PART I – FACTS
Introduction
1. This is the Factum of the Respondent, Communications,
Energy and Paperworkers Union of Canada ("CEP") in the appeal of Bell Canada
("Bell") of a unanimous decision of the Federal Court of Appeal finding that the
Canadian Human Rights Tribunal (the "Tribunal") was independent and impartial.
2. The Court of Appeal decision dated May 24, 2001,
allowed the appeal of the Canadian Human Rights Commission (the "Commission")
of a decision of the Trial Division dated November 2, 2000. The Trial Division
had overturned a decision by the Tribunal dismissing a preliminary motion brought
by Bell. In this motion, the Bell had challenged the jurisdiction of the Tribunal
alleging that the Tribunal lacked the requisite independence and impartiality
for a fair hearing.
Overview
3. In the Federal Court of Appeal decision, Stone J. A.
held that the Tribunal met the common law standards for independence and
impartiality and accordingly stated that it was not necessary to address the
doctrine of statutory authorization or Bell’s arguments under the Canadian Bill of Rights, S.C.
1960, c. 44 (the “Bill of
Rights”). The Court of Appeal decision pre-dates the judgement of this
Honourable Court in Ocean Port Hotel Ltd. v. British Columbia (General
Manager, Liquor Control and Licensing Branch).
Ocean Port Hotel Ltd. v. British Columbia (General
Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781
("Ocean Port")
4. The decision in Ocean Port suggests that the
doctrine of statutory authorization is a complete answer to challenges to the
institutional independence and impartiality of administrative tribunals based on
a statutory scheme unless the provisions of the statutory scheme are in
violation of the Constitution or a quasi-constitutional statute such as the
Bill of Rights. This implies that the proper analytical approach is not
to consider the common law principles regarding institutional independence and
impartiality at the outset as the Court of Appeal did in the instant case, but
rather to proceed directly to an analysis of whether the statutory provisions
are contrary to the Constitution or a quasi-constitutional statute.
Ocean Port, supra at 794-795
5. However, it is submitted that the substantive issues
that must be dealt with in this appeal are the same regardless of which
analytical approach is adopted. The only difference is the order in which the
issues are addressed. This is because the effect of the Bill of Rights is
not to create fresh rights but rather to preserve common law rights. Therefore,
common law requirements for independence and impartiality are relevant in
determining whether the statutory provisions infringe the fair hearing
requirement under section 2(e) of the Bill of Rights.
6. In an effort to avoid duplication, the two unions
involved in this appeal have divided the issues. The Canadian Telephone Employee
Association ("CTEA") factum will deal with the doctrine of statutory
authorization, the constitutional status of the tribunal, the application of
international law and the Bill of Rights and the constitutional principle
of adjudicative independence to this appeal.
7. The CTEA argues that the impugned provisions of the
Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended
(the”Act”) are expressly authorized by statute and
therefore Bell would only be entitled to a remedy if the provisions violate the
Constitution or a quasi-constitutional statute. The CTEA submits that
administrative tribunals, including the Tribunal do not have a constitutional
protection of adjudicative independence and impartiality. The CTEA further
submits that the impugned provisions do not violate the Bill of
Rights. The CEP adopts and supports the submissions of the
CTEA.
8. The CEP factum addresses the common law standard of
independence and impartiality applicable to the Tribunal. It is the CEP’s
position that the impugned provisions of the Act are consistent with the
standard applicable to the Tribunal and therefore, do not violate the fair
hearing requirement under section 2(e) of the Bill of Rights.
9. In the alternative, if the impugned provisions of the
Act are found to be inconsistent with the Bill of Rights or the
constitutional principle of adjudicative independence, the CTEA factum addresses
the issue of remedy. The CTEA submits that the remedy of a stay of proceedings
proposed by the appellant is not appropriate. Rather, the appropriate remedy
would be a declaration of inoperability or invalidity and the present
proceedings before the Tribunal should be permitted to continue. The CEP concurs
with these submissions.
Background
10. During contract negotiations in 1988, Bell and the
CEP, and Bell and the CTEA, commenced discussions on pay equity. As a result
of both the collective bargaining process and a separate process undertaken
respecting pay equity, Bell, the CEP, and the CTEA agreed to proceed on the
basis of a "tripartite" process. In February of 1991, a joint committee was
established with representatives of all three parties to conduct a study of pay
equity at Bell in accordance with the requirements of s. 11 of the Act.
To ensure that the study would be commensurate with the requirements of s. 11 as
well as the Equal Wages Guidelines ("EWG"), all parties agreed to involve
the Commission.
Canadian Human Rights Act, S.C. 1998, c. 9, s.
11
Equal Wages Guidelines, 1986 SOR/86-1082
Bell Canada v. Communications, Energy and
Paperworkers Union of Canada, [1999] 1 F.C. 113 at 126-127 (C.A.)
11. The joint study commenced in the summer of 1991 and
finished in November of 1992 and concluded that in general (as of November
1992), "female-dominated jobs receive from $1.99 to $5.35 less per hour than
male-dominated jobs of equal value". Attempts to close the wage gap in a
negotiated settlement failed.
Ibid. at para 14.
History of the
Litigation
12. The history of this litigation predates the current
appeal by years. The human rights complaints at issue on the merits before the
Tribunal were filed between 1990 and 1994 by the CEP, the CTEA and Femmes
Action, a group of Bell employees represented by the CEP.
Tribunal Decision, Appellant's Record, Vol.
II, p. 352.
13. The complaints allege that Bell has established or
maintained differences in wages between male and female employees performing
work of equal value, in violation of s. 11 of the Act.
Ibid.
14. In May 1996, the Commission referred the complaints
to the Tribunal for adjudication. In June 1996, Bell filed a judicial review
application challenging the Commission's referral of these complaints to a
tribunal. In a decision dated March 17, 1998, Mr. Justice Muldoon of the
Federal Court, Trial Division, set aside the Commission's decision to request a
Tribunal to enquire into these complaints. This decision was appealed by the
Complainants (with the Commission as an intervenor) to the Federal Court of
Appeal. The Federal Court of Appeal, in its decision dated November 17, 1998,
allowed the appeal and restored the Commission's decision at first instance.
On January 14, 1999, Bell applied for leave to appeal in this Honourable Court
which was denied on July 8, 1999.
Ibid., p. 352-353.
Trial Division, Reasons, Appellant's Record
Vol. II, pp. 368 and 371.
15. In the meantime, on August 7, 1996, the President of
the Tribunal appointed a three-person tribunal (the "Leighton Tribunal") to
enquire into the complaints against Bell Canada. Bell made a number of motions
to the Tribunal, including a motion that the Tribunal should not proceed because
it was not independent and could not give Bell a fair hearing. The Leighton
Tribunal dismissed all of Bell's motions. Bell sought judicial review of these
decisions.
Ibid. , p.369.
16. On judicial review, McGillis J. of the Federal
Court, Trial Division in a decision dated March 23, 1998 concluded that the
Tribunal lacked the requisite security of tenure and financial security for a
human rights tribunal and ordered a stay in the proceedings until the problems
identified in her decision relating to security of tenure and financial security
were corrected by amendments to the Canadian Human Rights Act. In
obiter, McGillis J. expressed concern over the binding nature of the
guideline power as it existed at the time.
Ibid. , pp. 370 and 377-378.
17. At the time of the McGillis decision, amendments to
the Act were before Parliament as Bill S-5 and were later enacted by S.C.
1998, c. 9 which came into force on June 30, 1998. Two of the amendments are of
significance to the present matter, namely:
(a) Subsection 48.2(2) of the amended Act permits
a Tribunal member whose appointment expires to conclude any inquiry that he or
she has begun with the approval of the Chairperson. Before the amendment, this
had been dependent on the exercise of ministerial discretion; and
(b) Subsection 27(2) of the amended Act permits
the Commission to issue guidelines binding upon the Tribunal only in a class of
cases and, no longer as before, in a particular case.
Ibid. , pp.370-371.
18. Contrary to the description of events in paragraph
24 of the Bell factum, Parliament did not ignore the McGillis decision in the
amendments to the Act. The issues relating to financial security had
already been addressed in Bill S-5 prior to the McGillis decision. Issues
relating to security of tenure, (i.e. the “continuation provision” in
issue in this appeal) and issues relating to institutional impartiality (i.e.
the EWG) were both addressed by a Parliamentary committee following the
McGillis decision. Thus, clearly Parliament did participate in the “dialogue” and
made what it felt were the appropriate amendments to Bill S-5 following the McGillis
decision.
