Federal Court of Appeal Decisions

                                                                                                           

Date: 20010402

Docket: A-132-99

Neutral citation: 2001 FCA 93

CORAM:        STRAYER J.A.

ROTHSTEIN J.A.

SEXTON J.A.

BETWEEN:

                                     LEILA PAUL

                                                                                                                                  Appellant

                                                                       

                                                                   - and -                               

                                                                       

                                                                       

                             CANADIAN BROADCASTING CORPORATION

                                                                                                                              Respondent

                                              REASONS FOR JUDGMENT

SEXTON J.A.

Introduction

[1]                The Canadian Human Rights Commission (the "Commission") took into consideration a conciliator's report, detailing settlement proposals made in confidence by the parties, in making a decision to request the appointment of a Tribunal to inquire into a complaint brought by the Appellant. The Commission did so in the face of objections by the Respondent, which argued that s. 47 of the Canadian Human Rights Act prohibits disclosure of such information in the absence of consent by the parties.

Facts

[2]                The Appellant, Leila Paul, was, at the relevant time, a journalist and news anchor. In November, 1987, she was hired on a temporary basis by CBC Vancouver as a weekend and replacement anchor on "Night Final", the late-night local newscast. She also did occasional work as a reporter/editor until April, 1989.    At the time of her hiring, Ms. Paul was 42 years old. She had 16 years experience as a writer, editor, reporter and anchor in television news.

[3]                In August 1988, the position of anchor of "News Centre", the local supper-hour newscast came open. The opening was advertised in an appropriate manner. Ms. Paul was aware of the opening but did not apply for the position. She claims that she was discouraged from doing so by the fact that she was not invited by CBC Vancouver managers to apply for the position, by the fact that the Director of Television did not mention the position during a discussion about her future at the station, and by a statement of the Human Resources Officer that it would be pointless to apply. The position was filled with a younger male applicant.

[4]                In May 1989, the position of weekday anchor for "Night Final" came open. Again the opening was advertised in an appropriate manner. Ms. Paul discussed the position with the Executive Producer for TV News and indicated her interest in the position. Like 10 other candidates, including the eventual successful candidate, Ms. Paul applied for the position verbally. The selection was made by the Executive Producer with the assistance of the Senior Producer of "Night Final". Based upon an audition and an assessment of her skills in comparison with those of the other applicants, the selectors found Gloria Macarenko to be the best candidate.

[5]                Ms. Macarenko was hired as the "Night Final" anchor. At the time she was hired, she was 27 years old. Her journalistic experience was confined mostly to print media and radio work. She had been working at CBC Vancouver as a replacement weather announcer for four years and had appeared in several TV commercials. She did not possess a University degree but held a post-secondary diploma in broadcast journalism and had completed four years of language studies at various institutions. At the time of the investigation in 1996, she was still the weekday anchor of "News Final".

[6]                In August, 1989, Ms. Paul resigned her position with CBC and accepted a position as a news anchor with a competing station.

Procedural History

[7]                In September, 1989, Ms. Paul signed a complaint to the Commission alleging that she had been discriminated against on the grounds of her age and sex in the 1989 competition for the "News Final" position and on the ground of sex in the 1988 competition for the "News Centre" position. This complaint was communicated to the Respondent.

[8]                Around September, 1990, Ms. Paul made a new complaint, alleging that she had been sexually harassed by the Executive Producer of TV News during March and April of 1989. The Commission eventually decided to extend the one year time limit for bringing this complaint, a decision that was quashed by the Trial Division on judicial review as being based upon a biased and unfair Investigation Report. Ms. Paul filed two new complaints of sexual harassment, one against the Executive Producer and one against the Corporation, in April, 1994. The Commission again decided to extend the time limits and the CBC again sought judicial review. Before the application could be heard, Ms. Paul withdrew the complaints.

[9]                The Commission staff chose to suspend investigation of the original complaint pending a decision relating to the additional complaints. As a result, the Investigation Report relating to the first complaint was not completed until July 29, 1996. The investigator recommended that the Commission act pursuant to s. 47 of the Canadian Human Rights Act, which authorizes the Commission to appoint a conciliator "for the purpose of attempting to bring about a settlement of the complaint."

[10]            Under s. 47, the Commission does not require the consent of the parties to appoint a conciliator. This suggests that if one is appointed, then the parties are obligated to participate in the conciliation process whether or not they wish to do so. In fact, the CBC by letter dated August 19, 1996 objected to the appointment of a conciliator on the basis of a number of perceived flaws in the Investigation Report. In spite of this objection, the Commission accepted the investigator's recommendation on September 16, 1996 and appointed a conciliator.

