Canadian Museum of Civilization Corporation v. Public Service Alliance of Canada (Local 70396), 2006 FC 703

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 S.C.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.

18. (3) On an application for judicial review, the Federal Court may ( a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or ( b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

18. (3) Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut : a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.

[48]            In Markevich v. Canada, [1999] 3 F.C. 28 (T.D.) at paragraph 11, Justice John Evans explained the breadth of subject-matters that may be properly brought before the Court on judicial review:

It seems to me that the permitted subject-matter of an application for judicial review is contained in section 18.1(3), which provides that on an application for judicial review the Trial Division may order a federal agency to do any act or thing that it has unlawfully failed or refused to do, or declare invalid or set aside and refer back, prohibit or restrain "a decision, order, act or proceeding" or a federal board, commission or other tribunal". The word "act or proceeding" are clearly broad in scope and may include a diverse range of administrative action that does not amount to a "decision or order", such as subordinate legislation, reports or recommendations made pursuant to statutory powers, policy statements, guidelines and operating manuals, or any of the myriad forms that administrative action may take in the delivery by a statutory agency of a public program: see Krause v. Canada, [[1999] 2 F.C. 476 (C.A.)].

The Court has held that a wide range of administrative actions fall within the Federal Court's jurisdiction in numerous other cases, including Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 694; Morneault v. Canada (Attorney General), [2001] 1 F.C. 30 (C.A.), and Larny Holdings (c.o.b Quickie Convenience Stores) v. Canada (Minister of Health), [2003] 1 F.C. 541 (T.D.).

[49]            In the present case, CMCC is in essence applying to judicially review the Commission's "inaction" - that is, the Commission's refusal to withdraw PSAC's complaint from the Tribunal. Paragraph 18.1(4)(a) of the Federal Courts Act allows the Court to grant a remedy prescribed under subsection 18.1(3) if the Court is satisfied that a federal board, commission or other tribunal "refused to exercise its jurisdiction." As a result, with respect to the first argument made by PSAC, it matters not whether the Commission made a "decision" for the Court to have jurisdiction over this application for judicial review.

[50]            I will now turn to PSAC's and the Commission's second argument that the Court has no jurisdiction over this application because the Commission was not acting at the material time in the capacity of a "federal board, commission or other tribunal." It is not disputed that to be reviewable under section 18.1 a matter must emanate from a federal board, commission or other tribunal. Section 2 of the Federal Courts Act defines a federal board, commission or other tribunal as follows:

"federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;

« office fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion de la Cour canadienne de l'impôt et ses juges, d'un organisme constitué sous le régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes nommées aux termes d'une loi provinciale ou de l'article 96 de la Loi constitutionnelle de 1867.

Section 2 requires that in order to qualify as a matter subject to judicial review, the impugned administrative action must be an act or proceeding of a body or person "having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament."

[51]            PSAC and the Commission both assert that, once the Commission refers a complaint to the Tribunal, the Commission is no longer in the position of being an administrative decision maker with respect to that complaint. Rather, the Commission becomes merely one of the parties to the Tribunal's proceeding. As such, PSAC and the Commission submit, any decision made by the Commission as a party before the Tribunal is not made in the Commission's capacity as a "federal board, commission or other tribunal." Consequently, it follows that the Commission's decisions, actions or inactions are not subject to judicial review by the Federal Court.

[52]            For its part, CMCC essentially takes the position that even if the Commission is a party before the Tribunal, it is still required to "screen" complaints, pursuant to sections 41 and 44 of the Act, at all times during the course of the Tribunal's proceedings. As such, the Commission is acting as a federal board, commission or other tribunal if it refuses to exercise these statutory obligations.

[53]            In general, I accept PSAC and the Commission's characterization that the Commission's status before the Tribunal is as a party. Subsection 50(1) of the Act clearly identifies the Commission as one of the parties to the Tribunal's proceeding:

50. (1) After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations.

50. (1) Le membre instructeur, après avis conforme à la Commission, aux parties et, à son appréciation, à tout intéressé, instruit la plainte pour laquelle il a été désigné; il donne à ceux-ci la possibilité pleine et entière de comparaître et de présenter, en personne ou par l'intermédiaire d'un avocat, des éléments de preuve ainsi que leurs observations.

Moreover, it is clear that the legislative intent underlying the Act is to confer jurisdiction over the Complaint to the Tribunal once the Commission requests that an inquiry be initiated by the Tribunal. Subsection 49(2) of the Act stipulates that the Tribunal, upon receiving a referral from the Commission, must assign a member or panel of the Tribunal to inquire into the complaint. Further, sections 50 and 52 to 54 set out the powers of the Tribunal in the course of conducting an inquiry into a complaint and in determining the merits of the complaint. For instance, under subsection 50(2), the Tribunal has the authority to decide all questions of law or fact necessary to determining the matter.

[54]            However, the question before the Court does not concern the Commission's conduct as a party to the Tribunal hearing, but rather the Commission's obligation with respect to its screening function. The contention of CMCC is that this function continues, even after a Tribunal proceeding is initiated. The preliminary issue, then, is whether in respect of such a matter, the Commission is acting as a federal board, commission or other tribunal. According to Donald Brown and Justice Evans in Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 1998, loose-leaf edition), cited in Larny, above at paragraph 26, the determinative issue is not the specific type of power exercised, but merely whether the Commission derives its power from an Act of Parliament:

In the result, the source of a tribunal's authority, and not the nature of either the power exercised or the body exercising it, is the primary determinant of whether it falls within the definition [of a federal board, commission or other tribunal]. The test is simply whether the body is empowered by or under federal legislation or by an order made pursuant to a prerogative power of the federal Crown.

