Canadian Museum of Civilization Corporation v. Public Service Alliance of Canada (Local 70396)

Canadian Museum of Civilization Corporation v. Public Service Alliance of Canada (Local 70396)
Court (s) Database
Federal Court Decisions
Date
2006-06-06
Neutral citation
2006 FC 703
File numbers
T-1442-05
Notes
Digest
Decision Content
Date: 20060606
Docket: T-1442-05
Citation: 2006 FC 703
Ottawa, Ontario, June 6, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CANADIAN MUSEUMOF CIVILIZATION CORPORATION
Applicant
and
PUBLIC SERVICE ALLIANCE OF CANADA(LOCAL 70396)
Respondent
and
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This application arises from a human rights complaint (Complaint) filed by the Public Service Alliance of Canada (PSAC) in March 2000 against the Canadian Museum of Civilization Corporation (CMCC). In its Complaint, PSAC alleges that CMCC's job evaluation plan (Plan) is gender biased and violates sections 10 and 11 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (Act).
[2] After conducting an investigation, and following the failure of the parties to reach a settlement through conciliation, the Canadian Human Rights Commission (Commission) asked the Chairperson of the Canadian Human Rights Tribunal (Tribunal) to conduct a further inquiry into the Complaint. Subsequently, during a case conference between the parties and the Tribunal, the Commission advised that it would not be calling as a witness the expert consultant, Dr. Lois Haignière, who had prepared the report (Haignière Report) relied on by the Commission in referring PSAC's Complaint to the Tribunal. The Commission added that it was looking to retain the services of another expert.
[3] On July 20, 2005, the Commission submitted its Statement of Case to the Tribunal, attached to which was the report of the Commission's new expert, Dr. Nan Weiner. The Commission stated that, upon reviewing additional materials disclosed by the parties, the new expert had concluded that, while the Plan is not gender neutral, she did not find there to be significant gender bias in it. The Commission also stated that the evidence did not support PSAC's Complaint under section 11 of the Act. In light of this new evidence, the Commission stated that it would not be seeking any remedy before the Tribunal.
[4] On the basis of this information, CMCC concluded that the whole foundation upon which the Commission had referred the Complaint to the Tribunal (i.e. the Haignière Report) had disappeared, so that the Commission should exercise its public duty and call a halt to the inquiry.
[5] In this application for judicial review, made under sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, CMCC challenges the Commission's refusal to withdraw the Complaint from the Tribunal. CMCC seeks an order setting aside the Commission's decision and directing the Commission to dismiss PSAC's Complaint. In the alternative, CMCC requests that the Court order the Commission to "properly exercise its statutory duty to determine whether the Complaint should be dismissed in view of the fact that having regard to all the circumstances an inquiry into the Complaint is not warranted or because the Complaint is trivial or vexatious."
BACKGROUND
[6] On March 6, 2000, PSAC filed a formal complaint with the Commission alleging that the Plan violated sections 10 and 11 of the Act. Section 10 prohibits an employer from establishing or pursuing a policy which deprives or tends to deprive individuals of employment opportunities on a prohibited ground. Section 11 deems as discriminatory the paying of different wages to male and female employees who work in the same establishment and perform work of equal value.
[7] In its Complaint, PSAC alleges that the Plan is gender biased, resulting in the underpayment of female jobs in relation to male jobs of comparable value. Moreover, PSAC submits that the Plan differentiates adversely against predominantly female jobs when compared with predominantly male jobs.
[8] After initiating the Complaint, the Commission appointed an investigator. The investigation was put in abeyance to allow the parties an opportunity to try and settle the matter. A joint union-management committee was struck in October 2000 to develop a revised job evaluation plan. Despite the efforts of the parties, no resolution was reached. As a result, the Commission reactivated its formal investigation into the Complaint in January 2003.
[9] In March 2003, the Commission hired an external consultant, Dr. Lois Haignière, a pay equity expert, to determine if and to what extent gender bias existed in the Plan. Dr. Haignière was provided with a number of documents, including PSAC's complaint form, various job descriptions, and materials related to CMCC's job evaluation system. Dr. Haignière submitted her report to the Commission in June 2003. She concluded that "in all probability, gender bias does exist in the [Plan]."