[11]            The parties met with the conciliator but were unable to agree on a settlement. The conciliator prepared a report, laying out the positions taken by the two parties and detailing an offer of settlement made by the CBC which was rejected by the complainant.

[12]            By letter dated November 14, 1996, the Commission's Director of Compliance indicated to the CBC that the complaint was being referred to the Commission since discussions between the conciliator and the parties had not resulted in a settlement. The letter further indicated that "in making its decision, the Commission will review the enclosed conciliation report and any written comments made by the parties."

[13]            The CBC responded by letter dated November 29, 1996. It renewed its complaints regarding perceived flaws in the Investigation Report. It also lodged a strong objection to the disclosure of the Conciliation Report to the Commission:

In regard to the Conciliation Report itself, CBC considers that the revealing of the positions adopted by it and by Ms. Paul, and of offers made and rejected, is highly improper. The offer of settlement made to Ms. Paul and mentioned in this conciliation report was made on a strictly confidential basis, on the express understanding that it was without prejudice to the CBC's position that Ms. Paul's complaint was without merit. It is also contrary to the explicit prohibition on disclosure of such matters contained in section 47 of the Canadian Human Rights Act. Such disclosure goes against the basic purposes of conciliation, which is to provide parties [sic] to discuss on an informal and without prejudice basis, possible terms of settlement of a complaint. Informing the Commission of offers of settlement made or positions taken by parties makes such a process wholly unworkable and would create a reasonable apprehension of bias concerning any decision made by the Commission after seeing such information.

[14]                        The Commission decided to request the appointment of a Tribunal to inquire into Ms. Paul's complaint. The decision was communicated to the CBC by letter dated February 13, 1997. The letter indicated that the Commission had reviewed the Conciliation Report as well as the complainant's submission in response to it. Significantly, the letter contains no indication that the Commission had reviewed either the Investigation Report or the submissions which had been made by the CBC.

[15]                        The Respondent sought judicial review of the decision on March 13, 1997.

Decision Appealed From

[16]               The Motions Judge allowed the Respondent's application for judicial review and quashed the decision of the Commission. With respect to the issues that arose before this Court, she held that:

1.         The application for judicial review of the decision was filed within the appropriate time period;

2.         The Commission's decision could not stand because:

a.       the Commission failed to provide the CBC with the requisite level of procedural fairness by:

(i)     relying upon an Investigation Report that was biased and incomplete, and

(ii)     making the decision with materials before it that were not disclosed to CBC;

b.       The disclosure of the conciliator's report to the Commission in the absence of consent from CBC violated s. 47(3) of the Act and vitiated the decision since it was based upon information that was not properly before the Commission; and

c.       the material before the Commission was not sufficient to warrant a decision to request appointment of a Tribunal; and

3.         The matter would not be remitted for reconsideration by the Commission.

[17]            Ms. Paul appeals to this Court, arguing that the Motions Judge erred in each of her findings.

Issues

[18]          I propose to consider the following issues:

1.         Was the Respondent's application out of time?

2.         Does the disclosure of the Conciliation Report to the Commission, without the consent of the CBC, vitiate the Commission's decision to refer the complaint to the Tribunal?

3.         Did the Commission consider all of the relevant information properly available to it in making its decision to request the appointment of a Tribunal?

4.         Did the Motions Judge err in deciding not to refer the matter back to the Commission for reconsideration?

Relevant Legislation

[19]               Canadian Human Rights Act ^[1]

7. It is a discriminatory practice, directly or indirectly, (a)            to refuse to employ or continue to employ any individual, or (b)           in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. 44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation. ... (3) On receipt of a report referred to in subsection (1), the Commission (a)            may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied (i)    that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and                   (ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or

7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects_: a) de refuser d'employer ou de continuer d'employer un individu; b) de le défavoriser en cours d'emploi. 44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête. ... (3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_: a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue_: (i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié, (ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);

Analysis

Issue 1: Timeliness of the Application

[20]        In her written submission, the Appellant asserted that the Respondent's application for judicial review was based solely on complaints about the Investigation Report and argued that since the report was provided to the parties in August, 1996, the Respondent was required to challenge it by seeking judicial review at that time (rather than waiting until the Commission's decision to request appointment of a Tribunal in March 1997).

[21]        I cannot accept this argument. The wording of s. 18.1 of the Federal Court Act is clear.^[2]    An application must be brought within 30 days of the decision to which it relates. The Respondent did not challenge the decision of the investigator to issue the report, it challenged the decision of the Commission to request appointment of a Tribunal. It did so within the appropriate time limit.

