs pouvoirs à l'égard de l'affaire dont ils ont été saisis en vertu de cette loi.
(6) The Chairperson of the Canadian Human Rights Tribunal has supervision over and direction of the work of any Human Rights Tribunal, Review Tribunal or Employment Equity Review Tribunal referred to in subsections (3), (4) or (5).
(6) Dans l'exercice des pouvoirs prévus aux paragraphes (3), (4) et (5), les membres agissent sous l'autorité du président du Tribunal canadien des droits de la personne.
(7) Each member of a Human Rights Tribunal, Review Tribunal or Employment Equity Review Tribunal referred to in subsections (3), (4) or (5), other than such a member who is appointed as a full-time member of the Canadian Human Rights Tribunal, shall be paid such remuneration as may be fixed by the Governor in Council.
(7) Les membres reçoivent, pour l'exercice des pouvoirs prévus aux paragraphes (3), (4) et (5), la rémunération fixée par le gouverneur en conseil, sauf s'ils sont nommés membres à temps plein du tribunal.
(8) Each member of a Human Rights Tribunal, Review Tribunal or Employment Equity Review Tribunal referred to in subsections (3), (4) or (5) is entitled to be paid travel and living expenses incurred in carrying out duties as a member of that Tribunal while absent from their place of residence, but the expenses must not exceed the maximum limits authorized by Treasury Board directive for employees of the Government of Canada.
(8) Les membres ont droit aux frais de déplacement et de subsistance entraînés par l'accomplissement, hors du lieu de leur résidence habituelle, des fonctions qui leur sont confiées en application de la présente loi, sous réserve des montants maximaux que les instructions du Conseil du Trésor fixent en semblable matière pour les fonctionnaires du gouvernement du Canada.
With respect, I think the contention of the appellant is without merit and results from a misunderstanding of what Parliament intended to do and effectively did.
It is not unusual for a legislative authority to merge or replace an existing board or agency with another one with a view to better satisfying the evolving needs of society. Often times, the members of the former board are appointed members of the new board and the files or complaints are transferred to the new board. This is, of course, the least disruptive process as there is continuity and expertise in the membership of the new board.
There are, however, instances where members of a board which is abolished are not appointed to the newly created board. This may be done for a multiplicity of valid administrative as well as personal reasons ranging from a lack of expertise in, or legal qualification for, the jurisdiction of the new board to the simple desire of a member not to be appointed to the new board. It is not unusual for a legislative authority, when this happens, to resort in the interest of justice to a transitional provision which ensures that the members of a board who are not appointed to the new board will be expressly authorized to finish the work that they had commenced or that was in progress at the time of the abolition of their board. This is, as I shall explain, precisely what Parliament did in the present instance when it enacted section 33 of the amending act.
By section 27 of the amending act, Parliament created the Canadian Human Rights Tribunal which replaced the Human Rights Tribunal Panel of which the three persons against whom a quo warranto is sought were members:
27. The heading before section 48.1 and sections 48.1 to 53 of the Act are replaced by the following:
Canadian Human Rights Tribunal
48.1 (1) There is hereby established a tribunal to be known as the Canadian Human Rights Tribunal consisting, subject to subsection (6), of a maximum of fifteen members, including a Chairperson and a Vice-chairperson, as may be appointed by the Governor in Council.
27. L'intertitre précédant l'article 48.1 et les articles 48.1 à 53 de la même loi sont remplacés par ce qui suit:
Tribunal canadien des droits de la personne
48.1 (1) Est constitué le Tribunal canadien des droits de la personne composé, sous réserve du paragraphe (6), d'au plus quinze membres, dont le président et le vice-président, nommés par le gouverneur en conseil.
(2) Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.
(2) Les membres doivent avoir une expérience et des compétences dans le domaine des droits de la personne, y être sensibilisés et avoir un intérêt marqué pour ce domaine.
(3) The Chairperson and Vice-chairperson must be members in good standing of the bar of a province or the Chambre des notaires du Québec for at least ten years and at least two of the other members of the Tribunal must be members in good standing of the bar of a province or the Chambre des notaires du Québec.
(3) Outre le président et le vice-président, qui doivent l'être depuis au moins dix ans, au moins deux autres membres du Tribunal doivent être membres en règle du barreau d'une province ou de la Chambre des notaires du Québec.
Under subsections 33(1) and (2), the members of the former Human Rights Tribunal Panel ceased to hold office on June 30, 1998 when the amendments came into force. As of that date, the actual date of expiry of the term of appointment of members of the Panel (June 30, 1998, July 5, 1998 and March 31, 2000 for the members herein concerned) became irrelevant as they all ceased to hold office on June 30, 1998. The appellant's contention that the appointment of at least two of the members ran beyond June 30, 1998 to later expire at the date fixed in the term of their appointment goes against the clear wording of subsection 33(2).
