Date: 20000707
Docket: T-2281-99
Between :
BELL CANADA
Applicant
- and -
CANADIAN TELEPHONE EMPLOYEES ASSOCIATION,
COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION
OF CANADA, FEMMES ACTION
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision rendered by a panel of the Canadian Human Rights Tribunal (the Tribunal) on November 29, 1999, dismissing three motions (Motions 1, 2 and 3) brought by Bell Canada (Bell) in connection with various wage discrimination complaints filed by the Communications, Energy and Paperworkers Union of Canada (CEP), the Canadian Telephone Employees Association (CTEA) and Femmes Action.
[2] The Tribunal dismissed Motions 1, 2 and 3 for the following reasons:
Motion 1
[3] First, complaints X-00344 and X-00372 were amended rather than abandoned.
[4] Second, the time limit set out in subsection 41(e) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (the Act) has not run with respect to complaints X-00460, X-00469 and X-00456. The Tribunal accepted the logic of the Revised Investigation Report and relied on Bell Canada v. CEP1 and PSAC v. Canada (Department of National Defence)2, which indicate that systemic discrimination, by its very nature, extends over time.
[5] Third, Bell sought particulars as to the time in which the discriminatory practice alleged in complaint X-00455 took place. The Tribunal concluded that it appeared from both Bell Canada v. CEP, supra, and the Revised Investigation Report that the starting date was November 23, 1992, the date of the Final Report, and is ongoing.
Motion 2
[6] Bell asked for an order dismissing the complaints as void for vagueness or void as lacking the essential elements of a valid complaint. Alternatively, Bell asked that the Commission and/or the complainants provide particulars.
[7] Considering that there is no particular form or content prescribed for a complaint, subsection 40(1) of the Act requires only that a complaint be in a form acceptable to the Commission; considering that a complaint will not stand or fall in terms of particularity in the same way as an information under the Criminal Code, and considering that in determining whether there has been a sufficient particularization of the complaints, one can look beyond the complaint form to such things as correspondence and other exchanges between the parties, investigation reports, file documents including interviewer's notes and summaries of the investigating officer from fact finding and conciliation efforts, the Tribunal concluded that the complaints, the Final Report and the Revised Investigation Report should all be taken as sources of information and as providing particulars of the complaints. "... [T]here is sufficient information contained therein to inform Bell of the case it has to meet. There is also the fact that Bell has been intimately involved in this "pay equity" process for some time."3 The Tribunal further indicated that if and when the complaints proceed to hearing and Bell considers that further information is required, a demand for particulars can be made at that time.
Motion 3
[8] Bell asked for a ruling that the unions lack standing under subsection 40(1) of the Act on the grounds that they are neither individuals nor groups of individuals.
[9] The Tribunal cites Driedger on the Construction of Statutes, at page 386, for the principle that the Act must be given a liberal and purposive interpretation and expresses the view that such an interpretation supports the conclusion that a union, acting to protect individuals' rights as opposed to collective rights, is a "group of individuals" under subsection 40(1) of the Act.
* * * * * * * * * * * *
[10] The respondents first and foremost submit that this application for judicial review is premature on the basis that the Tribunal's ruling on Motions 1, 2 and 3 is an interlocutory decision made during the course of its proceedings. I agree.
[11] It is obvious that the decision sought to be reviewed is interlocutory in nature. The decision dismisses three preliminary motions made by the applicant during the course of the Tribunal's proceedings.
[12] Although the Court's jurisdiction under section 18 of the Federal Court Act, R.S.C. 1985, c. F-7, is not limited to the final substantive decision on the question before a tribunal, it is now well established that as a general rule, absent jurisdictional issues, rulings made during the course of a tribunal's proceeding ought not be challenged until the proceedings have been completed. This rule was recently reaffirmed by Sexton J.A. of the Federal Court of Appeal in Sabina Citron et al. v. Ernst Zündel et al. (May 18, 2000), A-258-99 and A-269-99, at paragraph [10]:
| . . . The rationale for this rule is that such applications for judicial review may ultimately be totally unnecessary: a complaining party may be successful in the end result, making the applications for judicial review of no value. Also, the unnecessary delays and expenses associated with such appeals can bring the administration of justice into disrepute. . . . |
[13] In Sabina Citron, supra, the Federal Court of Appeal also reiterated its finding in In Re Anti-Dumping Act and In Re Danmor Shoe Co. Ltd.4:
| . . . a right, vested in a party who is reluctant to have the tribunal finish its job, to have the Court review separately each position taken, or ruling made, by a tribunal in the course of a long hearing would, in effect, be a right vested in such a party to frustrate the work of the tribunal. |
[14] The Federal Court of Appeal further considered apposite remarks made in the context of criminal proceedings by McLachlin J. in R. v. Seaboyer5:
| . . . I would associate myself with the view that appeals from rulings on preliminary inquiries 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. |
[15] Likewise, in Szczecka v. Canada (Minister of Employment and Immigration) (1993), 25 Imm.L.R. (2d) 70, the Federal Court of Appeal dismissed an application for judicial review of an interlocutory decision of the Refugee Division on the grounds that unless there are special circumstances, there should not be any appeal or immediate judicial review of an interlocutory judgment. Létourneau J.A. held, at page 75:
| . . . 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. (Footnote omitted.) |
[16] According to Sharlow J. in Canada (Canadian Human Rights Commission) v. Canada 3000 Airlines Ltd. (re Nijjar) (May 10, 1999), T-795-99:
| [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). . . . |
[17] In Air Canada v. Arthur E. Lorenz and the Attorney General of Canada (September 10, 1999), T-2463-97, Evans J. refused to make a determination on an allegation of bias against an adjudicator in an unjust dismissal claim before the adjudicator had rendered a final decision:
| [13] As a general rule, it is much more difficult nowadays for a litigant to persuade a court to intervene before the applicant has exhausted the available administrative remedies than it was when Bell v. Ontario (Human Rights Commission), [1971] S.C.R. 756 was decided. |
| [14] Thus, relief may be refused on the ground that a litigant has not taken advantage of a right of appeal to an administrative tribunal when this is an adequate alternative remedy to an application for judicial review, even when the ground of review is the wrongful denial of a participatory right in breach of the duty of fairness (Harelkin v. University of Regina, [1979] 2 S.C.R. 561), or even a substantive jurisdictional error (Canadian Pacific Limited v. Matsqui Indian Band, [1995] 1 S.C.R. 3). |
| [15] Courts are similarly reluctant to intervene to review an interim or interlocutory decision prior to the conclusion of the proceeding before the administrative tribunal. There are a number of cases in which relief has been refused when the applicant has challenged the proceeding of a human rights tribunal prior to its rendering a final decision, including some involving allegations of bias: see, for example, Ontario College of Art v. Ontario (Ontario Human Rights Commission) (1992), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). |
| [. . .] |
| [18] . . . the exercise of the Court's discretion here turns principally on a weighing of two competing considerations. On the one hand are the possible hardships caused to Air Canada, and the time and resources that will have been wasted, if the bias question is not determined prior to the completion of the proceeding before the adjudicator. On the other hand, there are the adverse consequences of delaying the administrative process and of countenancing a multiplicity of litigation. |
[18] In my opinion, there are no special reasons here that would justify this Court in exercising its discretion under subsection 18.1(3) of the Federal Court Act to grant relief. The errors alleged by the applicant are not finally dispositive of a substantive right and they do not go to the legality of the Tribunal itself. These factors alone point to postponing review until a complete factual record can be compiled. Furthermore, the process before the Tribunal is designed to be summary in nature. Subsection 48.9(1) of the Act states:
| 48.9 (1) Proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow. |
48.9 (1) L'instruction des plaintes se fait sans formalisme et de façon expéditive dans le respect des principes de justice naturelle et des règles de pratique. |
[19] If the Court were to entertain applications for judicial review with respect to each and every interlocutory and preliminary decision in the course of the Tribunal's proceedings, the complaint process would be brought to a halt. Moreover, "[f]ragmentation of the issues raised by an administrative proceeding is wasteful of court resources and unduly burdens the administration of public programs."6
[20] In addition, I do not think that the applicant would suffer serious hardship if it were required to continue before the Tribunal without having the questions raised in its application resolved. Even if the Tribunal erred in dismissing the motions, that error may not affect the outcome of the complaints. If the applicant is ultimately successful before the Tribunal, this interlocutory challenge will have been unnecessary. Alternatively, if the applicant is unsuccessful, it can bring an application for judicial review of the final decision under section 18.1 of the Federal Court Act. At that time, the Court can consider the importance of the Tribunal's alleged error in dismissing the motions. Indeed, Létourneau J.A., in Szczecka, supra, stated, at page 75:
| . . . At that time she can seek review of any error on the admissibility of the evidence and any denial of natural justice which she may have suffered, whether it results from final judgment or from an interlocutory decision. |
[21] In the same vein, Sexton J.A., in Sabina Citron, supra, stated at paragraph [17]:
| In light of my conclusion that each and every ruling made by a Tribunal in the course of its proceedings cannot be the subject of an application for judicial review, it follows that the word "decision" contained in s. 18.1(2) cannot refer to every interlocutory decision a tribunal makes. A party against whom an interlocutory order has been made is not therefore under an obligation to immediately appeal in order to preserve his rights. In my view, the time period prescribed in s. 18.1(2) of the Federal Court Act does not begin to run until the final decision in the proceedings has been rendered. If the Tribunal's final decision is appealed, any objection to procedures taken during the hearing of the appeal can be raised at that time. |
Therefore, there is some other appropriate remedy available to the applicant for any possible error of the Tribunal in this matter.
[22] The respondents further argue that the applicant has recycled several of its unsuccessful arguments in Bell Canada v. CEP7 in its submissions before this Court. However, I do not consider it necessary and even appropriate to dispose of any other issue in this matter, given my conclusion that the application for judicial review is premature. Consequently, I do not intend to undertake the judicial review sought by the applicant. In the words of my colleague Gibson J. in Novopharm Ltd. v. Aktiebolaget Astra et al. (April 4, 1996), T-1859-95, "[t]o do so would effectively be to engage in the analysis that another judge of this Court might at a later date be required to take".
[23] For all the above reasons, I find that the application for judicial review must be dismissed on the grounds that it is premature. Costs are adjudicated against the applicant, in favour of the respondents.
JUDGE
OTTAWA, ONTARIO
July 7, 2000
__________________
1 [1999] 1 F.C. 113 at 138 (C.A.), reversing a Trial Division decision ((1998), 143 F.T.R. 81). Leave to appeal to the Supreme Court of Canada refused (July 8, 1999), S.C.C. Bulletin, 1999, page 1086.
2 [1996] 3 F.C. 789 at 802 (C.A.).
3 Tribunal's decision at page 4.
4 [1974] 1 F.C. 22 at 34, cited approvingly by this Court in Canada v. Schnurer Estate , [1997] 2 F.C. 545 (C.A.).
6 Air Canada, supra, at paragraph [26].
7 Supra, footnote 1. In that case, the Federal Court of Appeal dealt with four issues raised on appeal from a Trial Division decision quashing the decision of the Commission to refer the seven complaints at issue in the case at bar to a single human rights tribunal.