The source of the Commission's screening function clearly emanates from the Act, in particular sections 40 to 44. If, as CMCC alleges, the Commission was required to withdraw PSAC's Complaint, and if it refused or failed to do so, then it seems to me that the Commission must be acting in this capacity as a "federal board, commission or other tribunal."

[55]            I note that, even in its role as a party, the Commission's authority is still governed by the Act. Section 51 provides that, through its participation at the Tribunal hearing, the Commission must pursue the public interest.

51. In appearing at a hearing, presenting evidence and making representations, the Commission shall adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint.

51. En comparaissant devant le membre instructeur et en présentant ses éléments de preuve et ses observations, la Commission adopte l'attitude la plus proche, à son avis, de l'intérêt public, compte tenu de la nature de la plainte.

[56]            In summary, I am of the opinion that CMCC's application for judicial review is not defeated on this threshold issue - that is, I find that the Court has the jurisdiction to hear this application. However, in order to obtain the relief sought, CMCC must still establish that the Commission has the power and was under a statutory or other legal obligation to withdraw PSAC's Complaint in the circumstances of this case.

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?

[57]            For the Court to grant a remedy to CMCC in the nature of ordering the Commission to withdraw PSAC's Complaint from the Tribunal, or to exercise its discretion to do so, CMCC must first show that the Commission is required by the Act and the jurisprudence to do so in the circumstances. To reiterate, CMCC asserts that the requisite statutory authority is found in sections 41 and 44 of the Act, and that the obligation to withdraw the Complaint is supported by the Tribunal's decision in Kamani and the other cases cited above. PSAC and the Commission counter, citing McKenzie Forest Products, and Premakumar, that the Commission has no authority to unilaterally withdraw a complaint that is before the Tribunal, as the complainant has a status independent of the Commission.

[58]            It seems to me that, at this point, CMCC's contention comes up against the principle of functus officio. In Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, the Supreme Court of Canada held that functus officio applies to decisions made by administrative decision makers. At page 861, the Supreme Court stated the following:

As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [ [1934] S.C.R. 186">[1934] S.C.R. 186 - that is, where there was an error in expressing the manifest intention of the court.]

Hence, on the present facts, in order to overcome the functus officio principle, CMCC needs to show a clear statutory power for the Commission to withdraw the Complaint following referral. As I will discuss, I do not think that any such power can be found in the wording or the scheme of the Act, or in the authorities cited by CMCC.

[59]            It may be useful to recap what I understand to be the decisions made by the Commission in performing its screening function under the statutory provisions set out in sections 40 to 44 of the Act. First, the Commission decided to initiate the Complaint under subsection 40(3). Upon determining that the Complaint did not fall within the exceptions set out in section 41, the Commission dealt with the Complaint by conducting an investigation under section 43 of the Act. After receiving its investigator's report, the Commission made a decision pursuant to paragraph 44(3)(a) to appoint a conciliator and then to request that the Tribunal initiate an inquiry after conciliation failed to resolve the Complaint.

[60]            As can be seen from the above characterization, the Commission's final decision was the one it made pursuant to section 44 of the Act. Subject to judicial review quashing that decision, or statutory authority permitting the Commission to reconsider its decision, in my view the Commission is functus with respect to making a decision in performance of its screening role under the Act. As noted earlier, CMCC did not apply to judicially review the Commission's decision to refer the Complaint to the Tribunal. Moreover, in this application for judicial review, CMCC does not point to any statutory provision allowing the Commission to revisit its decision made under subsection 44(3), and I find no such provision in the Act. In sum, I am of the view that the principle of functus officio and the lack of a statutory power to reconsider a referral decision negates CMCC's submission that the Commission should have, essentially, decided again after referral whether the evidence was sufficient to warrant a continuation of the Tribunal inquiry, given the comments the Commission made in its Statement of Case. I also find that the principle of functus officio and the lack of a clear statutory power to reconsider the referral decision undercuts the notion that the Commission has a "continuing duty" to screen complaints after referral.

[61]            In addition to this basic difficulty with the position put forward by CMCC, I also find that the wording and scheme of the Act are against CMCC's assertion of a continuing power of withdrawal by the Commission following the referral of a complaint to the Tribunal, and I do not think that the cases cited by CMCC are persuasive for any such power.

[62]            In Kamani, after deciding that the complaint should be dismissed on its merits, Chairperson Lederman turned to his comments under the heading, "the Role of the Commission in Assessing the Complaint." It is apparent that the Chairperson was intent on chastising the Commission for not diligently performing its screening function and for pursuing the complaint at the hearing even though there was "not a scintilla of evidence" to support the "Commission's complaint." The Chairperson in Kamani reasoned that, had the Commission done an adequate job in screening the complaint, the matter would not have been referred to the Tribunal. The Chairperson also took issue with the Commission for continuing to pursue the complaint "to the bitter end," even after the Commission's counsel acknowledged that there was not much evidence to support the complaint. This was the backdrop to the Chairperson's comment that the Commission has "a continuing duty to assess whether a tribunal hearing is warranted."