[22]        I would make one further comment regarding this submission. As I will discuss below, public policy considerations have led both the courts and the legislatures to develop methods of encouraging parties to settle their disputes. To accept the Appellant's position would require a party to choose between two potentially mutually exclusive courses - challenging a report it perceives as flawed through the judicial review process or proceeding with a conciliation that might cause any future challenge to the report to be time barred. In my opinion, such a result would run contrary to sound public policy by encouraging litigation and discouraging settlement attempts.

Issue 2: The Conciliation Report

[23]        In the modern age, the time and expense associated with the litigation of complex issues have become significant impediments to parties who wish to have their disputes decided in the traditional adversarial manner. In this environment, alternate dispute resolution mechanisms have taken on increasing importance.    Indeed, processes such as conciliation and mediation have become powerful engines for the resolution of legal disputes.

[24]        It has long been the policy of the courts to promote the efficient and timely resolution of disputes by promoting their settlement. Thus Lord Mansfield is cited in an early 19^th century treatise as feeling that litigants must be permitted to "buy their peace" without regard to the question of liability.^[3] The Lord Chancellor spoke in similar terms in Tennant v. Hamilton, saying that:

... it is very often a wise thing, however unfounded a complaint may be, for parties to pay a sum of money in order to quiet the party making the complaint.^[4]

[25]        Judicial recognition of the importance of legal protection of confidentiality during settlement efforts has just as solid a pedigree.^[5] Indeed, in 1790, Lord Kenyon C.J. said that "concessions for the purpose of making peace and getting rid of a suit" ought not be admitted in evidence to the prejudice of the party making them.^[6] In Waldridge v. Kennison, he is reported to have held that:

... any admission or concession made by the party respecting the subject matter of the action, obtained while a treaty was depending, under faith of it, and into which the party might have been led, by the confidence of a compromise taking place, could not be admitted to be given in evidence to his prejudice.^[7]

[26]        The rationale for protection of confidentiality has been canvassed in more recent decisions of the British and American Courts. Oliver L.J., in a very influential judgment dealing with the common law privilege attaching to "without prejudice" offers of settlement, had this to say:

That the rule rests, at least in part, on public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations ... may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J. in Scott Paper Co. v. Drayton Paper Works Ltd. (1927) 44 R.P.C. 151, 156, be encouraged fully and frankly to put their cards on the table. . . . The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability.^[8]

[27]        The 2^nd Circuit Court of Appeal, in discussing the requirement for confidentiality under the Court's own pre-argument conference rules, also used a card game analogy:

The guarantee of confidentiality permits and encourages [parties] to discuss matters in an uninhibited fashion. . . . If participants cannot rely on the confidential treatment of everything that transpires during these sessions then [they] of necessity will feel constrained to conduct themselves in a cautious, tight-lipped, non-committal manner more suitable to poker players in a high-stakes game than to adversaries attempting to arrive at a just resolution of a civil dispute.^[9]         

[28]        This Court has also commented upon the protection of confidentiality. In

Bertram v. Canada, Hugessen J.A., after surveying the jurisprudence dealing with the exclusion of "without prejudice" communications, summarized as follows:

These quotations make it plain in my view that the concern of the Courts is to protect parties from being embarrassed by attempts at concession or compromise or even by confessions of weakness. In short, what parties say against their interest during negotiation is without prejudice in the sense that it cannot subsequently be used against them.^[10]

[29]        Legislatures have been animated by these same principles of public policy in developing statutory methods of encouraging extra-curial settlement. Included among them are mandatory court or tribunal-annexed mediation or conciliation regimes. The protection of confidentiality is, if possible, even more important in the context of such schemes. As Professor Watson Hamilton has stated in her discussion of mandatory mediation:

In any process forced upon parties, they must have confidence in the integrity of the process and those who have a major role in it. One of the results of requiring mediators to testify or produce documents may be a perception that the mediator, the program or the process itself does not keep confidences. While such a perception might normally cause parties to avoid mediation, they cannot do so where it is mandatory. They might, however, treat mediation as a mere formality.

Treating mediation as a formality would frustrate the goals of annexing it to the legal system. The goals of mandatory mediation include efficiency improvements for court systems and administrators by relieving case load pressures and reducing delay and cost for litigants, qualitative improvements for participants through more satisfying or more appropriate procedures and outcomes, relationship preservation and improvement and community and responsibility building. Indeed, if participation in mediation becomes merely an empty gesture, then the legal system will become less efficient, and the parties less satisfied rather than more.^[11]

[30]        The importance which Parliament has attached to confidentiality in conciliation under the Canadian Human Rights Act is expressed in sub-s. 47(3):

Confidentiality

(3) Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information.

