Date: 20050412
Docket: T-867-04
Citation: 2005 FC 466
Ottawa, Ontario, the 12th day of April 2005
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
CANADIAN BROADCASTING CORPORATION
Applicant
and
SYNDICAT DES COMMUNICATIONS
DE RADIO-CANADA (FNC-CSN)
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Justice requires more than good intentions: without necessarily calling for formalism, it requires that organizations function at least effectively enough to put intentions into effect; moreover, the purpose of proposed legislation is to put its related intentions into operation. For such legislation to be given effect, a specified series of operations (or a chronology of steps) should be initiated. Without that, intentions, or even isolated, sporadic acts, as formulated or contemplated by the legislation, exist in a void.
NATURE OF JUDICIAL PROCEEDING
[2] The application for judicial review at bar involves a decision by the Canadian Human Rights Commission (the Commission) dated April 5, 2004, by which, pursuant to section 47 of the Canadian Human Rights Act (the Act), the Commission appointed a conciliator to attempt to settle the salary discrimination complaint. That complaint, based on section 11 of the Act, was filed by the Syndicat des Communications de Radio-Canada (SCRC) against the Canadian Broadcasting Corporation (the CBC) on April 30, 1999. In its decision the Commission also asked the Canadian Human Rights Tribunal (the Tribunal), pursuant to paragraph 44(3)(a) of the Act, to institute an inquiry into the complaint because the Commission was satisfied that an inquiry into the complaint was warranted.
FACTS
[3] The Court will only mention the essential events here. On August 7, 1995, following the overall review of the existing bargaining units of the French network of the CBC (Moncton and province of Quebec), the Canada Labour Relations Board certified the SCRC to represent all on-air personnel, as well as all persons assigned primarily to the duties of designing, preparing, coordinating and finalizing programs.
[4] On June 22, 1998, the CBC and the SCRC concluded a collective agreement for the new unit. That agreement was to be in effect until June 17, 2001.
[5] On November 19, 1998, the SCRC submitted to the Commission a salary discrimination complaint based on section 11 of the Act. In the complaint, the SCRC alleged that employment groups with a majority of female staff represented by the SCRC were doing work which was less well paid than, but equivalent to, that done by the primarily male comparison group, namely all technicians covered by another unit, the unit represented by the Syndicat des Technicien(ne)s et Artisan(e)s du Réseau Français de Radio-Canada (STARF).
[6] On April 28, 1999, the SCRC signed an official complaint in which the employment groups with a majority of female staff were defined and the primarily male comparison group was limited to Group 9 technicians represented by the STARF.
[7] After the Commission sent the CBC a copy of the complaint dated April 28, 1999, the CBC set out in a letter dated July 30, 1999, the grounds on which it considered that the complaint should be ruled inadmissible and dismissed. At the same time, the CBC denied any breach of section 11 of the Act. In a letter dated September 29, 1999, the Commission acknowledged receipt of the comments by the CBC on the admissibility of the complaint and indicated that it would be necessary to await the comments of the SCRC before it made a decision on the admissibility of the complaint. In the same letter, the Commission stated that if it decided to proceed with an investigation, it would carry out an analysis and job evaluation, determine whether there was salary discrimination and, if applicable, calculate any adjustment necessary to end the discrimination; it would inform all parties of its findings and, if necessary, make a final recommendation to the Commission about steps to be taken. In a letter dated October 26, 1999, the SCRC submitted its comments. The CBC then provided further comments. The Commission investigator recommended to the Commission that the complaint be found admissible and that the inquiry go forward. On June 9, 2000, the Commission decided that the complaint was admissible and that an inquiry would be held.
[8] On July 11, 2000, the CBC filed in the Federal Court of Canada an application for judicial review of the decision dated June 9, 2000. The Federal Court of Canada dismissed the application on July 16, 2002.
[9] In the meantime, in a letter dated August 16, 2000, the Commission had indicated to the CBC that the inquiry was going forward, as the CBC had not requested that the decision of June 9, 2000, be stayed until there was a ruling on the application for judicial review. The Commission asked the CBC what its position was on the allegations set out in the complaint. On September 18, 2000, the CBC replied that it was maintaining the objections and positions it had put forward from the beginning of the complaint. It also denied the allegations contained in the complaint.