[63]            With respect, I do not agree with Chairperson Lederman that the Act contemplates the Commission having an ongoing obligation, once the matter is before the Tribunal, to assess or reassess whether the evidence remains "sufficient" to support the "referral" to the Tribunal, unless he means by this that, as a party to the inquiry, the Commission's public interest obligation requires it to continuously assess whether it should take the same view of a complaint before the Tribunal that it took in making the referral. However, I certainly recognize that the Chairperson was dealing with a very frustrating situation which led him to make his remarks. In my view, there are a number of key facts which qualify Chairperson Lederman's analysis and which distinguish Kamani from the present case.

[64]            First, despite his comments about the Commission's continuing duty, the Chairperson did not state specifically how, under the statutory scheme of the Act, the "ongoing-ness" of this duty is prescribed. The Chairperson merely references the provisions governing the Commission's screening function provided for in sections 41 to 44. He points to nothing in the language of those provisions that keeps the Commission's screening powers alive once it has made a decision to either dismiss a complaint or refer it to the Tribunal. Moreover, I note that in Kamani, the Tribunal itself made the decision on the merits of the complaint. That is, the Tribunal did not "send the matter" back to the Commission for a reassessment of the sufficiency of the evidence warranting referral, which accordingly would have decided the complaint on its merits. That the Tribunal decided the matter is consistent with its decision-making authority under the Act and the jurisprudence. In BellCanada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) at paragraph 37, Justice Raymond Décary emphasized the independent role of the Tribunal as follows:

... It will be the duty of the tribunal to determine whether the complaints are well founded or not and the tribunal will in no way be bound by the interpretation given to section 11 by the investigator and presumably adopted by the Commission.

As PSAC submits, it is the Tribunal that is required under the Act to make a decision on the merits of the Complaint, not the Commission.

[65]            Second, Chairperson Lederman stated in Kamani that "it should have been obvious that there was just no probative evidence to substantiate the complaint." As a result, it should have been obvious to the Commission that no further inquiry was warranted. In another case cited by CMCC, Sehmi, above, the Tribunal also found there to be no evidentiary basis to support the referral of the complaint to the Tribunal. In the present case, it is not possible to come to any conclusion as to the "obviousness" of the evidence. Aside from the fact that there are thousands of pages of documentary materials before the Tribunal - which include two expert reports that reach different conclusions - the parties also intend to introduce evidence through witness testimony and cross-examination of those witnesses. As the Tribunal did in Kamani and in Sehmi, the Tribunal in this case will eventually have to consider and weigh the evidence before it. Even if, in the end, the Tribunal concludes that PSAC's Complaint is not substantiated, that does not discredit the Commission's finding that there was sufficient evidence to justify referring the matter to the Tribunal. Moreover, to reiterate, after the Commission decided to refer the Complaint to the Tribunal, CMCC did not apply to judicially review that decision. I also wish further to note that nothing in the evidence signals to me that the Complaint was or is "trivial, frivolous or vexatious."

[66]            Third, and in my opinion most importantly, in Kamani, Chairperson Lederman relied on the decision of the Board of Inquiry in Nimako, above, a case which concerned a complaint made under the Ontario Human Rights Code. As cited by Chairperson Lederman, the Board of Inquiry determined that the Human Rights Commission's discretion under paragraph 33(1)(b) of the Ontario Code included the discretion to withdraw the complaint "at any stage of the process." I agree with PSAC and the Commission that McKenzie Forest Products, above, essentially overturned such an interpretation of the relevant statutory provisions. In that case, the Ontario Court of Appeal specifically addressed the role of the Commission during the Board of Inquiry's proceedings and the jurisdiction of the Board of Inquiry, and made the following four findings:

1)         The complainant has a status as a party to the Board of Inquiry independent to that of the Commission;

2)         Once the Commission refers the complaint to the Board of Inquiry, the role of the Commission fundamentally changes. The Commission no longer acts as a screening body but becomes part of the proceedings, and the Board of Inquiry becomes responsible for determining the complaint;

3)         The Board of Inquiry is an autonomous tribunal independent of the Commission; and

4)         The Board of Inquiry does not lose jurisdiction to continue with the hearing of the complaint when the Commission decides not to participate further in the proceedings.

In my view, the Board of Inquiry's decision in Nimako is not consistent with the decision of the Ontario Court of Appeal in McKenzie Forest Products and, as such, cannot be followed.

[67]            In Premakumar, above, Chairperson Mactavish drew upon the Ontario Court of Appeal's decision in McKenzie Forest Products in commenting on the relationship between the Commission and the complainant when the complaint is before the Tribunal. I agree with Chairperson Mactavish's conclusion that the Commission does not represent complainants before the Tribunal and that complainants have their own independent right to advance their interests. The role of the Commission before the Tribunal under the Act is not to advance the complaint, but rather to represent the interests of the public. In some cases, the Commission's position may be the same as that of the complainant; in other cases, the Commission may take a position in opposition to that of the complainant - this appears likely to be the situation in the present case. Further, as the Commission submits in this application for judicial review, the Commission may very well decide that no public interest purpose is served by its involvement at the Tribunal hearing, and as a consequence the Commission may not appear as a party. Even if the Commission were to withdraw itself as a party in the present case, PSAC could, and has stated that it would, continue to push forward with its Complaint. Moreover, as PSAC and the Commission submit, finding that the Commission can unilaterally withdraw the Complaint would clearly interfere with PSAC's right to pursue its own interests as a party before the Tribunal. In my view, contrary to Chairperson Lederman's characterization in Kamani, this Complaint is PSAC's complaint, not the Commission's complaint.