This provision is an absolute prohibition against disclosure of any information by the conciliator without the consent of the party who gave it. This prohibition is consistent with the authority granted to the Commission by s. 47 to order conciliation of a complaint without the consent of the parties. Without the protection of confidentiality, parties are likely to be inhibited from participating fully in the process - either by "posturing" for the ultimate decision-maker or by exercising undue caution in exploring common interests and in making concessions or offers of compromise - thereby rendering the conciliation scheme ineffective.

[31]        The Appellant argues that s. 48 of the Act, which requires that the Commission approve any proposed settlement, and s. 49, which requires the Commission to have regard to "all the circumstances" in requesting appointment of a Tribunal, indicate that there are limits to the protection of confidentiality such that the Commission is entitled to have the Conciliation Report disclosed to it.    I disagree. I find nothing in sub-s. 47(3) which admits of any exception being made in favour of the Commission, nor do I find compelling any argument for its disclosure.

[32]        With respect to the s. 48 argument, parties who arrive at a settlement during conciliation do so in the knowledge that that settlement must be approved. This is not inconsistent with a requirement that information revealed during the conciliation not be revealed without consent. The request for approval is the consent for disclosure of the terms of the settlement. Such approval by a supervisory body is neither unusual nor new. Courts have long been called upon to approve settlements involving, for instance, infants, persons of unsound mind or trustee-related matters. In none of these cases has this supervisory role derogated from the privilege attached to the negotiations leading to the settlement.

[33]        By the same token, there is no indication whatsoever that the circumstances contemplated by s. 49 include information flowing from the conciliation. In my opinion, strong and explicit language would be required to extinguish a privilege which has existed for over 200 years. Indeed, in light of the clear language of sub-s. 47(3), I refuse to adopt the broad construction advocated by the Appellant such that "all the circumstances"includes the Conciliation Report.

[34]        The Appellant also relies upon two cases to support her position that the Commission was entitled to consider the Conciliation Report. In my opinion, neither case is helpful since each is easily distinguishable from the fact situation in the case at bar.

[35]        In Garnhum v.Canada (Human Rights Commission),^[12] the Commission did have a conciliator's report before it when it decided to dismiss a complaint. However, the argument before Noel J., as he then was, did not even raise the issue which is before this Court - that the Commission had acted improperly in considering the report.    Moreover, there was no indication that either party had not consented to the disclosure of the report to the Commission.

[36]        In Jazairi v.Ontario (Human Rights Commission),^[13] the issue of the propriety of the Commission's consideration of a settlement offer in deciding to dismiss a complaint was considered. The Divisional Court held that while the fact of settlement discussions could be considered, it did not need to make any further determination on the issue since the final decision under review had been made without the settlement offer being before the decision maker.^[14]

[37]        In summary, in the absence of consent, I believe that sub-s. 47(3) of the Act placed upon the conciliator an absolute prohibition from disclosing information revealed to him by CBC, including the settlement offer made to Ms. Paul in the course of the conciliation process. The Respondent did not consent to the disclosure of this information to the Commission. In fact, when informed that the Commission intended to consider the report in making its decision, the CBC protested, calling the Commission's attention to the relevant provision. In view of these circumstances, I conclude that the Commission, by receiving the report and then considering it over the strenuous objections by the CBC acted improperly.

[38]        This reason alone is sufficient to warrant the setting aside of the Commission's decision to request appointment of a Tribunal to inquire into Ms. Paul's complaint.

Issue 3: Information Considered by the Commission

[39]        In light of my conclusion above, it is not necessary to deal with the alleged flaws in the Investigation Report that were outlined by the Motions Judge. However, I do propose to make some further comments on the decision of the Commission.

[40]        Section 44 of the Act deals with the completion of an Investigation Report, its submission to the Commission and the possible actions of the Commission that are triggered by that submission. Subsection (1) provides that once an investigation is completed, a "report of the findings of the investigation" is to be submitted to the Commission.    The remaining subsections, including subsection (3), under which the Commission acted in the case at bar, detail actions of the Commission "on" or "after" receipt of the report.

[41]        Section 44 imposes upon the Commission a duty to receive the report that is submitted to it.    It cannot act until it has fulfilled this duty. While s. 43 of the Act explicitly provides that the Commission can delegate its investigatory function, there is no similar provision allowing it to delegate the requirement that it receive the report itself. I must conclude that the duty to receive the report prior to acting, necessarily implies that the Commission must also consider it in making its decision. Surely it would be absurd to interpret the section as meaning that the Commission could fulfill its duty by receiving the report in a sealed envelope but never opening it.

