Date: 20061031
Docket: T-1949-05
Citation: 2006 FC 1313
Ottawa, Ontario, October 31, 2006
PRESENT: THE HONOURABLE MR. JUSTICE
BLANCHARD
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
ALAIN PARENT and
THE CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
This
is an application for judicial review of a Canadian Human Rights Tribunal
decision rendered on October 3, 2005 by member Athanios D. Hadjis granting
respondent-complainant Alain Parent’s motion to amend his complaint.
[2]
The
hearing date before the Tribunal is not yet scheduled.
[3]
The
applicant is asking this Court to set aside the Commission’s decision on the
ground that the Tribunal abused its discretion by allowing the complaint to be
amended.
2. Factual Background
[4]
On
September 5, 2002, Alain Parent filed a complaint against the Canadian Forces
(respondent). It was alleged on the complaint form that, on October 19, 2001
the respondent’s chief medical officer categorized the complainant as unfit for
civilian or military duty. The complainant asserted that he was mistreated and
harassed by his superior officers because of his disability (post-traumatic
stress disorder) and that they denied him medical treatments to which he was
entitled, the whole in breach of section 7 of the Canadian Human Rights Act,
R.S. 1985, c. H-6 (the Act). He further asserted that he was
discharged in retaliation for having filed a complaint, also contrary to
section 7 of the Act.
[5]
On
November 19, 2002, the respondent decided to discharge the complainant. On October 30, 2003, the investigation report
recommended that the complaint be referred to the Tribunal for inquiry, which took
place on May 25, 2004.
[6]
On
October 5, 2004, the complainant sought leave to amend his complaint and
notified the Tribunal on October 21, 2004. On October 6, 2004, the respondent opposed the
motion to amend. On October 28, 2004, the Tribunal cancelled the mediation
scheduled between the parties and indicated that it was now up to the
complainant to respond to the respondent’s opposition set out in its letter of
October 21, 2004.
[7]
On
January 31, 2005, the parties filed their Responses to the Tribunal’s
questionnaire, and on April 27, 2005, the Tribunal ordered the parties to file
written representations regarding the complainant’s motion to amend. On June
29, 2005, Alain Parent filed the document entitled “[Translation] Complainant’s
Representations Concerning Motion to Amend the Complaint”; and on July 21, 2005, the respondent filed its
opposition. On September 30, 2005, the Tribunal granted the complainant’s
motion to amend. The decision was amended on October 3, 2005.
[8]
A case
conference was set for October 5, 2005 to determine the time line applicable to
the planning and hearing of the case. On October 4, 2005, the respondent asked
the Tribunal to adjourn the case conference because it was examining the
possibility of filing an application for judicial review. The Tribunal denied
the adjournment application, and on October 5, 2005, a case conference was
held. At that time, the Tribunal set the following time-table: the complainant
would have until December 6, 2005 to provide his statement of particulars and
disclosure; the respondent had until February 21, 2006 to provide its statement
of particulars and disclosure; the complainant had until March 7, 2006 to
provide its reply to the respondent’s statement of particulars. The hearing
dates for this case will be set at the case conference of November 7,
2006.
3. Investigator’s Report
[9]
The
investigator considered the following nine allegations in her report:
(1) The
respondent asked the complainant to change doctors (according to the
investigator, though, the evidence demonstrates that what the respondent
actually asked him to do was to find a doctor in Bagotville in addition to his
treating physician in order to ensure medical follow-up, in accordance with
procedure);
(2) The
complainant received no medical attention between November 2001 and April 2002
(according to the investigator, the evidence demonstrates that he was seen by a
physician in December 2001 and underwent psychological assessment in January
2002);
(3) The
complainant did not receive a copy of the Textus final investigation report
until several months after the respondent had received it (according to the
investigator, though, the complainant was supposed to make an official request
through the Access to Information Office—these allegations were not examined in
the investigation as they call into question the integrity of a third party);
(4) The
respondent received a message that the complainant had been accepted into a
course at Borden, but did not inform the complainant of this until several
weeks later;
(5) The
respondent refused to grant the complainant a promotion (according to the
investigator, in June 2001, the evidence supports the complainant’s allegation,
but the situation was rectified in November 2001 after a grievance was filed);
(6) The
respondent posted a notice visible to all personnel to the effect that the
complainant was not permitted to carry his service weapon (the investigator
found that this was not normal procedure and, therefore, that the respondent
had differentiated adversely against the complainant in his employment);
(7) In
August 2001, the respondent ignored the recommendation of the treating
physician to transfer the complainant because his health was deteriorating (the
investigator noted that the complainant was transferred seven months later to
Valcartier];
(8) LCol
Faucher issued two counselling and probation (C&P) notices to the
complainant while he was on sick leave, despite the fact that he knew about the
complainant’s condition; and
(9) On August 28, 2000, while the complainant
was on authorized sick leave from August 17 to September 15, 2000, the respondent
decided to relieve him of his chief investigator duties because of his health
condition and replace him with another person. Furthermore, on September 25,
2000, the respondent refused to reinstate the complainant in his chief
investigator position despite a note from his treating physician attesting to
the fact that he was fit to go back to work.
