Syndicat des Employés de Production d Québec et et l'Acadie v. Canada (Canadian Human Rights Commission)

Syndicat des Employés de Production d Québec et et l'Acadie v. Canada (Canadian Human Rights Commission)
Collection
Supreme Court Judgments
Date
1989-10-12
Report
[1989] 2 SCR 879
Case number
20181
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John
On appeal from
Federal Court of Appeal
Subjects
Courts
Notes
SCC Case Information: 20181
Decision Content
Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879
Syndicat des employés de production
du Québec et de l'Acadie Appellant
v.
Canadian Human Rights Commission Respondent
and
Canadian Broadcasting Corporation
and the Attorney General of Canada Mis en cause
indexed as: syndicat des employés de production du québec et de l'acadie v. canada (canadian human rights commission)
File No.: 20181.
1989: February 2; 1989: October 12.
Present: Dickson C.J. and McIntyre*, Lamer, Wilson, La Forest, L'Heureux‑Dubé and Sopinka JJ.
on appeal from the federal court of appeal
Courts -- Jurisdiction -- Federal Court of Appeal -- Judicial review -- Canadian Human Rights Commission dismissing complaint of discrimination pursuant to s. 36(3) of the Canadian Human Rights Act -- Whether Commission's decision under s. 36(3) required by law to be made on a judicial or quasi‑judicial basis -- If so, whether the Commission committed a reviewable error -- Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 -- Canadian Human Rights Act, S.C. 1976‑77, c. 33, ss. 11, 36(3).
The appellant filed a complaint with the Canadian Human Rights Commission pursuant to the equal pay for work of equal value provisions of s. 11 of the Canadian Human Rights Act (the "Act "). The main complaint alleged that employees in the Section fabrication et manipulation des décors of the CBC, who were predominantly male, were paid more for work of equal value than employees in the Section fabrication et manipulation des costumes, who were predominantly female. Pursuant to s. 35 of the Act , an investigator was appointed to investigate the matter and prepare a report. The investigator tested CBC's existing classification levels against classification levels identified by Commission experts using first the former CBC job evaluation plan and then the Aiken Plan. During the investigation, the investigator was in constant touch with the appellant and the CBC and obtained the benefit of their comments from time to time. Some discrepancies were uncovered by the investigator but were not found to be significant in light of the overall consistency of the ratings. The investigator concluded that the existing salary disparities resulted from job misclassification. The investigator considered the group rather than individual members and examined the system rather than focussing on individual complaints. This is based on the Commission's interpretation of s. 11 of the Act . He recommended that the complaint be rejected by the Commission as unsubstantiated.
The investigator then sent appellant a copy of his report which explained the methodology (including references to the Aiken Plan) and the results of its application. This is based also on the Commission's interpretation of s. 11 of the Act . The appellant made written submissions to the Commission. The Commission considered these submissions and the investigator's report and, without a hearing, dismissed the complaint as unsubstantiated pursuant to s. 36(3) of the Act . The Federal Court of Appeal dismissed appellant's s. 28 application to review and set aside the Commission's decision. This appeal is to determine (1) whether the Commission's decision under s. 36(3) was one that is required to be made on a judicial or quasi‑judicial basis within the meaning of s. 28 of the Federal Court Act ; and whether the Commission committed a reviewable error.
Held (Wilson and L'Heureux‑Dubé JJ. dissenting): The appeal should be dismissed.
Per Lamer, La Forest and Sopinka JJ.: The Federal Court of Appeal had no jurisdiction, under s. 28 of the Federal Court Act , to review the Commission's decision made pursuant to s. 36(3) of the Act . The Commission's decision was not one that was required to be made on a judicial or quasi‑judicial basis. Section 36(3) provides for two alternative courses of action upon receipt of the investigator's report: (1) the Commission may adopt the report "if it is satisfied" that the complaint has been substantiated (s. 36(3) (a)) and, in such case, a tribunal will be appointed under s. 39 of the Act unless the complaint is resolved by settlement; and (2) the Commission may dismiss the complaint if "it is satisfied that the complaint has not been substantiated" (s. 36(3) (b)). This will occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39 . It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding; rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal; rather the process moves from the investigatory stage to the judicial or quasi‑judicial stage if the test prescribed in s. 36(3) (a) is met. Accordingly, in view of the administrative nature of the Commission's function, and giving effect to the statutory provisions, the Commission was not required to comply with the formal rules of natural justice. The Commission, however, was required to comply with the rules of procedural fairness in accordance with the principles in Nicholson.
