Date: 20090428
Dockets: T-581-08
T-1685-08
Citation: 2009
FC 426
Toronto, Ontario, April 28, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
AMNESTY INTERNATIONAL CANADA and
BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Respondents
REASONS FOR ORDER AND ORDER
[1]
The Attorney General of Canada seeks an order staying a “Public Interest
Hearing” to be held by the Military Police Complaints Commission until the
final determination of two applications for judicial review brought by the
Attorney General. The hearing is to examine complaints received by the
Commission with respect to the transfer of detainees held by Canadian Forces’
personnel in Afghanistan to the custody of Afghan authorities. The Attorney
General’s applications for judicial review challenge the jurisdiction of the
Commission to investigate the subject matter of the complaints.
[2]
For the reasons that follow, I find that the Attorney General of Canada
has not demonstrated with clear and convincing evidence that irreparable harm
will result if the stay is not granted. As a consequence, the motion will be
dismissed.
Background
[3]
The actions of the Canadian Forces in Afghanistan with respect to the capture
and detention of insurgents have been described in detail in my decisions in Amnesty
International Canada et al. v. Canada (Canadian Forces), 2008 FC 162, (“Amnesty
#1), and Amnesty International Canada et al. v. Canada (Canadian Forces),
2008 FC 336, (“Amnesty #2). It is unnecessary to repeat that
description for the purposes of this motion.
[4]
Briefly stated, as part of Canada’s military operations in Afghanistan,
Canadian Forces personnel are from time to time required to capture and detain
insurgents, or those assisting the insurgents, who may pose a threat to the
safety of either Afghan nationals or members of the Canadian military and
allied forces.
[5]
Following capture by the Canadian Forces, detainees are initially held
in a Canadian Forces temporary detention facility at Kandahar Airfield. The
Canadian Forces have discretion to determine whether a detainee will be kept in
Canadian custody, transferred to the Afghan authorities or released.
[6]
Concerns have been raised with respect to the treatment accorded to
detainees once they are in the hands of Afghan authorities, and reports of their
mistreatment have been received by Canadian officials. Because of these
concerns, Amnesty International Canada and the British Columbia Civil Liberties
Association (BCCLA) have filed three complaints with the Military Police
Complaints Commission, one in early 2007, and two in June of 2008.
[7]
Two complaints (the “detainee complaints”) relate to the transfer of
detainees held by the Canadian Forces in Afghanistan to the custody of the
Afghan authorities, where, it is alleged, they face a substantial risk of
torture. The third complaint (the “failure to investigate complaint”) asserts
that Military Police officials failed to investigate potential wrongdoing by
members of the Canadian Forces who directed the transfer of detainees to Afghan
authorities.
[8]
On March 12, 2008, the Commission Chairman decided to exercise his
discretion to hold a “Public Interest Hearing” into the three complaints, in
accordance with sections 250.38(1) and 250.40(1)(b) of the National Defence
Act, R.S.C. 1985, c. N-5. The hearing was initially scheduled to commence
on February 17, 2009.
[9]
In the meantime, the Attorney General of Canada brought applications for
judicial review with respect to all three complaints. The applications assert
that the issues raised by each complaint are beyond the jurisdiction of the
Commission, as they do not involve the conduct of members of the military
police in the performance of any “policing duties or functions”.
[10]
On January 29, 2009, the Attorney General of Canada wrote to the
Commission advising that a stay of proceedings would be sought from the Federal
Court, unless the Commission was prepared to adjourn or stay its own
proceedings pending the determination of the Attorney General’s applications
for judicial review. The Commission then adjourned the hearings, so as to allow
the parties to make submissions as to whether the Commission should adjourn or stay
its proceedings.
[11]
On March 26, 2009, the Commission issued a decision refusing to stay or adjourn
the proceedings pending the determination of the Attorney General’s
jurisdictional challenges. No application for judicial review has been
commenced by the Attorney General with respect to this decision.
