Federal Court Decisions

     Date : 19971219

     Docket : T-1257-97

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

     [Delivered from the Bench at Ottawa, Ontario

     on Thursday, December 18, 1997]

McGILLIS, J.

FACTS

[1]      The President of the Canadian Human Rights Tribunal ("Tribunal") has applied for leave to intervene in these judicial review proceedings.

[2]      In April 1997, the Tribunal, which had been appointed to inquire into a complaint of wage discrimination, heard evidence and arguments on a preliminary motion in which Bell Canada sought a ruling that the Tribunal was not an independent quasi-judicial body institutionally capable of providing a fair hearing in accordance with the principles of natural justice and fundamental freedom. In the alternative, Bell Canada requested the Tribunal to refer the question of its independence to the Court for determination. During the course of the hearing on the motion, the Tribunal heard extensive testimony from its Registrar, and received a considerable body of documentary evidence concerning its institutional structure and practices.

[3]      On June 4, 1997, the Tribunal issued a decision in which it concluded that it had jurisdiction to consider the question of its independence. As a result, it refused to refer that question to the Court for determination. The Tribunal also concluded, on the merits of the question argued before it, that it was "...an independent quasi-judicial body institutionally capable of providing a fair hearing in accordance with the principles of natural justice and fundamental freedom."

[4]      On June 10, 1997, Bell Canada filed an Originating Notice of Motion seeking to quash that decision on the following grounds, among others:

i)      [t]he Tribunal exceeded its jurisdiction, acted without jurisdiction and erred in law, contrary to subsection 18(4) of the Federal Court Act, in ruling that it is an independent quasi-judicial body institutionally capable of providing a fair hearing in accordance with the principles of natural justice, despite the institutional links between it and the Canadian Human Rights Commission (the "Commission") which appears as a party in interest before it;

ii)      [t]he Tribunal exceeded its jurisdiction, acted without jurisdiction and erred in law contrary to subsection 18(4) of the Federal Court Act in ruling that it is an independent quasi-judicial body institutionally capable of providing a fair hearing in accordance with the principles of natural justice, despite its being bound by the Equal Wages Guidelines issued by the Commission, which appears as a party in interest before it;

[5]      On June 16, 1997, Richard, J. issued an Order joining the application in the present file with two related applications for judicial review. He also ordered the parties to prepare one application record, and to adhere to a strict timetable in which all of the materials were to be filed on or before September 22, 1997.

[6]      On August 8, 1997, the Associate Chief Justice ordered the hearing to be held on January 19, 1998.

ISSUE

[7]      The question to be determined is whether the President of the Tribunal should be granted leave to intervene in these proceedings.

ANALYSIS

[8]      The principles applicable in determining whether an administrative tribunal may participate in appeal or judicial review proceedings were enunciated by Estey, J. in the leading case Northwestern Utilities Limited et al. v. The City of Edmonton, supra [1979] 1 S.C.R. 684, at pages 709 to 710:

It has been the policy in this Court to limit the role of an administrative tribunal whose decision is at issue before the Court, even where the right to appear is given by statute, to an explanatory role with reference to the record before the Board and to the making of representations relating to jurisdiction. (Vide The Labour Relations Board of the Province of New Brunswick v. Eastern Bakeries Limited et al.; The Labour Relations Board of Saskatchewan v. Dominion Fire Brick and Clay Products Limited et al.) Where the right to appear and present arguments is granted, an administrative tribunal would be well advised to adhere to the principles enunciated by Aylesworth J.A. in International Association of Machinists v. Genaire Ltd. and Ontario Labour Relations Board, at pp. 589, 590:

Clearly upon an appeal from the Board, counsel may appear on behalf of the Board and may present argument to the appellate tribunal. We think in all propriety, however, such argument should be addressed not to the merits of the case as between the parties appearing before the Board but rather to the jurisdiction or lack of jurisdiction of the Board. If argument by counsel for the Board is directed to such matters as we have indicated, the impartiality of the Board will be the better emphasized and its dignity and authority the better preserved, while at the same time the appellate tribunal will have the advantage of any submissions as to jurisdiction which counsel for the Board may see fit to advance.

Where the parent or authorizing statute is silent as to the role or status of the tribunal in appeal or review proceedings, this Court has confined the tribunal strictly to the issue of its jurisdiction to make the order in question. (Vide Central Broadcasting Company Ltd. v. Canada Labour Relations Board and International Brotherhood of Electrical Workers, Local Union No. 529.)

In the sense the term has been employed by me here, "jurisdiction" does not include the transgression of the authority of a tribunal by its failure to adhere to the rules of natural justice. In such an issue, when it is joined by a party to proceedings before that tribunal in a review process, it is the tribunal which finds itself under examination. To allow an administrative board the opportunity to justify its action and indeed to vindicate itself would produce a spectacle not ordinarily contemplated in our judicial traditions. In Canada Labour Relations Board v. Transair Ltd. et al, Spence J. speaking on this point, stated at pp. 746-7:

It is true that the finding that an administrative tribunal has not acted in accord with the principles of natural justice has been used frequently to determine that the Board has declined to exercise its jurisdiction to make the decision which it has purported to make. I am of the opinion, however, that this is a mere matter of technique in determining the jurisdiction of the Court to exercise the remedy of certiorari and is not a matter of the tribunal's defence of its jurisdiction. The issue of whether or not a board has acted in accordance with the principles of natural justice is surely not a matter upon which the Board, whose exercise of its functions is under attack, should debate, in appeal, as a protagonist and that issue should be fought out before the appellate or reviewing Court by the parties and not by the tribunal whose actions are under review. [Footnotes deleted]

[9]      In applying the principles in Northwestern Utilities Limited et al. v. The City of Edmonton, supra, to the facts of the present case, it is unnecessary for me to determine whether the central issue concerning the independence of the Tribunal is jurisdictional in nature. Even if I were to assume that the question of the Tribunal's independence relates to jurisdiction, it would be impossible for the President of the Tribunal to make submissions on that issue without becoming enmeshed in the merits of the case. In other words, the merits of this case squarely involve the question of the Tribunal's independence, the very issue which the President seeks to characterize as jurisdictional in order to support her proposed intervention in these proceedings. In the circumstances, I am satisfied that the Tribunal's appearance of impartiality, which is essential to permit it to discharge its statutory mandate, would be adversely affected by virtue of its President's participation in these proceedings as an intervenor. I have therefore concluded that the President of the Tribunal should not be accorded status as an intervenor, on the basis that her intervention would not comply with the requirements established in Northwestern Utilities Limited et al. v. The City of Edmonton, supra.

[10]      Alternatively, even if I am wrong in my principal conclusion in this matter, I have also determined that the intervention of the President of the Tribunal would serve no useful purpose in the present case. A review of the record filed in the judicial review proceedings confirms that extensive evidence has been adduced by the Registrar of the Tribunal concerning its institutional structure and practices. Furthermore, the Canadian Human Rights Commission has filed detailed arguments in support of the Tribunal's decision concerning its independence. In my opinion, the President of the Tribunal would be able to add little, if anything, of relevance to assist the Court in making its decision in this matter.

[11]      The motion seeking leave to intervene is therefore dismissed. I am indebted to counsel for their very able arguments.

Judge

OTTAWA, ONTARIO

December 19, 1997