[10] On September 15, 2003, the Commission's investigator released his investigation report recommending that the Commission, pursuant to paragraph 44(3)(a) of the Act, request the appointment of a human rights tribunal to inquire further into PSAC's Complaint. In coming to that conclusion, the investigator stated the following:
46. Based on the consultant's findings and pursuant to section 10, a further inquiry by a Tribunal is required.
47. Depending upon the Tribunal's decision and pursuant to section 11, a wage gap analysis can be undertaken, following a job evaluation, to determine if any adjustments are required in the pay structure to eliminate pay inequities that may exist.
[11] After reviewing the investigator's report and the responses to that report from the parties, the Commission informed the parties on January 9, 2004 that it had decided to appoint a conciliator pursuant to section 47 of the Act in an effort to settle the Complaint. The Commission also stated that, should the parties fail to reach a settlement within 60 days, the Commission would refer the matter to the Tribunal as the Commission had determined that, having regard to all the circumstances, further inquiry was warranted.
[12] Conciliation failed to resolve the matter and the Commission referred the Complaint to the Tribunal. CMCC did not apply to judicially review the decision to refer.
[13] On May 11, 2005, the Tribunal held a telephone case conference with the parties. During the case conference, counsel for the Commission advised that the Commission would not be calling Dr. Haignière as a witness because of her unavailability, and that the Commission was looking into using another expert. The Commission later retained Dr. Nan Weiner to re-assess the Plan in light of the disclosure of additional evidence by the parties.
[14] During the case conference, PSAC also advised that it was considering retaining its own independent expert to review gender bias in the Plan. On July 13, 2005, PSAC informed the Tribunal that it had decided to do so.
[15] On July 20, 2005, the Commission's counsel sent to the Tribunal the Commission's Statement of Case, to which was attached Dr. Weiner's report. With respect to PSAC's Complaint under section 10 of the Act, the Commission stated the following:
During the investigation of this Complaint, the Commission retained the services of an expert in job evaluation, Lois Haignière, PhD. to provide her expert analysis in June 2003. Dr. Haignière's report, which was disclosed to both parties, provided the basis upon which the Commission concluded that further inquiry into the Complaint was warranted. Following the full documentary disclosure provided the parties in accordance with the Tribunal's rules, the Commission was unable to retain Dr. Haignière to provide a more detailed expert report in preparation for the hearing. Consequently, Dr. Haignière will not be called as a witness on behalf of the Commission. The Commission has been able, however, to retain the services of Nan Weiner, PhD., an expert in job evaluation. After reviewing all the documentary evidence provided by the parties, Dr. Weiner has provided her expert report in which she concludes that while the [Plan] has characteristics of gender bias, these characteristics are not significant enough to render the plan unreliable. The Commission will call Dr. Weiner as a witness at the hearing.
The Commission also stated that it was unaware of any evidence to support the Complaint under section 11 of the Act. Finally, the Commission stated that "in light of the evidence in its possession the Commission is not seeking a remedy at this time."
[16] Subsequently, counsel for CMCC sent a letter to counsel for the Commission, dated July 25, 2005, requesting that the Commission "immediately withdraw the Complaint that it has referred to the Canadian Human Rights Tribunal." CMCC took the position that, given Dr. Weiner's report, the Complaint should be withdrawn because an inquiry was no longer warranted or, alternatively, because the Complaint is "trivial, frivolous or vexatious." Receiving no response, counsel for CMCC telephoned counsel for the Commission on August 12, 2005. It is not disputed that during the telephone call counsel for the Commission advised that the Commission did not have the authority to withdraw the Complaint, but could only withdraw itself as a party.
[17] On August 17, 2005, PSAC submitted its Statement of Particulars, to which it attached the report of its expert, Jeannine David-McNeil. Ms. David-McNeil concluded that the Plan is gender biased and not in compliance with the Act.
[18] On August 19, 2005, CMCC filed this application for judicial review.
