Date: 20060619
Docket: T-1575-05
Citation: 2006 FC 785
Toronto, Ontario, June 19, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
RONALDO FILGUEIRA
Applicant
and
GARFIELD CONTAINER TRANSPORT INC.
Respondent
and
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of a member of the Canadian Human Rights Tribunal issued on August 17, 2005, 2005 CHRT 32, File No. T952/7204 wherein the Applicant's complaint was dismissed on the basis of the Respondent's application for non-suit.
[2] The Applicant Filgueira was at the relevant time employed by the Respondent Garfield Container Transport Inc. as a night watchman. He is Chilean and speaks Spanish with limited command of the English language. He was over seventy years of age when he filed a complaint against the Respondent alleging discrimination on the basis of national or ethnic origin and age in contravention of section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.
[3] This complaint was referred to the Tribunal by the Commission and proceeded to a hearing. At the hearing a request was made on behalf of the Applicant that English/Spanish translation be provided by the Tribunal at its expense. Some interpretation services were provided by the Tribunal. At the end of the presentation of the Applicant's evidence the Respondent moved for a non-suit. At that time the Respondent was asked by the Tribunal whether, if the non-suit was unsuccessful, the Respondent intended to lead evidence. The answer was yes. Without proceeding to the Respondent's evidence, the Tribunal considered the motion for non-suit and dismissed the Applicant's complaint. The Applicant has now sought judicial review. The Canadian Human Rights Commission was permitted to intervene in this proceeding. Its counsel filed a Record and made submissions to this Court.
[4] The Applicant's counsel in oral argument, raised three issues:
1. Did the Tribunal have jurisdiction to dismiss the complaint by way of an application for non-suit?
2. If the Tribunal had such jurisdiction, did it err in law in considering irrelevant evidence in arriving at the decision to dismiss the complaint?
3. Did the Tribunal fail to provide natural justice in not providing, at the Tribunal's expense, interpretation into the Applicant's language throughout the proceedings?
[5] For the Reasons that follow I will dismiss the application for judicial review. However, before moving to consideration of the issues I am compelled to remark that the decision of the Commission made just a few years ago to abandon its role as the person having initial carriage of proceedings before the Tribunal, as is possible under the provisions of section 51 of the Act, appears to have given rise to problems such as those evident in this case. Here a night watchman sought the assistance of a paralegal working for a legal aid clinic to assemble evidence, prepare and present his case to the Tribunal. It is apparent to me that a better job of this could have been done had the Commission continued in its practice in that role. There may well never have been a motion for non-suit had the Commission assumed carriage of the case. I may well never have had to hear this application but now I must deal with it as it is.
Issue #1- Did the Tribunal have jurisdiction to dismiss the complaint by way of an application for non-suit?
[6] The concept of a non-suit has arisen out of a jury trial background, the essential question being whether any evidence has been led upon which it may be inferred that a jury could find, if such evidence were to be believed, that there was sufficient evidence to make out a party's case. A quotation from Sopinka, Lederman and Bryant, "Law of Evidence in Civil Cases" (2 Ed.) (1999) at paragraph 5.4 is often used by the Courts in respect of this proposition:
The trial judge, in performing this function, does not decide whether he or she believes the evidence. Rather, the judge decides whether there is any evidence, if left uncontradicted, to satisfy a reasonable person. The judge must conclude whether a reasonable trier of fact could find in the plaintiff's favour if it believed the evidence given in the trial up to that point. The judge does not decide whether the trier of fact should accept the evidence, but whether the inference that the plaintiff seeks in his or her favour could be drawn from the evidence adduced, if the trier of fact chose to accept it.
[7] Non-suit applications have been used in proceedings before the Tribunal in the past. A good example is Chopra v. Canada(Department of National Health and Welfare), [1999] C.H.R.D. No. 5. In that case the member was considering the issues as to whether a party seeking non-suit must first be put to an election not to lead evidence. It appears that it was assumed that the Tribunal could entertain an application for non-suit.
[8] In the present proceeding, the Applicant asserts that the Tribunal has no jurisdiction to entertain an application for non-suit. It does so for two reasons. First, he points out that nowhere in the Act is there a provision for such an application. Equally, of course, there is no provision prohibiting such an application. The Act is simply silent on the point.