[68]            In summary, I am of the view that Kamani does not correctly state the law as it concerns the Commission's role and statutory obligations when a complaint is before the Tribunal. Certainly, I have no disagreement with Chairperson Lederman imploring the Commission to exercise its screening function diligently and thoroughly. In fact, the duty of procedural fairness requires that of the Commission: see Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), aff'd (1996), 20 N.R. 383 (F.C.A.). However, the proper mechanism to remedy an allegedly wrong decision arising from the Commission's screening function is to judicially review that decision; it is not to allow or require the Commission to revisit its decision to refer a complaint during the course of the Tribunal's proceedings. The Commission's decision made pursuant to subsection 44(3), as I stated above, is final as regards referral even though (and I believe this is what Chairperson Lederman had in mind) the Commission needs to continuously assess its position as a party to the proceedings before the Tribunal, and that may mean taking a different position from the one it held at the time of the referral.

[69]            CMCC also cites Grover, above, a decision of the Federal Court, for the proposition that "the Commission is perfectly entitled to change its mind and take a fresh look at a Complaint." I am at a loss to see how Grover assists CMCC in its contention that the Commission in the present case was obligated to withdraw the Complaint. While Justice Sean Harrington does cite Kamani in his reasons, the context in Grover was significantly different from that case. The facts in Grover are somewhat complicated, involving four separate complaints alleging racial discrimination. Initially, after conducting investigations into three of the complaints, the Commission referred one complaint to the Tribunal and dismissed two complaints. The complainant, Dr. Grover, applied to judicially review the Commission's decisions to dismiss his complaints. The Court allowed his application on the basis that a key witness had not been interviewed. By the time the Court rendered its decision, Dr. Grover had filed his fourth complaint. On reconsideration, despite the fact that the witnesses denied Dr. Grover's allegations and without completing an investigation into the fourth complaint, the Commission decided that all four of Dr. Grover's complaints should be referred to the Tribunal. The employer then sought judicial review of the Commission's decision, which is how the matter arrived before Justice Harrington. In my view, Grover can be distinguished from Kamani and the present case simply on the basis that Justice Harrington was dealing with an application to judicially review the Commission's decision made pursuant to subsection 44(3) of the Act.

[70]            Finally, I wish to comment on CMCC's reliance on the decision in British Columbia(Police Complaint Commissioner) v. Vancouver(City) Police Department. In that case, the British Columbia Supreme Court held that the Police Complaint Commissioner had the authority to unilaterally withdraw a notice of a public hearing - in relation to a public trusts complaint - even if the complainants objected to such a withdrawal. Justice Goepel determined that under the Police Act, the Police Complaints Commissioner has the discretion to decide whether a public inquiry is necessary in the public interest, and that such discretion is continuing. As such, the Police Complaints Commissioner has the power to unilaterally initiate a public hearing as well as to unilaterally end a public hearing, if the public interest so dictates. I agree with PSAC that this case is distinguishable from the present case, in particular because the statutory scheme covering police complaints is different from the legislative scheme at issue in this application for judicial review. Under the Police Act, the Police Complaints Commissioner is required to consider the public interest at all times in determining whether an inquiry is warranted or still warranted. By contrast, nothing in the Act requires the Commission to make determinations based on the public interest except, as section 51 prescribes, in relation to its representations at the Tribunal hearing. Furthermore, a public hearing under the police complaints process in British Columbia is not a contest between a police officer and a complainant, although it does have some elements of an adversarial process. Moreover, in such a proceeding, the complainant does not face determination of her or his legal rights or obligations. In a human rights complaint under the Act, clearly there are parties in opposition to each other, and the rights of the complainant are implicated. Finally, as Justice Goepel noted, it is Police Complaints Commissioner's counsel, not the complainant, who is responsible for presenting the case to the adjudicator; essentially, commission counsel serves a quasi-prosecutorial role. As indicated earlier, in the Tribunal proceedings under the Act, the complainant maintains a status independent to that of the Commission. Given the differences cited above, I do not find the authority of the Police Complaints Commissioner in British Columbia to be analogous to that of the Commission under the Act.

[71]            To recap, I agree with PSAC and the Commission that under the Act, the Commission does not have the statutory authority to unilaterally withdraw a complaint that is before the Tribunal, nor an obligation to do so. As there is no statutory authority directing the Commission to take the action requested by CMCC, I am of the view that the Court cannot grant the remedy that CMCC seeks in this application.

3.          Did the Commission err by not withdrawing PSAC's complaint in the circumstances of this case?

[72]            Although my above finding is determinative, I will still consider this final issue. As noted above, what underlies CMCC's entire judicial review application is its assertion that the Commission withdrew the Haignière's Report. In my view, that assertion is not consistent with the facts.

[73]            After reviewing the record before the Court, I find that CMCC has mischaracterized the reason behind the Commission's decision not to call Dr. Haignière as a witness at the Tribunal hearing. In its Memorandum of Fact and Law, CMCC quotes an excerpt from the transcript of the May 11, 2005 telephone conference in which counsel for the Commission, Mr. O'Rourke, is recorded as stating: "...for reasons that I cannot really go into right now the Commission will not be calling Lois Haignière. There is some availability problems... ." CMCC then, in its Memorandum, states that there were no availability problems and "Haignière was available to be called."