Excerpts from testimony on behalf of the Department
of Justice before Commons Standing Committee on Justice and Human Rights on Bill
S-5, April 1, 1998,
Appellant's Record Vol. II, pp. 238-239
and 244-245.
19. The CEP had filed an appeal of the McGillis decision
which was adjourned sine die since hearings on the merits had resumed
before a new Tribunal (the "Sinclair Tribunal") which was appointed subsequent
to the amendments to the Act.
Trial Division, Reasons, Appellant's Record
Vol. II, p. 284 and pp. 372-373.
20. Bell brought preliminary motions before the Sinclair
Tribunal arguing, inter alia, that the problems identified by McGillis J.
had not been corrected by the amendments to the Act and that the hearing
should not proceed. In a decision dated April 26, 2000, the Tribunal held that
the problems identified by McGillis J. had been cured by the amendments to the
Act.
Ibid. pp. 372-373.
Decision of the Sinclair Tribunal
21. In the April 26, 2000 decision, the Tribunal held
that a right-minded, informed person would not have a reasonable apprehension
of bias based on the Chairperson’s authority to decide whether a Tribunal
member could continue to hear a case if his or her appointment expired during
an ongoing case. On the issue of financial security, the Tribunal found that
the amendments to the Act providing that remuneration for Tribunal members be
fixed by the Governor in Council corrected the problem identified by McGillis J.
Tribunal Decision, Appellant's Record, Vol.
II, pp. 358-359.
22. With respect to institutional impartiality, the
Tribunal held that the EWG were valid subordinate legislation and were
therefore binding on the Tribunal. The Tribunal found that a right-minded,
informed person would not perceive a lack of institutional impartiality because
of the Commission’s power to pass such guidelines given that the
guidelines are subject to review under the Statutory Instruments Act.
In addition, despite the documentary evidence relied on by Bell, the Tribunal
held, “there is one group of persons who consider the guidelines power
to be a problem for the independence and impartiality of the Tribunal. And another
group, the drafters of the legislation, the Parliament and the Senate and the
Committees who, apparently did not consider it a problem.”
Ibid. pp. 360-362.
Decision of the Federal Court-Trial
Division
23. By decision dated November 2, 2000, Justice
Tremblay-Lamer of the Federal Court Trial Division allowed Bell's judicial
review of the Tribunal decision of April 26, 1999. Tremblay-Lamer J. held that
the Commission’s power to issue guidelines binding on the Tribunal results
in a reasonable apprehension of institutional bias and a lack of institutional
independence.
Trial Division, Reasons, Appellant's Record
Vol. II, pp. 390-398.
24. The Motions Judge further held that the power of the
Chairperson to decide whether a Tribunal member could continue to hear a case if
his or her appointment expired during an ongoing case under s. 48.2(2) of the
Act did not provide a sufficient subjective guarantee of security of
tenure. As a result, the Tribunal’s decision dated April 26, 2000 was
quashed and the Motions judge ordered that no further proceedings in the matter
take place until the problems identified in the reasons were
corrected.
Ibid., pp. 399-402 and 408.
Decision of the Federal Court of Appeal
25. In a unanimous decision dated May 24, 2001, the
Federal Court of Appeal reversed the decision of the Motions Judge. In his
reasons on behalf of the Federal Court of Appeal, Stone J.A. found that the
Motions Judge had failed to take into account the impact of the 1998 amendments
to the Act. After reviewing the factual background, Stone J.A. held that
neither the discretion of the Chairperson of the Tribunal to extend the term of
a member nor the power of the Commission to make guidelines binding on the
Tribunal gave rise to a reasonable apprehension of bias.
Court of Appeal, Reasons, Appellant's Record
Vol. II, pp. 432-434.
26. After a careful review of the jurisprudence of this
Honourable Court on independence and impartiality, Stone J.A. held that the
standard of independence and impartiality applicable to the Tribunal should be
assessed in light of the factors set out by this Honourable Court, including the
adjudicative function of the Tribunal, and specifically that its function was
not punitive but rather remedial.
Ibid., pp. 426-429 and 436.
27. With respect to the allegation of bias, the Federal
Court of Appeal held that the power of the Commission to issue guidelines was
necessary because the language of the Act did not provide the Tribunal
with sufficient guidance. Further, Stone J. disagreed with Tremblay-Lamer J. on
the impact of the 1998 amendments and held that they had been effective in
remedying whatever problems the guideline power may otherwise have caused. Also,
the overlap of the Commission's enforcement and guideline-making functions did
not create a reasonable apprehension of bias. For this reason, Stone J.A. found
that it was unnecessary to deal with Bell's argument that its rights under the
Canadian Bill of Rights had been infringed.
Ibid.,pp. 431-433.
28. With respect to the issue of independence,
specifically security of tenure, the Court held that the discretion vested in
the Chairperson of the Tribunal to extend the term of a member hearing a case
did not create a reasonable apprehension of bias since the Chairperson was
protected from interference by the government as she could only be removed for
cause. Furthermore, any decision not to extend a term would be reviewable in
court.
Ibid., pp. 433-435.
The Constitutional Questions
29. The following constitutional questions were stated
by this Honourable Court on July 10, 2002:
1. Are ss. 27(2) and (3) of the Canadian Human Rights
Act. R.S.C. 1985, c. H-6, as amended, inconsistent with s. 2(e) of the
Canadian Bill of Rights, S.C. 1960, c. 44, and the constitutional
principle of adjudicative independence and therefore inoperable and
inapplicable?
2. Are ss. 48.1 and 48.2 of the Canadian Human Rights
Act. R.S.C. 1985, c. H-6, as amended, inconsistent with s. 2(e) of the
Canadian Bill of Rights, S.C. 1960, c. 44, and the constitutional
principle of adjudicative independence and therefore inoperable and
inapplicable?
History of the EWG
30. The creation of the EWG in 1986 was part of
the proactive strategy of the Commission to implement and secure compliance with
Section 11 of the Act. An important element leading to the promulgation
of the EWG was a consultative process which the Commission hoped "...
should remove much of the uncertainty experienced by some employers on how to
implement their own equal pay for work of equal value programs."
Memo from Commission's Director, Complaints and
Compliance Branch to Commission Members, February 4, 1985, Exhibit 57 to the
Affidavit of geneviève bich sworn June 17, 1999 ("bich Affidavit"), Respondent’s
Record, p. 100.
Draft letter from R.G.L. Fairweather to Minister de
Cotret, March 19, 1985, Appellant’s Record, Vol. II, p.
295.
31. This process included the preparation of proposed
guidelines which were sent for examination and comment to some 70 organizations
which included employers, employee organizations and women's groups. The
Commission received 41 responses plus 3 submissions from organizations which had
not been canvassed. Thirteen organizations asked to meet with the Commission to
discuss their concerns in greater detail and meetings between Commission staff
and representatives of these organizations took place in August 1985. As a
direct result of a consultation process, staff of the Commission made changes to
the draft guidelines prior to submission to the Commission for
approval.
Commission's Consultation Schedule, Proposed Equal
Pay Guidelines, Exhibit 60 to bich Affidavit, Respondent’s Record,
pp. 146-147.
Memo from T.N. Ulch to Members of the Commission,
September 11, 1985, Appellant’s Record, Vol. II p.
307.
32. The EWG were submitted to the members of the
Commission on December 4, 1985 for approval. Once approved the guidelines were
submitted to the Privy Council Office in accordance with the provisions of the
Statutory Instruments Act, R.S.C. 1985, c.S-22, as amended ("SIA") for review
and assessment. The EWG were registered as S.O.R./86-1082 on November 18, 1986
and were published in the Canada Gazette, Part II, Vol. 120, No. 25 on December
10, 1986.
Memo from T.N. Ulch to Members of the Commission,
December 4, 1985, Exhibit 62 to bich Affidavit, Respondent’s
Record, p. 149.
Letter from R.S.G. Thompson to Chief Commissioner,
January 30, 1986, Appellant’s Record, Vol. II, p. 325.