It is not disputed that the three members whose jurisdiction is challenged in this appeal were not appointed to the new Tribunal. Consequently, their status as well as the fate of the complaints they were hearing at the time came to be governed by subsection 33(3). In this regard, the appellant is mistaken in its contention that the three members need an extension of their appointment and that such extension requires the approval of the Chairperson of the Canadian Human Rights Tribunal pursuant to subsection 48.2(2) of the amended Act. The members of the Human Rights Tribunal Panel, in their decision of December 4, 1998, at page 24, properly concluded that subsection 48.2(2) does not apply to them as they are not members of the Canadian Human Rights Tribunal to whom the subsection is evidently meant to apply. There is no need for them to seek an extension of an appointment which has expired for an office that they no longer hold. Subsections 33(4) and (5) also evidence Parliament's intent to maintain in a similar way the jurisdiction of the members of any Review Tribunal or of any Employment Equity Review Tribunal. Under subsection 33(6), all these members, including the members of the former Human Rights Tribunal Panel are to complete their work under the supervision and direction of the Chairperson of the new Canadian Human Rights Tribunal. According to subsections 33(7) and (8), they are to be paid a remuneration fixed by the Governor in Council as well as travel and living expenses incurred in carrying out their temporary duties.
I did mention earlier that it is not unusual for a legislative authority to ensure by way of a transitional provision that pending cases are completed by former members of a board who are not appointed to the new board. A provision almost identical to subsections 33 (2) and (7) was enacted in 1996 by the Quebec legislature when it replaced the "Régie du gaz naturel" by the "Régie de l'énergie". Section 147 of the Régie de l'énergie Act, R.S.Q., c. R-6.01 reads:
147. The term of office of the commissioners of the Régie du gaz naturel shall end on June 2, 1997. The term of office of the Commissioner appointed under the Act respecting the examination of complaints from customers of electricity distributors (chapter E-17.1) shall end on February 11, 1998.
147. Le mandat des régisseurs de la Régie du gaz naturel prend fin le 2 juin 1997. Celui du commissaire nommé en vertu de la Loi concernant l'examen des plaintes des clients des distributeurs d'électricité (chapitre E-17.1) prend fin le 11 février 1998.
However, the commissioners of the Régie may, notwithstanding the expiry of their term, continue to examine and decide applications having been referred to. They shall, in that case, be remunerated at an hourly rate determined on the basis of their annual salary.
Toutefois, les régisseurs peuvent continuer l'étude d'une demande dont its ont été saisis et en décider malgré l'expiration de leur mandat. Ils seront alors rémunérés sur la base d'un taux horaire calculé en fonction de leur salaire annuel.
In the same vein, in the context of a restructuration of the Quebec Municipal Courts, the Quebec legislature has provided in the Municipal Courts Act, R.S.Q., c. C-72.01 that where the jurisdiction of a municipal Court is suspended or abolished, the judge of that Court retains jurisdiction to hear the cases that were entered on the rolls of the Court before the suspension or the abolition became effective:
102. The judge of the court shall continue to have jurisdiction to hear cases entered on one of the rolls of the court before the order suspending the jurisdiction of the court took effect; he shall sit, for that purpose, at the place indicated in the order.
102. Le juge de la cour demeure compétent pour entendre les causes inscrites sur l'un des rôles d'audience de la cour avant la prise d'effet du décret suspendant la compétence de la cour; il siège, à cette fin, à l'endroit indiqué dans le décret.
117.1 Notwithstanding, where applicable, section 39, the judge of the court retains his jurisdiction to hear and dispose of cases entered on one of the rolls of the court before the date on which the abolition of the municipal court or the withdrawal of the territory of a municipality from the jurisdiction of a municipal court became effective; he shall sit for that purpose at the place indicated in the order.
117.1 Le juge de la cour demeure compétent, malgré, le cas échéant, l'article 39, pour entendre et disposer des causes inscrites sur l'un des rôles d'audience de la cour avant la prise d'effet de l'abolition de la cour municipale ou du retrait du territoire d'une municipalité de la compétence d'une cour municipale; il siège à cette fin, à l'endroit indiqué par le décret.