Although it is not necessary to decide this issue, the Commission committed no reviewable error in dismissing appellant's complaint. There was no basis in this case for suggesting that there was a denial of natural justice or procedural fairness. The appellant was informed of the substance of the evidence obtained by the investigator and put before the Commission and it was given an opportunity to respond to this evidence and make all relevant representations. The Commission was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. All this was done.
The Commission's failure to give reasons in this case was not a basis for review. The appellant was notified that the Commission had decided that the positions which were the subject of comparison did not constitute work of equal value. The basis for this conclusion was the investigator's report which was in the hands of the appellant. Accordingly, the latter was fully apprised of the reasons for the Commission's decision.
Finally, the appellant was informed of the Commission's interpretation of s. 11 of the Act and the Commission correctly applied that section to the facts of this case. Section 11 is to prohibit discrimination by an employer between "male and female employees" who perform work of equal value; it is not to guarantee individual employees equal pay for work of equal value irrespective of sex.
Per Dickson C.J.: This appeal can be disposed of on jurisdictional and procedural grounds for the reasons given by Sopinka J., and accordingly, it is not necessary or appropriate to deal with the correctness of the Canadian Human Rights Commission's interpretation of s. 11 of the Act .
Per Wilson and L'Heureux‑Dubé JJ. (dissenting): The Commission's decision to dismiss a complaint pursuant to s. 36(3) (b) of the Act is "required by law" to be made on a quasi‑judicial basis and is accordingly reviewable by the Federal Court of Appeal under s. 28 of the Federal Court Act . Three factors supported this conclusion. First, the Commission's function under s. 36(3) is to decide whether a complaint of discrimination is substantiated or not, given the findings set out in the investigator's report. The determination of whether work is of "equal value" within the meaning of s. 11(1) of the Act is a question of law. The Commission must interpret and apply a legal norm between two parties (the appellant and CBC) in an adversarial position. The Commission's function is accordingly closely akin to the adjudicative function traditionally performed by ordinary courts. Second, the Commission's decision constitutes a conclusive determination in respect of fundamentally important individual rights. Third, while the Act contains no express requirement of a hearing prior to the dismissal of a claim under s. 36(3) , the provisions of the Act , in particular ss. 36(4) , 39(1) , 40(1) and 41 , are consistent with the imposition of a duty to proceed on a quasi‑judicial basis. The existence of such a duty finds ample support in the case law.
The concept of "equal value" is central to the statutory prohibition against wage discrimination. Assessing the value of work, however, is inherently subject to individual bias and sexual stereotyping. In these circumstances, fairness requires that the job evaluation process be subjected to the purifying effect of the adversarial process. The vulnerability of the job evaluation plan method to individual bias and sexual stereotyping is best minimized by allowing the parties concerned an opportunity to tailor the elements of the testing to the special circumstances of each particular case. The Commission is accordingly under a duty to disclose to the parties at the proper time not only the factual basis of its decision but also the legal basis of its investigation -- namely, its interpretation of the statutory principle of equal pay for work of equal value. The parties must also be allowed to make an informed response to the Commission's interpretation and to urge upon it their own interpretation of the law.