[10] On September 20, 2000, the Commission asked the CBC to provide it with all the existing job descriptions of groups covered in the complaint, as well as evaluation plans used by the CBC at that time. On October 19, 2000, the CBC indicated to the Commission that it did not use evaluation plans. It sent the job descriptions for groups covered in the complaint, namely job descriptions for primarily female groups and job descriptions for the primarily male comparison group. In the words of the CBC itself, the job descriptions for primarily female groups were class profiles or generic descriptions which, with one exception, dated back several years (the late 1980s in most cases) and had not been updated. The job descriptions for the comparison group were from December 1997.
[11] In letters dated February 7 and March 25, 2003, a new investigator asked the CBC for its position on the allegations contained in the complaint, including tables setting out the number of employees, employee sex, employee classification, position title, position group and level, evaluation of positions (including all scoring details) and salary levels.
[12] In a letter dated May 6, 2003, the CBC did not provide the tables containing the information requested by the investigator, but instead asked for a stay of proceedings and dismissal of the complaint, subject to preliminary objections already raised regarding the complaint and on the ground that the Commission had done nothing positive between the spring of 2000 and the winter of 2003; that since the spring of 2000 the Commission had completely abandoned all further investigation on two crucial matters; that nearly four years after the complaint was filed the Commission had still not begun an investigation into the allegations contained in the complaint; and that such delays were causing the CBC significant harm.
[13] In a letter dated September 22, 2003, the investigator responded to the request for a stay of proceedings made by the CBC on May 6, 2003, indicating that in that request the CBC had raised the same objections it had made in 1999. The investigator asked the CBC for its position on the substantive allegations in the complaint, namely a defence or argument in addition to the objections which the CBC had already communicated to the Commission.
[14] In a letter dated October 1, 2003, the CBC provided no information regarding its position on the substantive allegations in the complaint but asked the Commission to substantially address the request for a stay of proceedings and make a decision on the request.
[15] In a letter dated November 28, 2003, the Commission informed the CBC that the investigation into the complaint was completed and attached the investigation report, which recommended that the Commission request the creation of a Tribunal to inquire into the complaint.The relevant passage from the report is the following:
Allegation # 1
14. In demonstrating predominance, the Syndicat alleged that the work done by staff composing the primarily female groups was equivalent to that done by predominantly male comparison groups, namely level 9 technicians in the French network, represented by the Syndicat des techniciens et artisans.
15. The mis-en-cause submitted no material defence on this allegation.
Allegation # 2
16. In establishing that the jobs have the same value, the Syndicat maintained that the training required for the comparison group is below the level of that required for the complainant group. The efforts required are comparable, the responsibilities devolving on the comparison group are below those discharged by the complainant group. The working conditions of both groups are comparable, except for the stress level, which is greater for the complainant group.
17. The mis-en-cause submitted no material defence on this allegation.
Allegation # 3
18. In demonstrating the wage differential, the Syndicat alleged that the work done by the primarily female groups represented is less well paid than that done by the comparison group, alleging an hourly average at the maximum salary scales of $19.50 against $20.65 for the comparison group.
19. The mis-en-cause submitted no material defence on this allegation.
Analysis
20. The analysis is based on the allegations, which are accepted as they stand since no material defence was received.
21. Based on the allegations by the Syndicat, and in the absence of any defence by the mis-en-cause, a salary differential appears to exist favouring the incumbents of positions most of which are held by men, and taking into account four criteria: qualifications, effort, responsibility and working conditions. The Syndicat established predominance, equivalency and wage differential.
22. As the allegations indicating disparity have not been denied by the mis-en-cause, it is possible to conclude that there is a wage disparity between the comparison groups.
Recommendation
23. In the absence of a substantive defence it is recommended, pursuant to section 49 of the Canadian Human Rights Act, that the Commission ask for a human rights tribunal to be created to inquire into the complaint.
[16] In a letter dated December 23, 2003, the CBC indicated its comments on the investigation report, including the fact that the investigator did not have any evidence before her establishing that an inquiry into the complaint was warranted, since the duties covered in the 1999 complaint had not been assessed in an evaluation plan to determine and compare their value or equivalency, and the investigator's analysis consisted of simply accepting the allegations as they stood.
[17] The investigation report and the parties' comments were forwarded to the Commission for the Commission to decide whether an inquiry into the complaint was warranted, and consequently order that there be an inquiry into the complaint by the Tribunal. However, based on the evidence in the record, and contrary to what was indicated in the investigation report, the letters from the CBC dated July 30, 1999, and May 6, September 22 and October 1, 2003, were not attached to the investigation report. The Commission rendered its decision on April 5, 2004. That is the decision at issue in the case at bar.
