Date: 20071203
Docket: T-502-07
Citation: 2007 FC 1268
Ottawa, Ontario, December 3,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
YARINDER BRAR and
THE CANADIAN
HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
By
this application, the Attorney General of Canada seeks judicial review of an
interlocutory decision of the Canadian Human Rights Tribunal. The Tribunal
dismissed the Royal Canadian Mounted Police’s request to limit Yarinder Brar’s
ability to advance certain allegations at the hearing of his human rights
complaint. The Attorney General submits that in allowing Sgt. Brar to advance
issues that had not been investigated by the Canadian Human Rights Commission,
the Tribunal exceeded its jurisdiction.
[2]
For
the reasons that follow, I am satisfied that the Attorney General’s application
for judicial review should be dismissed as it is premature.
Background
[3]
Sgt.
Brar is a Canadian citizen of East Indian origin, who began working for the
RCMP in 1989. In 1992, he filed a complaint with the Canadian Human Rights
Commission in which he alleged that he had been discriminated against in the
course of his employment. This complaint was settled in 1995.
[4]
As
part of the settlement, the RCMP agreed to remove all information from Sgt.
Brar’s Personnel and Discipline File relating to the incidents giving rise to
his complaint, including any references to disciplinary action that had been
taken against him, as well as any references to the settlement itself.
[5]
In
2002, Sgt. Brar filed a second human rights complaint in which he alleged that
he had continued to experience discrimination and harassment in the workplace
after the settlement of his first complaint. Sgt. Brar identified a series of
incidents which he says amounted to discriminatory practices within the meaning
of sections 7, 10 and 14 of the Canadian Human Rights Act.
[6]
Sgt.
Brar further asserted that the RCMP had retaliated against him for filing his
1992 complaint, contrary to the provisions of section 14.1 of the Act.
[7]
Finally,
Sgt. Brar asserted that the discriminatory conduct attributed to the RCMP was
ongoing.
[8]
The
Commission investigated Sgt. Brar’s complaint. In the course of the
investigation, Sgt. Brar provided the Commission with evidence regarding
additional incidents of discriminatory conduct on the part of the RCMP
allegedly occurring after he had filed his 2002 human rights complaint.
[9]
Contemporaneous
correspondence from Sgt. Brar’s counsel to the Commission noted that counsel
had asked the Commission Investigator whether it was necessary to amend Sgt.
Brar’s human rights complaint to make specific reference to these additional
allegations. According to counsel’s letters to the Commission, Sgt. Brar had
been advised that an amendment to the complaint was not necessary.
The Investigation Report
[10]
An
Investigation Report with respect to Sgt. Brar’s complaint was completed on
January 12, 2005. The Report concluded that the evidence did not support his
allegations of discrimination and harassment due to his race and national and
ethnic origin. The Investigator further found that the evidence did not
support Sgt. Brar’s allegations of differential treatment and harassment based
upon his disability.
[11]
The
Investigation Report did find, however, that information relating to Sgt.
Brar’s first human rights complaint had been shared with RCMP employees, and
had been used against Sgt. Brar at a disciplinary hearing.
[12]
The
Investigation Report concluded by recommending that Sgt. Brar’s complaint be
referred to the Canadian Human Rights Tribunal for hearing, pursuant to
paragraph 44(1)(a) of the Canadian Human Rights Act¸ as the evidence
indicated that Sgt. Brar’s treatment by the RCMP appeared to have been
influenced by the fact that he had previously filed a human rights complaint.
[13]
The
Attorney General of Canada’s arguments in this case hinge on the sixth
paragraph of the Investigation Report, where the Commission Investigator stated
that:
After the filing of his complaint and
during the investigation, the complainant raised and continues to cite several
other incidents of alleged discriminatory conduct. These further incidents
do not form part of this report, and the complainant was advised that a new
complaint would have to be filed to address these further issues.
[emphasis added]
The Commission Decision
[14]
After
the completion of the Investigation Report, both sides provided the Commission
with additional submissions in writing. In the case of Sgt. Brar, these submissions
were quite lengthy, and contain a great deal of information regarding both the
incidents specifically described in his human rights complaint form and the
discriminatory practices allegedly occurring after he had filed his second
human rights complaint.
[15]
The
matter was then placed before the Commissioners for a decision. The
Commissioners decided that Sgt. Brar’s case would be referred to the Canadian
Human Rights Tribunal for a hearing.