Letter from Registrar of Statutory Instruments to
Chief Commissioner, November 20, 1986, Exhibit 66 to bich Affidavit,
Respondent’s Record, p. 163.
Tribunal Decision, Appellant's Record, Vol.
II, pp. 361-362.
Challenges to the independence and impartiality of
the Tribunal
33. Despite Bell’s assertions that there have been
continuing problems with the institutional independence and impartiality of the
Tribunal since the MacBain decision, in fact, there has only been one
case in which the institutional independence and impartiality of the Tribunal
was raised between the time of the MacBain decision and the first
challenge in these proceedings. Moreover, that case, Taylor, was based on
the same facts as MacBain and the Court declined to deal with the bias
allegations on their merits since the allegations were only raised several years
after the initial hearing during an appeal.
Canada (Human Rights Commission) v. Taylor,
[1990] 3 S.C.R. 892 at paras. 88-91 and 171-174.
PART II - POINTS IN
ISSUE
(1) What is the requisite common
law standard of institutional independence/impartiality for the Canadian Human
Rights Tribunal?
(2) Does the power
of the Commission to promulgate binding guidelines interfere with the
institutional independence and/or institutional impartiality of the
Tribunal?
(3) Does
s. 48.2(2) of the Act unduly interfere
with the security of tenure of Tribunal members?
PART III - STATEMENT OF
ARGUMENT
Introduction
34. As stated above, the CEP agrees with and adopts the
CTEA’s submissions that the impugned provisions of the Act are
expressly authorized by statute and therefore Bell can only succeed if it can
show that the statutory provisions are contrary to the Constitution or a
quasi-constitutional statute. The CEP also agrees with the CTEA’s
submissions that the Tribunal does not have a constitutional protection of
adjudicative independence and impartiality given its status as part of the
executive branch of government.
35. With respect to Bell’s arguments that
the impugned provisions are contrary to the Bill of Rights, the
CEP’s position is that the Bill of Rights does not create fresh
rights, but rather preserves common law rights. The CEP submits that neither the
guideline power nor the discretion vested in the Chairperson of the Tribunal to
extend the term of a member are contrary to the common law standard of
independence and impartiality applicable to the Tribunal and therefore do not
violate the fair hearing requirement under section 2(e) of the Bill of
Rights.
(1) What is the requisite common law standard of
institutional
independence/impartiality for
the Tribunal?
Independence and
Impartiality-General Principles
36. The concepts of independence and impartiality are
closely related, but they are not identical. Independence is a necessary
condition, but not a guarantee of impartiality.
Independence is a necessary, but not
sufficient, prerequisite for impartiality. This statement recalls a
passage from MacKeigan v. Hickman, [1989] 2 S.C.R. 796. at p. 827 (cited
in Lippè) , supra, at p. 139):
As this Court stated in MacKeigan...judicial
independence is an underlying condition which contributes to the
guarantee of an impartial hearing...
Thus, from an analytical point of view, the concept of
judicial independence is subordinate to the concept of impartiality.
Independence is not an end in itself; it is merely the characteristic of our
judicial system that seeks to achieve another purpose: impartiality. [emphasis
in original]
2747-3174 Québec Inc. v. Quebec
(Régie des permis d' alcool ), [1996] 3 S.C.R. 919 at 981-982
("Régie")
MacKeigan v. Hickman, [1989] 2 S.C.R.
796 at 827
R. v. Lippé, [1991] 2 S.C.R. 114
at 139
("Lippé")
37. An independent tribunal possesses three attributes:
security of tenure, financial security and administrative control over decisions
that bear directly and immediately on the exercise of the judicial, or in the
case of administrative tribunals, the adjudicative function. In addition,
independence has two aspects, "adjudicative independence" or the independence of
particular adjudicators and "institutional independence" or the independence
of the adjudicative body.
Valente v. The Queen, [1985] 2 S.C.R.
673 at 694, 704, 708 ("Valente")
Lippé, supra, at
132
Mackin v. New Brunswick (Minister of
Finance); Rice v. New Brunswick, 2002 SCC 13 at 39
D. Mullan, Administrative Law (Toronto:
Irwin, 2001) at 340
38. An impartial or unbiased tribunal is one that bases
its decision on the applicable law and the evidence before it and which is not
guided by extraneous considerations. Bias can be actual or reasonably
apprehended and is most commonly alleged to arise because of a conflict of
interest or personal preference in the individual decision-maker. The term
institutional bias refers to the institutional entanglement of a decision-maker
who performs multiple functions, is beholden to his or her department or agency,
or finds him or herself in a statutory institutional scheme that may cause him
or her to make decisions not exclusively based on the applicable law and
evidence before him or her.
Régie, supra, at
965
R. Dusseault and L. Borgeat, Administrative Law. A
Treatise (Toronto: Carswell, 1990), at 312-3.
39. The tests for both independence and impartiality
that were developed in the judicial context are to be applied flexibly to
administrative tribunals. With respect to independence, the question is whether
a well-informed and reasonable observer would perceive that a decision-maker or
body lacks the necessary attributes of independence to afford the parties a fair
hearing in the legal and factual context of the particular tribunal. With regard
to impartiality, the question is whether a well-informed person, viewing the
matter realistically and practically - and having thought the matter through -
would have a reasonable apprehension of bias in a substantial number of cases.
In this regard, all factors must be considered, but the safeguards provided for
in the legislation to counter the prejudicial effects of certain institutional
characteristics must be given special attention.
Valente, supra, at 684, 694, 698, 704,
708
Régie, supra, at 951-2,
961-2
Canadian Pacific Ltd. v. Matsqui Indian
Band, [1995] 1 S.C.R. 3 at 50-1 ("Matsqui")
The requisite standard of
institutional independence/impartiality for the Canadian Human Rights
Tribunal
40. The question of the requisite level of institutional
independence and what gives rise to an appearance of impartiality are to be
considered on a continuum. Courts occupy the high end and administrative
decision-makers with little discretion, power or impact occupy the low end of
the spectrum.
Régie, supra, at
987-8
41. In its factum Bell appears to be arguing that the
Tribunal is essentially a court and therefore should be held to a standard
applicable to courts. For the reasons set out below, the CEP submits that the
Tribunal is not and cannot be treated as a court. The issue of the
constitutional status of the Tribunal is dealt with in greater detail in the
CTEA factum and the CEP agrees with and adopts the CTEA’s submissions on
this issue.
Bell Factum, para. 5
42. Bell’s argument that the Tribunal must be
treated as a court seems to be based, in part, on the proposition that it is
somehow undemocratic or wrong to give any adjudicative functions and in
particular adjudicative functions over human rights to administrative tribunals.
In support of this proposition Bell alleges that forty years of administrative
law, Canada's international obligations and international law practice all
demand that institutions exercising adjudicative functions must, in all
respects, be like courts.
Bell Factum, paras. 31-34 and 44-48
43. However, it is important to keep in mind that, as
this Honourable Court recognized in Ocean Port, courts are fundamentally
different from administrative tribunals in their constitutional roles and
guarantees and tribunals do not have the same constitutional protection of
independence as the courts.
While they [administrative tribunals] may possess
adjudicative functions, they ultimately operate as part of the executive branch
of government, under the mandate of the legislature. They are not courts, and do
not occupy the same constitutional role as courts.
Ocean Port, supra at 798
Cooper v. Canada (Human Rights
Commission), [1996] 3 S.C.R. 854 at 873 ("Cooper")
44. An administrative tribunal is part of the executive
branch of government, even when performing adjudicative functions and is not
institutionally separated from that branch in the more absolute, constitutional
sense that courts are as a separate sphere of power. Having regard to this
division of powers, it is not open to the legislature to create a tribunal to
perform exclusively judicial functions such as judicial review, nor can the
legislature fully insulate a tribunal from review by the superior courts.
Crevier v. Attorney General of Quebec,
[1981] 2 S.C.R. 220 at 236-238
Pasiechnyk v. Saskatchewan (Workers' Compensation
Board), [1997] 2 S.C.R. 890 at para. 16.
45. This Honourable Court had previously made a similar
point in the context of the Commission in Cooper when Lamer C.J. stated
that administrative tribunals exist at the mercy of the legislative
pen:
Mere creatures of the legislature, whose very existence
can be terminated at the stroke of a legislative pen, whose members, while the
tribunal is in existence, usually serve at the pleasure of the government of the
day, and whose decisions in some circumstances are properly governed by
guidelines established by the executive branch of government, are not suited to
this task.