[19] Besides this proceeding, CMCC has filed two other applications for judicial review in respect of the Complaint. Those applications challenge decisions made by the Tribunal. On April 19, 2005, CMCC applied to judicially review the decision of the Tribunal, dated March 21, 2005, wherein the Tribunal dismissed CMCC's motion to strike out the Complaint as regards section 11 of the Act (T-679-05). On February 10, 2006, CMCC filed an application for judicial review of the Tribunal's decision, dated January 13, 2006, in which the Tribunal denied CMCC's motion to dismiss the Complaint on the basis of the Commission's "withdrawal" of the Haignière Report (T-249-06).
STATUTORY FRAMEWORK
[20] The relevant provisions of the Canadian Human Rights Act and the Federal Courts Act are appended as Schedule "A". Specific statutory provisions will be included in these reasons where required for ease of reference.
SUBMISSIONS
CMCC
[21] CMCC's overarching submission is that once the Commission "withdrew" the Haignière Report, it was obligated to withdraw the Complaint as well because the foundation for the Commission's referral to the Tribunal no longer existed. CMCC contends that the Haignière Report was referentially incorporated into the investigator's report, and therefore also into the Commission's decision to refer the Complaint to the Tribunal made under section 44 of the Act. Citing McKeown v. Royal Bank of Canada, [2001] 3 F.C. 139, as authority, CMCC submits that if the Haignière Report falls, so does the Commission's basis for referring the Complaint to the Tribunal, and so too does the Tribunal's authority to adjudicate the Complaint.
[22] Consequently, CMCC asserts that, in refusing to withdraw the Complaint, the Commission failed to exercise its statutory duty. Specifically, CMCC submits that the Commission has a positive statutory duty under section 41 not to deal with any case that is "trivial, frivolous or vexatious" and under section 44 must dismiss any complaint when the Commission is satisfied, having regard to all the circumstances, that further inquiry is not warranted.
[23] In support of its submission, CMCC cites the reasons of the Canadian Human Rights Tribunal in Kamani v. Canada Post Corp., 1993 23 CHRR D/98, and places particular reliance upon paragraphs 27, 28 and 30, where Tribunal Chairperson, Sidney Lederman, stated as follows:
[27] It is unfortunate that these serious allegations have been hanging over the heads of Bruce and of Canada Post for the last five years. Any diligent review of this case would have led to a conclusion that none of the prohibited grounds in the Canadian Human Rights Act played a part in the dismissal of the Complainant from her employment. The Commission failed to make out even a prima facie case or anything close to it at the hearing. Why wasn't this case weeded out either by the Commission or at a later stage by Commission counsel in preparation for the hearing?
[28] The Commission has a positive obligation under section 41(d) of the Canadian Human Rights Act not to deal with a complaint if it appears to the Commission that the complaint is trivial, frivolous, vexatious or made in bad faith. On the receipt of a report from its investigator, the Commission has a mandatory duty under section 44(3)(b) of the Canadian Human Rights Act to dismiss the complaint if it is satisfied that having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted or that the complaint should be dismissed on any ground mentioned in sections 41(c) to (e).
...
[30] A proper and diligent review of the evidence in the instant case should have led to the conclusion that there was no reasonable basis for sending this case on to a Tribunal. Moreover, the duty of the Commission to scrutinize the evidence does not end with a review of the investigator's report. There is a continuing duty to assess whether a Tribunal hearing is warranted. (Emphasis added)
[24] In support of his finding of a "continuing duty," the Chairperson in Kamani cited Nimako v. Canadian National Hotels (1987), 8 C.H.R.R. D/3985, where the Ontario Board of Inquiry, at D/4007, paragraph 31711, stated the following:
...it seems to me that a point may be reached in the course of a hearing at which it is apparent to the Commission that the complaint is indeed trivial, frivolous, vexatious, or pursued by the complainant in bad faith. If that were so (and I do not mean to suggest that it was so in this case), then I should think that it would be possible for the Commission to exercise its discretion under section 33(1)(b) of the 1981 Code in such circumstances. Surely, the discretion "not to deal with the complaint" includes the discretion to withdraw it at any stage, subject to the complainant's right to have that decision reconsidered, and subject to the approval of the Board appointed to hear and decide the matter. If, for instance, the complainant's bad faith became apparent to the Commission only after the hearing had commenced, surely the Commission is not required to proceed inexorably to pursue what it perceives to be a specious claim. (Emphasis added)
Chairperson Lederman in Kamani went on to state that the Commission has extraordinary powers that it must exercise responsibly in the public interest. Moreover, as the "mere making of an allegation of racial discrimination," which was the ground for the complaint in the case before him, can adversely affect the reputation of individuals accused, the Chairperson concluded that "there is an obligation on the Commission to review with care the evidence which gives rise to the allegation of racial discrimination at all stages of the process."