Finally, perhaps I should add in respect of the Quebec legislative authority that in the Act to Amend Various Legislative Provisions Relating to Building and the Construction Industry, S.Q., 1998, ch. 46, the Quebec legislature, with in this case somewhat more specificity, determined that the proceedings in progress shall be continued and fixed the conditions of employment of the members dealing with these proceedings although it begs the question as to what these conditions are if the matter extends beyond six months. I reproduce section 131 of that act:
131. The term of office of the building commissioner and of the building deputy-commissioner shall end on September 8, 1998.
131. Le mandat du commissaire et du commissaire adjoint de la construction prend fin le 8 septembre 1998.
Where the parties consent thereto, the building commissioner and the building deputy-commissioner may, notwithstanding the end of their term, conclude matters they have begun to hear and on which they have yet to rule. For such purpose, they are entitled, for a maximum period of six months, to the conditions of employment that are applicable to them on September 7, 1998.
Lorsque les parties y consentent, le commissaire et le commissaire adjoint de la construction peuvent, malgré la fin de leur mandat, terminer les affaires qu'ils ont commencé à entendre et sur lesquelles ils n'ont pas encore statué. À cette fin, ils bénéficient, pendant une période maximale de six mois, des conditions de travail qui leur sont applicables le 7 septembre 1998.
Similar transitional provisions can be found as well in the Ontario statutes. For example, in the Crown Employees Collective Bargaining Act, 1993, S.O., 1993, c. 38 amended by S.O., 1995, c. 1, which replaced the Crown Employees Collective Bargaining Act, 1990, R.S.O., 1990, c. C-50, subsection 59(2) states that "the Tribunal is continued for the purposes of disposing of any matters in respect of which an application was made to the Tribunal before the repeal of the old Act": to the same effect, see subsection 173(5) of the Mortgage Brokers Act, S.O., 1997, c. 28; see also the complex transitional provisions, especially subsection 112(4), of the Workplace Safety and Insurance Act, 1997, S.O., 1997, c. 16, Schedule A which replaced the Workers Compensation Act, R.S.O., 1990, c. W-11.
Perhaps most telling of all is the fact that the Government of the Northwest Territories did the same when, in 1997, it replaced the Child Welfare Act, R.S.N.W.T., 1988, c. C-6 by the Child and Family Services Act, S.N.W.T., 1997, c. C-13. Section 93, as a transitional provision, reads:
93. Notwithstanding the repeal of the former Act on the coming into force of this section,
(a) [...]
(e) where a person or persons have been appointed under section 44 of the former Act to inquire into and report on the management and conduct of an institution and the inquiry has not been concluded or report completed, section 44 of the former Act shall continue to apply to that inquiry or report; and
Other examples can be found in subsection 66(3) of the Coroners Act, S.N.W.T., 1985, c. 2 which repealed the former Act, R.S.N.W.T., 1974, c. C-13 and subsection 93(2) of the Public Utilities Act, S.N.W.T., 1989, c. 24 (Supp.) which repealed its predecessor, R.S.N.W.T., 1988, c. P-20.
The appellant draws an argument from the fact, as it submits, that the members of the former Human Rights Tribunal Panel can hold office indefinitely under the transitional provision. It also contends that they are no longer subjected to the disciplinary procedures of the former Act and that the disciplinary procedures of the amended Act do not apply to them because they are not members of the Canadian Human Rights Tribunal. In its view, Parliament cannot have intended that result in enacting the transitional provisions of subsection 33(3).
With respect, I do not think that it is appropriate to say that the former members of the Human Rights Tribunal Panel hold their office indefinitely. First, as subsection 33(2) clearly states, they no longer hold office. They are simply empowered to complete the inquiry into complaints before them. This empowerment contains in itself its own time-limit. The fact, in the present instance in view of the nature of the complaint, that completion of the inquiry may take more time than usual does not alter the status of the three members and make them holders of an office which they have ceased to hold. As for the fact that they might not be subject to disciplinary procedures, I am not sure that this is necessarily the case and it is not for us to decide in these proceedings. In any event, they remain subject to the law in the exercise of their duties. Furthermore, assuming that there is a gap at this level, it cannot be inferred that Parliament did not intend to confer upon them, by subsection 33(3), jurisdiction to complete their inquiry. Just like it is not unusual for a legislative authority to resort to transitional provisions, it is also not unusual for such authority to overlook some of the consequences resulting from the transition. The drafting of transitional provisions is perhaps the most complex and perilous exercise in legislative drafting since it is very difficult to ascertain at the time, let alone grasp fully, all the possible impact, ramifications and effects of a profound change of structure. An oversight of the nature argued by the appellant, assuming there is one, does not render ambiguous an otherwise clear provision as subsection 33(2) of the amended Act.
