Date: 20000623
Docket: T-981-00
Ottawa, Ontario, this 23rd day of June 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
NATIONAL INDIAN AND INUIT COMMUNITY HEALTH REPRESENTATIVES ORGANIZATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] The Canadian Human Rights Act (the "Act") provides that certain settlements may be made orders of the Federal Court for purposes of enforcement. But the Act is silent as to how this is to be done other than saying that it should occur "on application". The Rules do not contemplate an application being disposed of summarily upon consent of the parties. These parties have proposed a solution to this problem which the Court is prepared to adopt.
[2] The National Indian and Inuit Community Health Representatives Organization made a complaint in 1992 that the Treasury Board of Canada was engaging in wage discrimination on the basis of gender. In 1997, the complaint was referred to a Tribunal for adjudication. The parties agreed to mediation of the complaint and arrived at a settlement. They executed a Settlement Agreement which was then approved by the Canadian Human Rights Commission. The parties now agree that they wish the settlement made an order of the Federal Court for purposes of enforcement.
[3] This course of action is contemplated by the Act, which provides as follows:
| 48. (1) When, at any stage after the filing of a complaint and before the commencement of a hearing before a Human Rights Tribunal in respect thereof, a settlement is agreed on by the parties, the terms of the settlement shall be referred to the Commission for approval or rejection.
(2) If the Commission approves or rejects the terms of a settlement referred to in subsection (1), it shall so certify and notify the parties.
(3) A settlement approved under this section may, for the purpose of enforcement, be made an order of the Federal Court on application to that Court by the Commission or a party to the settlement.
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48. (1) Les parties qui conviennent d'un règlement à toute étape postérieure au dépôt de la plainte, mais avant le début de l'audience d'un tribunal des droits de la personne, en présentent les conditions à l'approbation de la Commission.
(2) Dans le cas prévu au paragraphe (1), la Commission certifie sa décision et la communique aux parties.
(3) Le règlement approuvé par la Commission peut, par requête d'une partie ou de la Commission à la Cour fédérale, être assimilé à une ordonnance de cette juridiction et être exécuté comme telle.
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[4] The difficulty which arises is to determine the proper procedure by which to achieve the result contemplated by Parliament. The use of the expression "on application" in subsection 48(3) suggests that the proper originating document is a Notice of Application. The difficulty is that there is no provision for summary disposition of applications while there is a procedure by which motions can be disposed of on the basis of written representations. To remedy that defect, the applicants have brought a motion seeking an order that the application be disposed of as though it were a motion made pursuant to Rule 369.
[5] However when one examines the French version of the section, a different view emerges. The French version uses the word "requête" where the English version uses "application". The word "requête" is usually translated as "Motion" while the word "application" is usually translated as "demande". For example:
| 16(2) The Canadian Human Rights Commission, may
(a) make general recommendations concerning desirable objectives for special programs, plans or arrangements referred to in subsection (1); and
(b) on application, give such advice and assistance with respect to the adoption or carrying out of a special program, plan or arrangement referred to in subsection (1) as will serve to aid in the achievement of the objectives the program, plan or arrangement was designed to achieve.
...
17(2) The Commission may, by written notice to a person making an application pursuant to subsection (1), approve the plan if the Commission is satisfied that the plan is appropriate for meeting the needs of persons arising from a disability.
...
17(4) When the Commission decides not to grant an application made pursuant to subsection (1), it shall send a written notice of its decision to the applicant setting out the reasons for its decision.
...
27(2) The Commission may, on application or on its own initiative, by order, issue a guideline setting out the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act applies in a class of cases described in the guideline
...
43(2.2) Where on ex parte application a judge of the Federal Court is satisfied by information on oath that there are reasonable grounds to believe that there is in any premises any evidence relevant to the investigation of a complaint, the judge may issue a warrant under the judge's hand authorizing the investigator named therein to enter and search those premises for any such evidence subject to such conditions as may be specified in the warrant.
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| 16(2) La Commission canadienne des droits de la personne peut_:
a) faire des recommandations d'ordre général, relatives aux objectifs souhaitables pour les programmes, biens ou arrangements visés au paragraphe (1);
b) sur demande, prêter son concours à l'adoption ou à la mise en oeuvre des programmes, plans ou arrangements visés au paragraphe (1)
...
(17)(2) La Commission peut, par avis écrit à l'auteur de la demande visée au paragraphe (1), approuver le programme si elle estime que celui-ci convient aux besoins particuliers des personnes atteintes d'une déficience.
...
17(4) Dans le cas où elle décide de refuser la demande présentée en vertu du paragraphe (1), la Commission envoie à son auteur un avis exposant les motifs du refus.
...
27(2) Dans une catégorie de cas donnés, la Commission peut, sur demande ou de sa propre initiative, décider de préciser, par ordonnance, les limites et les modalités de l'application de la présente loi.
...