[12]
The Commission’s hearing in relation to the three complaints is now
scheduled to begin on May 25, 2009.
Should the Court Decline to Entertain the Motion?
[13]
The Military Police Complaints Commission was granted intervener status
to allow it to argue the effect that the Commission’s stay decision should have
for the exercise of the Court’s discretion to entertain the motion for a stay.
[14]
While acknowledging that section 18.2 of the Federal Courts Act,
R.S.C. 1985, c. F-7, authorizes the Court to grant interim relief such as a
stay in the context of a pending application for judicial review, the
Commission contends that the Court should decline to exercise its jurisdiction
in this case. According to the Commission, the Attorney General’s motion for
a stay essentially amounts to a collateral attack on the Commission’s decision
refusing to stay its proceedings. If the Attorney General was not happy with
that decision, the Commission says that the appropriate course of action was
for the Attorney General to seek judicial review of the Commission’s decision,
rather than bringing a fresh motion for a stay before this Court.
[15]
The Commission argues that by declining to exercise its jurisdiction,
this Court would best recognize the appropriate role of the Court relative to
an administrative tribunal. This would in turn engender respect for the
Commission’s legal process, having regard to the related public law doctrines
of collateral attack, issue estoppel and abuse of process.
[16]
The Commission further submits that if the Court were to exercise its
jurisdiction to deal with the motion, concerns would arise with respect to
forum shopping, inconsistency, the integrity of the administrative process, and
multiplicity of proceedings.
[17]
As a practical matter, given that the Commission is scheduled to
commence its hearing in approximately one month’s time, it is unlikely that an
application for judicial review of the Commission’s decision refusing to stay
the matter could be brought, perfected, heard and decided in time to afford the
Attorney General of Canada the relief that he now seeks. As the Commission
concedes, this Court clearly has the jurisdiction to deal with the Attorney
General’s motion, and in light of the time constraints involved in this case, I
intend to do so.
The Test for a Stay of Proceedings
[18]
The parties agree that in determining whether the Attorney General is entitled
to a stay of the Commission’s proceedings, the test to be applied is that
established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311.
[19]
That is, the Attorney General must establish:
1) That there is a serious issue
to be tried in the underlying applications for judicial review;
2) That irreparable harm will
result if the injunction is not granted; and
3) That the balance of convenience
favours the granting of the stay.
[20]
Given that the test is conjunctive, the Attorney General has to satisfy
all three elements of the test before he will be entitled to relief.
Serious Issue
[21]
In RJR-MacDonald, the Supreme Court of Canada observed that the
threshold for establishing the existence of a serious issue is a low one. In
this regard, the Supreme Court noted that:
Once satisfied that the
application is neither vexatious nor frivolous, the motions judge should
proceed to consider the second and third tests, even if of the opinion that the
plaintiff is unlikely to succeed at trial. A prolonged examination of the
merits is generally neither necessary nor desirable. (at para. 50)
[22]
Insofar as the detainee complaints are concerned, the Attorney General
contends that these complaints are not about the conduct of a member or members
of the military police in the performance of any “policing duties or
functions”, as that expression is used in subsection 250.18(1) of the National
Defence Act. Rather, the handling of detainees is a duty or function that
relates to “military operations that result from established military customs
or practice”. As such, the conduct in issue is beyond the purview of the
Commission: see subsection 2(2) of the Complaints about the Conduct of
Members of the Military Police Regulations, P.C. 1999-2065.
[23]
Amnesty and the BCCLA concede that a serious issue exists with respect
to the two detainee complaints, as it relates to the definition of “policing
duties and functions”. Indeed, the Commission Chairman himself acknowledged
the existence of a serious issue in this regard in his decision refusing to
stay the Commission proceedings.