[9] The second basis argues by the Applicant is that section 53(1) requires the member hearing the complaint to conclude the inquiry. Section 53(1) says:
| 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.
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53.(1) À l'issue de l'instruction, le membre instructeur rejette la plainte qu'il juge non fondée.
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[10] This, the Applicant argues, requires the Member to hear all of the evidence before making a decision. The Applicant draws upon statements such as those found in Nimako v. C.N. Hotels (1985), 6 C.H.R.R. 463 at paragraph 23569:
"...it is only upon completion of the whole case that a tribunal is in a position to weigh the evidence and come to a decision, and it may happen that evidence adduced from witnesses called on behalf of the defendant (or an accused) tips the scales against him or her."
[11] Such statements, says the Applicant means that the Tribunal must hear from the Respondent in evidence before making any decision on the merits of the case.
[12] The Applicant's approach ignores sections 50(1) and 50(3)(e) of the Act which say:
| 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.
***
(3) In relation to a hearing of the inquiry, the member or panel may
(e) decide any procedural or evidentiary question arising during the hearing.
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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.
***
3) Pour la tenue de ses audiences, le membre instructeur a le pouvoir :
(e) de trancher toute question de procédure ou de preuve.
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[13] This section does not require any party to give evidence but simply provides that each party shall have an opportunity to do so. No party, and in particular the Respondent, is obliged to call any evidence. The complainant must make out his or her case by its own evidence, using the power of a subpoena if necessary. A complainant cannot rely upon, or even hope that a Respondent will call evidence.
[14] While it is true that the Tribunal must consider all evidence properly before it, there is no obligation upon the Tribunal to force a party to lead evidence when it chooses not to do so. A Respondent cannot be forced to tender evidence.
[15] Thus, if at the conclusion of the case put in on behalf of the complainant, the Respondent believes that no proper case, even on a prima facie basis, has been made out, it is quite open to it to request that the Tribunal make its decision simply on the basis of the evidence that it has. If a Respondent does so by way of a non-suit, it runs the risk that the Tribunal will do so, not on the basis of weighing the evidence on a reasonable balance of probabilities test, but on a prima facie test. The moving party accepts that risk.
[16] Therefore the Tribunal was not wrong in accepting to hear the Respondent's application for non-suit. It had jurisdiction to do so.
[17] A second consideration arises in respect of this issue. Given that the Tribunal had jurisdiction to hear a motion for non-suit, did it fail to exercise that jurisdiction properly in permitting the Respondent to reserve its right to call evidence in the event that the motion was unsuccessful?
[18] The record is clear, the Member asked counsel for the Respondent who made the motion for non-suit whether it was the Respondent's intention to lead evidence if the motion failed. Counsel said yes. The Applicant/complainant through his paralegal representative objected to a motion which, in effect, would allow the Respondent to "take the temperature" and if unsuccessful, proceed with its case.
[19] Reliance was placed by the Member on a statement found in Chopra, supra. He said at paragraphs 2 to 5 of his Reasons:
II. THE CASE LAW
2. Ms. Rubio relies on the decision of this Tribunal in Chopra v. Canada(Department of National Health and Welfare, [2001] C.H.R.D. No. 20 (QL), where Mr. Hadjis noted that a variety of Tribunals and Boards have gone different ways on the issue. He then applied the rule in the civil courts. This apparently requires that the defending party make an election before applying for a non-suit.
3. The statement of principle in Chopra can be found at para. 22:
I therefore conclude that the common law rule of election does apply to this Tribunal but that the parties may, on the one hand, waive its application, which is not the case here, and on the other hand, where the appropriate circumstances warrant, a respondent may be exempted from the rule's application by the Tribunal.
I think there may be room for different views. I agree with Mr. Hadjis that the question should be decided in the circumstances of each case. The Tribunal enjoys more latitude in these matters than a court.