[42]        Thus, I agree with the judgment of MacGuigan J.A., writing for the majority in Canada (Human Rights Commission) v. Pathak:^[15]

... the report of the investigator ...[is] necessary matter for the Commission's decision. ... it seems to be the obvious intent of section 44 of the Canadian Human Rights Act that members of the Commission need not examine the complete record of the investigation, but are intended to rely on the report alone. ... The report is not only the trigger of Commission action but is also the only document referred to as the basis for a Commission decision as to how to proceed.^[16]

[43]        The Courts, applying the principles of procedural fairness, have imposed additional requirements upon the Commission prior to its taking action under subs. 44(3). The Commission is required to inform the parties of "the substance of the evidence obtained by the investigator" and placed before it.^[17] This requirement is met by the disclosure of the Investigation Report to the parties. The Commission is also required to provide the parties with the opportunity to make all relevant representations in response to the report and to consider these representations in making its decision.^[18] It is not required to give formal reasons for its decision. Instead, the Courts have found the Commission's reasons in the Investigation Report itself.^[19]

[44]        In my opinion, this approach to procedural fairness recognizes the requirement that the Commission consider the Investigation Report submitted to it. First, the Commission discloses the report to the parties and is required to consider the representations they make in response to it. It would be impossible for it to weigh these submissions without reference to the report at which they are directed. Second, I am unable to see how a Court could accept an Investigation Report as expressing the Commission's reasons for its decision without requiring the Commission to consider that report.

[45]        With the above propositions in mind, I have carefully reviewed the evidentiary record before this Court. In the result, I am not satisfied that the Commission has met its procedural fairness obligations toward the Respondent in this case.

[46]        Of particular concern to me are the written submissions to the Commission made by the CBC on November 29, 1996. As I have discussed above, the letter objected to the Commission's proposed consideration of the Conciliation Report. It also renewed, in considerable detail, the Respondent's prior criticism of the alleged flaws in the Investigation Report.^[20] I am not convinced that the Commission actually considered these submissions.

[47]        The record with respect to the information considered by the Commission is limited. The only explicit indication of what material the Commission considered in making its decision is provided by the letters sent to the Respondent by the Commission staff. In the November 14, 1996 letter informing the Respondent that the matter would be placed before the Commission following the failure of the conciliation, the Director of Compliance explicitly indicated only that the Commission would consider the Conciliation Report and the submissions of the parties.

[48]        In the letter of February 13, 1997, the Commission's Secretary informed the Respondent of its decision. It is instructive to consider the entirety of this letter:

[Address and Salutations omitted]

The Canadian Human Rights Commission has reviewed the conciliation report of the complaint (W06915) of Leila Paul against the Canadian Broadcasting Corporation dated July 13, 1989 as amended, alleging discrimination in employment on the grounds of age and sex. The Commission also reviewed the complainant's submission dated November 28, 1996.

The Commission has decided, pursuant to section 49 of the Canadian Human Rights Act, to request that the President of the Human Rights Tribunal Panel appoint a Human Rights Tribunal to inquire into the complaint as it is satisfied that, having regard to all the circumstances of the complaint, an inquiry thereinto is warranted.

You will receive from the Tribunal Registry a copy of the "Appointment of a Human Rights Tribunal" advising you of the name(s) of the member(s) of the Tribunal. [emphasis added]

[49]        This second letter contains no sign that the Commission considered either the submissions of the CBC or even the Investigation Report that those submissions had, in part, addressed.

[50]        In the recently decided case of Canada Post Corp. v. Barrette,^[21] this Court considered the Commission's procedural fairness obligations in deciding, pursuant to s. 41 of the Act, the preliminary question of whether to deal with a complaint at all. In that case, my colleague Décary J.A., writing for the Court, held that in the absence of any evidence affirming that the Commission had, in fact, considered a submission made by the respondent to the complaint, the Commission's decision must be set aside. The matter was remitted to the Commission to allow it the opportunity to reconsider its decision in light of all the submissions made to it.

[51]        I believe that Décary J.A.'s approach is to s. 41, is also applicable in respect of the s. 44 decision in the case at bar. I do not wish to suggest that the Commission must always, in a decision made under s. 44, make reference to all of the information that it has considered. However, in the circumstances of this case, the explicit reference to the Commission's consideration of particular pieces of information, combined with the failure to refer to other materials which it was under a duty to consider, gives rise to the inference that it did not consider those other materials. One wonders why the only letter which was sent to the CBC advising it of the Commission's decision would identify the complainant's submission as having been reviewed if, indeed, the CBC's submission had also been considered.

[52]        As was the case in Canada Post, the evidence before me contains no clear affirmation that the submission made by the CBC was considered by the Commission. Thus the matter must be remitted to the Commission to provide it with the opportunity to reconsider the matter in light of all of the submissions of the parties.