IMPUGNED DECISION
[18] The Commission's decision indicated the following:
[translation]
Before rendering its decision, the Commission examined the report earlier disclosed to you and all related comments subsequently forwarded. After examining this information, the Commission decided:
. . . pursuant to section 47 of the Canadian Human Rights Act, to appoint a conciliator to attempt to settle the complaint and pursuant to paragraph 44(3)(a) of the Act to ask the Chairperson of the Canadian Human Rights Tribunal to institute an inquiry into the complaint because the Commission is satisfied that in the circumstances an inquiry into the complaint is warranted. If the parties are unable to find a solution within 120 days of receipt of this letter, the matter will be referred to the Tribunal. If the parties find a solution, the details of the settlement will be submitted to the Commission for approval or rejection pursuant to subsection 48(1) of the Act.
A representative of the Alternative Dispute Resolution Branch will be in touch with you to discuss the conciliation procedure. In the meantime, the complaint will be retained for the 120 days indicated in this decision to give the parties sufficient time to attempt to settle the matter. The 120-day period begins on the date on which you receive this decision letter. If the conciliation procedure does not lead to a settlement, the complaint will be submitted to the Tribunal directly without being referred to the Commission.
ISSUES
[19] 1. Is the complaint out of time?
2. Is the union entitled to make a complaint? If so, does it need the consent of the victims?
3. Could the Commission appoint a conciliator pursuant to section 47 of the Act?
4. Has the applicant been deprived of its right to a fair hearing and full and complete defence because of the time which has elapsed since the complaint was filed?
5. Did the Commission make a reviewable error in determining that an inquiry into the complaint was warranted?
6. Did the Commission prevent the applicant from putting forward facts and reasons in support of its request for a stay of proceedings and dismissal of the complaint?
ANALYSIS
1. Is the complaint out of time?
[20] Paragraph 41(1)(e) of the Act provides the following:
| 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
. . . . .
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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 :
. . . . .
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| (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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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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[21] The SCRC complaint was filed on April 30, 1999. It states that the discriminatory act took place on August 7, 1995, and was ongoing. The CBC maintained that the complaint had therefore been filed beyond the one-year deadline.
[22] In the case at bar, as the allegation is one of systemic discrimination continuing over time, it was not filed out of time (Bell Canada v. Communications, Energy and Paperworkers Union of Canada, Bell Canada v. Canadian Telephone Employees Association ).
2. Is the union entitled to make a complaint? If so, does it need the consent of the victims?
| 40. (1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.
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40. (1) Sous réserve des paragraphes (5) et (7), un individu ou un groupe d'individus ayant des motifs raisonnables de croire qu'une personne a commis un acte discriminatoire peut déposer une plainte devant la Commission en la forme acceptable pour cette dernière.
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[24] The CBC argued that the Act does not confer on a union the capacity to file a complaint, as a union is not a "group of individuals". Alternatively, the CBC argued that under the Act the SCRC must obtain the consent of the alleged victims.
[25] In Bell Canada v. CEPU, supra, the Federal Court of Appeal has already considered the question of a union's standing to file a complaint. At page 141 of the judgment, it agrees without rectificatory comment that it is accepted practice to treat a union as a group of individuals. As to whether the victims' consent is necessary, the Commission has complete control over its procedure. Subsection 40(2) provides that "if a complaint is made by someone other than the individual who is alleged to be the victim of the discriminatory practice to which the complaint relates, the Commission may refuse to deal with the complaint unless the alleged victim consents thereto" (emphasis by the Court). Accordingly, this is not a requirement and the Commission did not exercise its discretion in this regard in the case at bar.
3. Could the Commission appoint a conciliator pursuant to section 47 of the Act?
[26] Subsection 47(1) of the Act provides as follows:
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47. (1) Sous réserve du paragraphe (2), la Commission peut charger un conciliateur d'en arriver à un règlement de la plainte, soit dès le dépôt de celle-ci, soit ultérieurement dans l'un des cas suivants :
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| (a) settled in the course of investigation by an investigator,
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a) l'enquête ne mène pas à un règlement;
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| (b) referred or dismissed under subsection 44(2) or (3) or paragraph 45(2)(a) or 46(2)(a), or
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b) la plainte n'est pas renvoyée ni rejetée en vertu des paragraphes 44(2) ou (3) ou des alinéas 45(2)a) ou 46(2)a);
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| (c) settled after receipt by the parties of the notice referred to in subsection 44(4),
appoint a person, in this Part referred to as a "conciliator", for the purpose of attempting to bring about a settlement of the complaint.