[74]            In my understanding of the circumstances, the issue of availability for the Commission was not whether Dr. Haignière had the time to appear before the Tribunal hearing. Rather, the issue was whether Dr. Haignière was available - considering her time and the cost to the Commission - to review the enormous amount of additional documents disclosed by the parties under the Tribunal rules, and to revise her report accordingly and her conclusion if necessary. It appears from the record that the Commission was unable to retain Dr. Haignière to take on such a significant task. As Mr. O'Rourke stated during the conference call, the Commission was requesting an extension of eight weeks in order to retain another expert. Although his comments are somewhat vague, I infer that he was suggesting that the Commission needed to find another expert for the purpose of reviewing the additional materials and writing a report based on all the documentary evidence then before the Tribunal. That, in fact, turned out to be the case.

[75]            The reason behind the Commission's decision not to call Dr. Haignière as a witness before the Tribunal is clearly set out in the Commission's Statement of Case, submitted to the Tribunal on July 20, 2005. In the passage cited by CMCC in this application for judicial review, the Commission's counsel stated:

... Following the full documentary disclosure provided by 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. ...

[76]            It is clear to me that the Commission was put into a position of having to retain another expert because CMCC had disclosed - in the words of CMCC's counsel during the May 11, 2005 conference call - "thousands of pages of documents." As noted above, PSAC also determined it necessary, or prudent, to retain its own expert to prepare a report based on all the materials before the Tribunal.

[77]            I find no nefarious intention behind the Commission's decision not to call Dr. Haignière as a witness. In fact, her testimony may not even be relevant to the proceedings, given that additional information was disclosed subsequent to her report which may have affected her opinion as to the merits of the Complaint. In any event, nothing in the record indicates that the Commission withdrew Dr. Haignière's report. Moreover, there is no evidence to suggest that the Commission concluded that the Haignière Report was unreliable or that Dr. Haignière's findings were erroneous, based on the materials before her - that is, there is no evidence that the Commission resiled from its reliance on the Haignière Report in making its decision to refer PSAC's Complaint to the Tribunal. Without any evidence to the contrary, I find that the Haignière Report still forms the basis of the Commission's decision to request a tribunal, and still forms part of the evidentiary record before the Tribunal.

[78]            As a final comment on this matter, I wish to note that at no time - including in this present application for judicial review - did CMCC take issue with the validity of the Haignière Report. As CMCC submits, the Commission essentially incorporated the Haignière's Report into its finding that, having regard to all the circumstances, further inquiry into the Complaint by the Tribunal was warranted. If CMCC had been of the view that the Haignière's Report was deficient, thereby tainting the Commission's decision to refer PSAC's complaint to the Tribunal, then it was certainly open to CMCC to ask the Court to judicially review that decision. However, CMCC did not make such an application. In my opinion, CMCC is now asking, in effect, the Court to revisit the Commission's decision to refer PSAC Complaint, made on January 9, 2004, on the basis of "new evidence" - that is, evidence that was not before the Commission when it made its decision to refer.

CONCLUSION

[79]            For the above reasons, I would dismiss this application for judicial review with costs to PSAC and the Commission.

ORDER

THIS COURT ORDERS that:

1.          The application for judicial review is dismissed; and

2.          Costs will be awarded to the Respondent and to the Intervener.

"James Russell"

Judge

SCHEDULE "A"