Cooper, supra at 873.
46. There can be no question that it is within the
authority of Parliament to confer purely adjudicative functions upon an
administrative tribunal. If the Applicant wanted to attack this proposition, the
way to do that would be through a constitutional attack on the Act. This
it has not done.
47. Bell further claims that Canada is unique among
democracies in conferring human rights adjudication on an administrative
tribunal. This is both irrelevant and incorrect. It is clearly open to Canada to
take a unique approach to human rights adjudication and international leadership
in this area will sometimes mean that the approach taken here is not paralleled
elsewhere.
Bell Factum, paras. 44-45
48. Furthermore, human rights adjudication is in fact
delegated to administrative tribunals in New Zealand. Adjudication over
disability discrimination is carried out by an administrative tribunal in Great
Britain, to name but a few examples.
New Zealand Human Rights Act 1993, 082 Part
IV
U.K. Disability Discrimination Act, 1995 (c.
50), s. 8
49. Therefore, in trying find the appropriate place for
the Tribunal on the continuum and the requisite standard for independence and
impartiality, it is important not to lose sight of the fact that the Tribunal
is not a court or a “court substitute tribunal” but an administrative
tribunal and a part of the executive branch of government.
50. This Honourable Court has stressed that the courts
are not looking for perfection in deciding whether there is institutional
independence and it is clear that no legislative scheme could ever absolutely
guarantee against any possible incursion into a tribunal's independence. This
Honourable Court has further recognized that it is the actual practice of a
tribunal which is relevant in assessing whether it is institutionally
independent and impartial. This is true even in cases where the legislative
scheme might on its face raise concerns about independence and
impartiality
Lippé, supra, at 142
Katz v. Vancouver Stock Exchange
(1995), 14 B.C.L.R. (3d) 66 at 81-82 (C.A.), aff'd [1996] 3 S.C.R. 405 at
406
51. The courts have identified a number of factors that
have to be considered in determining the requisite level of independence and
appearance of impartiality. These include:
· the
language of the enabling statute;
· the
nature of the administrative tribunal;
· the
institutional constraints the tribunal faces;
· the
peremptory nature of its decisions; and
· the
nature of the interests at stake.
Régie, supra, at 949
Matsqui, supra, at
50-1
52. All of these factors in this case militate in favour
of a lower standard than that applicable to courts.
The language of the enabling
statute
53. It is well established and this Honourable Court has
reasserted in Ocean Port that the content of the duty of fairness can be
modified by statute. Where the conduct or institutional scheme is authorized or
mandated by statute, it will not be subject to the doctrine of reasonable
apprehension of bias, unless a successful constitutional attack of the enabling
statute is launched pursuant to ss. 7 and 11(d) of the Charter or a
quasi-constitutional statute such as the Quebec Charter of Human Rights and
Freedoms or the Bill of Rights.
Régie, supra, at
949.
Ocean Port, supra, at 794.
Brosseau v. Alberta (Securities Commission),
[1989] S.C.R.
301 at 310.
Control & Metering Ltd. v.
Karpowicz (1994), 17 O.R. (3d) 431 at 444 (Gen. Div.)
54. There can be no question that both the guideline
power and the tenure scheme are expressly authorized by statute, i.e. by ss.
27(2) and 48.2(2) of the Act, nor has Bell ever alleged that this is not
the case. As noted above, the doctrine of statutory authorization is dealt with
in greater detail in the CTEA factum.
The nature of the administrative
tribunal
55. The function of the Tribunal is adjudicative, but it
has neither penal nor full constitutional jurisdiction. It cannot order
sanctions that affect the security of the person and it does not have the power
to declare a statute invalid. The question of a more limited constitutional
jurisdiction in light of recent legislative amendments to s. 50(2) of the Act
is still open. There is a duty of fairness and therefore a relatively higher
level of independence and appearance of impartiality required of an adjudicative
body, the exact positioning on the scale depends on the remaining factors, but
it is clearly higher than that of either purely administrative or legislative
bodies, but lower than that of the courts.
Cooper, supra at 895-896
Institutional
Constraints
56. One of the main reasons why Parliament has put
administrative tribunals in place is the need for expert, efficient and
accessible decision-making in contexts that generate high volumes of disputes or
require a less formal dispute resolution mechanism. Raising the institutional
requirements of administrative tribunals to the levels appropriate for courts
defeats this parliamentary purpose. Deference to parliamentary intent and the
promotion of ready access to the human rights process both warrant a lower
requisite level of independence and appearance of impartiality than that
appropriate for the courts.
Peremptory Nature of the
Decision
57. The decisions of the Tribunal are not protected by a
privative clause. For this reason and for reasons of relative expertise in
questions of law, the courts have held that human rights tribunals should be
afforded a low level of deference. This allows for great scope in reviewing
courts. Given that the decisions are therefore not peremptory in nature, a lower
level of independence and appearance of impartiality is required than that of
many administrative tribunals that are protected by privative clauses.
Régie, supra, at 982
Aeronautics Act R.S.C. 1985, c. A-2 s.
37(9)
Canada Pension Plan Act R.S.C. 1985, c. C-8,
s. 84(1)
Royal Canadian Mounted Police Act, R.S.C.
1985, c. R-10, s. 32(1)
Veterans Review and Appeal Board Act S.C.
1995, c. 18, s. 31
The Nature of the Interests at
Stake
58. The Motions Judge held that in light of the
quasi-constitutional rights adjudicated on by the Tribunal, a high level of
independence close to that of courts was appropriate. The quasi-constitutional
status of the Act has, however, never been recognized by this Honourable
Court as a relevant factor in determining the nature of the interests at stake.
Both in its "duty of fairness" and in its Charter jurisprudence, the
Court has made it clear that it is the remedial consequences first and foremost
that determine the nature of the interest. Immigration hearings require a high
standard, because the potential outcome is the deportation of a person whose
physical integrity may well be threatened by a wrong outcome. Criminal
proceedings require a very high standard because the liberty of the person is at
stake. Tax review, even though it interferes with property rights, requires the
application of a lesser standard, because the consequences are purely financial.
A lower standard is consistent with the remedial thrust of the Act which
is aimed at the promotion of equality and the compensation of victims of
discrimination and lacks any punitive aspect. To conclude, the interest at stake
for Bell is purely financial.
Trial Division, Reasons, Appellant's Record
Vol. II, pp. 387-388 and 402.
Knight v. Indian Head School Division No.
19, [1990] 1 S.C.R. 653 at 677
Mohammad v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 363 at 394-399 (T.D.)
Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 at 838-9
("Baker")
Matsqui, supra, at
49-51
Régie, supra, at
942
Pasqua Hospital v. Harmatiuk (1987), 8
C.H.R.R. D/4242 at D/4249 (Sask C.A.)
Nisbett v. Manitoba Human Rights Commission
(1993), 101 D.L.R. (4th) 744 at 754-55 (Man. C.A.)
59. Considering the express statutory authorization of
the tenure arrangements and the guideline power, the lack of deference on
judicial review and the purely financial sanctions on the one hand and the
adjudicative nature of the Tribunal on the other, it is submitted that Bell is
incorrect in asserting that the appropriate standard of independence and
impartiality should be at the high end of the spectrum.
(2) Does the power of the Commission to
promulgate binding guidelines interfere with the institutional independence
and/or impartiality of the Tribunal?
60. It is submitted that the Federal Court of Appeal
correctly determined that the existence of the guideline power or of any
guideline did not raise a reasonable apprehension of bias.
61. In paragraphs 4 and 61 of its factum, Bell alleges
that guidelines made pursuant to s. 27(2) of the Act are not in the
nature of subordinate legislation such as regulations but in fact have the
ability to over-ride or even repeal the provisions of the Act itself. In
essence, Bell is saying that the guidelines are akin to the Charter or a
quasi-constitutional statute such as the Bill of Rights. These arguments
have no merit for the following reasons.
Bell Factum, paras. 4 and 61
62. The guideline power is a regulation-making power. It
allows the Commission to make guidelines regulating the manner and extent to
which the Act applies in a "class of cases".