In this case, the Commission failed to disclose the legal basis of its decision at a proper time. While the appellant made written submissions on a number of points in relation to the use of the Aiken plan, these submissions were allowed only after the investigation had proceeded on the basis that the Aiken plan was the only appropriate method to assess whether work was of equal value under s. 11 , and that the choice of compensable factors and their relative weights by the Commission were the correct ones in light of that provision. The appellant should have been allowed to make informed submissions with respect to the legal standard of equal value under s. 11 , and, if the Aiken method was chosen as that standard, then appellant should also have been heard on the selection and relative weight of the compensable factors as well. Any other aspect of the methodology proposed to be adopted by the Commission which the parties might have felt could unfairly prejudice the assessment of the value of the work could also be dealt at such a hearing. Such a hearing should have been granted so as to give the parties concerned an effective means of advancing their own interpretation of the applicable legal standard before the investigation proceeded. The Commission therefore failed to observe a principle of natural justice in proceeding without affording such an opportunity to the appellant and its decision must be set aside.
Cases Cited
By Sopinka J.
Referred to: Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12; Re Dagg and Ontario Human Rights Commission (1979), 102 D.L.R. (3d) 155; Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407; Cashin v. Canadian Broadcasting Corp., [1984] 2 F.C. 209; Re Downing and Graydon (1978), 92 D.L.R. (3d) 355; Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684; Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476.
By L'Heureux‑Dubé J. (dissenting)
Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Employment and Immigration Commission v. MacDonald Tobacco Inc., [1981] 1 S.C.R. 401; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; Brouillette v. Canadian Human Rights Commission (1986), 86 N.R. 393; Labelle v. Canada (Treasury Board) (1987), 76 N.R. 222; Whiteman v. Canada (Canadian Human Rights Commission) (1987), 9 C.H.R.R. D/4944; Attorney General of Quebec v. Udeco Inc., [1984] 2 S.C.R. 502; Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134; MacBain v. Lederman, [1985] 1 F.C. 856; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687; Cashin v. Canadian Broadcasting Corp., [1984] 2 F.C. 209; Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Corning Glass Works v. Brennan, 417 U.S. 188 (1974); Waddington v. Leicester Council for Voluntary Services, [1977] 2 All E.R. 633; Harmatiuk v. Pasqua Hospital (1982), 4 C.H.R.R. D/1177 (Sask. H.R.C.), aff'd (1983) 4 C.H.R.R. D/1650 (Q.B.); Re Downing and Graydon (1978), 92 D.L.R. (3d) 355.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 15 .
Canadian Human Rights Act, R.S.C., 1985, c. H‑6, s. 44(3) [rep. & sub. c. 31 (1st Supp.), s. 64 ].
Canadian Human Rights Act, S.C. 1976‑77, c. 33, ss. 11, 22(2) [rep. & sub. 1977‑78, c. 22, s. 5], 26, 32(1), (5), 33, 34(1), 35, 36, 39(1), 40(1), (2), 41(1), (2), 65.
Equal Pay Act of 1963, 29 U.S.C. {SS} 206(d).
Equal Wages Guidelines, 1986, SOR\86‑1082, s. 16.
Equal Wages Guidelines, SI/78‑155, s. 3.
Equal Wages Guidelines, amendment, SI/82‑2.
Fair Labor Standards Act of 1938, 52 Stat. 1060.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28(1).
Human Rights Code, 1981, S.O. 1981, c. 53, s. 32.
Individual's Rights Protection Act, R.S.A. 1980, c. I‑2, s. 20 [am. 1985, c. 33, s. 9].
Statute Law (Canadian Charter of Rights and Freedoms ) Amendment Act, S.C. 1985, c. 26, ss. 68, 69.
Authors Cited
Abella, Rosalie A. Report of the Commission on Equality in Employment. Ottawa: Minister of Supply and Services Canada, 1984.
Blumrosen, Ruth G. "Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964" (1979), 12 U. Mich. J. L. Ref. 397.
Canada. Law Reform Commission of Canada. Federal Court: Judicial Review (Working Paper 18). Ottawa: Law Reform Commission, 1977.
De Smith, S. A. Judicial Review of Administrative Action, 4th ed. By J. M. Evans. London: Stevens & Sons Ltd., 1980.