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c) la plainte n'est pas réglée après réception par les parties de l'avis prévu au paragraphe 44(4).
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[27] The CBC argued that under paragraph 47(1)(b) of the Act, the Commission could not both appoint a conciliator to settle the complaint and ask that the Tribunal inquire into the complaint.
[28] It is clear that the Commission decided to appoint a conciliator so the latter would attempt to settle the complaint, and if the conciliation failed within 120 days of receipt of the Commission's decision, the matter would be referred to the Tribunal. The inquiry by the Tribunal is subsequent, not parallel, to the conciliation efforts. This is what appears clearly from the wording of the decision:
. . . pursuant to section 47 of the Canadian Human Rights Act, to appoint a conciliator to attempt to settle the complaint and pursuant to paragraph 44(3)(a) of the Act to ask the Chairperson of the Canadian Human Rights Tribunal to appoint a member to institute an inquiry into the complaint because the Commission is satisfied that in the circumstances an inquiry into the complaint is warranted. If the parties are unable to find a solution within 120 days of receipt of this letter, the matter will be referred to the Tribunal. If the parties find a solution, the details of the settlement will be submitted to the Commission for approval or rejection pursuant to subsection 48(1) of the Act. (Emphasis added by the Court.)
[29] Accordingly, it is not necessary to determine whether the Act allows the Commission to appoint a conciliator at the same time as it refers the complaint for inquiry by the Tribunal.
4. Has the applicant been deprived of its right to a fair hearing and full and complete defence because of the time which has elapsed since the complaint was filed?
[30] In administrative law, the question of undue delay before an administrative body is a matter of procedural fairness and the question that must be answered is whether, on the facts, the administrative tribunal acted fairly toward the person claiming to be aggrieved (Blencoe v. British Columbia (Human Rights Commission)). The courts can remedy an unwarranted delay in administrative proceedings when that delay compromises the right to a fair hearing of the person against whom a complaint is laid. The delay must be clearly unacceptable and have directly caused significant harm (Blencoe). The question of whether the delay has become inordinate and likely to offend the community's sense of fairness depends on the nature of the case, the complexity of the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to or waived the delay and other circumstances of the case (Blencoe).
[31] The question of the standard of review does not arise when the Court has to determine whether there has been a breach of natural justice or procedural fairness, as is the case with the question at bar (Moreau-Bérubé v. New Brunswick (Judicial Council), Guay v. Canada (Attorney General)).
[32] According to the CBC, the delays in the case at bar are unacceptable. After receiving the original complaint on November 19, 1998 (and the official complaint on April 28, 1999), the Commission on April 5, 2004, decided to refer the complaint to the Tribunal without even beginning a process of evaluating the duties in question to see whether there was salary discrimination (which on September 29, 1999, it admitted that it had to do).
[33] The only delay of more than a few months between the active correspondence between the parties (a few months being normal in view of the resources available in administrative tribunals) was between October 19, 2000 (the date on which the CBC indicated to the Commission that it did not use an evaluation plan and sent the job descriptions for the groups covered by the complaint) and February 7, 2003 (the date on which the investigator asked the CBC for its position on the allegations contained in the complaint and asked for further information on the positions in question). This was therefore a period of some two years and four months. It is true that this was quite a significant period of inactivity, but the Court is nevertheless satisfied that this period is not grounds for a complete stay of proceedings, as the CBC requested. A stay of proceedings is an extreme measure which should only be granted in extreme cases. It should also be borne in mind that the case at bar does not come before the Court in the context of criminal law, but of administrative law. Accordingly the CBC must establish, in addition to an unreasonable delay, that the unreasonable delay directly caused significant harm to the CBC which could offend the community's sense of fairness. The CBC alleged that any inquiry into the evaluation of the duties concerned, as they existed in 1999, would create significant harm for the CBC by obliging it to needlessly invest significant time, human resources and money in a futile exercise that would produce no reliable or persuasive result, while first the SCRC and then the Commission, in the submission of the CBC, chose not to put any resources into making the studies and evaluations necessary to determine whether the complaint was warranted. Apart from the question of the delay itself, this harm described by the CBC is not one which the Court regards as significant harm which could offend the community's sense of fairness. In the circumstances, a stay of proceedings clearly cannot be granted. However, it should be borne in mind that this does not mean that the case cannot be referred back to the Commission.