[53]        As I have indicated above, I believe that the lack of clarity regarding the information which was, in fact, considered by Commission, also extends to the Investigation Report itself. While the Motions Judge, in deciding that the Commission's decision was vitiated by its reliance on a biased and incomplete Investigation Report, seems to have assumed that the report was considered by the Commission,^[22] I am hesitant to do so.    Neither of the post-conciliation letters from the Commission to the Respondent indicate that the Commission intended to or actually did consider the report in deciding to request the appointment of a Tribunal.

[54]        Indeed, the only remaining evidence on the subject can be read to suggest that the Investigation Report was, in fact, not placed before the Commission. This is the covering memo written to the members of the Commission on November 15, 1996 by the Director of Compliance. The memorandum summarizes the complaint and the Investigation Report on one page. The full report itself was 12 pages in length. It would appear likely that the summary rather than the full Investigation Report was the one considered by the Commission because it also contains draft resolutions for adoption by the Commission. While I see nothing wrong with the Commission having a summary of the Investigation Report before it, I do not believe that this relieves it of the duty to consider the actual report itself.

[55]        Even if the Commission considered the Investigation Report in deciding to appoint a conciliator, I do not believe that consideration prior to a decision to follow one possible course of action (conciliation) relieves the Commission of the duty to consider it anew prior to deciding to take a different course of action (referral to a Tribunal). In this I am in agreement with Noel J., who considered this very issue in Garnhum.^[23] After reviewing the legislative scheme within which the Commission resolves complaints, he rejected an interpretation of the Act that would have had the effect of making a decision to refer a complaint to conciliation an implicit decision to refer the complaint to a Tribunal if conciliation fails. Applying Noel J.'s reasoning to this case, I believe that the Commission was required to consider the Investigation Report during the process of deciding to request appointment of a Tribunal.

[56]        In summary, I do not believe that the evidence that I have just reviewed is sufficient to establish that the CBC's submissions regarding the Investigation Report or the report itself were considered by the Commission when it made its decision to refer the complaint to a Tribunal.

[57]        As a result, and having regard to my conclusion, appearing later in these reasons, that this matter must be sent back to the Commission for reconsideration on the ground of improper consideration of the Conciliation Report, I decline to deal with the alleged shortcomings of the Investigation Report. In my opinion, the proper approach, having regard to the deference owed to the Commission in acting under s. 44, is to provide the Commission with the opportunity to make its decision based upon all of the relevant information.

Issue 4: Remedy

[58]        The Motions Judge decided that the case was not an appropriate one for reconsideration by the Commission. In the single paragraph of her reasons dealing with the remedy, she alluded to two factors - the fact that her decision marked the second finding against the Commission of bias or failure to provide procedural fairness in dealing with the same circumstances and the fact that the events in question had occurred nearly ten years earlier.

[59]        The Supreme Court of Canada recently addressed the issue of the appropriate remedy for delay in the context of a human rights complaint in Blencoe v. British Columbia (Human Rights Commission).^[24]    Both the majority and the minority judgments considered the factors that must be weighed in ordering a stay of proceeding under the administrative law principle of abuse of process. Bastarache J., writing for the majority, pointed out that the determination of whether a delay was so inordinate as to constitute an abuse of process was a contextual one:

The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community's sense of fairness would be offended by the delay.^[25]

[60]        Lebel J. and the minority, while also supporting a contextual analysis, discussed three main factors that must be considered:

(1) the time taken compared to the inherent time requirements of the matter before the particular administrative body, which would encompass legal complexities (including the presence of any especially complex systemic issues) and factual complexities (including the need to gather large amounts of information or technical data) as well as reasonable periods of time for procedural safeguards that protect parties or the public;

(2) the causes of delay beyond the inherent time requirements of the matter, which would include consideration of such elements as whether the affected individual contributed to or waived parts of the delay and whether the administrative body used as efficiently as possible those resources it had available; and

(3) the impact of the delay, considered as encompassing both prejudice in an evidentiary sense and other harms to the lives of real people impacted by the ongoing delay. This may also include a consideration of the efforts by various parties to minimize negative impacts by providing information or interim solutions.^[26]

[61]        In light of the analysis of the Supreme Court, I am not convinced that the remedy fashioned by the Motions Judge was correct, even when viewed in the context of all of her findings. It is not readily apparent as to who should be blamed for the lengthy delays in the prosecution of the complaint. Moreover, the prejudicial impact of the passage of time applies to both the Respondent's ability to defend itself and the Appellant's ability to make her case. A balancing of the interests of the parties would be required before the matter could be stayed as the Motions Judge did. In any event, given the conclusions that I have reached above, I believe that a different remedy is in order.