[25] CMCC adds that the authority of the Commission to withdraw a complaint at any stage of the proceeding was affirmed in Sehmi v. Canada (Via Rail), [1995] C.H.R.D. 9 (QL) and Canada(Attorney General) v. Grover, 2004 FC 704.
[26] As its strongest authority for the proposition that the Commission has the power to withdraw a complaint following referral, and has a positive duty to do so on the present facts, CMCC cites a case involving a public inquiry under the British Columbia Police Act, R.S.B.C. 1996, c. 367. CMCC points to the similarities between the complaints process under that statute and the procedure at issue in the present case. In British Columbia (Police Complaint Commissioner) v. Vancouver(City) Police Department, 2003 B.C.S.C. 279, Justice Goepel had the following to say:
22. If the PCC receives a written request for a public hearing, he must arrange a public hearing under s. 60.1 of the Act if the request for a public hearing is made by a respondent police officer and a disciplinary or corrective measure more severe than a verbal reprimand has been proposed for that officer; or in any other case, if the PCC determines that there are grounds to believe that a public hearing is necessary in the public interest. Pursuant to s. 60(4) of the Act, the PCC may arrange a public hearing without a request from either a complainant or a respondent if the PCC considers there are grounds to believe that a public hearing is necessary in the public interest.
23. Section 60(5) of the Act sets out that in deciding whether a public hearing is necessary in the public interest, the PCC must consider all relevant factors, including, without limitation, the seriousness of the complaint, the seriousness of the harm alleged to have been suffered by the complainant, whether there is a reasonable prospect that a public hearing would assist in ascertaining the truth, whether an arguable case can be made that there was a flaw in the investigation, the disciplinary or corrective measures proposed are inappropriate or the disciplinary authority's interpretation of the Code of Professional Conduct was incorrect, or whether a hearing is necessary to preserve or restore public confidence in the complaint process or the police.
24. If the public hearing is ordered, the legislation sets out that it must be conducted before an adjudicator who must be a retired judge of the Provincial Court, the Supreme Court or the Court of Appeal. Section 61(2) of the Act authorizes the PCC to appoint commission counsel to present to the adjudicator the case relative to the alleged discipline defaults respecting a public trust complaint. For the purpose of the public hearing, commission counsel may call any witness who, in commission counsel's opinion, has relevant evidence to give and to introduce into evidence any record, including any record of the proceedings concerning the complaint up to the date of the hearing.
25. For the purpose of the public hearing, the respondent police officer is given the power to examine or cross-examine witnesses (s. 64(4)(a)). The complainant and the respondent are entitled to make oral or written summations, or both, after all of the evidence is called (s. 64(4)(b)), and both the complainant and the respondent may be represented by counsel for those purposes (s. 64(4)(c)). The Act does not appear to give complainants any right to examine or cross-examine witnesses.
26. Section 60.1(8) of the Act gives the adjudicator the protections, privileges, and powers of a commissioner under sections 12, 15 and 16 of the Inquiry Act, R.S.B.C. 1996, c. 224.
27. Pursuant to s. 61(6) of the Act, the adjudicator must decide whether each alleged discipline default respecting the complaint has been proved on the civil standard of proof. The adjudicator may impose any disciplinary or corrective measures that could have been imposed by the discipline authority, or affirm, increase or reduce the disciplinary or corrective measures originally proposed by the discipline authority.