4. The decision in Chopra relies heavily on the decision of an Ontario Board of Inquiry in Nimako v. C.N. Hotels, (1985) 6 C.H.R.R. D/2894. I feel obliged to say that the Board in Nimako seems to have misunderstood the nature of an application for a non-suit. It is wrong to suggest that a Tribunal that entertains a motion for a non-suit is in danger of deciding the case twice. A Tribunal that grants a motion has not "decided" the case in a legal sense. It has decided that here is no case to meet.
5. Mr. Hadjis also refers, however, to the decision of a subsequent Board of Inquiry in Potocnik v. Thunder Bay(City), [1996] O.H.R.B.I.D. No. 16. The situation in Potocnik was similar to the one before me. Counsel had advised the Board that the Respondent would call evidence if it was put to its election before applying for the non-suit. Mr. Capp has done the same thing. The Board in Potocnik did not ask the Respondent to make its election before applying for a non-suit.
[20] As to "taking the temperature" the Member said at paragraphs 11 to 13 of his Reasons:
IV. TAKING THE TEMPERATURE
11. Ms. Rubio has submitted that it would be unfair to let the Respondent "take to temperature" by applying for the non-suit. I believe the suggestion is that the Respondent gains an unfair advantage if it loses on the motion, since the Tribunal may somehow reveal its thinking on the case. This kind of concern is misplaced. The function of a Tribunal on an application for a non-suit is simply to decide whether there is evidence in support of the Complainant's allegations.
There is no weighing of the evidence and nothing to comment on, if the application fails. The Tribunal remains in a state of suspended judgment, its neutrally intact.
12. The initial obligations on the Complainant are minimal. The Complainant should not be allowed to evade them. Nor is it any answer to say that the Complainant should be allowed to make up the deficiencies in its case when the Respondent presents its evidence. A Tribunal that grants an application for a non-suit has held that there is no case to make up. Many of the rationales that are cited in the caselaw do not apply unless the Complainant has called some evidence in support of his allegations. The Respondent has no obligation to answer gratuitous allegations.
13. It is a serious mater to require that a party in an adjudicative process respond publicly to legal allegations. A party who prosecutes a case in a judicial or quasi-judicial arena has an obligation to lead evidence in support of its claims. I would have thought that this is one of the principles of fundamental justice. Where is the unfairness in finding that a Respondent has no obligation to enter a defence in a situation where there is no evidence against it?
[21] The authors of Sopinka et al., supra, at paragraphs 5.6 and following, review the practice in the Courts of the different provinces as to whether a moving party for non-suit must be put to an election as to calling evidence of its own. Some provinces require a party to make that election, others do not, yet at least one other permits a trial judge discretion as to requiring an election or not. British Columbiadistinguishes between motions based on "no evidence" where an election is not required and those based on "insufficient evidence" where an election is required.
[22] What is evident is that the requirement as to an election is a matter of procedure, not a matter of law or a matter of "natural justice". Tribunals should be allowed reasonable latitude when it comes to procedure provided that it does not amount to error of law or a breach of natural justice (Re Metropolitan Toronto Board of Commissioners of Police (1979), 27 OR (2d) 48 (Div. Ct.) at page 53). Here the Member weighed the relevant factors and made a procedural determination. This is not a determination that should be overturned on a judicial review even if this Court believed that it would have ruled otherwise.
[23] Further, and as a practical matter, there would be no point in sending the matter back for a new determination on the Record as it stands because the Respondent called no evidence in any event.
Issue #2- If the Tribunal had such jurisdiction, did it err in law in considering irrelevant evidence in arriving at the decision to dismiss the complaint?
[24] A motion for non-suit requires that the Court or Tribunal consider the evidence from the point of view that, if believed, does it establish at least a prima facie case. As stated by McIntyre J. of the Supreme Court of Canada in "O'Malley" (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536) at paragraph 28:
"The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer."
[25] The Nova Scotia Court of Appeal in J.W. Cowie Engineering Ltd. V. Allen (1982), 26 C.P.C. 241 especially at paragraphs 12 to 17 reviewed the nature and level of evidence sufficient to satisfy the "prima facie" test. Jones JA for the majority at paragraph 14 gave a succinct statement of the law:
"It is clear that the mere fact there is some evidence, however weak, does not prevent a trial Judge from granting the motion."
