Date: 20010110
Docket: A-13-00
CORAM: SHARLOW J.A.
BETWEEN:
GOVERNMENT OF THE NORTHWEST TERRITORIES
Moving Party/
Appellant
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
Respondent/
Respondent
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondent/
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1] A Canadian Human Rights Tribunal is hearing a complaint by the Public Service Alliance of Canada (PSAC) against the Government of the Northwest Territories (the Government) alleging discrimination in the classification and pay of employees in female dominated groups contrary to the Canadian Human Rights Act, R.S.C. 1985, c. H-6. In an application for judicial review, the Government sought to challenge the impartiality of the Tribunal on the basis of a lack of institutional independence. On December 15, 1999, a motions judge dismissed the application for judicial review on the basis that the Government does not have the standing required to make that challenge. The Government appealed that decision, and now moves for a stay of the proceedings before the Tribunal pending the disposition of the appeal. The PSAC and the Canadian Human Rights Commission oppose the motion.
[2] The relevant facts may be briefly stated. The complaint was made in 1989 and investigated by the Commission. On May 27, 1997, the Commission decided to seek the appointment of a Canadian Human Rights Tribunal to enquire into the section 7 and 11 aspects of the complaint. A panel was finally appointed on February 20, 1998 and a pre-hearing was scheduled for May 21, 1998.
[3] Before the pre-hearing, the decision in Bell Canada v. Canadian Telephone Employees Association, [1998] 3 F.C. 244 (T.D.) was rendered. In that case, McGillis J. concluded that a reasonable apprehension of bias existed because of a lack of institutional independence.
[4] The proceedings relating to the PSAC complaint against the Government were adjourned by the Tribunal pending the enactment of amendments to the Canadian Human Rights Act that were anticipated to address the concerns in the Bell Canada case. Those amendments came into force on June 30, 1998.
[5] The Government took the position that the statutory amendments did not resolve the institutional bias questions referred to in the decision of McGillis J. On September 15, 1998, the Government filed a notice of motion with the Tribunal requesting it to refer the questions to the Federal Court, or alternatively to rule on the question itself. The Tribunal decided to rule on the question itself. In a decision dated December 4, 1998, it determined that it had the requisite institutional independence.
[6] The Government filed an application for judicial review of the Tribunal's decision. The application was dismissed on December 15, 1999 on the basis that the Government did not have the necessary authority or standing to bring the application. The motions judge did not deal with the merits of the arguments with respect to institutional independence. The Government's appeal of that decision raises the issue of standing as well as the issue of the institutional independence of the Tribunal.
[7] After the decision of the motions judge was rendered, and I assume with the acquiescence of all parties, proceedings commenced before the Tribunal with respect to the complaint of the PSAC against the Government. There is no indication that the Government sought to have the proceedings stayed, or that it sought an adjournment prior to November of 2000.
[8] By that time there had been 76 days of hearings, mostly in Ottawa, which required the Government representatives to incur significant travel expenses. A further 62 days of hearings were scheduled between November 14, 2000 and July 6, 2001.
[9] During approximately the same period, another case was before the Tribunal involving a complaint against Bell Canada. Bell Canada also took the position that the Tribunal lacked institutional independence, and brought an application for judicial review to have that point determined. On November 2, 2000, Tremblay-Lamer J. allowed that application saying, at paragraph 128:
| I conclude that the Tribunal's Vice-Chairperson erred in law and was not correct in determining that it [the Tribunal] was an institutionally independent and impartial body with respect to the power of the Commission to issue guidelines binding upon the Tribunal and the power of the Chairperson to approve the acting of a tribunal member after the expiry of his/her appointment to conclude a matter. |
[10] Tremblay-Lamer J. ordered a cessation of the proceedings of the Tribunal with respect to the complaint against Bell Canada until the problems she had identified were corrected. The complainants moved in this Court for a stay of her decision in order to permit the Tribunal to continue its proceedings pending the disposition of the appeal. That application was denied by me on November 29, 2000. The appeal of the decision of Tremblay-Lamer J. in the Bell Canada case is scheduled to be heard on April 3, 2001 (Appeal No. A-698-00). The appeal in this case is scheduled to be heard immediately after the Bell Canada appeal.