[24]
Insofar as the failure to investigate complaint is concerned, the
Attorney General acknowledges that a complaint regarding the failure of
military police officers to investigate unlawful conduct, properly framed,
could form the subject matter of a complaint within the jurisdiction of the
Military Police Complaints Commission. However, the Attorney General argues
that the Commission has construed the failure to investigate complaint in such
a way as to take it outside of the Commission’s jurisdiction.
[25]
That is, by characterizing the failure to investigate complaint as
raising systemic issues “resulting from a lack of direction and appropriate
guidance from the upper command of the CF Provost Marshal’s office”, the
complaint is no longer a complaint regarding the conduct of a member or members
of the military police in the performance of policing duties or functions.
[26]
Amnesty and the BCCLA argue that this issue does not amount to a serious
issue. I do not agree. Having regard to the low threshold that has to be met
at this stage of the inquiry, I am satisfied that the Attorney General of
Canada has demonstrated the existence of a serious issue with respect to all
three complaints.
Irreparable Harm
[27]
A stay of proceedings should only be granted in cases where it can be demonstrated
that irreparable harm will occur between the date of the hearing of the motion
for interim relief and the date upon which the underlying application for
judicial review is heard, if the injunction is not granted: Lake Petitcodiac
Preservation Assn. Inc. v. Canada (Minister of the Environment) (1998),
149 F.T.R. 218, at para. 23.
[28]
Irreparable
harm is harm that cannot be quantified in monetary terms, or which cannot be
cured by an award of damages: RJR-MacDonald, at para. 59.
[29]
The burden is on the party seeking the stay to adduce clear and
non-speculative evidence that irreparable harm will follow if their motion is
denied: see, for example, Aventis Pharma S.A. v. Novopharm Ltd. 2005 FC
815, (2005), at para.59, aff'd 2005 FCA 390,
44 C.P.R. (4th) 326.
[30]
That is, it will not be enough for a party seeking a stay to show
that irreparable harm may arguably result if the stay is not granted,
and allegations of harm that are merely hypothetical will not suffice. Rather,
the burden is on the party seeking the stay to show that irreparable harm will
result: see International Longshore and Warehouse Union, Canada v.
Canada (A.G.), 2008 FCA 3, at paras. 22-25, per
Chief Justice Richard.
[31]
In this case, the Attorney General of Canada argues that three different
forms of irreparable harm will result if the Commission’s proceedings are not
stayed. These are firstly, damage to the reputations of the individual
Canadian Forces’ members who are the subjects of the complaints; secondly, the
risk of inadvertent disclosure of confidential information which may damage
Canada’s international relations, national defence or national security; and
thirdly, the waste of public funds that will occur if it is ultimately
determined that the Commission is acting outside of its jurisdiction. Each
category of alleged irreparable harm will be considered in turn.
i) Damage to Reputation
[32]
Ten individuals have been named as subjects of the various complaints.
The Attorney General represents eight of these individuals before the
Commission, and two have retained private counsel. None of these individuals
have brought their own applications for judicial review with respect to the
actions of the Commission, nor have any of them been named as parties in either
of the Attorney General’s applications. Furthermore, none of the subjects of
the complaints sought leave to intervene in either proceeding. Thus the first
question that arises is whether the Attorney General can rely on alleged harm
to these individuals in support of his motion for a stay of proceedings.
[33]
In this regard, it is noteworthy that the
Supreme Court observed in RJR-MacDonald that:
At this stage
the only issue to be decided is whether a refusal to grant relief could so
adversely affect the applicants’ own interests that the harm could not
be remedied if the eventual decision on the merits does not accord with the
result of the interlocutory application. (at para. 58) (emphasis added)
[34]
The jurisprudence is clear that the question for the Court is not whether third parties may suffer irreparable harm if
the relief sought is not granted, but rather whether the
individual seeking the injunction or stay will himself suffer such harm: see, for example, Mainil v. Canada (Canadian Wheat Board), 2004
FC 1768, at para. 61; Chinese Business Chamber
of Canada v. Canada, 2005 FC 142, at para. 58; Dodge v. Caldwell First Nation of Point Pelee, 2003 FCT 36, at paras. 20-21.