Canada (Attorney General) v. Public Service
Alliance of Canada, [2000] 1 F.C. 146 at 199-200
(T.D.)
63. Indeed, the guidelines promulgated pursuant to s.
27(2) bear all the hallmarks of subordinate legislation. Guidelines relate to
substantive matters and are distinct from mere procedural rules. By virtue of s.
27(2), any guideline is binding and has to be published in the Canada Gazette.
64. This statutory scheme in turn engages the provisions
of the Statutory Instruments Act. Pursuant to that Act a "regulation" is defined as a statutory instrument "made in the exercise of a
legislative power conferred by or under an Act of Parliament." A "statutory
instrument" is defined to be, inter alia, an instrument issued, made or
established "in the execution of a power conferred by or under an Act of
Parliament, by or under which that instrument is expressly authorized to be
issued, made or established..."
Statutory Instruments Act, R.S.C. 1985, c.
S-22, as amended, s. 2(1) ("SIA")
65. The SIA sets up a two-step procedure for
determining whether a particular instrument is a regulation. First, it must be
determined whether the creation of the instrument was authorized by or under a
statute. If it was, then it must be determined whether the instrument is
legislative in nature. If it is, then it is a regulation under the SIA and
subject to all of its provisions. The result of the statutory scheme is that
regardless of nomenclature virtually every instance of delegated legislative
power satisfies the definition of "regulation" under the Act.
Holland, Denys and McGowan, John P. Delegated
Legislation in Canada (Carswell, 1989) at pp. 111-112 (hereafter "Holland and
McGowan")
66. The Court of Appeal clearly recognized that the
EWG are "regulations" pursuant to the SIA. First, they were
promulgated pursuant to subsection 27(2) of the SIA and thus are
authorized by or under a statute.
Court of Appeal, Reasons, Appellant's Record
Vol. II, p. 432.
67. Second, a review of the EWG clearly reveals
that they are legislative in nature. They are of general application to the
classes of cases to which they apply and are not directed at a particular
person. The process leading to the promulgation of the EWG in many ways
resembled a legislative process by which the views of interested parties were
considered and taken into account. Finally, since the EWG are "regulations" under
the SIA, the process under that Act by which Parliament
oversees the promulgation of statutory instruments was fully applicable to the
EWG including publication in Part II of the Canada Gazette as is required
of all regulations.
Act, ss. 11(4) and 15(1)(e),
27(4)
SIA, ss. 3-7, 11, 19
Statutory Instruments Regulations C.R.C. 1978,
c. 1509, as amended ss. 9, 11(2) ("SIR")
Cox v. College of Optometrists of Ontario
(1988), 52 D.L.R. (4th) 298 (Ont. Div. Ct.) at pp. 301-302,
305-306
68. Furthermore, the notion that guidelines generally
and the EWG in particular are not regulations is based on an erroneous
interpretation of the language of s. 27(2) itself. Guidelines are traditionally
conceived of as not binding on anybody. They are akin to directives and policy
statements and are aimed at creating greater predictability and consistency of
decision-making. In order to avoid the rule against undue fettering of
discretion, the conferring of non-binding guideline powers is usually
accompanied by an express provision that they are not binding on the issuing
commission or body. Absent such provision, a party might allege that any
guidelines made would narrow the scope of decision-making to the point where the
non-binding guidelines are applied as if they were law. Since they are not
actually law, this may amount to a fettering of discretion.
Patent Act, R.S.C. 1985, c. P-4 s. 96(4) and
(6)
Broadcasting Act, S.C. 1991, c. 11, s.
6
Telecommunications Act S.C. 1993, c. 38 s.
58
Maple Lodge Farms Ltd. v. Canada,
[1982] 2 S.C.R. 2 at 6-7
69. In this case, Parliament chose to use the label "guideline", but not to import the traditional concept of guidelines. It is
trite that nothing depends on the label attached to subordinate legislation, but
since the guideline terminology had led to confusion before, it is submitted
that Parliament added the term "binding" together with a specific direction that
the guidelines shall also be binding on the Commission and the Tribunal for
greater certainty.
Friends of the Oldman River Society v.
Canada (Minister of Transport), [1992] 1 S.C.R. 3.
70. This method of drafting is the same as was used in
s. 66 of the Act that makes the Act binding on the Crown despite a
general presumption of Crown immunity. The language in that section is not
understood as making the Act exclusively binding on the Crown and not
anyone else. Rather, it adds the Crown to the entities the Act otherwise
generally applies to. The same is true for guidelines. In addition to their
general application (an indicator of their legislative character), they are also
binding on the issuing and the adjudicating bodies, further confirming their
general and normative character.
Act, supra, s. 66(1)
71. The Court of Appeal further recognized the
significance of the amendments to Bill S-5 enacted subsequent to the judgment
of McGillis J., as confirming the legislative nature of guidelines. Parliament
removed from the Commission the power to make guidelines with respect to "a
specific case" leaving the power only for a "class of cases" and added a
requirement that all guidelines must be published in the Canada
Gazette.
EWG, 1986 SOR/86-1082
Court of Appeal, Reasons, Appellant's Record
Vol. II, pp. 432-433.
72. In addition, contrary to Bell’s assertion at
paragraph 61(a) of its factum, it is relevant to note that the power to pass
subordinate legislation respecting the extent to which and manner in which the
provisions of an enabling statute are to be applied is not unique to the Act. The same or virtually identical provisions can be found in a number
of different federal statutes.
Defence Services Pension Continuation Act,
R.S.C. 1970, c.D-3, as amended, Section 47(a);Canadian Forces Superannuation
Act, R.S.C. 1985, c.C-17, as amended, Section 50.1(1)(b), (d) and (e);
Coastal Fisheries Protection Act, R.S.C., 1985, c.C-33, as amended,
Section 6(b).4; Public Service Superannuation Act, R.S.C. 1985, c.P-36,
as amended, Section 42.1(1)(c), (e), (j), (m), (u), (v.2) and (v.7); Royal
Canadian Mounted Police Superannuation Act, R.S.C. 1985, c.R-11, as amended,
Section 26.1(1)(b), (e), (h.3), (h.4) and (h.5); Yukon Quartz Mining Act,
R.S.C. 1985, c.Y-4, as amended, Section 153(p) and (s); Customs Act,
R.S.C. 1985, c.1(2nd supplement), Section 8.1(8)(c); Petro-Canada
Public Participation Act, S.C. 1991, c.10, ss.17(3); Airport Transfer
(Miscellaneous Matters) Act, S.C. 1992, c.5, Section 5(3); Pension
Benefits Division Act, S.C.1992, c.46, Schedule II, as amended, Section
16(c) and (i); Employment Insurance Act, S.C. 1996, c.23, Section 109(d)
and 143(1)(d); and Canadian Environmental Protection Act 1999, S.C. 1999,
c.33, Section 47(1)(c)
Institutional Impartiality
73. Since the guideline power is a substantive
law-making power, it is simply incapable of interfering with any aspect of
independence, as it pertains to none of the attributes of independence. It is
not a power to regulate how the Tribunal administers itself, nor does it relate
to the appointment and remuneration process of the Tribunal. It has nothing to
do with tenure, financial security or administrative control of the Tribunal or
its members. This was clearly recognized by McGillis J. when she did not include
the guidelines issue under the heading of independence. What remains to be
considered is the allegation of a lack of impartiality and, in particular,
reasonable apprehension of institutional bias.
74. As shown above, there can be no question that the
power conveyed in s. 27(2) is a power to make subordinate legislation which is
intended to generate generally applicable norms, i.e. they apply generally to
classes of cases, they bind everybody including the issuing body and they are
substantive or normative and not procedural or process-oriented.
75. The EWG are part of the law that the Tribunal
is required to apply. The obligation to be bound by the applicable law does not
create a reasonable apprehension of bias as Joyal J. recognized in the
PSAC case when he stated:
Fourthly, I should conclude that although the Tribunal
is said to be bound by the Commission's Guideline, this is no more than stating
that the Tribunal, together with all other statutory tribunals, is bound by law
to the extent that any particular provision of such law is valid and binding. I
should view the scope of authority and terms of reference of ss. 50(2) of the
Act as giving the Tribunal prima facie jurisdiction to interpret the
Guideline in a manner, which, in its opinion, would be consistent with the basic
principle articulated in s. 11 of the statute. Should the Tribunal err in this
respect, any aggrieved party may seek redress by way of judicial
review.