28. An appeal on a question of law lies to the Court of Appeal with leave from a decision of an adjudicator under s. 61(6) of the Act. Technical errors as to form, failure to file or give notices on time and other procedural errors of a minor nature do not go to jurisdiction and may not be appealed to the Court of Appeal on any ground, unless the error prejudiced a fair determination of the issues at the public hearing.
...
87. The office of the PCC was created to provide meaningful civilian oversight in police disciplinary matters. The legislation equips the PCC with broad powers to carry out that mandate. Those powers include the right to arrange a public hearing when the PCC concludes that such a hearing is in the public interest. Such a hearing may be arranged regardless of the views of the disciplinary authority who has investigated the matter, the respondent police officer or of the complainant who may have withdrawn the complaint. Conversely, the legislation also empowers the PCC to decline to order a public hearing, regardless of the wishes of a complainant, if the PCC does not consider that such a hearing would be in the public interest.
88. The neat issue before me is whether or not, once having arranged the public hearing, the PCC becomes powerless to stop the process absent the consent of the complainant and/or the adjudicator. I think not. With due respect to the decisions of Adjudicators deVilliers and Murphy, I do not believe their appointments as adjudicators makes them arbitrator of the public interest. Adjudicators are appointed to carry out the specific functions mandated in the Act. Those functions are limited to determining whether the alleged discipline default respecting the complaint has been proved on the civil standard of proof. That task does not cloak the adjudicator with jurisdiction to determine if the proceeding, once arranged, will continue.
89. The PCC has been appointed to protect the public interest. He is an independent officer of the Legislative Assembly. Pursuant to the legislation, it is for the PCC to determine the public interest. I find that the PCC has the necessary incidental powers to withdraw a notice of public hearing once one has been issued. Such power exists by necessary implication from the wording of the Act, its structure and its purposes.
90. It is the PCC who determines in the first instance whether there will be a public hearing. It is the PCC who retains and instructs commission counsel. It is commission counsel, pursuant to s. 61(2) of the Act, who must present to the adjudicator the case relative to the alleged discipline defaults. The analogy drawn by the petitioner to the role of Crown counsel is apt.
91. If the PCC does not have the power to end a public hearing, then the question arises as to how such a hearing can be concluded if changing circumstances dictate that the hearing is no longer in the public interest. I do not accept Adjudicator Murphy's conclusion that once a public hearing is arranged it takes on a life of its own. Somebody must have the ongoing responsibility to determine whether in changing circumstances it is appropriate that such a hearing proceed.
92. That person, surely, cannot be the complainant, given that the complainant has no right to determine whether a public hearing will be held in the first instance, and only limited rights at a public hearing if one is held. Similarly, with respect, I do not believe that an adjudicator, who has been appointed for the purpose of conducting a hearing, is in any position to determine whether the public interest will be properly served by a termination of that hearing. The adjudicator does not have either the evidentiary foundation or legislative mandate to make such a decision.
93. As noted in the various authorities cited by the petitioner, the general rule is that if the party requesting a hearing withdraws that request there is no foundation for the hearing and the tribunal has no jurisdiction to continue. Hanson, the one decision cited to the contrary, is, in my opinion, distinguishable. In Hanson, the court, based on the legislation before it, held the tribunal was the guardian of the public interest and that it must decide for itself whether the withdrawal of the complaint would prejudice the public interest. Under the Act, the PCC is the guardian of the public interest. It is for the PCC to determine if a public hearing should continue. In regards to hearings initiated by a police officer, in the first instance it is for the officer to determine if the hearing should proceed. A hearing initiated by an officer can, however, only be terminated with the consent of the PCC because the PCC in the case of such a hearing has an independent right to initiate a public hearing. The consent of the adjudicator is not required before the notice of public hearing can be withdrawn.
94. In the result, therefore, I find in favour of the petitioner and grant the relief set out in the petition. The decision of Adjudicator Murphy of October 28, 2002, that the PCC does not have the authority to unilaterally withdraw a notice of public hearing is quashed, as is the order of Adjudicator Murphy that the public hearing will proceed. Further, I prohibit Adjudicator Murphy from proceeding with the public hearing.