Whether the remuneration on a per diem basis and the need to obtain funds from the Treasury Board after forty days of sittings interfere with the institutional independence and impartiality of the three members invested with the power to hear the complaint
The appellant objects to the three members of the Tribunal being remunerated by the Governor in Council on a per diem basis and sees in that mode of remuneration a lack of financial security which interferes with their institutional independence and impartiality. It buttresses its argument with its contention that the members are governed by the provisions of sections 48.1 to 48.8 of the amended Act and, therefore, need the discretionary approval of the Chairperson of the Canadian Human Rights Tribunal to finish the cases they were seized of at the time they ceased to hold office as members of the Human Rights Tribunal Panel: See paragraphs 71 and 72 of its Memorandum of Fact and Law.
I have already concluded, and explained why I have concluded, that the three members do not need the approval of the Chairperson to complete their hearing of the complaint against the appellant because they hold the statutory authority to do that pursuant to subsection 33(3) of the transitional provision. As for the remuneration fixed by the Governor in Council, the decision in Valente v. The Queen, [1985] 2 S.C.R. 673, at pages 706-07 stands for the principle that judicial independence is not compromised by the fact that judicial salaries are fixed by an order in council. As Lamer C.J. pointed out in Re Provincial Court Judges, [1997] 3 S.C.R. 3, at page 83, paragraphs 121 and 122, the Court in Valente referred only to the individual dimension of financial security. He concluded that there was also an institutional or collective dimension to it which, as he states at paragraph 131, requires from a constitutional perspective that, to the extent possible, the relationship between the judiciary and the other branches of government be depoliticized. To use his words, the constitutional imperative "demands that the courts both be free and appear to be free from political interference through economic manipulation by other branches of government, and that they not become entangled in the politics of remuneration from the public purse".
Under subsections 33(7) and (8) of the transitional provision, the remuneration of the three members is fixed by the Governor in Council and the maximum limits of their travel and living expenses, like those of the new Canadian Human Rights Tribunal, are objectively determined by reference to the Treasury Board regulations or directive for government employees: see the testimony of Mr. Glynn, the registrar of the Human Rights Tribunal Panel, Appeal Book, vol. III, at page 655. Their remuneration was fixed prior to their appointment according to a system of per diem rates. I agree with Roberts J. in Newfoundland Assn. of Provincial Court Judges v. Newfoundland (1998), 160 D.L.R. (4th) 337, at page 369 that the fixing of remuneration by the Government in advance of appointment is an important factor in assessing the independence of a tribunal. The problem under the earlier Act was that the rate was determined by the CHRC itself which might have created a reasonable apprehension of bias: see the testimony of Mr. Glynn, Appeal Book, vol. I, at page 79. As a result of the legislative amendment to the Act, the authority with respect to the per diem has now been transferred to the Governor in Council. The rates are the same for these members as they were when they were members of the former Human Rights Tribunal Panel: see the testimony of Mr. Glynn, Appeal Book, vol. III, at page 651.
It is now recognized that the constitutional or common law rules of independence and impartiality applicable to the courts do not apply with the same stringency to administrative tribunals. It is true that the three members in this case perform essentially an adjudicative function and, therefore, that it closely resembles a court. But it is not a court. As Gonthier J. wrote in 2747-3174 Quebec Inc. v. RPAQ, [1996] 3 S.C.R. 919, at page 952, in relation to the analysis of the structure of an administrative tribunal: "an informed person's assessment will always depend on the circumstances. The nature of the dispute to be decided, the other duties of the administrative agencies and the operational context as a whole will of course affect the assessment. In a criminal trial, the smallest detail capable of casting doubt on the judge's impartiality will be cause for alarm, whereas greater flexibility must be shown toward administrative tribunals". At page 961, he went on to add under the heading of independence of administrative tribunals that "as is the case with impartiality, a certain degree of flexibility is appropriate where administrative agencies are concerned": see also the statement of Lamer C.J. to the same effect in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at paragraph 83. At page 962, he finally concluded by saying:
There is in fact no question that administrative tribunals do not necessarily have to provide the same objective guarantees of independence as higher courts.
I do not think that a reasonable person, informed of the fact that the three members are paid daily for their work pursuant to a tariff fixed by the Governor in Council before their appointment and viewing the matter realistically and practically, would conclude that they are not institutionally independent and impartial. This is also the conclusion that the Quebec Court of Appeal came to with respect to the financial security of the members of the Competition Tribunal whose lay members' remuneration was fixed by the Governor in Council: see Alex Couture Inc. v. Canada (Attorney General) (1991), 83 D.L.R. (4th) 577, at pages 666-68.