Canada (Attorney General) v. P.S.A.C., [1991]
, 48 F.T.R. 55 at 58, aff'd, unreported, Ct. File No. A-921-91, December 4, 1991
(F.C.A.) ("PSAC")
76. At paragraph 62(j) of Bell's factum, it implies that
the status of Joyal J.'s decision in PSAC is questionable given the
subsequent decision of this Honourable Court in Cooper. However, the
effect of the Cooper decision is quite different. Rather than denying the
Tribunal's power to interpret not only its enabling statute, but also other
legislation, those powers are specifically affirmed.
Cooper, supra at 896
Bell Factum, para. 61(j)
77. After stating that in the absence of an express or
implied general law power, the Tribunal lacked the jurisdiction to declare
unconstitutional a limiting provision of the Act, LaForest J. continued to
explain that the Tribunal could consider questions of law.
As with the Commission there is no explicit power given
to a tribunal to consider questions of law. Taken together, ss. 50(1) and 53(2)
of the Act state that a tribunal shall inquire into the complaint referred to it
by the Commission to determine if it is substantiated. This is primarily and
essentially a fact-finding inquiry with the aim of establishing whether or not a
discriminatory practice occurred. In the course of such an inquiry a tribunal
may indeed consider questions of law. As with the Commission, these questions
will often centre around the interpretation of the enabling legislation.
However, unlike the Commission, it is implicit in the scheme of the Act that
a tribunal possesses a more general power to deal with questions of law. Thus
tribunals have been recognized as having jurisdiction to interpret statutes
other than the Act and as having jurisdiction to consider constitutional
questions other than those noted above. In particular, it is well accepted
that a tribunal has the power to address questions on the constitutional
division of powers on the validity of a ground of discrimination under the Act,
and it is foreseeable that a tribunal could entertain Charter arguments
on the constitutionality of available remedies in a particular case. [emphasis
added, references omitted]
Cooper, supra at 896
78. Parliament responded to the Cooper decision
by amending the Act to confer in s. 50(2) an express general law power. In light
of both the Cooper decision and these legislative amendments, there can
be no question that the Tribunal has the necessary power to consider whether the
EWG are valid and applicable law. The Tribunal, as adjudicator has the
power to interpret the Act and any regulations and guidelines made under
it. It has the power to find a guideline was not properly made, that it is
ultra vires the Act or that it was made for improper motive or
purposes.
Cooper, supra at 896
Jones, D.P. and deVillars, A.S., Principles of
Administrative Law, 3rd ed. (Carswell: Toronto, 1999) at 90,119,
121.
79. The rights and protections of administrative law
attach to adjudicative and administrative functions. It is well established that
no administrative law duty of fairness attaches to the exercise of a legislative
function unless specifically required by statute.
Attorney General of Canada v. Inuit
Tapirisat of Canada, [1980] 2 S.C.R. 735
National Anti-Poverty Organization v.
Canada (Attorney General), [1989] 3 F.C. 684 at 700 (F.C.A.), leave
to appeal refused, [1989] 2 S.C.R. ix
Régie, supra, at 985-6
80. Legislative action has its own set of safeguards
which are almost exclusively front-loaded and consist of, inter alia,
checks and balances in the Parliamentary committee system, the Statutory
Instruments Act, the advisory and supervisory functions of the Department of
Justice and, ultimately, the political accountability of Parliament. This is
because once a statute or regulation becomes law, it governs regardless of its
fairness or wisdom, subject, of course, to a successful constitutional
challenge. It is therefore important to build protections into the making of
legislation. By contrast, administrative law safeguards attach to the process of
decision-making under existing laws.
81. In this case, Bell is seeking to access
administrative law protections after having had the full benefit of the
legislative panoply of protections, in essence because it does not like the
content of the validly enacted legislation. It does so primarily on two bases:
(1) the fact that the Commission is both the law-making and the prosecuting body
is unfair and (2) that the existence of binding guidelines somehow fetters the
discretion of the Tribunal.
82. Both bases are misplaced. Statutorily created
multiplicity of functions by itself does not create a fairness problem.
Statutory bodies are always bound by the applicable law. There is no authority
for the proposition that the fact that Parliament has chosen to use the
expertise of the Commission in both prosecutorial and legislative functions, but
separating out the adjudicative function offends the nemo judex in sua
causa rule that forms the doctrinal foundation of the impartiality
guarantee.
Brosseau v. Alberta (Securities Commission),
[1989] S.C.R. 301 at 310
83. As set out above, the Tribunal can interpret the
Act and any regulations including guidelines made under it. This includes
the power to find that a guideline is not valid. There is nothing in the
exercise of the legislative function of the Commission that interferes with the
adjudicative function of the Tribunal.
84. What the Tribunal cannot do, is to ignore the
applicable valid law. Brown and Evans note:
Of course, the notion of bias connotes some
improper influence on the decision-maker, or "an impermissible partiality." Therefore,
not every predisposition in a decision-maker to exercise a power one way or
another is to be deprecated. For example, even though not bound by stare decisis,
an agency may legitimately be predisposed to follow its previous decisions
interpreting a particular provision of its enabling statute, in the interest
of consistency. Similarly, it is often desirable that members of administrative
agencies develop some general policies that they bring to the exercise of any
statutory discretion: an "open mind" cannot be equated with an empty head.
[Emphasis in the original, footnotes omitted]
D. Brown and J. Evans, Judicial Review of
Administrative Action in Canada (Toronto: Canvasback Publishing 1998ff
(Looseleaf)) at 11:3320 (hereafter “Brown and
Evans”)
Kuntz v. College of Physicians & Surgeons (British Columbia) (1996), 38 Admin. L.R. (2d) 242 at 280
(B.C.C.A.)
85. What is true for law created by precedent in the
absence of formal stare decisis or non-binding rule-making, is, of course
a fortiori true for statutory or regulatory law. It can never constitute
an improper consideration or an impermissible influence since the statutory
decision-maker derives its authority exclusively from the statute and is
duty-bound by the enabling legislation to apply relevant legislation,
subordinate or otherwise.
86. Moreover, on the facts of this case, there can
simply be no suggestion that any unfairness resulted from the guidelines power.
An allegation of apprehension of bias must be based on more than fictitious or
far-fetched possibilities. Since the EWG are one of only three guidelines
in effect made pursuant to s. 27(2), and the only ones applicable to the facts
of this case, it is irrelevant to the issue of impartiality of the Tribunal in
the current proceedings that the Commission continues to have the power to make
other guidelines, since such new guidelines would not apply to proceedings
already under way before the Tribunal.
Matsqui, supra at 44-5
Age Guideline SI/78 - 165; Immigration
Guidelines SI/80 - 125; and EWG.
87. Any reasonable apprehension of bias in the current
proceedings would therefore have to flow from the exercise of the guideline
power to create the EWG in 1986, between four and eight years before the
complaints were filed and ten years before they were referred to the Tribunal,
guidelines that were made at the request of employers after extensive
consultations with employers generally, and Bell in particular. It is further
noteworthy that the Joint Equal Pay Study, a study that was conducted by the
employer and the unions with the assistance of the Commission in 1991-2, was
done in accordance with s. 11 of the Act and the EWG.
Facts supra, at para. 10
Bell Canada v. CEP, supra at 126-7
88. The second basis on which Bell relies, the undue
fettering of discretion, is similarly misconceived. As Justice
L'Heureux-Dubé explained in Baker:
The concept of discretion refers to decisions where the
law does not dictate a specific outcome, or where the decision-maker is given a
choice of options within a statutorily imposed set of boundaries.
Baker, supra, at
852-3
89. Where law dictates a specific outcome, or where a
statutorily imposed set of boundaries exist, there is simply no discretion
conferred by the statute that is capable of being fettered. And it is trite law
that the Tribunal has no discretion other than that conferred by its enabling
legislation. A discretion to ignore valid law does not exist and a non-existing
discretion cannot be fettered, unduly or otherwise.
Singh v. Canada (A.G.), [2000] 3 F.C. 185 at
216 (C.A.)