Nelson, Bruce A. and Edward M. Opton and Thomas E. Wilson. "Wage Discrimination and the "Comparable Worth" Theory in Perspective" (1980), 13 U. Mich. J. L. Ref. 233.
Pépin, Gilles et Yves Ouellette. Principes de contentieux administratif, 2e éd. Cowansville, Qué.: Éditions Yvon Blais Inc., 1982.
Tarnopolsky, Walter S. Discrimination and the Law in Canada, 2nd ed. Toronto: Richard De Boo Ltd., 1982.
APPEAL from a judgment of the Federal Court of Appeal (1986), 90 N.R. 16, 9 C.H.R.R. D/4922, 16 C.C.E.L. 275, dismissing appellant's application under s. 28 of the Federal Court Act to review and set aside a decision of the Canadian Human Rights Commission. Appeal dismissed, Wilson and L'Heureux‑Dubé JJ. dissenting.
Luc Martineau and Lyne Robichaud, for the appellant.
Russell G. Juriansz and Anne Trottier, for the respondent.
Gaspard Côté, Q.C., and Raymond Piché, for the mis en cause.
//The Chief Justice//
The following are the reasons delivered by
THE CHIEF JUSTICE -- I agree with the reasons of my colleague, Justice Sopinka with one reservation. In my view, this appeal can be entirely disposed of on jurisdictional and procedural grounds, and accordingly, I do not find it necessary or appropriate to deal with the correctness of the Canadian Human Rights Commission's interpretation of s. 11 of the Canadian Human Rights Act, S.C. 1976-77, c. 33. The Commission chose not to give reasons for its decision to dismiss the complaint as unsubstantiated. The focus of the appellant's attack before this Court was on procedural and jurisdictional grounds and in the Federal Court of Appeal, the interpretation of s. 11 was not addressed. Accordingly, I concur with Sopinka J. but express no view with respect to the interpretation of s. 11.
//Sopinka J.//
The judgment of Lamer, La Forest and Sopinka JJ. was delivered by
SOPINKA J. -- This appeal raises the question of the appropriate classification of the function of the Canadian Human Rights Commission when it dismisses a complaint of discrimination under s. 36(3) of the Canadian Human Rights Act, S.C. 1976-77, c. 33. The appropriate classification of this function is relevant to determine not only the jurisdiction of the Federal Court to review the determination of the Commission, but also whether the manner in which the Commission proceeded in arriving at its decision violated the appellant's rights to either natural justice or procedural fairness.
Facts
The appellant represents all of the production workers employed by the Canadian Broadcasting Corporation ("CBC") in the province of Quebec and in Moncton, New Brunswick. It filed a complaint with the Canadian Human Rights Commission (the "Commission") dated November 10, 1981 pursuant to the equal pay for work of equal value provisions of s. 11 of the Canadian Human Rights Act (the "Act "). The complaint alleged that employees in the "fabrication and manipulation des décors section" of the CBC, who were predominantly male, were paid more for work of equal value than employees in the "fabrication and manipulation des costumes section", who were predominantly female. The complaint further alleged that employees in the maquillage section were similarly underpaid in comparison to employees in certain male-dominated jobs of equal value.
Upon receipt of the complaint, pursuant to s. 35 of the Act , an investigator was appointed to investigate the matter and prepare a report.
The investigation of an equal pay complaint requires the application of generally accepted job evaluation techniques to measure the relative value of the jobs in issue. This process is a three-step procedure:
1.The investigator must gain a thorough understanding of the job content of each job. This information is obtained from up-to-date job descriptions or position specifications obtained from the employer, and when there is doubt, from the incumbents of the job who are asked to complete questionnaires. These are known as job fact sheets.
2.The jobs are then evaluated using a job evaluation plan. The plan will contain techniques used to measure job content according to factors and criteria specified in the plan. This permits a quantitative comparison of the relative value of jobs.
3.The quantitative measures of job value are then co-related to appropriate levels of compensation.