[16]
A
copy of Sgt. Brar’s human rights complaint was then sent to the Chairperson of
the Canadian Human Rights Tribunal. Accompanying the complaint was a referral
letter sent by the Secretary to the Canadian Human Rights Commission, the
substantive portion of which provided that:
After examining this information, the
Commission decided, pursuant to section 49 of the Canadian Human Rights Act,
to request that the Chairperson of the Canadian Human Rights Tribunal institute
an inquiry into the complaint as it is satisfied that, having regard to all
the circumstances, an inquiry is warranted. [emphasis added]
The Tribunal Decision
[17]
A
number of preliminary issues arose between the parties at the pre-hearing
stage, which resulted in a joint motion being brought before the Tribunal
seeking, amongst other things, an order or direction from the Tribunal
“clarifying the nature and scope of the complaint”.
[18]
The
RCMP also sought an order prohibiting Sgt. Brar from calling certain witnesses,
limiting the ambit of other witnesses’ testimony, and striking a number of
paragraphs in Sgt. Brar’s Statement of Particulars which dealt with his
allegations of discriminatory practices allegedly occurring after the filing of
his 2002 human rights complaint.
[19]
The
parties’ motion was dealt with by the Tribunal Chairperson at a case management
conference. The Chairperson gave an oral decision, which was subsequently
reduced to a written Order by the parties themselves.
[20]
The
RCMP’s request to preclude Sgt. Brar from advancing his allegations of
discriminatory conduct allegedly occurring after 2002 was dismissed. In
particular, the Tribunal dismissed the RCMP’s request to strike out a number of
paragraphs of Sgt. Brar’s Statement of Particulars.
[21]
The
Tribunal’s order in this regard was specifically made without prejudice to the
RCMP’s right to object to any of the allegations being advanced at the hearing,
on the basis of prejudice or any other basis.
[22]
The
Tribunal Order further provided that the RCMP’s request to preclude Sgt. Brar
from calling certain witnesses at the hearing was dismissed, again without
prejudice to the RCMP’s right to object to the basis of the evidence on the
basis of relevance, timeliness, prejudice or immunity. Similarly, the RCMP’s
request to limit the ambit of the testimony of other witnesses was dismissed, again
without prejudice to its right to object to the evidence in the course of the
hearing.
[23]
In
his oral decision, the Tribunal Chairperson explained the basis for his
decision, observing that:
[T]he reason I made this decision is
because it is my view that there is a link between the allegations that I am
allowing the Complainant to pursue and the complaint. Having come to this
conclusion, this is not to preclude, once the hearing has started, and in the
context, and more fulsome evidence – this does not preclude the Respondent from
objecting to any of these allegations going forward, or any of the witnesses
coming forward to support these allegations on the basis of relevance, or on
the basis of prejudice, or whatever other objection the Respondent may seek to
put forward at the time of the hearing.
As I said, I am reluctant to eliminate
allegations in a Statement of Particulars or put into a Statement of Claim,
unless it is apparent that there is no relevance, or that they have absolutely
nothing to do with the facts alleged in the complaint.
[24]
While
a number of matters were dealt with at the case management conference, this
application is restricted to challenging the Tribunal’s refusal to limit the
ambit of Sgt. Brar’s complaint. At this point in time, the RCMP does not take
issue with the Tribunal’s decision not to limit the list of witnesses, their
testimony, or the RCMP’s disclosure obligations.
Issues
[25]
While
the Attorney General has raised several issues, I am satisfied that the
question of prematurity is dispositive of the matter.
Is the Application
Premature?
[26]
The
Attorney General submits that the ability of the Canadian Human Rights Tribunal
to address issues at a hearing that were not investigated by the Canadian Human
Rights Commission and were explicitly excluded from consideration in the
Investigation Report relating to the complaint goes straight to the Tribunal’s
jurisdiction. As such, the application is not premature, and should be decided
in advance of the Tribunal hearing.
[27]
In
this regard, the Attorney General relies on paragraph 44(3)(a) of the Canadian
Human Rights Act, which provides that on receipt of an investigation
report, the Commission:
[M]ay 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) … [emphasis
added]
[28]
According
to the Attorney General, it is clear from paragraph six of the Investigation
Report that the Report does not relate to events occurring after Sgt. Brar
filed his human rights complaint in 2002. As a consequence, the Canadian Human
Rights Tribunal is without jurisdiction to consider these events, and immediate
judicial review should be available.
[29]
As
a general rule, in the absence of special circumstances, interlocutory rulings
made by administrative tribunals should not be challenged until the tribunal
has rendered its final decision: see, for example, Sherman v. Canada
(Customs and Revenue Agency), 2006 FC 715 at ¶39, Zündel v. Canada
(Human Rights Commission) [2000] 4 F.C. 255, 256 N.R. 125 (C.A.), at ¶10
and Szczecka v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 934, 116 D.L.R. (4th) 333 at 335.