[35]
Counsel for the Attorney General was careful in
his submissions to distinguish between what he called the “corporate interests”
of his client, and the personal interests of the individual subjects of the
complaints, acknowledging that allegations of harm to reputation did not relate
to the Attorney General’s own “corporate interests”.
[36]
The subjects of the complaints have full
standing before the Commission: see section 250.44 of the National Defence
Act. Counsel for the Attorney General acknowledged that as parties
“directly affected” by the conduct of the Commission, each of these individuals
could have commenced his or her own applications for judicial review with
respect to the decisions of the Commission to deal with the complaints, and
that none of them has chosen to do so. Counsel also conceded that
“technically” or “procedurally” his client could not rely on harm to third
parties in support of the motion for a stay.
[37]
However, counsel submits that because he
represents the interests of eight of the subjects of the complaints in the
proceedings before the Commission, the potential damage to the reputations of
these individuals should be taken into account in support of the motion for a
stay.
[38]
Counsel for the Attorney General cited no
authority to support his argument in this regard, and I do not agree with his
submission. While recognizing that the Attorney General of Canada is not an
ordinary litigant and has public interest responsibilities, I am nevertheless
satisfied that the reputational interests of the individual subjects of the
complaints are clearly personal to them, and cannot be relied upon by the
Attorney General to support the claim of irreparable harm.
[39]
Even if I were to consider the harm to the
reputations of the individuals in question that would allegedly result if the
Commission is allowed to proceed with its hearings, I would not find that it
amounts to irreparable harm justifying the granting of a stay.
[40]
The only evidence before the Court on this issue is the
second affidavit sworn by Major Jeffrey Harvey, who served as the Task Force Provost Marshall in Afghanistan in the period between August of 2006 and February of 2007. Appended
to Major Harvey’s affidavit is the “Notice of Potential Adverse Findings”
served upon him by the Commission.
[41]
Major Harvey takes issue with the Commission’s “shotgun style” in making
what he says are general allegations against him based upon the fact that he
once occupied the role of Task Force Provost Marshall. He says that by
implying that he committed each of the transgressions identified in the “Notice
of Potential Adverse Findings”, his reputation will be tainted in the eyes of
anyone who is made aware of the allegations through the public hearings.
[42]
Major Harvey is concerned that he may never be able to clear his name if
the Court decides that the Commission does not have the jurisdiction to inquire
into the decision to transfer detainees. He further asserts that even if the
Court determines that the Commission has the jurisdiction to examine some of
the issues in this case, the Commission’s current “systemic” approach “means
that I may forever be guilty of professional negligence, even if by simple
association”.
[43]
At the same time, Major Harvey asserts that he is firmly
convinced that he met the standards of professional conduct expected of him
while serving as Task Force Provost Marshall. As evidence of this, he points
to the fact that he was awarded the General Campaign Star for his service in Afghanistan.
[44]
There is no evidence before the Court from any of the other nine
subjects of the complaints. Counsel for the Attorney General says that it was
not necessary to bring forward evidence from these individuals, as they would
have simply said the same thing as Major Harvey. I do not think that we can
speculate as to what it is that these individuals might have said. While some
may share the views of Major Harvey, it is quite possible that others may
welcome the opportunity to testify before the Commission, in order to clear
their names and restore their reputations.
[45]
Assuming that I can take the potential risk to Major Harvey’s personal
reputation into account in support of the Attorney General’s motion, I have not
been persuaded that the risk to his reputation that he might face as a result
of the Commission proceedings amounts to irreparable harm.