The appellant, in my view, in what I can only term either a desperate move or a wasted effort (un coup d'épée dans l'eau), argues that there is a reasonable apprehension of bias resulting from the fact that the three members, being paid on a per diem basis, might protract and prolong the hearing of the complaint in order to extract more money from the government. I think it is appropriate to stress that the appellant's position is somewhat at odds with its own conduct in these proceedings which shows a lack of eagerness and readiness to proceed swiftly with the merits of the complaint. Need it be repeated that the complaint was first laid in March 1989 and that, twelve years later and after four judicial review proceedings (all brought by the appellant), the case still has to be completed on its merits. In any event, I agree with counsel for both respondents that this approach presumes bad faith on the part of the members. Again, a reasonable person well informed of all the facts surrounding these proceedings and the allegations made by the appellant could not and would not conclude that the members would be, for that reason, institutionally or individually bias in the conduct of their hearing.
Finally, I do not think that the appellant's argument that the independence and impartiality of the members might be jeopardized by the fact that additional funding from the Treasury Board will be needed if the sittings last more than forty days deserves more than a saying that it has no merit. In any event, the appellant is not without remedy if prejudicial interference on the part of the Treasury Board or actual bias on the part of the members as a result of the Treasury Board's position occurs and can be established. But it cannot be inferred from the mere possibility of an eventual misconduct on either side that an actual reasonable apprehension of bias on the part of the three members hearing the complaint will arise. More than fanciful speculation is needed to create in the mind of a well- informed reasonable person a reasonable apprehension of bias. As Cory J. said in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at pages 531-32, the threshold for a finding of real or perceived bias is high and mere suspicion is not enough: a real likelihood of probability of bias must be demonstrated.
Whether the binding nature of the guidelines under subsection 27(3) of the Act compromises the institutional independence and impartiality of the three members
Prior to the 1998 amendments, former subsections 27(2) and (3) of the Act authorized the CHRC to issue guidelines binding on any Human Rights Tribunal not only in respect of a class of cases, but also in respect of a particular case. These were the legal provisions in force at the time that the complaint against the appellant was laid by PSAC. I hasten to add that no binding guidelines specific to the appellant's case were actually issued by the CHRC. However, there was this possibility and, from a point of view of the independence and impartiality of any Human Rights Tribunal, concerns were expressed by McGillis J. about the impact of the provision as it read: see Bell Canada v. CTEA, [1998] 3 F.C. 244, at pages 311-12 (F.C.T.D.). The 1998 amendment eliminated that possibility, but maintained the CHRC's power to issue binding guidelines with respect to classes of cases.
The appellant contends that the amended provision still compromises the independence and impartiality of the Human Rights Tribunal Panel assigned to hearing the complaint against it. The appellant assumed, rightly so in my view, that subsection 27(3) as it now exists in its more restricted form due to the amendment to subsection 27(2) applies to the hearing of the complaint against it. I wish to dissipate any doubt that could exist in this regard because the actual subsection 27(3) refers to members of the Canadian Human Rights Tribunal appointed under subsection 49(2) of the Act. However, the three members of the Human Rights Tribunal Panel in this case are not members of the Canadian Human Rights Tribunal and were not appointed pursuant to subsection 49(2), but rather pursuant to former subsection 49(1) now replaced. As I have already mentioned, the three members of the Human Rights Tribunal Panel hold their authority to complete their inquiry by reason of the transitional provision (subsection 33(3) of the amending act). It is reasonable in the circumstances to infer that Parliament intended the new but more limited subsections 27(2) and (3) to continue to apply to inquiries in respect of a class of cases, such as this one, commenced before the amendment and continued thereafter, especially as the 1998 amendment was remedial and aimed at suppressing a possible violation of the requirements of natural justice. The combined effect of the amendment and the transitional provision was, on the one hand, to restrict the CHRC's power to issue binding guidelines to classes of cases and, on the other hand, to allow the guidelines already issued in respect of a class of cases to be binding on the three members of the Human Rights Tribunal Panel completing the inquiry in this case.
This Court held in the case of CHRC v. CTEA & Bell Canada, A-698-00, May 24, 2001, 2001 F.C.A. 161, (F.C.A.), heard at the same time as this appeal by the same panel, that subsection 27(3) of the Act, as it now applies, does not compromise the independence and impartiality of tribunal members hearing human rights complaints under the Act. The conclusion that we reached in that case is applicable in the present instance and is determinative of the appellant's contention.
Alternatively, assuming that subsection 27(3) of the Act compromises the independence and impartiality of the three members, is the appellant entitled to avail itself of the requirements of natural justice?