90. The EWG, as part of the applicable
substantive law do not give rise to a reasonable apprehension of bias. The power
to make guidelines neither constitutes an overlap of functions in the Commission
that would interfere with the adjudicative function of the Tribunal nor is it
capable of fettering the discretion of the Tribunal.
91. There is no basis or authority for the assertion
that a functional overlap of regulation-making and enforcement powers within the
same body creates a bias problem. Functional overlap of adjudicative and
other functions has, on occasion, been found to raise a reasonable apprehension
of bias. However, once the adjudicative function is separated out, the
impartiality of the tribunal is unimpeded. This is because the Tribunal has
authority over the interpretation of administrative and, as in this case,
regulatory guidelines just as it has authority over the interpretation of its
enabling statute.
PSAC, supra at 58.
92. This is particularly true where the functional
overlap is expressly created by statute and thus reflects the intention of
Parliament. As this Honourable Court noted in Brosseau:
In order to disqualify the Commission from hearing the
matter in the present case, some act of the Commission going beyond its
statutory duties must be found.
Administrative tribunals are created for a variety of
reasons and to respond to a variety of needs. In establishing such tribunals,
the legislator is free to choose the structure of the administrative body. The
legislator will determine, among other things, its composition and the
particular degrees of formality required in its operation. In some cases, the
legislator will determine that it is desirable, in achieving the ends of the
statute, to allow for an overlap of functions which in normal judicial
proceedings would be kept separate. In assessing the activities of
administrative tribunals, the courts must be sensitive to the nature of the body
created by the legislator. If a certain degree of overlapping of functions is
authorized by statute, then, to the extent that it is authorized, it will not
generally be subject to the doctrine of "reasonable apprehension of bias" per
se.
This view was confirmed by this Honourable Court in
Ocean Port.
Brosseau, supra at 310
Regie, supra at 953.
Ocean Port, supra at 792-794 and
802.
93. In addition to the grounds set out above, Bell
further alleges that the Court of Appeal erred in not giving sufficient weight
to the opinions of past presidents of the Commission on the binding nature of
the guidelines. The Tribunal had already dealt with this issue. It found,
correctly in our respectful submission, that while relevant, these opinions did
not override the informed opinion of Parliament which, in the course of the 1998
amendments, considered and maintained the binding nature of the guidelines. The
validity of legislation does not depend on the opinions of some of those who
apply it, let alone being determinatively decided by them.
Bell Factum, paras. 58 and 63
94. Furthermore, Bell maintains that functional overlap
regardless of the actual persons performing the functions and any institutional
separation between them creates a reasonable apprehension of bias. This view is
in essence that a doctrine of corporate taint should apply to the bias analysis
of administrative tribunals. This contention has been consistently rejected.
Bell Factum, para. 60
Ocean Port, supra, at 801
Zündel v. Citron, [2000] F.C. 225 at
246-250 (C.A.)
95. Bell's argument relies heavily on the fact that the
Commission appears before the Tribunal as a party. However, as a party, the
Commission has no more power over the Tribunal than any other party. It can
argue for an interpretation of the applicable law, including any applicable
guideline, but clearly cannot force the Tribunal to adopt the advocated
interpretation. The Court of Appeal recognized that the regulatory and
enforcement functions of the Commission are carried out independently from each
other.
Court of Appeal, Reasons, Appellant's Record
Vol. II, p. 433.
96. In conclusion, the existence of a legislative power
that is exercised separately from a quasi-prosecutorial function does not create
a reasonable apprehension of bias since the Tribunal maintains the necessary
adjudicative freedom to interpret and apply the law. The Court of Appeal
therefore correctly held that the guideline power does not give rise to a
reasonable apprehension of bias.
(3) Does s. 48.2(2) of the Act unduly
interfere with the security of tenure of Tribunal members?
97. It is submitted that the Court of Appeal was correct
in stating that the tenure provisions in the Act preserved the requisite
independence of the Tribunal.
98. The members of the Tribunal enjoy extensive tenure
protections far exceeding those typically found for administrative
decision-makers. These include fixed term appointments and removal for cause
only, including an elaborate procedure for disciplinary action.
Act, ss. 48.2 and 48.3
99. Tribunal members are thus far removed from the
day-to-day influence of the executive branch of government that could be
exercised in at pleasure appointments or in the case of administrative
decision-makers that are employees of their relevant agencies as is frequently
the case.
100. Bell bases its attack on the contention that an
absolute guarantee by way of a statutory continuation or "run-on" provision is
required and that any element of discretion in the extension of terms is
unacceptable. With respect, this position is at variance with jurisprudence of
this Court and would have far-reaching implications. The Court of Appeal
recognized that the scheme of the Act was largely analogous to the one
expressly approved of as acceptable for courts for purposes of s. 11(d) of the
Charter by this Court in Valente:
This change in the law, while creating a post-retirement
status that is by no means ideal from the point of view of security of tenure,
may be said to have removed the principal objection to the provision which
applied when Sharpe J. declined jurisdiction since it replaces the discretion of
the Executive by the judgment and approval of senior judicial officers who may
be reasonably perceived as likely to act exclusively out of consideration for
the interests of the Court and the administration of justice generally.
Valente v. The Queen, [1985] 2 S.C.R. 673 at
704
Court of Appeal, Reasons, Appellant's Record
Vol. II, pp. 434-435.
101. Section 48.2(2) clearly does not interfere with the
requisite security of tenure of Tribunal members, since it meets the high
standards required for the courts, and therefore clearly meets or exceeds the
standard applicable to the Tribunal.
102. The discretion is vested in the Chairperson of the
Tribunal by express and unequivocal statutory language. The Court of Appeal
further correctly found that the Chairperson was largely insulated from
interference by the Executive and that any actual exercise of her discretion
would be open to judicial review.
Court of Appeal, Reasons, Appellant's Record
Vol. II, pp. 434-435.
Ocean Port, supra at 796.
103. The purpose of the discretion is to deal with
situations where a member's term expires at the outset of a hearing, possibly
caused by adjournments or where a member is appointed to the bench. These are
extremely benign and administratively sound reasons and are a long way removed
from the nefarious suggestions of taint alleged by Bell.
Excerpts from testimony on behalf of the Department
of Justice before Commons Standing Committee on Justice and Human Rights on Bill
S-5, April 1, 1998,
Appellant's Record Vol. II, p. 244.
104. Finally, it may be worth considering the notion of
security of tenure in administrative law terms. The concept of security of
tenure as it applies to the judiciary is not transferable to administrative
tribunals because administrative tribunals may be restructured or even
eliminated by simple legislative action. In stark contrast, the continued
existence of superior courts is guaranteed by the constitution.
105. However, this does not mean that underlying
fairness concerns addressed by the notion of security of tenure in the courts
do not receive equivalent protection in administrative tribunal context. In
particular, the "s/he who hears must decide" branch of the audi alteram
partem rule approximates security of tenure in that it guarantees to the
parties continuity of the decision-maker. This rule requires that where a
tribunal is responsible for hearing and deciding a case, only those members of
the tribunal who actually heard the case may take part in the
decision.
Ellis-Don Ltd. v. Ontario (Labour Relations
Board), [2001] 1 S.C.R. 221 at 240
IWA v. Consolidated-Bathurst Packaging Ltd.,
[1990] 1 S.C.R. 282 at 329-330
106. As a result of this rule, parties before
administrative tribunals can be confident that the tribunal member hearing the
case will be the one who decides it and that a decision by anyone else would be
in violation of the rules of natural justice and therefore invalid.
Conclusion
107. The Canadian Human Rights Tribunal enjoys a high
level of independence and institutional impartiality. This was Parliament's
intent as is manifest in the Act. Nothing was done in this case, nor was
anything alleged to have been done in contravention of the express parliamentary
intent.
108. None of the concerns raised by Bell raise a
reasonable apprehension of bias in light of the legislation which, in any event,
meets or exceeds the common law duty of fairness.
109. For all of these reasons and the reasons set out in
the CTEA factum, the CEP submits that impugned provisions of the Act are
not inconsistent with the fair hearing requirements under s. 2(e) of the Bill
of Rights or the constitutional principle of adjudicative
independence.
110. In the alternative, if the impugned provisions of
the Act are found to be inconsistent with the Bill of Rights or
the constitutional principle of adjudicative independence, the CEP agrees with
the submissions in the CTEA factum that the remedy of a stay of proceedings
proposed by Bell is not appropriate. Rather, the appropriate remedy would be a
declaration of inoperability and the present proceedings before the Tribunal
should be permitted to continue.