[46]
Insofar as the allegations contained in the “Notice of Potential Adverse
Findings” are concerned, that Notice was confidential and would not have been
made public, but for Major Harvey’s own actions in attaching it to the
affidavit filed as part of the public record in this case. As such, any damage
to his reputation that may result from public awareness of the allegations
contained in the “Notice of Potential Adverse Findings” is entirely
self-induced: see Canada (Attorney General) v. Canada (Commission of
Inquiry on the Blood System in Canada - Krever Commission), [1997]
3 S.C.R. 440, at para. 56.
[47]
Moreover, we cannot know at this stage of the proceedings what the
result of the Attorney General’s applications for judicial review will be. Nor
can we know what might transpire before the Commission in relation to the
allegations regarding Major Harvey, or what the ultimate findings of the Commission
might be in relation to him. Major Harvey has asserted unequivocally in his
affidavit that he has done nothing wrong. It may well be that the Commission
hearings will provide him with a public forum in which to tell his side of the
story, and that the Commission’s final report may vindicate his position.
[48]
To find irreparable harm based upon Major Harvey’s own fears of what might
happen in the future would require the Court to embark on an exercise of
“speculation and conjecture”: see Addy v. Canada (Commission of Inquiry into
the Deployment of Canadian Forces in Somalia– Létourneau Commission), [1997]
3 F.C. 784, at para. 59; Beno v. Canada Commission of Inquiry
into the Deployment of Canadian Forces in Somalia – Létourneau
Commission), [1997] F.C.J. No. 936, at para. 20.
[49]
I acknowledge that there are cases where Courts have found the potential
damage to the reputations of those facing legal proceedings to amount to
irreparable harm justifying the staying of those proceedings. In this regard,
the Attorney General relies on Bennett v. British Columbia
(Superintendent of Brokers), (1993), 22 B.C.A.C. 300, at paras. 17-20, and Canada
(Royal Canadian Mounted Police) v. Malmo-Levine (1998), 161 F.T.R. 25, at
paras. 2-22 and 25-26.
[50]
It is noteworthy, however, that in both Bennett and Malmo-Levine,
there were allegations of bias on the part of the presiding officials. A
review of the Courts’ reasons in those cases makes it clear that this was a
critical factor in the determination that the harm to reputation feared by the
applicants in those cases constituted irreparable harm. No allegation of bias
on the part of the Military Police Complaints Commission has been made in this
case.
ii) Risk of Disclosure of Confidential
Information
[51]
The second category of harm that the Attorney General asserts will
occur if the Commission’s proceedings are not stayed relates to the risk of
disclosure of potentially injurious information relating to Canada’s
international relations, national defence or national security.
[52]
As I understand it, the Attorney General’s primary concern is
that in the heat of cross-examination, a witness before the Commission might
blurt out information that would otherwise be subject to the provisions of
section 38 of the Canada Evidence Act, R.S.C. 1985,
c. C-5.
[53]
Counsel for the Attorney General also expressed the concern that
Commission counsel (who has already been provided with access to a great deal
of section 38 information on a confidential basis) could inadvertently let
potentially injurious information slip in the course of her questioning of
witnesses.
[54]
In support of these arguments, the Attorney General relies upon the
second affidavit sworn by Major Harvey, who discusses the lack of experience
that Canadian Forces’ members have with “filtering” confidential information.
Major Harvey also discusses his own experiences with the rigors of
cross-examination, and his concern that sensitive information may inadvertently
be disclosed by a witness while the witness is under cross-examination.
[55]
I agree that once confidential information has been disclosed, the
resulting harm cannot be undone. As a consequence, such disclosure could
amount to irreparable harm: see O’Connor v. Nova Scotia, 2001 NSCA 47,
at para. 16.
[56]
I also accept that any time a witness who possesses potentially
injurious information gets into the witness box in any kind of public legal
proceeding, there is at least a theoretical risk that confidential information
could be inadvertently disclosed. That said, the burden is on the Attorney
General to provide clear and convincing evidence that irreparable harm will result
if the stay is not granted. The suggestion that it is possible that a
witness might disclose confidential information on the witness stand
does not meet this threshold.