The CBC's existing classification levels were tested against classification levels identified by Commission experts using first the former CBC plan and then a Treasury Board plan which is called the Aiken Plan.
This process took approximately four years and from beginning to end the investigator was in constant touch with the appellant and the CBC. The investigator obtained the benefit of their comments from time to time.
Although some discrepancies were found by the investigator, they were not significant having regard to the overall consistency of the ratings. The investigator concluded that the existing salary disparities were as a result of job misclassification, noting that they were also present in comparisons between properly and improperly classified male employees rather than based on sex. Accordingly, he recommended that the complaint be rejected by the Commission as unsubstantiated.
Notwithstanding the fact that the parties had been kept abreast of the investigation during its progress, on October 16, 1984 the regional investigator, Michel Pitre, wrote to the appellant as follows:
[TRANSLATION] We therefore enclose a copy of the documents that will be submitted to the Commission for its use in arriving at a decision in this case. You are requested to send your submission to the Director, Complaints and Compliance (Canadian Human Rights Commission, 400, 90 Sparks Street, Ottawa K1A 1E1) within thirty calendar days of the date of receipt of this letter.
Enclosed with the letter was a copy of his report which explained the methodology, including references to the Aiken Plan, and the results of its application. Furthermore, the discrepancies referred to above were fully identified. Under the heading "Discussion", the investigator explained that in investigating the matter, it was necessary to consider the group rather than individual members and to examine the system rather than focussing on individual complaints. This is based on the Commission's interpretation of s. 11 of the Act . This interpretation is adopted because of the Commission's view that s. 11 is so worded as to prevent "ratcheting" and other wage adjustments that are not in accordance with good compensatory practice. For example, ten different male employees performing dissimilar work and being paid different salaries, nevertheless may all be performing work of equal value to a lesser paid female employee. If the female employee were entitled to limit a complaint under s. 11 to a comparison of her wages only to those of the highest paid male, her wages would be adjusted to be equal to those of the highest paid male. Thereafter all other males could require adjustment of their wages to be equal to those of the female who would then be receiving the highest wage rate. The result of such an approach would be that all employees would eventually move to the highest wage rate. Administered in this way, s. 11 would not be a guarantee of equal pay between sexes, but a guarantee of equal pay for work of equal value irrespective of sex.
The appellant was given thirty days to make written submissions to the Commission and was granted an extension of time to make these submissions. Extensive written submissions were made to the Commission. After considering these submissions and the report of the investigator, the Commission dismissed the complaint as unsubstantiated. The appellant was notified of this decision by letter dated June 27, 1985 which stated:
[TRANSLATION] The Canadian Human Rights Commission has considered the investigation report in your complaint against Radio-Canada, in which you alleged a difference in wages in employment due to sex.
The Commission has decided that the positions that were the subject of comparison were not of equal value and that the complaint was therefore groundless. Accordingly, the Commission has decided to dismiss your complaint. The Commission has noted the observations by you dated January 29, 1985.
Issues
1. Appropriate Classification of the Decision of the Commission
Is the decision of the Commission one that is required to be made on a judicial or quasi-judicial basis within the meaning of s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10?
2. Reviewable Error
If the answer is yes, did the Commission commit a reviewable error?
Legislation
Federal Court Act
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
28. (1) Notwithstanding section 18 or the provisions of any other Act , the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
Canadian Human Rights Act
11. (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.
(2) In assessing the value of work performed by employees employed in the same establishment the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed.
(2.1) Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be a single establishment.
(3) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 22(2), to be a reasonable factor that justifies the difference.
(4) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages.
(5) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section.
(6) For the purposes of this section, "wages" means any form of remuneration payable for work performed by an individual and includes salaries, commissions, vacation pay, dismissal wages, bonuses, reasonable value for board, rent, housing, lodging, payments in kind, employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans and any other advantage received directly or indirectly from the individual's employer.
26. (1) Such officers and employees as are necessary for the proper conduct of the work of the Commission shall be appointed in accordance with the Public Service Employment Act.