CANADIAN HUMAN RIGHT ACT R.S. 1985, c. H-6 PURPOSE 2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. PROHIBITED GROUNDS 3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. (2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. DICRIMINATORY PRACTICES Discriminatory Policy and Practices 10. It is a discriminatory practice for an employer, employee organization or employer organization (a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. Equal Wages 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. (3) 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 the same establishment. (4) 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 27(2), to be a reasonable factor that justifies the difference. (5) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages. (6) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section. (7) For the purposes of this section, "wages" means any form of remuneration payable for work performed by an individual and includes (a) salaries, commissions, vacation pay, dismissal wages and bonuses; (b) reasonable value for board, rent, housing and lodging; (c) payments in kind; (d) employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans; and (e) any other advantage received directly or indirectly from the individual's employer. THE COMMISSION Complaints 40. (1) Subject to subsections (5) and (7), 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. (2) If a complaint is made by someone other than the individual who is alleged to be the victim of the discriminatory practice to which the complaint relates, the Commission may refuse to deal with the complaint unless the alleged victim consents thereto. (3) Where the Commission has reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice, the Commission may initiate a complaint. (3.1) No complaint may be initiated under subsection (3) as a result of information obtained by the Commission in the course of the administration of the Employment Equity Act. (4) If complaints are filed jointly or separately by more than one individual or group alleging that a particular person is engaging or has engaged in a discriminatory practice or a series of similar discriminatory practices and the Commission is satisfied that the complaints involve substantially the same issues of fact and law, it may deal with the complaints together under this Part and may request the Chairperson of the Tribunal to institute a single inquiry into the complaints under section 49. ... Commission to Deal with the Complaint 41. (1) Subject to section 40, 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; (b) the complaint 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; (c) the complaint is beyond the jurisdiction of the Commission; (d) the complaint is trivial, frivolous, vexatious or made in bad faith; or (e) the complaint 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. (2) The Commission may decline to deal with a complaint referred to in paragraph 10(a) in respect of an employer where it is of the opinion that the matter has been adequately dealt with in the employer's employment equity plan prepared pursuant to section 10 of the Employment Equity Act. (3) In this section, "employer" means a person who or organization that discharges the obligations of an employer under the Employment Equity Act. Notice 42. (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. (2) Before deciding that a complaint will not be dealt with because a procedure referred to in paragraph 41(a) has not been exhausted, the Commission shall satisfy itself that the failure to exhaust the procedure was attributable to the complainant and not to another. Investigation 43. (1) The Commission may designate a person, in this Part 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). ... Investigator's report 44. (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 referred to 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 means of 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 referred to in subsection (1), the Commission (a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and (ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or (b) shall dismiss the complaint to which the report relates if it is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e). (4) After receipt of a report referred to 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). Appointment of a Conciliator 47. (1) Subject to subsection (2), the Commission may, on the filing of a complaint, or if the complaint has not been (a) settled in the course of investigation by an investigator, (b) referred or dismissed under subsection 44(2) or (3) or paragraph 45(2)(a) or 46(2)(a), or (c) settled after receipt by the parties of the notice referred to in subsection 44(4), appoint a person, in this Part referred to as a "conciliator", for the purpose of attempting to bring about a settlement of the complaint. (2) A person is not eligible to act as a conciliator in respect of a complaint if that person has already acted as an investigator in respect of that complaint. (3) Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information. THE TRIBUNAL Request for an Inquiry 49. (1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted. (2) On receipt of a request, the Chairperson shall institute an inquiry by assigning a member of the Tribunal to inquire into the complaint, but the Chairperson may assign a panel of three members if he or she considers that the complexity of the complaint requires the inquiry to be conducted by three members. ... Conduct of Inquiries 50. (1) After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations. (2) In the course of hearing and determining any matter under inquiry, the member or panel may decide all questions of law or fact necessary to determining the matter. (3) In relation to a hearing of the inquiry, the member or panel may (a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the complaint; (b) administer oaths; (c) subject to subsections (4) and (5), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law; (d) lengthen or shorten any time limit established by the rules of procedure; and (e) decide any procedural or evidentiary question arising during the hearing. (4) The member or panel may not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence. ... Duty of the Commission 51. In appearing at a hearing, presenting evidence and making representations, the Commission shall adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint. Determinations by the Tribunal 53. (1) At the conclusion of an inquiry, the member or panel conducting the inquiry shall dismiss the complaint if the member or panel finds that the complaint is not substantiated. (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate: (a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including (i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or (ii) making an application for approval and implementing a plan under section 17; (b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice; (c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; (d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and (e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice. ...