It is trite law that administrative agencies and tribunals may be required under general law rules to comply with the principles of natural justice and that the purpose of these principles is to ensure the impartiality and independence of the decision maker: see the statement of Gonthier J. in 2747-3174 Quebec Inc. v. RPAQ, [1996] 3 S.C.R. 919, at page 949. It is also common ground that the exact contents of the rules of natural justice to be followed depend on all the circumstances and in particular on the language of the statute governing the tribunal: ibidem. The statutory language may, where its constitutional validity is not under attack, vary the normal application of the rules of natural justice: see Brosseau v. Alta. Securities Commission, [1989] 1 S.C.R. 301, at page 309; Law Society of Upper Canada v. French, [1975] 2 S.C.R. 767, at pages 783-84; In Re Human Rights Tribunal and Atomic Energy Can., [1986] 1 F.C. 103, at pages 115-16; 2747-3174 Quebec Inc. v. RPAQ, [1996] 3 S.C.R. 919, at page 953.
If we assume that subsection 27(3) of the Act, which enacts the guidelines binding on the members of the panel hearing the complaint, is a clear expression of Parliament's intent to vary substantially the application of the rules of natural justice with respect to independence and impartiality, is the appellant, then, entitled to avail itself of the fair hearing requirements guaranteed by paragraph 2(e) of the Canadian Bill of Rights?
The appellant submits that paragraph 2(e) of the Canadian Bill of Rights, S.C. 1960, c. 44 guarantees it the right to a fair hearing in accordance with the principles of fundamental justice:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
[...]
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations:
Needless to say that counsel for the CHRC objects to this contention of the appellant. He avers that the appellant cannot invoke the protection of the Canadian Bill of Rights for two reasons: the appellant is not a person within the meaning of paragraph 2(e) and the protection offered by the Canadian Bill of Rights is a protection offered to individuals against the State. Here, according to the CHRC, the appellant is, contrary to the intended purpose of the Canadian Bill of Rights, attempting to use that legislation to protect itself against individuals as it is invoking the Canadian Bill of Rights as a defence in a discrimination complaint brought against it by individuals. Before addressing these submissions made by the CHRC, I should say a word about the contents of paragraph 2(e).
a) the meaning of "fair hearing" in paragraph 2(e)
As early as 1972, Fauteux C.J.C. in Duke v. The Queen, [1972] S.C.R. 917 proposed, without limiting it, a general definition of the words "fair hearing" contained in paragraph 2(e) of the Canadian Bill of Rights. At page 923, he described their contents as follows:
Under s. 2(e) of the Bill of Rights no law of Canada shall be construed or applied so as to deprive him of "a fair hearing in accordance with the principles of fundamental justice". Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case.
In Canada v. Central Cartage Co., [1990] 2 F.C. 641, at pages 663-64 (F.C.A.), Iacobucci C.J. (as he then was) underlined the evolutive character of the concept of fair hearing guaranteed in paragraph 2(e). He ruled that a "court, in interpreting the concept, should be mindful of its origin and evolution and of the specific context in which it is being raised". In that case, the respondents argued in vain that section 36.3 of the Canada Evidence Act, R.S.C. 1970, c. E-10 as subsequently amended, which protects from disclosure a confidence of the Queen's Privy Council for Canada, offended paragraph 2(e) by preventing them from stating their case adequately. Nothing in that decision, however, undermined or cast any shadow on the basic right to an independent and impartial tribunal contained in that paragraph.
I am satisfied that the appellant is entitled to a determination of its rights and obligations by an independent and impartial tribunal if it can claim the protection of paragraph 2(e) of the Canadian Bill of Rights.
b) whether the appellant is invoking the Canadian Bill of Rights to protect itself against individuals
I do not think that it is a fair characterization of what the appellant is seeking to obtain to say that it tries to protect itself against individuals in invoking paragraph 2(e) of the Canadian Bill of Rights. The appellant, as defendant in a complaint laid against it, merely seeks an adjudication on the merits by an independent and impartial tribunal. It does not invoke the Canadian Bill of Rights as a defence on the merits of the complaint. It wants to ensure a fair adjudication on the merits which will enhance the credibility of the finding made in the end by the tribunal. It must not be forgotten that the appellant who is sued as and qua employer also acts on behalf of all the individuals that it represents as employer. As the purpose of paragraph 2(e) is to afford a fair hearing to a litigant who pursues a determination of his rights and obligations, the appellant, on behalf of the numerous individuals that it is mandated to serve, seeks a fair determination of what is, in effect, their rights and their obligations. Indeed, the appellant would be remiss of its duty toward its constituents if it waived their rights to procedural fairness.
c) whether the appellant is a person within the meaning of paragraph 2(e) of the Canadian Bill of Rights
The word "person" has been the subject of many judicial interpretations. In a decision, subsequently reversed by the Judicial Committee of the Privy Council, where it held that the word "person" in the words "qualified persons" under the British North America Act, 1867 did not include women, Mignault J. wrote:
The word "persons" is obviously a word of uncertain import. Sometimes it includes corporations as well as natural persons; sometimes it is restricted to the latter; and sometimes again it comprises merely certain natural persons determined by sex or otherwise.
