Date: 19990510
Docket: T-795-99
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Applicant
- and -
CANADA 3000 AIRLINES LIMITED
Respondent
- and -
BALBIR SINGH NIJJAR
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] There is before the Canadian Human Rights Tribunal a complaint by Mr. Balbir Singh Nijjar against Canada 3000 Airlines Limited. The Canadian Human Rights Commission is a party to the proceedings and is presenting the complaint. Mr. Nijjar is a party to the Tribunal hearing, but is not represented by counsel.
[2] The hearing before the Tribunal was the subject of a case planning conference on November 23, 1998, which scheduled the hearing for the weeks of April 16, April 26 (excluding April 30), May 3 and May 10, 1999.
[3] On April 28, 1999 an issue arose with respect to the Commission's cross-examination of Dr. Spellman, a witness for Canada 3000. Counsel for the Commission wished to put to Dr. Spellman a certain document. Counsel for Canada 3000 objected on the basis that the document had not been previously disclosed.
[4] Submissions were made and the Tribunal adjourned to consider the matter. Upon resuming the following morning, April 29, the Tribunal ruled that the Commission would not be permitted to use the document in its cross-examination of Dr. Spellman.
[5] It is not alleged that the Tribunal made any procedural error in the manner in which it handled the objection of Canada 3000 to the use of the document, or the arguments of counsel relating to that issue.
[6] Counsel for the Commission indicated his intention to seek immediate judicial review of the ruling, and asked for an adjournment to do so. He said that he would make the application at the earliest possible time. He also indicated his view that one of the grounds would be bias or a reasonable apprehension of bias. I infer that he was suggesting that an argument might be made along the lines of the decision of McGillis J. in Bell Canada v. Canadian Telephone Employees Assn., Court File No. T-1257-97, December 19, 1997.
[7] Counsel for Canada 3000 opposed the adjournment. The Tribunal granted an adjournment to Monday, May 10, 1999, which they believed would give the Commission sufficient time to have the application for judicial review heard on or before Friday, May 7, 1999. The time available would have been the remainder of Thursday, April 29, plus five full business days before that Friday.
[8] Counsel for the Commission did not file its application for judicial review until Wednesday, May 5 because until that date he did not have final instructions from his client as to the grounds to be argued. The judicial review application that finally was filed does not allege bias. Rather, it alleges various errors in the decision refusing the Commission the right to rely on the document referred to above. The Commission applied for an order, to be heard Monday May 10, for an order staying the proceedings of the Tribunal.
[9] I understand that by agreement the Tribunal continued its proceedings on May 10, 1999 but only to hear the evidence of two witnesses other than Dr. Spellman. The Tribunal proposes to resume the hearing tomorrow, May 11, and hear the remainder of the evidence of one of those two witnesses, and then the cross-examination of Dr. Spellman will continue. If that occurs, there will remain only argument. The proceedings before the Tribunal were adjourned so that counsel could appear in this Court at 2:00 P.M. on May 10 for a hearing of the stay application.
[10] The Commission has also applied for an order, to be heard Wednesday May 12, for another order staying the proceedings of the Tribunal. I am asked for an order staying the proceedings until then, which will effectively stop the cross-examination of Dr. Spellman and defer final argument until after the Wednesday motion is heard.
[11] Counsel for Canada 3000 raised a preliminary objection to my proceeding with this motion at all. He argued that it duplicates the proceedings set down for Wednesday, and that the appropriate thing would be for me to refuse to hear this application or alternatively to hear the motion set down for Wednesday. There is considerable merit in this argument. However, I decided that I would hear the application for a short stay despite the element of duplication because it will determine at least how the Tribunal will proceed tomorrow.
[12] It was common ground that I should apply the tri-partite test for stays, though there was some disagreement on the standard to be applied for the first element.
[13] It is my view that the first element of the tri-partite test is best described by the words "serious question to be tried." I agree with counsel for the Commission that generally the threshold is low. However, I have concluded that even that low threshold is not met in this case.
[14] In assessing the question to be raised in the judicial review I am guided by these words of Létourneau J. in Re Szczecka and Minister of Employment and Immigration (1993), 116 D.L.R. (4th) 333 (F.C.A.) at page 335:
| This is why unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses which interfere with the sound administration of justice and ultimately bring it into disrepute. |
[15] Special circumstances may exist if judicial review of the impugned decision is dispositive of a substantive right of a party (Canada v. Schnurer Estate, [1997] 2 F.C. 545 (F.C.A.)), or if judicial review is sought on a question that goes to the legality of the tribunal itself (Cannon v. Canada, [1998] 2 F.C 104 (F.C.T.D.), referring to the cases cited at page 116). In my view there are no special circumstances here. This appears to be a relatively straightforward disagreement on a procedural question that is within the Tribunal's jurisdiction.