(2) The Commission may, for specific projects, enter into contracts for the services of persons having technical or specialized knowledge of any matter relating to the work of the Commission to advise and assist the Commission in the exercise or performance of its powers, duties and functions under this Act , and such persons may be paid such remuneration and expenses as may be prescribed by by-law of the Commission.
32. (1) Subject to subsections (5) and (6), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.
33. Subject to section 32, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available; or
(b) the complaint
(i) is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act ,
(ii) is beyond the jurisdiction of the Commission,
(iii) is trivial, frivolous, vexatious or made in bad faith, or
(iv) is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.
34. (1) Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision.
35. (1) The Commission may designate a person (hereinafter referred to as an "investigator") to investigate a complaint.
(2) An investigator shall investigate a complaint in a manner authorized by regulations made pursuant to subsection (4) and the Commission may authorize an investigator,
(a) subject to such limitations as the Governor in Council may prescribe in the interests of national defence or security, at any reasonable time, to enter any premises other than a private dwelling place or any part of any premises that is designed to be used and is being used as a permanent or temporary private dwelling place, and carry out such inquiries as are reasonably necessary for the investigation of the complaint; and
(b) to require any individual found in any premises entered pursuant to paragraph (a) to produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom any books or other documents containing any matter relevant to the investigation of the complaint.
(3) No person shall obstruct an investigator in the investigation of a complaint.
(4) The Governor in Council may make regulations prescribing procedures to be followed by investigators and authorizing the manner in which complaints are to be investigated pursuant to this Part and prescribing limitations for the purpose of paragraph (2)(a).
36. (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.
(2) If, on receipt of a report mentioned in subsection (1), the Commission is satisfied
(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by a procedure provided for under an Act of Parliament other than this Act ,
it shall refer the complainant to the appropriate authority.
(3) On receipt of a report mentioned in subsection (1), the Commission
(a) may adopt the report if it is satisfied that the complaint to which the report relates has been substantiated and should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in subparagraphs 33(b)(ii) to (iv); or
(b) shall dismiss the complaint to which the report relates if it is satisfied that the complaint has not been substantiated or should be dismissed on any ground mentioned in subparagraphs 33(b)(ii) to (iv).
(4) After receipt of a report mentioned in subsection (1), the Commission
(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and
(b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3).
39. (1) The Commission may, at any stage after the filing of a complaint, appoint a Human Rights Tribunal (hereinafter in this Part referred to as a "Tribunal") to inquire into the complaint.
40. (1) A Tribunal shall, after due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the Tribunal, any other interested party, inquire into the complaint in respect of which it was appointed and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, of appearing before the Tribunal, presenting evidence and making representations to it.
(2) The Commission, in appearing before a Tribunal, presenting evidence and making representations to it, shall adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint being inquired into.
Judgment of the Federal Court of Appeal
Marceau J. delivered the judgment of the court: (1986), 90 N.R. 16. With respect to the issue of jurisdiction under s. 28 he stated (at pp. 21-22):
. . . this is a question which though it may raise difficulties of jurisdiction is more one of form than substance, in the sense that it concerns primarily a definition of terms the exact content of which has in recent years become increasingly fluid as well as less important, and that there is nothing to be gained by a formal analysis of it, at least not in the case at bar.
Marceau J. disagreed with the premise put forward by the appellant that elaborate procedural requirements apply in the Commission proceedings, the final stage of which was a public and formal hearing. His view of the content of the procedural requirements was as follows (at p. 21):
What is required is for the complainant and all the parties concerned to have been fully informed of the substance of the evidence obtained by the investigator and the content of his report and to have had an opportunity to make, verbally or in writing, all the relevant representations they wished to make.
With respect to the complaints about the proceedings of the Commission, Marceau J. enumerated them as follows:
1.The Commission relied solely on the investigation report without examining the underlying evidence, in particular the expert evidence;
2.It failed to hold a public hearing or failed to require the investigator to hold a public hearing;
3.It failed to give written reasons;
4.The investigator's conclusions were not only his own but also those of the experts;
5.It did not give the appellant access to all matters contained in the record, namely spot check reports and check sheets.