[26] The Applicant, together with the Intervener argue that the Member erred in respect of assessment of the evidence in two respects. The first is the statement at paragraphs 39 of the Member's Reasons:
"I think the exchanges in cross-examination demonstrate the speculative nature of the claim before me."
[27] Counsel for the Applicant refers to one exchange in cross-examination where a question was asked (page 399 of the transcript) of the Applicant as to whether his ability to use the English language was a prime prerequisite for the job. This question, Applicant's counsel says is irrelevant. Respondent's counsel points to the following pages in the transcript which place the question in a more relevant context and to a multitude of other questions that were clearly relevant.
[28] The mere fact that Applicant's counsel, in these review proceedings, may point to one question that may possibly be irrelevant does not mean that the Member, in his conclusions set out in the Reasons aforesaid, in reviewing the totality of the evidence, was wrong. There is nothing to suggest that, taking the whole of the evidence to be considered, that the Member's conclusions were wrong or in some way ought to be quashed upon judicial review, even at the lowest standard, correctness.
[29] The second of the issues raised concerns the statement of the Member in paragraph 40 of his Reasons:
"By "proof" in law we mean something that makes it more likely than not that the particular claim is true."
[30] This, the Applicant says, means that in law the Member applied the wrong test for assessment of evidence in a non-suit motion, that assessment should be at the prima facie level and not at the "more likely than not" level. This statement of the law is correct. Had the Member in fact assessed the evidence on the basis of the "more likely than not" he would have been in error. However, what the Member actually determined with respect to the evidence is set out in paragraphs 41 to 43 of his Reasons:
41. The question that I am left with is this: if an employee believes that someone in an ethnic group is doing the same job, and receiving a higher wage, is that enough to establish a prima facie case of discrimination? I think there must be something more. There must be something in the evidence, independent of the Complainant's beliefs, which confirms his suspicions. I am not saying that a Complainant's beliefs do not have any evidentiary weight. It depends on the circumstances. But an abstract belief that a person is discriminated against, without some fact to confirm that belief, is not enough.
42. There are always possibilities. This is not sufficient. Proof is something more than a bare possibility. I see nothing in the evidence before me that makes this possibility real or introduces a measurable degree of probability into the equation.
43. I am left with a single statement from Mr. Pahar, who was never called as a witness. I think this evidence falls well below the standard needed to sustain a legal claim. If there is any evidence before me, it is not appreciable. It is so minimal that is has no effect in law.
[31] The finding was that the evidence was "not appreciable" and was "so minimal as to have no effect in law". This finding satisfies the no prima facie evidence test in law. These findings are sufficient to support the dismissal of the complaint on a motion for non-suit. There is no basis, at whatever level of deference, for quashing this decision.
Issue #3- Did the Tribunal fail to provide natural justice in not providing, at the Tribunal's expense, interpretation into the Applicant's language throughout the proceedings?
[32] There is no provision in Canadian human rights legislation or regulations as to whether the services of an interpreter in respect of a language other than an official language of Canada, are to be provided and if so under what circumstances and at whose expense.
[33] What happened in this case was that the Applicant/complainant who is Spanish speaking and speaks only a little English, was provided at the Tribunal's (taxpayer's) expense with interpretation services throughout the time when he was giving evidence, including cross-examination. The paralegal, and at times a law student, appearing on behalf of the Applicant were conversant with both English and Spanish although not claiming the high level of skills of an interpreter.
[34] The Applicant was not prevented from providing his own interpreter. There was no evidence that he was unable to do so financially or otherwise.
[35] The leading case on the issue is that of R. v. Tran, [1994] 2 S.C.R. 951 a criminal law case which considered in this respect, the provisions of section 14 of the Charter. Lamer CJ for the Court said at paragraphs 47 and 48:
47 The first step in the analysis as to whether a breach of s. 14 of the Charter has in fact occurred requires consideration of the need for interpreter assistance. That is, the claimant of the right must demonstrate that he or she satisfies (or satisfied) the conditions precedent to entitlement to the right. Section 14 of the Charter states clearly that, to benefit from the right, an accused must "not understand or speak the language in which the proceedings are conducted".