[62]        In my opinion, the matter must be remitted to the Commission for reconsideration. Only those members of the Commission who took no part in the February 1997 decision to request appointment of a Tribunal are to participate in the reconsideration. Neither the Conciliation Report, nor any of its contents is to be placed before the members.

[63]        There remains the question of what materials are to be considered by the Commission. In my opinion, those materials must include the complaint, the Investigation Report and the submissions of the parties. The Commission may also, in its discretion, have placed before it any other material underlying the Investigation Report that it considers necessary.^[27]

[64]        The final question, then, is upon what information will the parties be allowed to comment when making their representations to the Commission? During the hearing before us, it became clear that both parties were relying upon a number of "memoranda to file" written by the Commission's investigator that contain summaries of witness interviews.    The manner in which they came to be before us bears some comment.

[65]        One of the grounds for judicial review laid out in the Respondent's originating Notice of Motion was the alleged bias and incompleteness of the Investigation Report. In conjunction with the filing of that Notice, the Respondent also filed a "Request for Material in the Possession of the Canadian Human Rights Commission" relying upon Rule 1612 of the Federal Court Rules, as they were in 1997. Although there is no indication that the documents requested had been before the Commission, I believe that this Court's judgment in Pathak^[28] supported their production as evidence relevant to the allegation that the report was biased and incomplete.

[66]        In Pathak, the Court dealt with an order to produce documents relied upon by one of the Commission's investigators that was made in the context of a judicial review of the Commission's decision to dismiss a complaint. MacGuigan J.A., with whom Décary J.A. agreed, held that material that was before the Commission in its investigative role was not necessarily before it in its decision-making role and that on the facts of the case the documents requested had not been before the Commission when it decided to dismiss the complaint. He agreed with Pratte J.A. who held that in the absence of an allegation impugning the accuracy or completeness of the report, the documents underlying it were not relevant evidence.

[67]        The reasoning of the Court indicates that in a case such as the one at bar, where an attack against the completeness of the report has been made, the underlying documents are relevant and subject to production.

[68]        There seems to have been no objection by the Commission to the production of the documents nor any objection by either party to their use. Indeed, the documents in question were relied upon by both parties in their submissions before us, and, presumably, in the Court below.

[69]        It seems clear that the submissions which the parties will be making to the Commission when the matter is remitted will be focussed on the issue of the neutrality and thoroughness of the report. In a case such as this, where it is alleged that the Investigation Report submitted to the Commission is biased or incomplete, parties must have the opportunity to provide and comment upon evidence that is relevant to that question. Therefore, in making their submissions, the parties are to be permitted to refer to the summaries of the witness interviews written by the investigator.

Conclusion

[70]        I would, therefore, allow the appeal in part.

[71]        The complaint should be remitted to the Commission for reconsideration. The reconsideration is to be carried out only by those members of the Commission who took no part in the previous decision. Neither the Conciliation Report nor any of its contents is to be placed before the members. The Commission must, at a minimum, consider Appellant's complaint, the Investigation Report and all submissions by the parties.    In communicating its decision, the Commission is to provide a clear indication of the information that it considered in making its decision.

[72]        Having regard to the divided success on the appeal, I would make no order as to costs.

"J. Edgar Sexton"

                                                                                                      J.A.                           

"I agree

    Marshall Rothstein"

                                                                                  Date: 20010402

                                                                              Docket: A-132-99

                                                          Neutral citation: 2001 FCA 93

C O R A M:    STRAYER J.A.

ROTHSTEIN J.A.

SEXTON J.A.

B E T W E E N:

                                           LEILA PAUL

                                                                                            Appellant

                                              -- and --

           CANADIAN BROADCASTING CORPORATION

                                                                                        Respondent

              CONCURRING REASONS FOR JUDGMENT

STRAYER J.A.

[73]        I concur with my colleague Sexton J.A. in his disposition of this case. I also agree with his reasons except for certain comments in paragraphs 64 to 69 which assume the relevance and admissibility in future proceedings of materials underlying the investigation report.

[74]        It is true that during past judicial review proceedings in this case there has been an apparent assumption by the parties and the Applications Judge that certain memoranda of interviews prepared by the investigator were part of the decisional record of the Commission for purposes of judicial review of its decision to request a tribunal. I believe, however, that this issue should be left open for further consideration, by the Commission on redetermination of whether a tribunal should be requested, and if necessary by a judicial review judge thereafter. Such reconsideration should have regard to recent jurisprudence on the role of the Commission when it considers whether to request a tribunal, and on the scope and standard of judicial review of such decisions.