LOI CANADIENNE SUR LES DROITS DE LA PERSONNE L.R. (1985), ch. H-6 OBJET 2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, la déficience ou l'état de personne graciée. MOTIFS DE DISTINCTIONS ILLICITE 3. (1) Pour l'application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience. (2) Une distinction fondée sur la grossesse ou l'accouchement est réputée être fondée sur le sexe. ACTES DISCRIMINATOIRES Lignes de conduites discriminatoires 10. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite et s'il est susceptible d'annihiler les chances d'emploi ou d'avancement d'un individu ou d'une catégorie d'individus, le fait, pour l'employeur, l'association patronale ou l'organisation syndicale : a) de fixer ou d'appliquer des lignes de conduite; b) de conclure des ententes touchant le recrutement, les mises en rapport, l'engagement, les promotions, la formation, l'apprentissage, les mutations ou tout autre aspect d'un emploi présent ou éventuel. Disparité salariale discriminatoire 11. (1) Constitue un acte discriminatoire le fait pour l'employeur d'instaurer ou de pratiquer la disparité salariale entre les hommes et les femmes qui exécutent, dans le même établissement, des fonctions équivalentes. (2) Le critère permettant d'établir l'équivalence des fonctions exécutées par des salariés dans le même établissement est le dosage de qualifications, d'efforts et de responsabilités nécessaire pour leur exécution, compte tenu des conditions de travail. (3) Les établissements distincts qu'un employeur aménage ou maintient dans le but principal de justifier une disparité salariale entre hommes et femmes sont réputés, pour l'application du présent article, ne constituer qu'un seul et même établissement. (4) Ne constitue pas un acte discriminatoire au sens du paragraphe (1) la disparité salariale entre hommes et femmes fondée sur un facteur reconnu comme raisonnable par une ordonnance de la Commission canadienne des droits de la personne en vertu du paragraphe 27(2). (5) Des considérations fondées sur le sexe ne sauraient motiver la disparité salariale. (6) Il est interdit à l'employeur de procéder à des diminutions salariales pour mettre fin aux actes discriminatoires visés au présent article. (7) Pour l'application du présent article, « salaire » s'entend de toute forme de rémunération payable à un individu en contrepartie de son travail et, notamment : a) des traitements, commissions, indemnités de vacances ou de licenciement et des primes; b) de la juste valeur des prestations en repas, loyers, logement et hébergement; c) des rétributions en nature; d) des cotisations de l'employeur aux caisses ou régimes de pension, aux régimes d'assurance contre l'invalidité prolongée et aux régimes d'assurance-maladie de toute nature; e) des autres avantages reçus directement ou indirectement de l'employeur. LA COMMISSION Plaintes 40. (1) Sous réserve des paragraphes (5) et (7), un individu ou un groupe d'individus ayant des motifs raisonnables de croire qu'une personne a commis un acte discriminatoire peut déposer une plainte devant la Commission en la forme acceptable pour cette dernière. (2) La Commission peut assujettir la recevabilité d'une plainte au consentement préalable de l'individu présenté comme la victime de l'acte discriminatoire. (3) La Commission peut prendre l'initiative de la plainte dans les cas où elle a des motifs raisonnables de croire qu'une personne a commis un acte discriminatoire. (3.1) La Commission ne peut prendre l'initiative d'une plainte qui serait fondée sur des renseignements qu'elle aurait obtenus dans le cadre de l'application de la Loi sur l'équité en matière d'emploi. (4) En cas de dépôt, conjoint ou distinct, par plusieurs individus ou groupes de plaintes dénonçant la perpétration par une personne donnée d'actes discriminatoires ou d'une série d'actes discriminatoires de même nature, la Commission peut, pour l'application de la présente partie, joindre celles qui, à son avis, soulèvent pour l'essentiel les mêmes questions de fait et de droit et demander au président du Tribunal d'ordonner, conformément à l'article 49, une instruction commune. [...] Irrecevabilité 41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants : a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts; b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale; c) la plainte n'est pas de sa compétence; d) la plainte est frivole, vexatoire ou entachée de mauvaise foi; e) la plainte a été déposée après l'expiration d'un délai d'un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances. (2) La Commission peut refuser d'examiner une plainte de discrimination fondée sur l'alinéa 10a) et dirigée contre un employeur si elle estime que l'objet de la plainte est traité de façon adéquate dans le plan d'équité en matière d'emploi que l'employeur prépare en conformité avec l'article 10 de la Loi sur l'équité en matière d'emploi. (3) Au présent article, « employeur » désigne toute personne ou organisation chargée de l'exécution des obligations de l'employeur prévues par la Loi sur l'équité en matière d'emploi. Avis 42. (1) Sous réserve du paragraphe (2), la Commission motive par écrit sa décision auprès du plaignant dans les cas où elle décide que la plainte est irrecevable. (2) Avant de décider qu'une plainte est irrecevable pour le motif que les recours ou procédures mentionnés à l'alinéa 41a) n'ont pas été épuisés, la Commission s'assure que le défaut est exclusivement imputable au plaignant. Enquête 43. (1) La Commission peut charger une personne, appelée, dans la présente loi, « l'enquêteur » , d'enquêter sur une plainte. (2) L'enquêteur doit respecter la procédure d'enquête prévue aux règlements pris en vertu du paragraphe (4). [...] Rapport de l'enquêteur 44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête. (2) La Commission renvoie le plaignant à l'autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas : a) que le plaignant devrait épuiser les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts; b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale. (3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission : a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue : (i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié, (ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e); b) rejette la plainte, si elle est convaincue : (i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié, (ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e). (4) Après réception du rapport, la Commission : a) informe par écrit les parties à la plainte de la décision qu'elle a prise en vertu des paragraphes (2) ou (3); b) peut informer toute autre personne, de la manière qu'elle juge indiquée, de la décision qu'elle a prise en vertu des paragraphes (2) ou (3). Nomination d'un conciliateur 47. (1) Sous réserve du paragraphe (2), la Commission peut charger un conciliateur d'en arriver à un règlement de la plainte, soit dès le dépôt de celle-ci, soit ultérieurement dans l'un des cas suivants : a) l'enquête ne mène pas à un règlement; b) la plainte n'est pas renvoyée ni rejetée en vertu des paragraphes 44(2) ou (3) ou des alinéas 45(2)a) ou 46(2)a); c) la plainte n'est pas réglée après réception par les parties de l'avis prévu au paragraphe 44(4). (2) Pour une plainte donnée, les fonctions d'enquêteur et de conciliateur sont incompatibles. (3) Les renseignements recueillis par le conciliateur sont confidentiels et ne peuvent être divulgués sans le consentement de la personne qui les a fournis. LA TRIBUNAL Instructions des plaintes 49. (1) La Commission peut, à toute étape postérieure au dépôt de la plainte, demander au président du Tribunal de désigner un membre pour instruire la plainte, si elle est convaincue, compte tenu des circonstances relatives à celle-ci, que l'instruction est justifiée. (2) Sur réception de la demande, le président désigne un membre pour instruire la plainte. Il peut, s'il estime que la difficulté de l'affaire le justifie, désigner trois membres, auxquels dès lors les articles 50 à 58 s'appliquent. [...] Conduite des instructions 50. (1) Le membre instructeur, après avis conforme à la Commission, aux parties et, à son appréciation, à tout intéressé, instruit la plainte pour laquelle il a été désigné; il donne à ceux-ci la possibilité pleine et entière de comparaître et de présenter, en personne ou par l'intermédiaire d'un avocat, des éléments de preuve ainsi que leurs observations. (2) Il tranche les questions de droit et les questions de fait dans les affaires dont il est saisi en vertu de la présente partie. (3) Pour la tenue de ses audiences, le membre instructeur a le pouvoir : a) d'assigner et de contraindre les témoins à comparaître, à déposer verbalement ou par écrit sous la foi du serment et à produire les pièces qu'il juge indispensables à l'examen complet de la plainte, au même titre qu'une cour supérieure d'archives; b) de faire prêter serment; c) de recevoir, sous réserve des paragraphes (4) et (5), des éléments de preuve ou des renseignements par déclaration verbale ou écrite sous serment ou par tout autre moyen qu'il estime indiqué, indépendamment de leur admissibilité devant un tribunal judiciaire; d) de modifier les délais prévus par les règles de pratique; e) de trancher toute question de procédure ou de preuve. (4) Il ne peut admettre en preuve les éléments qui, dans le droit de la preuve, sont confidentiels devant les tribunaux judiciaires. [...] Obligation de la Commission 51. En comparaissant devant le membre instructeur et en présentant ses éléments de preuve et ses observations, la Commission adopte l'attitude la plus proche, à son avis, de l'intérêt public, compte tenu de la nature de la plainte. Décisions de la Tribunal 53. (1) À l'issue de l'instruction, le membre instructeur rejette la plainte qu'il juge non fondée. (2) À l'issue de l'instruction, le membre instructeur qui juge la plainte fondée, peut, sous réserve de l'article 54, ordonner, selon les circonstances, à la personne trouvée coupable d'un acte discriminatoire : a) de mettre fin à l'acte et de prendre, en consultation avec la Commission relativement à leurs objectifs généraux, des mesures de redressement ou des mesures destinées à prévenir des actes semblables, notamment : (i) d'adopter un programme, un plan ou un arrangement visés au paragraphe 16(1), (ii) de présenter une demande d'approbation et de mettre en oeuvre un programme prévus à l'article 17; b) d'accorder à la victime, dès que les circonstances le permettent, les droits, chances ou avantages dont l'acte l'a privée; c) d'indemniser la victime de la totalité, ou de la fraction des pertes de salaire et des dépenses entraînées par l'acte; d) d'indemniser la victime de la totalité, ou de la fraction des frais supplémentaires occasionnés par le recours à d'autres biens, services, installations ou moyens d'hébergement, et des dépenses entraînées par l'acte; e) d'indemniser jusqu'à concurrence de 20 000 $ la victime qui a souffert un préjudice moral. [...]