See Reference re Meaning of Word "Persons" in Section 24 of the British North America Act, 1867, [1928] S.C.R. 276, at page 303, reversed in Edwards et al. v. A.-G. Can. et al., [1930] A.C. 124.
This Court held in New Brunswick Broadcasting Co., Ltd. v. CRTC, [1984] 2 F.C. 410, at page 428 (F.C.A.) that the word "person" in paragraph 2(e) of the Canadian Bill of Rights refers to corporations as well as to natural persons. It saw no reason in the context of that legislation to give the word a narrow and restrictive meaning. Thurlow C.J. wrote for a unanimous Court:
In this section the word "person" is used in contexts which suggest that it is concerned with natural persons but I see no compelling reasons why the word should not be interpreted as referring as well to corporations wherever the subject-matter in which it is found can have application to corporations. Paragraph 2(e) is, in my view, such a provision.
At common law, Her Majesty the Queen in Right of Canada is for legal purposes a person. In Verreault & Fils v. A.G. Quebec, [1977] 1 S.C.R. 41 at page 47, Pigeon J. for the Court stated:
Her Majesty is clearly a physical person, and I know of no principle on the basis of which the general rules of mandate, including those of apparent mandate, would not be applicable to her.
This decision was followed in Att. Gen. of Quebec v. Labrecque et al., [1980] 2 S.C.R. 1057, at page 1082 where Beetz. J., after stating that the State is not an abstract being and that the Crown personifies the State, reiterated the view that the "Crown is also the Sovereign, a physical person who, in addition to the prerogative, enjoys a general capacity to contract in accordance with the rule of ordinary law". See also R. v. British Columbia, [1992] 4 W.W.R. 490 (B.C.S.C.); Attorney General of Canada v. Newfield Seed Ltd. (1989), 63 D.L.R. (4th) 644, at pages 660-61 (Sask. C.A.).
I agree with Professor Hogg that, in view of the limited application of paragraph 11(d) of the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights can play an important suppletive role with respect to the determination of rights and obligations by a civil or an administrative tribunal: see P. Hogg, A Comparison of the Canadian Charter of Rights and Freedoms with the Canadian Bill of Rights, in Beaudoin G.A. and Ratushny E., The Canadian Charter of Rights and Freedoms, 2nd ed., 1989, Carswell, Toronto, page 1. At page 14, he writes:
A civil proceeding before a court or administrative tribunal is not subject to the requirement of a "fair hearing" or of the application of "fundamental justice". This is a gap in the Charter, and is therefore an area where the continued existence of the Bill is important; an adjudication authorized by federal law of a person's rights and obligations will continue to be subject to the requirement of a "fair hearing" in accordance with the principles of fundamental justice.
Indeed, this Court in Rajpaul v. Canada, [1988] 3 F.C. 157, at page 159 (F.C.A.) recognized that, pursuant to paragraph 2(e) of the Canadian Bill of Rights, the appeal launched by a sponsor in immigration matters had to be conducted in a way that accorded the sponsor natural justice.
In view of the important suppletive role of the Canadian Bill of Rights and the significance for any litigant of a fair hearing in the determination of his rights as well as his obligations, I see no compelling reasons why the word "person" in paragraph 2(e) would not include Her Majesty the Queen or the Crown. I see no reason why they, and the citizens that they represent, would not be entitled to a fair hearing when they are a litigant in an administrative or a civil proceeding. It would make a mockery of justice if, as a matter of principle, they were not, especially when made a defendant in a proceeding, entitled to the fair hearing protection given by paragraph 2(e).
I am comforted in this view by decisions of the Supreme Court of Canada and by the common law duty of procedural fairness. In Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at pages 653-54, Le Dain J. for the Court wrote:
This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual.
The question, of course, is what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context and what should be considered to be a breach of fairness in particular circumstances.