[10]
The
investigator explained in her report that the first two allegations were
unsubstantiated by the evidence and that, while there was evidence for the
other allegations, they did not, except for the last one, demonstrate that the
impugned actions were taken in retaliation against the complainant by reason of
his health condition. The investigator pointed out, however, that some of the
measures that were taken did not reflect standard procedure.
[11]
Regarding
the last allegation, she determined that the evidence supported the
complainant’s allegation that he was relieved of his duties as chief
investigator by reason of his health condition. She recommended that this
allegation of the complaint be referred to the Tribunal.
4. Impugned Decision
[12]
The
complainant filed a motion with the Tribunal so as to be allowed to amend his
complaint in order to include the allegation that his health condition was a
factor in the decision to discharge him. The Commission granted the
complainant’s motion. It is that decision which now forms the subject of this
application for judicial review.
[13]
In
opposing the motion before the Tribunal, the respondent raised several issues.
It asserted that the motion should be denied because there was no affidavit in
support of the allegations. The Tribunal determined that its rules of procedure
were not as formal as those of a court. Consequently, it is not necessary for
affidavits to be produced in support of motions. Furthermore, the Tribunal held
that it “has the
discretion to amend a complaint to deal with additional allegations, provided
sufficient notice is given to the respondent so that it is not prejudiced and
can properly defend itself.”
[14]
The
respondent also contended that there is no connection between the fact that the
complainant was discharged and his initial human rights complaint. In the view
of the Tribunal, the soundness of that argument can only be assessed following
a full inquiry into all of the facts of the complaint; at this stage, the
complainant is merely seeking to add certain allegations, and he will have the
burden of proving them later on.
[15]
The
respondent also contended before the Tribunal that the complainant is trying
to short-circuit the process by attempting to refer a complaint directly to
the Tribunal without first having submitted it for consideration and
investigation by the Commission. The Tribunal rejected that argument and
determined that the new facts being alleged do not constitute a complaint distinct from the
one originally filed with the Commission in 2002. The Tribunal accepted the
complainant’s contentions to the effect that the discrimination he experienced
and the filing of the complaint were factors that played a role in his
subsequent discharge from the Canadian Forces.
[16]
The
Tribunal determined, referring to Cook v. Onion Lake First Nation (2002), 43 C.H.R.R.
D/77, that issues arising out of the same set of factual circumstances should
normally be heard together. However, an amendment to a complaint should not be granted where it would
unjustly prejudice the other party. The Canadian Forces are asserting that they will be
prejudiced if the motion is granted, specifically, that they will be obliged to
prepare a defence against the additional allegations. The Tribunal was not
convinced that this constitutes a real and significant prejudice. It also
disagreed with the respondent’s contention that the Canadian Forces would be prejudiced by the fact that
the new allegations will not pass through the Commission’s investigation and
conciliation processes, as the original complaint had. According to the Tribunal, the benefit for a complainant
is the opportunity to resolve complaints at an early stage, before referral to
the Tribunal.
Once a complaint is referred, though, a respondent can present the Tribunal
with the same arguments it would have raised with the Commission investigator.
5. Issue
A. Did the
Canadian Human Rights Tribunal abuse its discretion by allowing Alain Parent’s
complaint to be amended?