[11] On November 10, 2000, after the Government became aware of the decision of Tremblay-Lamer J., it made a motion before the Tribunal to adjourn its proceedings pending the determination of this appeal. That motion was opposed by the other parties. It was denied by the Tribunal on November 14, 2000. The transcript of the reasons given by the Chairperson explains the decision to deny the adjournment and also discloses the state of the proceedings on that day. It reads in part as follows (Motion Record of the Government, page 167-8):
| Let me start by saying that we feel that there is a certain amount of prejudice on both sides of the issue. At this moment in time, however, we feel that it would be unfair to adjourn the proceedings. We are nearing the close of the case for the Commission and the Complainant and have only the evidence of Mr. Davis and Mr. Crook to complete. We also have the disclosure process to deal with, which may raise further evidentiary issues. |
| Having said this, we do not wish to force any of the parties to respond to the bulk of the evidence or deal with fundamental legal issues without the benefit of a ruling from the Court of Appeal. In our view, there is serious prejudice on all sides -- and I want to emphasize on all sides -- if the Commission and the Complainant close their cases before we hear from the Court of Appeal. |
| We accordingly feel that it would be fair to adjourn the hearing when the Commission and Complainant reach the end of their evidence, but before they close their cases. This would allow the Respondent to raise any issues which arises in the Court of Appeal before it presents its defence. |
| We agree with the Respondent that the question before the Court of Appeal raises a serious issue in the present case. We, accordingly, feel obliged as a matter of natural justice to give all of the parties before us an opportunity to respond to any change in the law. |
| I don't really want to go beyond that. I would say that, as we see it at this point in time, we should, in all likelihood, revisit this issue when the Commission and the Complainant have reached the end of their evidence. We will entertain the submissions of counsel at that time, but our feeling at this moment is that it would be unfair to go beyond that point without some elucidation from the Court of Appeal on the question of independence and impartiality. |
| Having said that, we would like to move forward. We would like to deal with the evidence of Mr. Davis this week. We made it very clear to the parties in the last sitting that we would like to conclude the evidence of Mr. Davis this week. We would like to sit late, if that is necessary. |
| Then there is the question of the evidence of Mr. Crook. My understanding is that that is, by the estimate of the Complainant, a week of evidence at most. We also have these issues to deal with on the question of the disclosure of documents. That's where I would leave it at the present time. |
[12] When pressed for clarification, the Chairperson said (Motion Record of the Government, page 170):
| Our ruling is that subject to submissions of counsel, because we don't know what is going to happen in the Court of Appeal and we don't know if your position is going to remain the same, but subject to the submissions of counsel, we are going to stop before we ask the Commission and the Complainant to close their case. We are not going to permit the Complainant and the Commission to close their case until such time as we have a ruling from the Federal Court of Appeal and you understand your position with respect to the Guidelines and the nature of this Tribunal. |
[13] There is nothing in the material before me to suggest that this ruling of the Tribunal has been reversed or amended in any way.
[14] A motion to stay the Tribunal's proceedings pending the disposition of this appeal cannot be granted unless the tests in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 344, are met. A preliminary assessment must be made of the merits of the appeal to ensure that there is a serious question to be tried. If there is a serious question to be tried, it must be determined whether the Government would suffer irreparable harm if the stay is not granted and its appeal succeeds. If there would be irreparable harm to the Government, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the stay.
[15] The first test requires a preliminary and tentative assessment of the grounds on which the appellants will argue that the decision under appeal is correct. I have no doubt that this test has been met.
[16] The second test requires me to consider whether a refusal of the stay would result in irreparable harm if the Government's appeal ultimately succeeds. Harm is irreparable if it cannot be cured or quantified in monetary terms: RJR-Macdonald (cited above) at page 341.
[17] The Government argues that its appeal, if successful, will finally establish that the Tribunal is institutionally incapable of providing it with a fair hearing, and if the stay is denied, its forced participation in Tribunal proceedings would be an incurable denial of its right to a fair hearing.
[18] I am unable to accept this argument, particularly in light of the decision of the Tribunal to adjourn the proceedings to await the outcome of this appeal after the evidence of the Commission and the PSAC is completed and before their case is closed (unless it is persuaded by counsel that the proceedings should continue). The Government has suggested no basis on which I can conclude that merely permitting the Commission and the PSAC to adduce the remainder of their evidence will cause irreparable harm to the Government. In this regard, I note that the Government has not argued that the manner in which it might conduct its cross-examination of the remaining witnesses for the Commission and the PSAC, or the manner in which it may deal with any evidentiary arguments, will depend on the legal effect of the guidelines.
[19] The Government also argues that if the stay is not granted but its appeal eventually succeeds, it will have wasted all of the time and money required to prepare for and attend the hearing (including travel to Ottawa, where most of the hearings are held), and will have no means of recovering the wasted funds. I am unable to agree that resources that may be wasted on litigation is irreparable harm: Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1997] 127 F.T.R. 44 at 56 (F.C.T.D.).
[20] Having concluded that the irreparable harm test is not met, this application for a stay of the proceedings of the Tribunal is denied, without prejudice to the right of the Government to make a new application for a stay if the Tribunal determines that it will continue its proceedings after the completion of the evidence of the Commission and the PSAC.
Karen R. Sharlow
J.A.