[75]        As to the role of the Commission in such matters, this Court has said in 1999 in Bell Canada v. Communications, Energy and Paperworkers Union of Canada ([1999] 1 F.C. 113 (C.A.)):

The merits of the complaints

[35] It is settled law that when deciding whether a complaint should be referred to a tribunal for inquiry under sections 44 and 49 of the Canadian Human Rights Act, the Commission acts "as an administrative and screening body" (Cooper v. Canada (Human Rights Commission), [1996 3 S.C.R. 854], at page 893, La Forest J.) and does not decide a complaint on its merits (see Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). It is sufficient for the Commission to be "satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted" (subsections 44(3) and 49(1)). This is a low threshold and the circumstances of this case are such that the Commission could have validly formed an opinion, rightly or wrongly, that there was , a reasonable basis in the evidence for proceeding to the next stage" (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), supra, paragraph 30 at page 899, Sopinka, J., approved by La Forest J. in Cooper, supra, at page 891).

Exercise of discretion

[38]        The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission. (Emphasis added).

[46]        Bell relies heavily on the passage in Cooper, supra, paragraph 35 at page 891, where La Forest J. expresses the view that "[w]hen deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry", to argue that an investigator can no more suggest to amend a complaint than a judge at a preliminary inquiry can. The analogy, which was in any event qualified by the word "somewhat", was perhaps not the most felicitous in the circumstances as La Forest J. went on, at page 893, to describe the Commission "as an administrative and screening body, with no appreciable and adjudicative role".

(Emphasis added).

In specific relation to what the Commission needs to look at when performing this function, MacGuigan J.A. writing for a majority in Canadian Human Rights Commission v. Pathak (cited by my colleague) stated ([1995] 2 F.C. 455 (C.A.) at paragraphs 23 and 24)

. . . it seems to be the obvious intent of section 44 of the Canadian Human Rights Act that members of the Commission need not examine the complete record of the investigation, but are intended to rely on the report alone.

The limited importance of the investigation report itself is also indicated by the provisions of subsection 49(1) of the Act which permits the Commission to request a tribunal without ever ordering an investigation. (Indeed by subsection 40(3) it can proceed without even receiving a complaint, if it initiates a complaint itself!)

[76]        The modest nature of the Commission's role in this "screening process" is further reinforced by the recent decision of this Court in Zundel v. Attorney General of Canada et al (A-388-99, December 11, 2000) which endorsed a Trial Division decision that the standard of judicial review of a Commission decision to request a tribunal is not correctness, but instead one of rationality: was there a rational basis on the law or on the evidence for a decision that a tribunal inquiry is "warranted in all the circumstances".

[77]        These cases suggest that the Commission is not obliged to weigh potential evidence itself: it is entitled to rely on the investigation report and any submissions made in respect thereto by the parties, to see if it would provide a rational basis for a referral to a tribunal. Any defects in the potential evidence of witnesses can be adequately tested if and when the matter comes before the tribunal. Correspondingly where, as here, judicial review is sought of the decision to refer (and not of the investigation report) a judicial review judge is obliged to look only at the record that was before the Commission when it made the decision under review, barring special allegations going to the procedure or jurisdiction of that decision maker.

[78]        I can think of nothing more harmful to the informal, efficient, and timely disposition of complaints by those who believe themselves to be victims of a human rights abuse, including if necessary a fair hearing before a qualified tribunal within a reasonable time after the events in question occur, if the preliminary investigation on which the Commission bases its process is to be subjected to detailed judicial scrutiny before the parties can ever have their "day in court" before a tribunal. I respectfully suggest that more recent jurisprudence of this Court does not require such scrutiny of the investigation stage. I fully accept, of course, that if the matter does go to a tribunal then full judicial review of its proceedings should be and is available.

          (s) "B.L. Strayer"           

J.A.

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:       A-132-99

STYLE OF CAUSE: Leila Paul -and- Canadian Broadcasting Corporation

                                                                             

PLACE OF HEARING:         Toronto

DATE OF HEARING:           November 29, 2000

REASONS FOR REASONS

FOR JUDGMENTBY:         Strayer, J.A.

CONCURRED IN BY:          Rothstein, J.A.

CONCURRING REASONS

BY:     Strayer, J.A.

DATED:April 2, 2001

APPEARANCES:

Mr. R. Anand    FOR THE APPELLANT

Ms. K. Stephenson

Mr. P. Blaikie    FOR THE RESPONDENT

SOLICITORS OF RECORD:

Weir & Foulds, Toronto            FOR THE APPELLANT

Heenan Blaikie, Montreal           FOR THE RESPONDENT

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