6. Standard of Review
[17]
The
Supreme Court of Canada has clearly indicated that, in a judicial review, the
judge must carry out a pragmatic and functional analysis “[i]n every case where a
statute delegates power to an administrative decision-maker” (Dr Q v. College of
Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226). The
Federal Court of Appeal decision in Sketchley v. Canada (Attorney General),
[2005] F.C.J. no. 2056 (QL), is entirely in line with that directive, as shown in
the following passage at paragraph 50: “… this analysis must be applied anew
with respect to each decision, and not merely each general type
of decision of a particular decision-maker under a particular legislative
provision.” (emphasis
in the original)
[18]
In the
case before us, the specific issue subject to a functional and pragmatic
analysis is the following: Did the Tribunal abuse its discretion by allowing the
amendment?
[19]
Under
subsection 48.9(2) of the Act, the Tribunal enjoys considerable discretion with
respect to the conduct of proceedings. The exercise of this discretion for the
purpose of granting a motion to amend a complaint is dependent not only on the
Act but on an assessment of the facts. It is therefore a question of mixed law
and fact.
(i) Presence or absence of a
privative clause or statutory right of appeal
[20]
The
first factor that must be considered is the presence or absence of a privative
clause or statutory right of appeal. In the matter before us, the jurisdiction
of the Tribunal is founded on the following provision:
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44(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).
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44(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).
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[21]
Upon
reading this provision, it is clear that no direction is given with respect to
appeals, so this factor does not affect the standard of review. As the Supreme
Court stated in Dr. Q, at paragraph 27, “silence is neutral and does
not imply a high standard of scrutiny” (quoting from Pushpanathan v. Canada (Minister of Citizenship
and Immigration), [1998] 1 S.C.R. 1222 at paragraph 30).
(ii) Relative
expertise
[22]
According
to Sketchley, there are three dimensions for the Court to consider when
evaluating the factor of the Tribunal’s expertise: it must characterize the
expertise of the tribunal in question; it must consider its own expertise
relative to that of the tribunal; and it must identify the nature of the
specific issue before the administrative decision-maker relative to this
expertise (Pushpanathan, supra, at paragraph 33).
[23]
As I
said above, the question before the Court is one of mixed fact and law. The
expertise of the Commission relates to the determination of facts. Furthermore,
the question of law is closely related to the Tribunal’s area of expertise,
i.e., the interpretation of its enabling statute. In the area of human rights,
the determination of an issue of mixed fact and law is within the ambit of the
Tribunal’s specific expertise. The Tribunal has been granted a remarkable
degree of latitude in establishing its rules of procedure and, in this sense,
holds a certain advantage over the Court when it comes to determining whether
or not an amendment should be allowed. In my opinion, the Tribunal’s relative
expertise on this issue militates in favour of applying a standard that
requires a higher degree of curial deference.
(iii) Object of
the legislation and the provision in particular
[24]
The object
of the Act, as set out in section 2, is essentially to prevent discriminatory
practices based on a series of enumerated grounds. As the Court pointed out in Sketchley,
at paragraph 74, “The protection of human and individual rights is a fundamental value in Canada and any institution, organization or person given the
mandate by law to delve into human rights issues should be subjected to some
control by judicial authorities.”
[25]
The
object of subsection 48.9(1) is to empower the Commission to accomplish its
task efficiently and effectively, in accordance with the principles of
procedural fairness. This provision must be interpreted broadly so that it can
address unforeseen issues. It is likely that Parliament enacted the provision
to cover the full range of procedural situations. That is an indication that considerable
restraint is called for.
(iv) Nature of
the issue
[26]
A
question of mixed law and fact calls for “more deference if the question is fact-intensive, and less
deference if it is law-intensive” (Dr. Q, at paragraph 34). If the Commission decides
to reject an amendment request on the basis of a holding it makes with respect
to a question of law, less deference will be required when reviewing that
decision. In the case at bar, the Commission’s primary consideration was
whether the act of discrimination alleged in the amendment was based on the
same circumstances that formed the basis of the initial complaint. The Tribunal
also had to examine the question of the prejudice caused. These are basically questions
of fact, warranting a higher degree of restraint.