[57]
Moreover, there is much that can be done to reduce the risk of
inadvertent disclosure of potentially injurious information by witnesses before
the Commission. The subjects of the complaints have already been provided with
“Notices of Potential Adverse Findings”, and counsel for the Commission is also
required by the Commission’s rules of procedure to prepare a summary of the
anticipated evidence of each witness to be called. As a result, the likely
areas of questioning for each witness should be relatively easy to identify.
Careful preparation of witnesses by counsel will go a long way towards reducing
the risk of inadvertent disclosure. Furthermore, alert counsel at the hearing,
properly prepared and ready to make timely objections, can also pre-empt
concerns with respect to potential inadvertent disclosure.
[58]
It is also clear from a review of the record that the Commission is
alive to the necessity of maintaining the confidentiality of potentially
injurious information, and that it is well aware of its obligations under
section 38 of the Canada Evidence Act. Indeed, counsel for the
Commission has been working cooperatively with the Department of Justice over
the last few months in an effort to resolve section 38 issues in advance of the
Commission hearings.
[59]
Special rules of procedure have also been developed by the Commission specifically
for this hearing, in consultation with the parties, so as to address potential
concerns with respect to the disclosure of potentially injurious information.
Moreover, these Rules make it explicit that they are subject to the provisions
of the Canada Evidence Act.
[60]
Furthermore, there are procedures that may be followed to reduce the
risk of inadvertent disclosure in cases where a witness may have difficulty
disengaging potentially injurious information from information that may safely
be made public. These procedures include the use of summaries: see Afghanistan
Public Interests Hearing Rules, section S.10, and the section 38 process
itself: see the discussion in Canada (Attorney General) v. Ribic,
2003 FCA 246, at paras. 51-52.
[61]
I am not prepared to give any weight to counsel’s suggestion that the
Attorney General will suffer irreparable harm because Commission counsel might herself
inadvertently disclose potentially injurious information which is subject to
notice under section 38 of the Canada Evidence Act through her
questioning of witnesses.
[62]
It is clear from the record that Commission counsel is well aware of her
obligations under section 38 of the Act. Commission counsel is an experienced
lawyer, and I am not prepared to make a finding of irreparable harm based upon
speculation as to the possibility that counsel might breach her professional
and legal obligations in her conduct of the hearings.
[63]
Counsel for the Attorney General conceded that witnesses in the
possession of potentially injurious information do testify in various types of
public hearings, including high-profile proceedings that garner a great deal of
media attention. Examples of this include security certificate proceedings in
this Court, as well as Commissions of Inquiry such as those involving the Air
India bombing and the Maher Arar affair.
[64]
Indeed, Brigadier General Joseph Paul André Deschamps testified before
this Court in Amnesty #1, in the presence of the media, with respect to
issues relating to the transfer of detainees by the Canadian Forces in Afghanistan,
see paras. 32-36. There is no evidence before me that any potentially
injurious information has inadvertently been disclosed by witnesses in any of
these proceedings.
[65]
Counsel for the Attorney General stated that it takes “disciplined
Commission counsel, Members of the Commission and people on edge to ensure
objections in time”, in order to ensure that potentially injurious information
is not disclosed. While I do not disagree with counsel’s observation, I see no
reason why this will not occur in this case.
iii) Costs Potentially Thrown Away
[66]
The final area of alleged irreparable harm relied upon by the Attorney
General relates to the costs associated with the Public Interest Hearing that
may ultimately be wasted, if this Court were to determine that the Commission
was without jurisdiction to inquire into any of the complaints.
[67]
The estimated cost of the hearings for the Commission will be in the
vicinity of $4 million. Counsel for the Attorney General submits that, in
addition, his client will incur significant costs of its own, although no
evidence has been provided as to what these costs may be. These costs could
not be recovered, in the event that the Commission proceedings are ultimately
stayed.