PSAC and the Commission
[27] There is significant agreement in the arguments of PSAC and the Commission in respect of the Commission's jurisdiction to take the action requested by CMCC, and its role before the Tribunal. The Commission, as an intervener in this application for judicial review, limited its submissions to its institutional role in the human rights process and to the record in this application.
[28] PSAC takes the position that CMCC's application must be dismissed because the jurisdiction of the Court, pursuant to sections 18 and 18.1 of the Federal Courts Act, is not engaged. Under those provisions, a party can ask the Court to review a decision of a "federal board, commission or other tribunal." PSAC submits that once the Commission referred the matter to the Tribunal, and the Tribunal initiated an inquiry, the Commission lost jurisdiction over the Complaint as an "administrative decision maker." As a result, any decision the Commission may have made with respect to withdrawing PSAC's Complaint was not made in the capacity of a "federal board, commission or other tribunal."
[29] Even if the Commission did make a decision that was reviewable by the Court, both PSAC and the Commission submit that the Commission has no jurisdiction to withdraw the Complaint once it had been referred to the Tribunal. Rather, at that point, the Commission can only withdraw itself as a party to the proceedings. Both parties point to the two distinct roles played by the Commission in respect of a human rights complaint. Initially, the Commission acts as a screening body, or gatekeeper, in order to determine whether a complaint ought to be referred to the Tribunal or be dismissed: see sections 41 to 44 of the Act. If a complaint is referred to the Tribunal, then the Commission's role is to participate as a party in the Tribunal's process and to make submissions consistent with its view of the public interest in the case: see section 51 of the Act.
[30] With respect to the first stage, the Commission says that, upon receiving the report of its investigator, it must decide, pursuant to section 44, whether to refer the matter to a conciliator or the Tribunal, or to dismiss the complaint. The Commission will not refer a complaint to the Tribunal if it is satisfied, among other grounds, that the complainant ought to exhaust other grievance or review procedures otherwise reasonably available (paragraph 44(2)(a)), the complaint is trivial, frivolous, vexatious or made in bad faith (subparagraph 44(3)(a)(ii)), or having regard to all the circumstances of the complaint, further inquiry is not warranted (paragraph 44(3)(b)). The Commission notes that it may request that the Tribunal initiate further inquiry into a complaint without the Commission first conducting an investigation in accordance with subsection 49(1).
[31] Both PSAC and the Commission submit that the Courts have affirmed the Commission's role in this initial stage as one of performing a "screening function." In Bellv. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 (also indexed as Cooper v. Canada(Human Rights Commission)), the Supreme Court of Canada stated the following at paragraph 53:
The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it. ...
[32] PSAC submits that the Commission satisfied its statutory duty in determining that there was sufficient evidence to warrant referral the Tribunal, as well as its duty of procedural fairness, by conducting a neutral and thorough investigation into the Complaint.
[33] With respect to the second stage of processing a human rights complaint, PSAC notes that, under the Act, the Tribunal assumes adjudicative jurisdiction over the complaint: see subsection 49(2). Both PSAC and the Commission submit that, at that point, the Commission no longer acts as a "federal board, commission or other tribunal" but rather the Commission becomes a party to the inquiry, along with the complainant and the person against whom the complaint is made: see subsection 50(1) of the Act. The Commission cites Bell Canada v. Canada Telephone Employees Assn., [2003] 1 SC.R. 884, wherein the Supreme Court of Canada stated the following at page 903:
When the Commission appears before the Tribunal, it is in no different a role position from any representative of the government who appears before an administrative board or court.
[34] PSAC contends that, as a party, the Commission has the right to determine what position it will take at the hearing to advance its public interest mandate, and this includes the right to withdraw itself as a party. However, the Commission does not have the right to withdraw the Complaint itself.