[27]
Accordingly,
based on my pragmatic and functional analysis, I find that the standard of
review applicable to the matter before us is that of reasonableness simpliciter.
[28]
With
respect to mixed questions of law and fact, the Federal Court of Appeal came to
the same determination in Canadian Human Rights Commission v. Attorney
General of Canada, 2005 FCA 154, at paragraph 22 :
In Lincoln v. Bay Ferries Ltd., (2004), 322
N.R. 50, 2004 FCA 204, the Court stated (at para. 16) that the parties agreed
on the standards of review applicable to the different kinds of questions
decided by a Tribunal under the Canadian Human Rights Act. Thus,
questions of law decided by the Tribunal are reviewable on a standard of
correctness; questions of mixed fact and law are reviewable on a standard of
reasonableness simpliciter; and “fact-finding and adjudication in a
human rights context” are reviewable for patent unreasonableness. (my emphasis)
7. Analysis
[29]
The
relevant sections of the Act are set out in the Appendix.
[30]
The
Tribunal enjoys considerable discretion with respect to the examination of
complaints under subsections 48.9(1) and (2) and sections 49 and 50 of the Act.
As for the exercise of that discretion in regard to an amendment request, Mr.
Justice Robert Décary wrote in Canderel Ltd. v. Canada (C.A.), [1994] 1
F.C. 3, 1993 CanLII 2990 (F.C.A.), that “ […] the general rule is that an amendment should be allowed
at any stage of an action for the purpose of determining the real questions in
controversy between the parties, provided, notably, that the allowance would
not result in an injustice to the other party not capable of being compensated
by an award of costs and that it would serve the interests of justice.”
[31]
The
courts are very deferential when this discretion is exercised, and in Bell
Canada v. Communications,
Energy and Paperworkers Union of Canada (C.A.), [1999] 1 F.C. 113, [1998] F.C.J.
no. 1609, Décary J.A. emphasized that this was in fact Parliament’s intention:
The
Act grants the Commission a remarkable degree of latitude when it is performing
its screening function on receipt of an investigation report. Subsections 40(2)
and 40(4) and sections 41 and 44 are replete with expressions such as “is
satisfied”, “ought to”, “reasonably available”, “could more appropriately be
dealt with”, “all the circumstances”, “considers appropriate in the circumstances”
which leave no doubt as to the intent of Parliament. […] Parliament did not
want the courts at this stage to intervene lightly in the decisions of the
Commission.
[32]
The
applicant submits that the amendments made by respondent Alain Parent do not
arise from the same facts as in the original complaint and, for that reason,
should not be allowed. More specifically, the applicant contends that the
decision to discharge Alain Parent was made by persons other than those
referred to in the original complaint.
[33]
In Cook
v. Onion Lake First Nation, [2002] C.H.R.R. no. 12, Member Groarke wrote: “The rule of practice is accordingly
that issues arising out of the same set of factual circumstances should
normally be heard together.”
[34]
In Kavanagh
v. C.S.C. (May 31, 1999), T505/2298 (C.H.R.T.), the Chairperson of this Tribunal
adopted the reasoning of the Ontario Board of Inquiry in Entrop v. Imperial Oil Limited (1994) 23 C.H.R.R. D/186,
where, at paragraph 9, it is written that it “would be impractical, inefficient and unfair to require
individuals to make allegations of reprisals only through the format of
separate proceedings.” The same approach was followed in Fowler v. Flicka
Gymnastics Club, 31 C.H.R.R. D/397 (B.C.H.R.C.), where the complainant
argued that the amendment arose “out of the facts which form the basis of the
original complaint.”
[35]
In
addition, the Nova Scotia Court of Appeal in I.M.P. Group Ltd. v. Dillman,
[1995] N.S.J. No. 326, criticized
a Board of Inquiry for allowing an amendment that went beyond the
facts of the original complaint. In paragraph 35, the Court stated as follows:
To
raise a new complaint at the hearing stage would circumvent the whole
legislative process that is designed to provide for attempts at conciliation
and settlement. This matter did not go through the preliminary stages of
investigation, conciliation and referral by the Commission to an inquiry
pursuant to s. 32(a) of the Act. The Board dealt with a matter which
had never been referred to it.