48 While the right to interpreter assistance is not an automatic or absolute one, it stands to reason, particularly with the elevation of the right to the level of a constitutional norm, that courts should be generous and open-minded when assessing an accused's need for an interpreter. As a general rule, courts should appoint an interpreter when either of the following occurs:
1. it becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing him- or herself or understanding the proceedings and that the assistance of an interpreter would be helpful; or
2. an accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified.
Importantly, neither the language of s. 14 of the Charter nor the legal-historical underpinnings of the right require courts to inform all accused appearing before them of the existence of the right to interpreter assistance. Similarly, courts are not obliged to inquire, as a matter of course, into every accused's capacity to understand the language used in the proceedings. At the same time, however, there is no absolute requirement on an accused that the right be formally asserted or invoked as a pre-condition to enjoying it. This is because courts have an independent responsibility to ensure that their proceedings are fair and in accordance with the principles of natural justice and, therefore, to protect an accused's right to interpreter assistance, irrespective of whether the right has actually been formally asserted.
[36] Thus the right to an interpreter, even in a criminal law context, is not absolute. Courts should be generous and open-minded on the topic. There appears to be greater concern where the situation involves the giving of evidence and understanding the proceedings.
[37] It is recognized that human rights proceedings are not to be treated simply as if they were civil actions. The concern of human rights legislation is the removal of discrimination, to eradicate anti-social behaviour without regard to the motives or intention of those who cause them. The Intervener has cited Robichaud v. Canada(Treasury Board),[1987] 2 S.C.R. 84 per La Forest J. for the majority at page 90:
Since the Act is essentially concerned with the removal of discrimination, as opposed to punishing anti-social behaviour, it follows that the motives or intention of those who discriminate are not central to its concerns. Rather, the Act is directed to redressing socially undesirable conditions quite apart from the reasons for their existence.
[38] Thus, both the complainant and Respondent/employer, while parties before the Tribunal, are players in a larger endeavour, that of seeking to the removal of discrimination. It is within the discretion of the Tribunal to determine whether such an objective can be fairly achieved in the absence of providing, in whole or during part of the process, translation services into a language other than an official language, at taxpayer's expense, to one or more of the parties.
[39] The determination of the Tribunal in this regard can be reviewed, without regard to levels of deference, if the result was procedural unfairness or a denial of natural justice. Tran, supra, states that the right to an interpreter, even in a criminal law context, is not absolute. In the circumstances of the case now under review the Tribunal made a fair and reasonable determination as to provision of interpretation services and committed no reviewable error in that regard.
Summary and Costs
[40] In summary, therefore, this Court finds that the Tribunal committed no reviewable error, whether in respect of its disposition as to the motion for non-suit, or as to its disposition in respect of an interpreter.
[41] Costs would normally follow the event. An intervener normally has neither costs assessed in its favour or against it and I will follow that practice although I re-iterate that the Commission should re-consider its decision to abandon its role in having carriage of proceedings before the Tribunal.
[42] The Applicant wanted costs if it won, so did the Respondent. Respondent's counsel estimates costs at the $20,000 level, Applicant's counsel was unable to make an estimate. I have been told, probably improperly, that the Applicant is being supported by legal aid in this proceeding.
[43] I will award costs to the Respondent, it did win after all, and Applicants should always be aware that costs are a factor when deciding to litigate. I will fix those costs at a nominal amount, $500.00, and I expect that the Respondent will be sufficiently gracious so as to waive its entitlement to those costs.
JUDGMENT
UPON APPLICATION made to this Court the 14th day of June, 2006 for judicial review of a decision of a Member of the Canadian Human Rights Tribunal issued on August 17, 2005, 2005 CHRT 32, File No. T952/7204 wherein the Applicant's complaint was dismissed on the basis of the Respondent's application for non-suit;
AND UPON reviewing the Records filed herein and hearing counsel for the parties, and for the Intervener Canadian Human Rights Commission;
AND FOR the Reasons delivered herewith:
THIS COURT ADJUDGES that:
1. This application is dismissed;
2. The Respondent is entitled to costs fixed in the sum of $500.00
"Roger T. Hughes"
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