[35] PSAC and the Commission assert that before the Tribunal the Commission's role is distinct from that of the complainant's. In support of their position, they cite McKenzie Forest Products Inc. v. Ontario Human Rights Commission et al. (2000), 48 O.R. (3d) 150. In that case, the Ontario Court of Appeal stated as follows at paragraphs 33 and 34:
I agree with the appellant that, once the Commission exercises its discretion to refer a complaint to the Board of Inquiry, the role of the Commission fundamentally changes. It no longer acts as an investigative and screening body, but becomes a part of the proceeding. At this point, the determination of the complaint then becomes the responsibility of the Board of Inquiry.
The Commission does, of course, have a responsibility to advocate its view of the public interest and in so doing, may also advocate for the interests of the individual complainant. However, the Commission's role as a party to the proceeding cannot derogate from the independent status of an individual complainant.
[36] PSAC and the Commission further note that the finding in McKenzie Forest Products that a complainant has a status before the Tribunal independent of the Commission was adopted by the Canadian Human Rights Tribunal in Premakumar v. Air Canada, [2002] C.H.R.D. No. 17 (QL). At paragraphs 27 and 28 of Premakumar, Chairperson Anne Mactavish had the following to say on this matter:
In McKenzie, the Ontario Court of Appeal concluded that a complainant has an independent right to proceed with his complaint, despite the withdrawal of the Commission from the case. The Court came to this conclusion, notwithstanding the provision of the Ontario Human Rights Code assigning carriage of the case to the Commission. [Citation omitted] There is no comparable provision in the Canadian Human Rights Act. Having regard to the differences in the wording of the two statutes, it seems to me that the Court's comments as to the independent status of a complainant are all the more apt in describing the status of a complainant under the Canadian Human Rights Act.
As a result, I am of the view that the Commission and the complainant have distinct roles before the Tribunal under the Canadian Human Rights Act. The role of the Commission is to represent what it considers to be the public interest, whereas the role of the complainant is simply to advance his or her own interests. Commission counsel does not represent the complainant.
[37] PSAC and the Commission comment that even if the "obiter dicta" in Kamani and Sehmi - the Tribunal decisions cited by CMCC - can be taken as stating that the Commission has the authority to withdraw a complaint during the Tribunal hearing, they are inconsistent with the wording and the whole scheme of the Act. Further, PSAC and the Commission note that those cases were decided before the decision of the Ontario Court of Appeal in McKenzie Forest Products.
[38] PSAC also asserts, citing the Ontario Board of Inquiry's decision in Shepherd v. Ontario Corp. 1110494 (2000), 38 C.H.R.R. D/284, that once the Tribunal has assumed jurisdiction over a complaint it is obligated to hold an inquiry. As such, PSAC argues that the basis of the Commission's decision to refer the Complaint is irrelevant to the Tribunal's jurisdiction to decide PSAC's Complaint on its merits.
[39] In any event, with respect to the foundation for CMCC's submissions in this application for judicial review, the Commission states that CMCC's contention that the Commission withdrew the Haignière Report is erroneous. The Commission asserts that from the transcript of the May 11, 2005 case conference, it is clear that counsel for the Commission never stated that the Commission was withdrawing the Haignière Report; rather, the Commission only stated that it would not be calling Dr. Haignière as a witness before the Tribunal.
ISSUES
[40] After considering the submissions of the parties, I find the issues arising in this application for judicial review to be as follows:
1. Does the Court have the jurisdiction to consider this application for judicial review?
2. Does the Commission have the authority and/or an obligation to withdraw a human rights complaint once it has referred the matter to the Tribunal?
3. If so, did the Commission err by refusing to withdraw PSAC's Complaint in the circumstances of this case?
STANDARD OF REVIEW
[41] In my view, the first and second issues are essentially questions of jurisdiction and of statutory interpretation. It is generally accepted that such questions of law are to be reviewed on a standard of correctness: see for example Sketchley v. Canada (Attorney General), 2005 FCA 404. As I will discuss later on in these reasons, the third issue turns on whether the Commission actually withdrew the Haignière Report. As such, I am of the opinion that no standard of review is applicable; the Court must simply determine on the facts whether the Haignière Report was "withdrawn."