[16] Counsel for the Commission argues that if the Tribunal erred in its ruling, the result is a denial of procedural fairness that would result in its decision being a nullity. For this proposition he relies on Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623.
[17] I do not read this case as authority for the proposition that an error by the Tribunal in an interlocutory ruling regarding the use in cross-examination of an undisclosed document results in the proceedings being fatally flawed from the moment of decision.
[18] If the Tribunal has erred in denying the Commission the right to use the document in cross-examination Dr. Spellman, the error may or may not affect the result. If the Commissioner succeeds before the Tribunal despite the error, it will have no grounds for judicial review. If the Commissioner fails and brings an application for judicial review on the final decision, it will be for the court at that time to consider the importance of the error. I think this is the import of the words of McLachlin J. in R. v. Seaboyer, [1991] 2 S.C.R. 577 at 641, in the analogous context of criminal proceedings:
| ... I would associate myself with the view that appeals from rulings on preliminary enquiries ought to be discouraged. While the law must afford a remedy where one is needed, the remedy should, in general, be accorded within the normal procedural context in which an issue arises, namely the trial. Such restraint will prevent a plethora of interlocutory appeals and the delays which inevitably flow from them. It will also permit a fuller view of the issue by the reviewing courts, which will have the benefit of a more complete picture of the evidence and the case. |
[19] As to the second element of the test for a stay, I see no possibility of irreparable harm if the stay is not granted. If the Tribunal is allowed to complete its work, the resulting decision may be the subject of judicial review. Remedies are available to the Commission and to Mr. Nijjar for any possible error by the Tribunal in respect of the document in issue.
[20] On this point counsel for the Commission pointed out that if the stay is not granted, he will be scheduled to appear in two places at once on Wednesday, here in Toronto before the Tribunal and in Ottawa for his other stay application. I have little sympathy for the predicament he finds himself in. Having reviewed all the material relating to his attempts to have this matter set down, it is my conclusion that with reasonable diligence it is more probable than not that he could have had the hearing set down for last week. Counsel for Canada 3000 was prepared to appear last week. The main excuse offered by counsel for the Commission is the delay in obtaining instructions from the Commission as to the grounds he would be allowed to argue. I take this as an indication that he initially considered that there were grounds for an allegation of bias as well as other grounds, but did not get instructions to proceed on the basis of bias. I can see no reason why, knowing the need for prompt action, he could not simply have filed the application alleging all possible grounds and then withdrawn those his client wished to have withdrawn. In any event, the Tribunal was prepared to grant an adjournment for the hearing before me. It may well be that they would entertain a similar application for Wednesday.
[21] Finally, the balance of convenience clearly favours denying the stay. The proceedings of the Tribunal have been scheduled for some months and are close to conclusion.
[22] For these reasons, the application of the Commission for a stay will be denied. Counsel for Canada 3000 will be requested to provide written submissions on costs by May 26, 1999. Counsel for the Commission will have till June 2, 1999 to respond. Any reply will have to be submitted by June 7, 1999.
"Karen R. Sharlow"
J.F.C.C.
Toronto, Ontario
May 10, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-795-99
| STYLE OF CAUSE: CANADIAN HUMAN RIGHTS COMMISSION |
Applicant
- and -
| CANADA 3000 AIRLINES LIMITED |
Respondent
| - and - |
| BALBIR SINGH NIJJAR |
Respondent
DATE OF HEARING: MONDAY, MAY 10, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: SHARLOW J.
DATED: MONDAY, MAY 10, 1999
APPEARANCES: Mr. Rene Duval
For the Applicant
Mr. Peter M. Jacobson
| For the Respondent, Canada 3000 Airlines Limites |
| Mr. Balbir Singh Nijjar |
| For the Respondent, On His Own Behalf |
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
For the Defendant
| Paterson, MacDougall |
| Barristers & Solicitors |
| One Queen Street East |
| Suite 2100 |
| Toronto, Ontario |
| M5C 2W5 |
| For the Respondent, Canada 3000 Airlines Limited |
| Balbir Singh Nijjar |
| 1 Jefferson Road |
| Brampton, Ontario |
| L6S 2G3 |
| For the Respondent, On His Own Behalf |
FEDERAL COURT OF CANADA
Date: 19990510
Docket: T-795-99
Between:
| CANADIAN HUMAN RIGHTS COMMISSION |
Applicant
- and -
| CANADA 3000 AIRLINES LIMITED |
Respondent
| - and - |
| BALBIR SINGH NIJJAR |
Respondent
REASONS FOR ORDER