5. Did the Commission make a reviewable error in determining that an inquiry into the complaint was warranted?
[34] The standard of review applicable to a Commission decision pursuant to section 44 of the Act is that of reasonableness. It is the standard of review which was adopted by the Federal Court of Appeal in Gee v. Canada (Minister of National Revenue - M.N.R.)with respect to subparagraph 44(3)(b)(i) of the Act, and accordingly must also apply to subparagraph 44(3)(a)(i) of the Act.
[35] The exact wording of subparagraph 44(3)(a)(i) of the Act is the following:
| 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
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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 :
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| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and . . .
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(i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié . . .
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[36] Accordingly, the Commission's function is to determine whether, on the facts as a whole, it is justified that the case be heard by the Tribunal. This function especially entails checking whether there is sufficient evidence to proceed to the next stage, namely referral to the Tribunal (Cooper v. Canada (Human Rights Commission)). For this purpose, the Act gives the Commission wide powers of inspecting, searching and examining books and documents which contain information relevant to the Commission's investigation. When the Commission decides to investigate, the investigation conducted must meet at least two conditions: neutrality and thoroughness. If these requirements are not met, there is no fair basis for a Commission decision to create a Tribunal under paragraph 44(3)(a) of the Act (Slattery v. Canada (Human Rights Commission)).
[37] The requirement of thouroughness derives from the essential function of the investigators, which is to adduce evidence before the Tribunal created pursuant to section 49 of the Act. The Commission has a duty to conduct a thorough and complete investigation into the facts, because it must have available sufficient evidence, which it must assess carefully, in order to decide whether it should dismiss the complaint or refer it to the Tribunal (Slattery). The rule of procedural fairness requires that the Commission base itself on valid and objective evidence in determining whether the evidence warrants the creation of a Tribunal (Miller v. Canada (Human Rights Commission)).
[38] When the Commission decides to conduct an investigation but does not do so, or when the Commission begins an investigation but does not complete it and nevertheless refers the complaint to the Tribunal, the Commission is infringing its duty to conduct a thorough investigation. In such a case, the Court must set aside the Commission's decision (Canada (Attorney General) v. Grover, Sosnowski v. Canada (Minister of Public Works and Government Services)).
[39] The Commission sent the Court a certificate pursuant to Rule 317, along with a certified copy of all documents that were before the Commission at its meeting of March 22, 2004. These were: the complaint filed on April 28, 1999; the investigation report of November 28, 2003; the letter dated December 15, 2003, indicating to the Commission that the SCRC had no observations to make on the investigation report; the letter dated December 23, 2003, indicating to the Commission the comments of the CBC on the investigation report; a letter dated May 16, 2002, containing comments by the CBC on a recently rendered judgment of the Federal Court of Appeal; and a very brief chronology of the progress of the complaint.
[40] None of these documents, not even the investigation report, contains evidence establishing that a comparative evaluation of the duties of the two groups was done, much less the results of such an evaluation, that would show salary discrimination and indicate appropriate measures of relief. The investigation report is patently lacking in foundation, as it offers no concrete evidence to support a conclusion that an inquiry into the complaint is warranted. It simply states that as the CBC provided no material defence to the allegations contained in the complaint, the allegations have been accepted as they stand. In addition, the investigation report falsely states that the CBC has never denied the allegations contained in the complaint, since it did so inter alia in letters dated July 30, 1999, and September 18, 2000. It is worth repeating in full the analysis contained in the investigation report:
Analysis
20. The analysis is based on the allegations, which are accepted as they stand since no substantive defence was received.
21. Based on the allegations by the Syndicat, and in the absence of any defence by the mis-en-cause, a salary differential appears to exist favouring the incumbents of positions most of which are held by men, and taking into account four criteria: qualifications, effort, responsibility and working conditions. The Syndicat established predominance, equivalency and wage differential.
22. As the allegations indicating disparity have not been denied by the mis-en-cause, it is possible to conclude that there is a wage disparity between the comparison groups.
(Emphasis by the Court.)
The Court wishes to stress that the Act imposes on the Commission a duty to hold a strictly correct and complete investigation, as defined in the case law cited earlier, which does not depend on whether there has been a material defence by the mis-en-cause, here the CBC. The investigation report must show - based on evidence gathered in the course of the investigation - that the complaint has a minimum basis for the Commission to be able to rely on this report to decide that an inquiry by the Tribunal into the complaint is warranted. There must be sufficient evidence of the facts alleged for the complaint to be referred to the Tribunal for an inquiry. That simply is not the case here.