[30]
There
are a number of reasons why this is so, including the fact that the application
may be rendered moot by the ultimate outcome of the case, and the risk of the
fragmentation of the process, with the accompanying costs and delays. Also of
concern is the absence of a full record at the preliminary stage, with the resultant
inability to see how the ruling actually played out in the ultimate
determination of the case. There is also the possibility that the tribunal may
end up modifying its original ruling as the hearing unfolds.
[31]
The
fact that an issue may arguably relate to the tribunal’s jurisdiction does not
automatically justify immediate judicial review: see Air Canada v. Lorenz,
[2000] 1 F.C. 494 ¶13. See also Brown and Evans, Judicial Review of
Administrative Action in Canada (Toronto: Canvasback Publishing, 1998), at
3:4100.
[32]
Many
of the underlying policy concerns which support the principle that
interlocutory decisions of inferior tribunals should not ordinarily be subject
to immediate judicial review arise in this case.
[33]
In
particular, it is clear that the ruling of the Tribunal Chairperson did not
finally determine the scope of the hearing to be held before the Canadian Human
Rights Tribunal. Indeed, the Chairperson was very careful to reserve the final
decision in this regard to the Tribunal member ultimately dealing with the
merits of Sgt. Brar’s complaint.
[34]
That
is, the Chairperson specifically preserved the right of the RCMP to object to
particular post-complaint allegations being advanced by Sgt. Brar on whatever
basis it deemed appropriate, deferring the final determination of the scope of
the hearing to the hearing on the merits.
[35]
As
a consequence, it is entirely possible that the concerns raised by the Attorney
General may end up being moot if the RCMP’s objections in this regard are
sustained by the Tribunal member presiding over the hearing.
[36]
Moreover,
even if the presiding member ultimately allows Sgt. Brar to advance allegations
of discrimination arising after the filing of his 2002 human rights complaint,
these allegations may end up being dismissed.
[37]
Even
if the question of the Tribunal’s jurisdiction remains a live one at the end of
the hearing, a reviewing Court will undoubtedly benefit from receiving a fully
developed record, including the reasons of the Tribunal member finally dealing
with the matter. In particular, it will be useful for a reviewing Court to
have an understanding of the relationship or nexus between the post-complaint
allegations of discrimination and the allegations set out in Sgt. Brar’s
complaint form.
[38]
Finally,
counsel for the Attorney General submits that the interests of efficiency and
administrative economy support the Court’s immediate intervention in this
matter. That is, counsel says that the parties are currently facing a lengthy
hearing – one which will be significantly abbreviated if it is determined that
the scope of the complaint should be limited in the manner suggested by the
Attorney General.
[39]
The
fact that the hearing into Sgt. Brar’s complaint may be shortened by an
immediate ruling from this Court is not determinative. In this regard, I note
that in the Lorenz case, Justice Evans declined to entertain an
application to judicially review a decision regarding an allegation of bias,
preferring to wait until the Board had rendered its final decision. This notwithstanding
the fact that there were several weeks of hearing left to go, which would have
been invalidated, had the allegations of bias ultimately been sustained.
[40]
Moreover,
as was the case in Lorenz, I am of the view that the possibility of
waste in this case is mitigated by the fact that it is not plain and obvious
that the Tribunal is without jurisdiction to entertain the allegations in
issue.
Conclusion
[41]
For
these reasons, I have not been persuaded of the existence of special
circumstances in this case that would warrant the Court’s intervention at this
time. I therefore decline to exercise my discretion to grant relief on the
basis that the application for judicial review is premature, and the
application for judicial review is dismissed.
Costs
[42]
Sgt.
Brar contends that this application for judicial review was clearly premature,
and should never have been brought. As a result, he says that he should be
entitled to his solicitor and client costs.
[43]
In
contrast, the Attorney General argues that the issues raised by this case are
novel. As a consequence, counsel for the Attorney General submits that if the
application is dismissed, Sgt. Brar should only be entitled to his costs on the
ordinary scale.
[44]
While
the Commission Investigator’s treatment of Sgt. Brar’s allegations of
post-complaint discrimination may have been unusual, the provisional nature of
the Tribunal Chair’s ruling was quite clear. As a consequence, I agree with
Sgt. Brar that the application for judicial review should not have been brought
at this time.
[45]
Therefore,
having regard to all of the circumstances, as well as the factors referred to
in Rule 400(3), and in the exercise of my discretion, I find that Sgt. Brar
should have his costs of this application at the upper end of column 5 of
Tariff B.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This
application for judicial review is dismissed; and
2.
Sgt
Brar should have his costs of this application at the upper end of column 5 in
Tariff B.
“Anne
Mactavish”
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