43(2.2) Sur demande ex parte, un juge de la Cour fédérale peut, s'il est convaincu, sur la foi d'une dénonciation sous serment, qu'il y a des motifs raisonnables de croire à la présence dans des locaux d'éléments de preuve utiles à l'enquête, signer un mandat autorisant, sous réserve des conditions éventuellement fixées, l'enquêteur qui y est nommé à perquisitionner dans ces locaux.
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[6] What one notices from this comparison of various provisions is that the expression "application" is almost invariably translated as "demande". This corresponds to the usage in the Federal Court Rules, 1998 :
| 2 "application" "_demande_"
"application" means a proceeding referred to in rule 300. (demande)
2 "motion" "_requête_"
"motion" means a request to the Court under, or to enforce, these Rules. (requête)
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2 "_demande_" "application"
"_demande_" Instance visée à la règle 300. (application)
2 "_requête_" Document par lequel une personne demande à la Cour de se prévaloir des présentes règles ou de les faire appliquer. (motion)
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[7] It is therefore significant that in subsection 48(3), the expression "upon application" is rendered as "par requête" which suggests that an application to convert a Settlement Agreement into an order might be undertaken by way of motion rather than by application. Section 13 of the Official Languages Act makes both versions of an enactment equally authoritative:
| 13. Any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice, advertisement or other matter referred to in this Part that is made, enacted, printed, published or tabled in both official languages shall be made, enacted, printed, published or tabled simultaneously in both languages, and both language versions are equally authoritative.
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13. Tous les textes qui sont établis, imprimés, publiés ou déposés sous le régime de la présente partie dans les deux langues officielles le sont simultanément, les deux versions ayant également force de loi ou même valeur.
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[8] Because both versions of the enactments are equally authoritative, any apparent conflict cannot be resolved by preferring one language over another. Both versions must be read with a view to resolving differences in a way which respects both. Driedger on the Construction of Statutes 3rd Edition, p. 215 et seq.
[9] In this case, an examination of the various instances of the use of the expression "on application" shows that it is used in the sense of "upon request" and not in a technical sense. For example, in subsection 16(2), the Commission may "on application" provide advice with respect to certain programs. Clearly this is a non-technical use of the word application, since it makes no sense to speak of proceeding by Notice of Application in that context. The same is true of subsection 17(2) which allows the Commission "on application or on its own initiative" to issue certain guidelines. In that light, the use of the word "application" in subsection 48(3) can be read as referring to the fact of requesting the Federal Court to act, rather than specifying the precise procedural vehicle to be used.
[10] That interpretation is consistent with the French version. Harrap"s French-English Anglais-Français Standard Dictionary London 1994 defines "requête" as "request, suit, petition" which conveys the same sense of initiating a request. Consequently, there is no reason to read "upon application" where it appears in subsection 48(3) as meaning "by means of a Notice of Application". It is more consistent with practice in summary matters to proceed by way of motion, which is serendipitously consistent with the French version of subsection 48(3). As a result, an application to the Court to have a settlement made an order of the Court could be made upon motion supported by an affidavit and, at the request of the moving party, could be disposed of upon the written materials without appearance.
[11] That is not what was done here but Rule 57 provides that an originating document shall not be set aside simply because another originating document ought to have been used. Consequently, the application is to be dealt with on its merits.
[12] Having commenced their proceeding as an application, the parties seek to be relieved of the obligation of complying with all of the procedural steps required for applications given that the application is made by consent. As a result, they bring a motion pursuant to Rule 4 seeking to be relieved of compliance with Rules 305 to 316 inclusive, and permitting the application to be disposed of in writing.
[13] Rule 4 is the "gap" rule which allows the Court to supply any gap in the Rules by analogy with the Rules themselves or the rules of procedure in the province to which the dispute has the closest connection. Part 5 does not provide for summary disposition upon consent. Given that there is no issue between the parties, there is no sensible reason to compel them to prepare and file records and requisition a hearing, only to present the presiding judge with a consent order. Rule 369 which deals with motions can be used by analogy to permit the disposition of an application upon written materials only.
[14] Having considered the matter carefully and having reviewed the Settlement Agreement, I am satisfied that the procedure adopted by the parties permits the Court to grant the parties the order they seek. There will therefore be an order dispensing with compliance with Rules 305 to 316 of the Federal Court Rules, 1998 and allowing the Notice of Application in file no. T-981-00 to be disposed of in writing.
ORDER
It is hereby ordered that:
| 1- The parties are hereby relieved of the obligation to comply with Rules 305 to 316 inclusive of the Federal Court Rules, 1998 with respect to the Notice of Application in Court file no. T-981-00. |
| 2- The Notice of Application in Court file no. T-981-00 may be disposed of on the basis of written representations as though it were a motion subject to Rule 369 of the Federal Court Rules, 1998. |
"J.D. Denis Pelletier"
Judge
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