Marceau J. concluded that some of these complaints proceeded from a misconception of the relative function of the Commission and the investigator. The Commission was entitled to retain the assistance of experts and to rely on the report of the investigator so long as it considered the representation of the parties and came to its own conclusion. With respect to other complaints, they were based on the view of the appellant that a formal hearing was required. Finally, Marceau J. concluded that the spot check reports and check sheets were simply confirmatory of the facts in other documents and had only a very incidental or comparatively insignificant function. Marceau J. concluded that the appellant was adequately informed of the substance of the evidence obtained by the investigator. The appellant had therefore failed to show that the decision was unlawful.
1. Appropriate Classification of the Decision of the Commission
The Attorney General of Canada submitted that the Federal Court of Appeal lacked jurisdiction to review the decision of the Commission under s. 28 of the Federal Court Act in that it was not a decision or order required by law to be made on a judicial or quasi-judicial basis. As pointed out above, Marceau J., in the Federal Court of Appeal, saw no purpose in answering this question since he concluded that no reviewable error had been committed. Much judicial energy has been expended in deciding the limits of s. 28 , and while it is a daunting task, we are urged by the Attorney General to deal with this point and to dismiss the appeal on this ground.
The application of s. 28 and its companion s. 18 has been rendered difficult by reason of the fact that the clear-cut distinction between certain types of tribunals which existed when the Act was passed no longer exists. As a result of Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, many tribunals exercising so-called administrative or executive functions are required to comply to a limited extent with the audi alteram partem rule which is labelled as the duty to accord procedural fairness. Formerly, tribunals that were required to comply with the rules of natural justice were characterized as judicial or quasi-judicial tribunals. This classification along procedural lines was expressed by Megarry J. in Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373 (Ch. D.), at p. 1378, as follows:
. . . that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness.
This statement was adopted by Laskin C.J. in Nicholson, supra, at p. 324. Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided. The distinction between them therefore becomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative or executive tribunals. Accordingly, the content of the rules to be followed by a tribunal is now not determined by attempting to classify them as judicial, quasi-judicial, administrative or executive. Instead, the court decides the content of these rules by reference to all the circumstances under which the tribunal operates. In Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at p. 629, Dickson J. (as he then was) stated:
In general, courts ought not to seek to distinguish between the two concepts, for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework.
The Federal Court Act , however, compels classification for review of federal boards, commissions or other tribunals. Accordingly, the distinction referred to by Megarry J. and adopted by this Court in Nicholson, supra, must continue to serve as the basis for distinguishing between s. 28 and s. 18 . In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, Wilson J., writing for herself, the Chief Justice and Lamer J., applied this distinction in holding that the Minister's determination under s. 45 of the Immigration Act, 1976 was not reviewable under s. 28 . Wilson J. stated, at p. 197:
Thus, despite Nicholson's tendency to eliminate the significance of the distinction between administrative and judicial or quasi-judicial functions for purposes of determining whether procedural fairness in decision-making is required, the Federal Court Act preserves the significance of the distinction for purposes of determining whether judicial review is available by means of certiorari under s. 18 (a) or by way of review under s. 28 : see Martineau, supra, at pp. 629 and 637. Since the appellants did not challenge the procedural fairness of the Minister's decision under s. 45 of the Immigration Act, 1976 by the proper procedures, I do not believe that the Court has any jurisdiction on these appeals to review those decisions or the mechanisms by which they were taken . . . .
Similarly, in Martineau v. Matsqui Institution Disciplinary Board, supra, this Court held that disciplinary proceedings respecting a prison inmate did not have to meet the full requirements of natural justice but that the tribunal owed a duty of fairness to the inmate which could be reviewed under s. 18 of the Federal Court Act .
It is therefore necessary to examine the nature of the proceedings before the Commission in order to determine whether it was required to comply with the full panoply of the rules of natural justice or was required rathe