ANALYSIS
1. Does the Court have the jurisdiction to consider this application for judicial review?
[42] As a preliminary issue, PSAC and the Commission submit that the Court has no jurisdiction to hear this application for judicial review for two reasons. First, PSAC takes the position that no "decision" was made by the Commission, and therefore no remedy is available to CMCC from the Court. PSAC argues that there were no comments made by counsel for the Commission during the May 11, 2005 case conference, in the Commission's July 20, 2005 Statement of Case, or during the August 12, 2005 telephone call with counsel for CMCC, that can constitute a decision made by the Commission. Second, PSAC and the Commission both argue that the jurisdiction of the Court is not engaged, in any event, because the Commission was not acting in the capacity of a "federal board, commission or other tribunal."
[43] I agree with PSAC that it is somewhat difficult to discern the "decision" impugned in this case. In its Notice of Application, CMCC states that it is challenging the Commission's decision dated July 20, 2005, "pursuant to which CHRC refused to withdraw a complaint to the Canadian Human Rights Tribunal." The only communication dated July 20, 2005 found in the record is the Commission's Statement of Case. Upon reviewing the Statement of Case, it is difficult to see how anything in the document could constitute a decision in the nature of a "refusal to withdraw" PSAC's Complaint. In fact, the only "decisions" mentioned in respect of the Tribunal hearing are that the Commission would not be calling Dr. Haignière as a witness, that it was planning to call Dr. Weiner as a witness, and that the Commission was not seeking a remedy at that time.
[44] As noted above, subsequent to the Commission's submission of its Statement of Case, counsel for CMCC, Mr. David Sherriff-Scott, and then counsel for the Commission, Mr. Patrick O'Rourke, had communications concerning the withdrawal of the Complaint. In a telephone conversation on August 12, 2005, Mr. O'Rourke is said to have advised that the Commission did not have the authority to withdraw the Complaint. Although the contents of the communication are not disputed, the only evidence of the statements attributed to Mr. O'Rourke is in the affidavit of Mr. Sherriff-Scott. Even if I were to accept that Mr. O'Rourke made such comments about the Commission's position with respect to the withdrawal of the Complaint, I am not convinced that they amount to a "decision" by the Commission.
[45] In support of its position that no decision was made by the Commission, PSAC cites Fuchs v. Canada, [1997] 129 F.T.R. 168. In that case, the applicant challenged the "decision" of a Collections Officer with the Ministry of National Revenue. The impugned decision was allegedly found in comments made during a telephone conversation between the Collections Officer and the applicant's counsel, in which the officer indicated that the Ministry had no legal discretion to do what the applicant was requesting with respect to his tax account. Justice Max Teitelbaum held that, although a decision could be communicated by any means, including over the telephone, the officer's comments did not constitute a "decision". At paragraph 15, Justice Teitelbaum stated the following:
What is claimed to be a decision in this application for judicial review is merely the expression of a Collections Officer's opinion in the course of an apparently wide-ranging telephone conversation discussing the collection of funds owed for income taxes.
I should add that, in Fuchs, Justice Teitlebaum found there to be no doubt that the Collections Officer was acting in the capacity of a representative of the Minister, and therefore any decision he may have made was a decision made by the Minister.
[46] In the present case, I am inclined to the view that nothing in the record indicates that the Commission made a "decision," let alone communicated that decision to CMCC. Specifically, with respect to Mr. O'Rourke's comments to Mr. Sherriff-Scott, I do not find that they amount to a "decision" of the Commission refusing to withdraw the Complaint. Rather, I see Mr. O'Rourke's comments as an expression of his legal opinion as to the Commission's "standing" under the relevant legislative framework. In any event, unlike in Fuchs, it is an open question here as to whether Mr. O'Rourke, acting in his capacity as counsel for the Commission, can be considered to be a "representative" of the Commission, making his "decision" attributable to, and therefore binding on, the Commission for the purpose of a judicial review application.
[47] That said, the absence of a "decision" is not a bar to an application for judicial review under the Federal Courts Act. Section 18.1 provides the Federal Court with the jurisdiction to grant relief to a party affected by "a matter" involving a federal board, commission or other tribunal. Specifically, subsection 18.1(3) provides that the Court can grant a remedy in relation to matters that extend beyond decisions.