[36]
In the
case at bar, the Commission’s decision to recommend referral of a complaint to
the Tribunal was based on the evidence, which [translation] “demonstrated that these measures were taken in
retaliation against the complainant because of his health condition.” The
Commission determined that the allegation to the effect that the complainant
was relieved of his chief investigator position by reason of his disability
should be accepted.
[37]
The
applicant is not challenging the claim that the respondent Alain Parent, during
the investigation of the initial complaint, informed the investigator that he
was discharged on discriminatory grounds. Indeed, that fact is explicitly
mentioned in the investigator’s report.
[38]
The
facts forming the basis of the initial complaint, including respondent Alain
Parent’s disability (post-traumatic stress disorder), are the same as those
forming the basis of the amendment granted by the Tribunal. In other words, the
disability that caused him to be relieved of his chief investigator position
according to his initial complaint was also the alleged cause of his discharge.
Therefore, the discriminatory acts alleged against the Canadian Forces in both
the initial complaint and in the granted amendment are based on this same
factor, i.e., the disability suffered by respondent Alain Parent.
[39]
It
would have been preferable for respondent Alain Parent to seek the amendment of
the complaint at the time he was discharged, since it would have enabled the
question to be investigated at the preliminary stage. Be that as it may, I
believe that the Tribunal did not abuse its discretion by allowing the
amendment, which does not constitute a new complaint in my opinion because the
two alleged discriminatory acts are founded essentially upon the same factual
circumstances.
[40]
The
issue of prejudice is the predominant factor to be considered in such
circumstances: the amendment must not be granted if it results in a prejudice
to the other party. In this case, even though the complaint could have been
amended at an earlier stage of the proceedings, nothing in the evidence
indicates that the Canadian Forces were unable to prepare themselves and argue
their position on the issues raised. The amendment caused no prejudice to the
Canadian Forces, and in the circumstances, the balance of convenience favours the
position of Alain Parent.
[41]
The
Tribunal enjoys a wide discretion under the Act in terms of decision-making at
this stage. Given the circumstances in this case, where the same factor—the
health of Alain Parent—is being advanced as the motive for the two alleged
discriminatory acts, and given the fact that Alain Parent’s discharge was
raised in the investigation report, I find that the Tribunal had jurisdiction
to render its decision and did not abuse its discretion. Thus, I find that the
Tribunal was entitled to determine that the new facts alleged do not constitute
a complaint distinct from the one referred to the Commission in 2002.
[42]
The
applicant also contends that the Tribunal by-passed the analysis and
investigation process of the Canadian Human Rights Commission provided for in
section 49 of the Act. He explains that it is up to the Commission to decide,
after investigation, whether or not a complaint will be referred to the
Tribunal for a hearing. Whereas the amendment
incorporates new facts that arose while the case was still at the Commission
investigation stage, the applicant argues that a delay of almost two years
before filing a motion to make the amendment is unacceptable.
[43]
I do
not accept the applicant’s argument. In the circumstances, [there is a common
factor underpinning] the allegations of discrimination in both the initial
complaint and the granted amendment have a common thread, namely, the health of
respondent Alain Parent. This constitutes the link allowing the Tribunal to
rule as it did. The discrimination complained of by the respondent is alleged
to be a factor in his discharge from the Canadian Forces as well.
[44]
Accordingly,
while one may speak of a new alleged discriminatory act, i.e., discharging the
respondent, the act is the result of the same circumstances and, strictly
speaking, one cannot call this a new complaint. In the absence of a prejudice
to the applicant, the Tribunal was entitled to grant the amendment and, as I
determined above, did not abuse its discretion.
[45]
Finally,
I also reject the applicant’s arguments with respect to the absence of evidence
to allow the motion. I concur with what the Tribunal wrote on that subject:
The Tribunal’s Rules of Procedure are not as formal as those of a
court. Motions are not required to be supported by an affidavit (see Rule 3).
Indeed, they need not follow any particular format. It is common for the
Tribunal to receive motions by way of letters and even email messages. The main
objective is to ensure that each party be given full and ample opportunity to
be heard by the Tribunal.