FEDERAL COURTS ACT R.S.C. 1985, c. F-7 2. "federal board, commission or other tribunal" means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867 18. (1) Subject to section 28, the Federal Court 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. ... (3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1. 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. (2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days. (3) On an application for judicial review, the Federal Court may ( a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or ( b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) 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; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. (5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and (b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate.

LOI SUR LES COURS FÉDÉRALES L.R.C. (1985), ch. F-7 2. « office fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion de la Cour canadienne de l'impôt et ses juges, d'un organisme constitué sous le régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes nommées aux termes d'une loi provinciale ou de l'article 96 de la Loi constitutionnelle de 1867. 18. (1) Sous réserve de l'article 28, la Cour fédérale a compétence exclusive, en première instance, pour : a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral; b) connaître de toute demande de réparation de la nature visée par l'alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d'obtenir réparation de la part d'un office fédéral. [...] (3) Les recours prévus aux paragraphes (1) ou (2) sont exercés par présentation d'une demande de contrôle judiciaire. 18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande. (2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Cour fédérale peut, avant ou après l'expiration de ces trente jours, fixer ou accorder. (3) Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut : a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral. (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas : a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. (5) La Cour fédérale peut rejeter toute demande de contrôle judiciaire fondée uniquement sur un vice de forme si elle estime qu'en l'occurrence le vice n'entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l'ordonnance entachée du vice et donner effet à celle-ci selon les modalités de temps et autres qu'elle estime indiquées.

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1442-05

STYLE OF CAUSE:                           CANADIAN MUSEUM OF CIVILIZATION CORPORATION

                                                                                                                                    Applicant

and

                                                            PUBLIC SERVICE ALLIANCE OF CANADA (LOCAL 70396)

                                                                                                            Respondent

                                                                        and

                                                 CANADIAN HUMAN RIGHTS COMMISSION

                                                                                                                                     Intervener

                                                           

PLACE OF HEARING:                     OTTAWA, ONTARIO

DATE OF HEARING:                       MAY 30th, 2006

REASONS FOR ORDER:                THE HONOURABLE MR. JUSTICE

                                                            JAMES RUSSELL

DATED:                                              June 6, 2006

APPEARANCES:

Mr. Lawrence A. Elliot             FOR THE APPLICANT

Ms. Mandy E. Moore               

Mr. Andrew J. Raven               FOR THE RESPONDENT

Ms. Alison M. Dewar               PUBLIC SERVICE ALLIANCE OF CANADA

                                                 (LOCAL 70396)

                                         

Ms. Pam MacEachern              FOR THE INTERVENER

                                                CANADIAN HUMAN RIGHTS COMMISSION

SOLICITORS OF RECORD:

Borden Ladner Gervais LLP

Ottawa, Ontario

                                                            FOR THE APPLICANT

Raven, Allen, Cameron, Ballantyne & Yasbeck LLP

Ottawa, Ontario

                                                          FOR THE RESPONDENT

                                                          PUBLIC SERVICE ALLIANCE OF CANADA

                                                           (LOCAL 70396)           

Nelligan O'Brien Payne LLP

Ottawa, Ontario                

                                                           FOR THE INTERVENER

                                                           CANADIAN HUMAN RIGHTS COMMISSION