[68]
While recognizing that costs thrown away are not usually viewed as
amounting to irreparable harm justifying the staying of proceedings, counsel
submits that the waste of public funds of this order of magnitude, in times of
fiscal restraint, simply cannot be justified, and would amount to irreparable
harm.
[69]
In support of his position, the Attorney General relies on the decision
of the Alberta Court of Queen’s Bench in Ermineskin Cree Nation v. Canada,
2001 ABQB 760, at para.79.
[70]
While not disputing that significant costs will be incurred in
connection with the Commission’s hearings, Amnesty and the BCCLA ask me to
consider these costs in the context of the overall cost of Canada’s mission in Afghanistan.
In this regard, the complainants observe that the cost of the hearings
represents approximately 0.0005% of the cost of the mission as a whole.
[71]
A review of the Ermineskin decision cited by the Attorney General
discloses that the sum total of the Court’s analysis with respect to the cost
of proceedings as irreparable harm justifying a stay is the following
statement: “The issue of irreparable harm is related to the harm that would be
done where both the Tribunal and this Court are trying and making findings on
the constitutional question at the same time. This would be a waste of
resources, both the Tribunal's and this Court's”. Given the brevity of the
Court’s analysis on the issue, I am of the view that this decision is of
limited assistance.
[72]
There are, however, numerous decisions of this Court which have held
that the inability of a party to recover the costs associated with a hearing
does not amount to irreparable harm: see for example, Canadian National
Railways v. Leger, [2000] F.C.J. No. 243, at para. 15; Brocklebank v. Canada
(Minister of National Defence), [1994] F.C.J. No. 1496, at para. 11; ICN
Pharmaceuticals, Inc. v. Canada (Patented Medicine Prices Review
Board), [1995] F.C.J. No. 1644, at para. 3; Bell Canada v.
Communications, Energy and Paperworkers Union, [1997] F.C.J. No. 207,
at paras. 37-41; Northwest Territories v. Public Service Alliance of Canada,
[2001] F.C.J. No.19 (F.C.A.), at para. 19.
[73]
Counsel for the Attorney General has argued that exceptional
circumstances exist in this case justifying a finding of irreparable harm. That
is, counsel says that the magnitude of the hearing scheduled to take place
before the Commission is such that irreparable harm will indeed result if the
proceedings are ultimately quashed. I do not agree.
[74]
Firstly, I note that counsel was unable to tell me how long the
Commission hearings will likely take, other than to say that two weeks have
been set for the hearings at this point. Thirteen witnesses are expected to
testify. The budget submitted by the Commission in its request for
supplementary funding is based upon a projected 30 days of hearings. Given the
limited evidence available on this point, there is no reason to believe that
the hearings in question will be of an unusual magnitude.
[75]
Secondly, the Bell Canada decision cited above involved pay
equity litigation before the Canadian Human Rights Tribunal. Litigation of
this nature is inevitably lengthy, complex and expensive. Nevertheless,
Justice Richard, then of this Court, did not find that the costs of litigation
that would potentially be lost if it were ultimately determined that the
proceedings should be quashed amounted to irreparable harm.
[76]
Thus, while recognizing the need for restraint in the expenditure of
public funds, I cannot find that the costs potentially thrown away in this case
amount to irreparable harm.
Balance of Convenience
[77]
The test for a stay of proceedings is conjunctive. Given that the Attorney
General has failed to satisfy the irreparable harm element of the test, it is
not necessary to address the issue of the balance of convenience.
Costs
[78]
While I agree that Amnesty and the BCCLA should have their costs
associated with this motion, I see no basis for making those costs payable
forthwith, as the organizations have requested. Given that the two
organizations were represented by the same counsel, they shall have one set of
costs, on the ordinary scale.
[79]
Counsel for the Commission does not seek costs of the intervention, and
none are awarded.
ORDER
THIS COURT ORDERS
AND ADJUDGES that the motion for a stay is dismissed, with costs to
the respondents.
“Anne Mactavish”
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