PART IV - ORDER
SOUGHT
111. For all of the reasons expressed herein it is
respectfully submitted that the Appeal be dismissed with costs.
ALL OF WHICH IS RESPECTFULLY
SUBMITTED.
DATED this 25th day of September,
2002.
____________________________________
Peter
Engelmann
____________________________________
Jula
Hughes
____________________________________
Fiona
Campbell
Solicitors for the
Respondent
Communications, Energy and Paperworkers Union of
Canada
PART V – LIST OF AUTHORITIES TO
BE REFERRED TO
CASES
PARAS.
2747-3174 Québec Inc. v.
Quebec (Régie des permis d' alcool
),
[1996] 3 S.C.R. 919
.................................36, 38, 39, 40, 51, 53, 57, 58, 79,
92
Attorney General of Canada v.
Inuit Tapirisat of Canada, [1980]
2 S.C.R.
735.......................................................................................79
Baker
v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817.............
............................................................58,
88
Bell Canada v. Communications, Energy and
Paperworkers
Union of Canada, [1999] 1
F.C. 113 (C.A.) ...........................................10,
87
Brosseau v. Alberta (Securities Commission),
[1989] S.C.R. 301 ........53, 82, 92
Canada
(Attorney General) v. P.S.A.C., [1991] 48 F.T.R. 55,
aff'd, unreported, Ct. File No. A-921-91, December
4, 1991
(F.C.A.)
.......................................................................................75,
91
Canada (Attorney General) v.
Public Service Alliance of
Canada,
[2000] 1 F.C. 146 (T.D.)
............................................................62
Canada
(Human Rights Commission) v. Taylor, [1990]
3
S.C.R. 892
.....................................................................................33
Canadian
Pacific Ltd. v. Matsqui Indian Band, [1995]
1 S.C.R. 3
...........................................................................39,
51, 58, 86
Control & Metering Ltd. v. Karpowicz (1994), 17 O.R.
(3d) 431
(Gen. Div.)
.............................................................................53
Cooper
v. Canada (Human Rights Commission),
[1996] 3 S.C.R. 854 at 873 ...............
...........................43, 45, 55, 76, 77,
78
Cox v. College of Optometrists of Ontario
(1988),
52 D.L.R. (4th) 298 (Ont.
Div. Ct.)
............................................................67
Crevier
v. Attorney General of Quebec, [1981] 2 S.C.R. 220
........................44
Ellis-Don Ltd. v. Ontario (Labour Relations
Board), [2001]
1 S.C.R. 221
.....................................................................................105
Friends
of the Oldman River Society v.
Canada
(Minister of Transport), [1992] 1
S.C.R. 3.
.................................................69
IWA
v. Consolidated-Bathurst Packaging Ltd., [1990]
1
S.C.R. 282
.....................................................................................105
Katz
v. Vancouver Stock Exchange (1995), 14 B.C.L.R.
(3d) 66 (C.A.), aff'd [1996] 3 S.C.R. 405
...................................................50
Knight
v. Indian Head School Division No. 19, [1990]
1 S.C.R. 653
......................................................................................58
Kuntz
v. College of Physicians & Surgeons (British
Columbia)
(1996), 38 Admin. L.R. (2d) 242
(B.C.C.A.)
...............................................84
MacKeigan
v. Hickman, [1989] 2 S.C.R. 796
............................................36
Mackin
v. New Brunswick (Minister of Finance);
Rice v. New Brunswick, 2002 SCC
13
......................................................37
Maple
Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2
...............................68
Mohammad
v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 363 (T.D.)
......................................................58
National
Anti-Poverty Organization v. Canada
(Attorney General), [1989] 3 F.C. 684
(F.C.A.),
leave to appeal refused, [1989] 2 S.C.R.
ix
................................................79
Nisbett
v. Manitoba Human Rights Commission
(1993),
101 D.L.R. (4th) 744 (Man. C.A.)
............................................................58
Ocean Port Hotel Ltd. v. British Columbia
(General Manager,
Liquor Control and
Licensing Branch), [2001]
2 S.C.R. 781
...........................................................3, 4, 43, 53, 92, 94,
102
Pasiechnyk v. Saskatchewan (Workers'
Compensation
Board), [1997] 2 S.C.R.
890
..................................................................44
Pasqua
Hospital v. Harmatiuk (1987), 8 C.H.R.R.
D/4242 (Sask C.A.)
..............................................................................58
R.
v. Lippé, [1991] 2 S.C.R. 114
...................................................36, 37,
50
Singh v. Canada (A.G.), [2000] 3 F.C.
185 (C.A.)
.......................................89
Valente
v. The Queen, [1985] 2 S.C.R. 673 ...................................37,
39, 100
Zündel v. Citron, [2000]
F.C. 225 (C.A.)
...................................................94
STATUTES
Aeronautics Act R.S.C. 1985, c. A-2
.......................................................57
Age Guideline SI/78 – 165
....................................................................86
Airport
Transfer (Miscellaneous Matters) Act, S.C. 1992, c.5
........................72
Broadcasting Act,
S.C. 1991, c. 11
..........................................................68
Canada
Pension Plan Act R.S.C. 1985, c. C-8
...........................................57
Canadian
Environmental Protection Act 1999,
S.C. 1999,
c.33
..................................................................................72
Canadian
Forces Superannuation Act, R.S.C.
1985,
c.C-17, as
amended.....................................................................72
Canadian Human Rights Act, S.C. 1998,
c. 9 ............................7, 10, 67, 70,
98
Coastal Fisheries Protection Act,
R.S.C., 1985, c.C-33,
as amended
.......................................................................................72
Customs
Act, R.S.C. 1985, c.1(2nd supplement)
.........................................72
Defence
Services Pension Continuation Act,
R.S.C.
1970, c.D-3, as amended, Section 47(a)
.........................................72
Employment
Insurance Act, S.C. 1996, c.23
.............................................72
Equal
Wages Guidelines, 1986 SOR/86-1082
.......................................10,
71
Immigration Guidelines SI/80 – 125
..........................................................86
New
Zealand Human Rights Act 1993, 082 Part IV
.....................................48
Patent Act, R.S.C. 1985, c. P-4
...............................................................68
Pension
Benefits Division Act, S.C.1992, c.46, Schedule II,
as amended
......................................................................................72
Petro-Canada
Public Participation Act, S.C. 1991, c.10
...............................72
Public
Service Superannuation Act, R.S.C. 1985,
c.P-36, as amended
............................................................................72
Royal Canadian Mounted Police Act,
R.S.C. 1985,
c. R-10
..............................................................................................57
Royal
Canadian Mounted Police Superannuation Act,
R.S.C. 1985, c.R-11, as amended
...........................................................72
Statutory
Instruments Act, R.S.C. 1985, c. S-22,
as
amended
...................................................................................64,
67
Statutory Instruments Regulations
C.R.C. 1978,
c. 1509, as amended
............................................................................67
Telecommunications Act S.C. 1993, c. 38
...............................................68
U.K. Disability Discrimination Act, 1995 (c. 50)
....... ...................................48
Veterans Review and Appeal Board Act S.C. 1995,
c. 18 .............................57
Yukon
Quartz Mining Act, R.S.C. 1985, c.Y-4, as amended
..........................72
OTHER AUTHORITIES
D.
Brown and J. Evans, Judicial Review of
Administrative Action in Canada
(Toronto: Canvasback
Publishing 1998ff
(Looseleaf))
...............................................................84
R.
Dusseault and L. Borgeat, Administrative Law.
A Treatise (Toronto: Carswell, 1990)
.......................................................38
Holland,
Denys and McGowan, John P. Delegated Legislation in Canada (Carswell, 1989)
..................................................................................65
Jones,
D.P. and deVillars, A.S., Principles of
Administrative Law, 3rd ed.
(Carswell: Toronto, 1999)
.................................78
D. Mullan,
Administrative Law (Toronto: Irwin, 2001) ........
..........................37
APPENDIX “A” – TEXT
OF STATUTORY PROVISIONS
See separate bound joint volume submitted by the
Respondents entitled “Joint Appendix of Statutes and Statutory Instruments
of the Respondents”.
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