[41] Additionally, the investigation report does not even mention - to say nothing of analyzing with supporting evidence - the question of whether the comparison groups were part of the same establishment, an argument which the CBC made in response to the complaint.
[42] Based on what the Commission appears to have actually had available when it decided whether an inquiry by the Tribunal into the complaint was warranted, it was unreasonable for it to determine that the evidence was sufficient to warrant referral of the matter to the Tribunal for an inquiry.
[43] In any case, even if the Commission had available all the information and documents provided by the parties in the course of the investigation, the Court would still conclude that it was unreasonable for the Commission to decide that the evidence was sufficient to warrant referral to the Tribunal for an inquiry.
[44] In addition to the documents listed above which the Commission considered in connection with its decision, the CBC had also sent the Commission, at the Commission's request, the existing job descriptions for groups covered by the complaint, namely job descriptions for primarily female groups and job descriptions for the primarily male comparison group (technicians in Group 9, represented by STARF). The job descriptions for primarily female groups were class profiles or generic descriptions which, with one exception, dated back several years (the late 1980s in most cases) and had not been updated. The job descriptions for the comparison group were from December 1997. The CBC also informed the Commission that it had no evaluation plan for the SCRC and STARF bargaining units.
[45] The Court notes in passing that the CBC did not provide the information which the investigator requested on March 25, 2003, namely tables setting out the number of employees, employee sex, employee classification, position title, position group and level, evaluation of positions (including all details of scoring) and salary level.
[46] In the absence of detailed information on a formal evaluation of the duties concerned pursuant to the same evaluation plan or a significant sampling of the latter, it was impossible to draw any conclusion whatever on the equivalency of the duties in question, and this is an essential and crucial aspect in determining whether there has been salary discrimination. The Commission therefore had no valid evidence to establish that an inquiry into the complaint was warranted.
[47] Consequently, the Commission's determination that an inquiry by the Tribunal into the complaint was warranted is unreasonable and in itself is a valid reason for allowing the application for judicial review at bar.
6. Did the Commission prevent the applicant from putting forward facts and reasons in support of its request for a stay of proceedings and dismissal of the complaint?
[48] As the question here is one of natural justice and procedural fairness, no standard of review is applicable.
[49] As it was decided in connection with the preceding question that the Commission made an error requiring the Court's intervention and that accordingly the case will be referred, there is no need to deal with this question at length. However, the Court wishes to make the following comment.
[50] The CBC applied for a stay of proceedings in a letter dated May 6, 2003, which it reiterated on October 1, 2003. The facts and reasons supporting this application were included. On reading the record it is clear that the investigator was familiar with the application and with the facts and reasons accompanying it. The problem is rather that the Commission did not rule on the application for a stay of proceedings. The investigator replied, in a letter dated September 22, 2003, that in this application for a stay of proceedings the CBC was raising the same objections which it had made in 1999 to the admissibility of the complaint. The application for a stay of proceedings raised new arguments, including the allegedly unreasonable delays occurring after 1999, which clearly could not have been dealt with by a decision in 1999. The fact that ultimately the Commission did not rule on the application for a stay of proceedings is an error which requires mention. However, the Court makes no ruling in the case at bar on whether this defect, in itself and if it had not been accompanied by other errors, would suffice to allow the application for judicial review. In the case at bar, this error is added to the fatal error identified in the preceding question, with the result that the judicial review must certainly be allowed.
CONCLUSION
[51] For these reasons, the Court answers the first question in the negative, the second question in the affirmative and then the negative, the third question in the affirmative and the fourth and fifth questions in the negative. In view of the reply to the fifth question, the Court does not need to answer the sixth question.
[52] Accordingly, the application for judicial review at bar is allowed. The matter is referred to the Commission so that it can resume its investigation of the complaint, with regard to a comparative evaluation of the duties concerned and the question of whether the groups compared are part of the same establishment within the meaning of the Act. The admissibility of the complaint is no longer at issue, as the Commission has already ruled on this point and the application for judicial review on the matter has been dismissed. The two parties should cooperate fully with the investigator and provide the information that will be requested of them. Needless to say, if it does not already exist, such information should be prepared by the party or parties from which it is requested. The Court further orders that, based on the information obtained in the course of the investigation, the Commission shall redetermine the question of whether an inquiry by the Tribunal into the complaint is warranted.
ORDER
THE COURT ORDERS THAT:
1. the application for judicial review at bar is allowed;
2. each party shall pay its own costs.
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
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