(My emphasis)
At page 661, he went on to add:
The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
(My emphasis)
This was re-asserted by Cory J., for a unanimous Court, in NFLD. Telephone v. NFLD. (Public Utilities BD.), [1992] 1 S.C.R. 623, at page 645:
Everyone appearing before administrative boards is entitled to be treated fairly.... Procedural fairness is an essential aspect of any hearing before a tribunal.
(My emphasis)
Finally, in 2747-3174 Quebec Inc. v. RPAQ, previously cited, at pages 951-52, paragraph 45, Gonthier J. once again stressed the importance, for a proper administration of justice, of ensuring that every litigant be afforded a fair hearing. He wrote:
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 or her claims.... The perception of impartiality remains essential to maintaining public confidence in the justice system.
(My emphasis)
It would be rather strange for Parliament, in granting the right to a fair hearing in paragraph 2(e) of the Canadian Bill of Rights, to have systematically excluded from the scope of application of that paragraph Her Majesty the Queen, the Crown or the Government who, acting in the public interest, are frequent litigants in administrative or civil proceedings. It would mean that an opponent to the Crown or the Government would be entitled to both an unbias and a bias tribunal. This cannot have been Parliament's intent. Without hesitation, I have come to the conclusion that the appellant is entitled to a fair hearing under paragraph 2(e) of the Canadian Bill of Rights. Having so concluded, and assuming as I did for the sake of argument that subsection 27(3) of the Act compromises the independence and impartiality of the members of the panel hearing the complaint, what, then, would be the appropriate sanction or remedy?
The sanction or remedy under the Canadian Bill of Rights
It is well established that, in case of incompatibility between a federal legislative provision and paragraph 2(e) of the Canadian Bill of Rights, a declaration of inoperability of that provision is the appropriate sanction or remedy: see Singh et al. v. M.E.I., [1985] 1 S.C.R. 178, at pages 238-39; The Queen v. Drybones, [1970] S.C.R. 282; MacBain v. Lederman, [1985] 1 F.C. 856 (F.C.A.); In Re Human Rights Tribunal and Atomic Energy Can., [1986] 1 F.C. 103, at pages 116-19. In addition, as stated by Heald J.A. in the McBain case, at page 882, quoting Ritchie J. in Drybones, supra: "another characteristic of the relief to be granted under the Bill is that there must be a degree of particularity introduced into a finding that statutory provisions are inoperative". This means that a finding of inoperability is restricted to the case at bar and its particular fact circumstances.
If the appellant's contention that subsection 27(3) of the Act violates paragraph 2(e) of the Canadian Bill of Rights were successful, I would declare that subsection to be inoperative in the present instance. As a result, the proceedings relating to the complaint against the appellant could be resumed, but the guidelines would not be binding upon the three members of the panel hearing the complaint in this case.
Proposed Conclusion
For these reasons, I would allow the appeal with costs, set aside the order of the motions judge, declare that the appellant had standing to bring judicial review proceedings to argue that provisions of the Canadian Human Rights Act or a statutory instrument issued thereunder create a scheme which is contrary to the requirements of natural justice and dismiss the CHRC's motion with costs. I would, however, in file T-2411-98, dismiss with costs payable to PSAC the appellant's judicial review application.
"Gilles Létourneau"
J.A.
"I agree
A.J. Stone J.A."
ROTHSTEIN J.A. (Concurring Reasons)
I am in agreement with paragraphs 1 to 42 and the conclusion of Létourneau J.A. However, I feel compelled to write these concurring reasons with respect to paragraphs 43 to 59 of his reasons. In these paragraphs, Létourneau J.A. assumes that the Panel's impartiality and independence is compromised for the purposes of answering the questions:
1. whether the Government of the Northwest Territories can avail itself of natural justice arguments;
2. the meaning of a fair hearing in paragraph 2(e) of the Canadian Bill of Rights;
3. whether the Government of the Northwest Territories is invoking the Canadian Bill of Rights to protect itself against individuals; and
4. whether the Government of the Northwest Territories is a person within the meaning of paragraph 2(e) of the Canadian Bill of Rights.
In my respectful opinion, in view of his prior conclusion that there is no compromise to the independence and impartiality of the Human Rights Panel, it is not necessary to address these issues. Further, the issue of whether the Government of the Northwest Territories is a person was only obliquely referred to in the factum of the Canadian Human Rights Commission, was only briefly argued before us, and no authorities were cited by any party on the issue. The question of whether the Government of the Northwest Territories, or more broadly, the Crown, is a person has wide implications that could go far beyond this case. For these reasons, I would prefer not to express an opinion on these issues.
I therefore respectfully find it unnecessary to concur with paragraphs 43 to 59.
"Marshall Rothstein"
J.A.