[46]
It
should be noted that allegations made in an amended complaint must be proven at
the Tribunal hearing stage.
8. Conclusion
[47]
In the
case at bar, the Tribunal’s decision to allow the amendment does not violate
the rules of procedural fairness. Allowing the amendment was within the ambit
of the Tribunal’s discretionary jurisdiction. I am therefore of the opinion
that the application for judicial review should be dismissed with costs.
ORDER
THE COURT ORDERS AS
FOLLOWS:
1. The application for judicial review is dismissed with costs.
“Edmond P. Blanchard”
Certified true translation
François Brunet, LLB, BCL
APPENDIX
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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.
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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.
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48.9
(1) Proceedings before the Tribunal shall be conducted as informally and
expeditiously as the requirements of natural justice and the rules of
procedure allow.
(2)
The Chairperson may make rules of procedure governing the practice and
procedure before the Tribunal, including, but not limited to, rules governing
(a)
the giving of notices to parties;
(b)
the addition of parties and interested persons to the proceedings;
(c)
the summoning of witnesses;
(d)
the production and service of documents;
(e)
discovery proceedings;
(f)
pre-hearing conferences;
(g)
the introduction of evidence;
(h)
time limits within which hearings must be held and decisions must be made;
and
(i)
awards of interest.
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.
(3)
If a panel of three members has been assigned to inquire into the complaint,
the Chairperson shall designate one of them to chair the inquiry, but the
Chairperson shall chair the inquiry if he or she is a member of the panel.
(4)
The Chairperson shall make a copy of the rules of procedure available to each
party to the complaint.
(5)
If the complaint involves a question about whether another Act or a
regulation made under another Act is inconsistent with this Act or a
regulation made under it, the member assigned to inquire into the complaint
or, if three members have been assigned, the member chairing the inquiry, must
be a member of the bar of a province or the Chambre des notaires du Québec.
(6)
If a question as described in subsection (5) arises after a member or panel
has been assigned and the requirements of that subsection are not met, the
inquiry shall nevertheless proceed with the member or panel as designated.
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.
(5)
A conciliator appointed to settle the complaint is not a competent or
compellable witness at the hearing.
(6)
Any person summoned to attend the hearing is entitled in the discretion of
the member or panel to receive the same fees and allowances as those paid to
persons summoned to attend before the Federal Court.
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48.9 (1) L’instruction des plaintes se fait
sans formalisme et de façon expéditive dans le respect des principes de
justice naturelle et des règles de pratique.
(2) Le président du Tribunal peut établir des règles
de pratique régissant, notamment :
a) l’envoi des avis aux parties;
b) l’adjonction de parties ou d’intervenants à
l’affaire;
c) l’assignation des témoins;
d) la production et la signification de documents;
e) les enquêtes préalables;
f) les conférences préparatoires;
g) la présentation des éléments de preuve;
h) le délai d’audition et le délai pour rendre les
décisions;
i) l’adjudication des intérêts.
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.
(3) Le président assume lui-même la présidence de la
formation collégiale ou, lorsqu’il n’en fait pas partie, la délègue à l’un
des membres instructeurs.
(4) Le président met à la disposition des parties un
exemplaire des règles de pratique.
(5) Dans le cas où la plainte met en cause la
compatibilité d’une disposition d’une autre loi fédérale ou de ses règlements
d’application avec la présente loi ou ses règlements d’application, le membre
instructeur ou celui qui préside l’instruction, lorsqu’elle est collégiale,
doit être membre du barreau d’une province ou de la Chambre des notaires du
Québec.
(6) Le fait qu’une partie à l’enquête soulève la
question de la compatibilité visée au paragraphe (5) en cours d’instruction n’a
pas pour effet de dessaisir le ou les membres désignés pour entendre
l’affaire et qui ne seraient pas autrement qualifiés pour l’entendre.
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 à 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.
(5) Le conciliateur n’est un témoin ni compétent ni
contraignable à l’instruction.
(6) Les témoins assignés à comparaître en vertu du
présent article peuvent, à l’appréciation du membre instructeur, recevoir les
frais et indemnités accordés aux témoins assignés devant la Cour fédérale.
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