Canadian Broadcasting Corp. v. Judge, 2002 FCT 319

Date:20020322

Docket: T-554-99

Neutral Citation: 2002 FCT 319

BETWEEN:

           CANADIAN BROADCASTING CORPORATION

                                                                                                   Applicant

                                                    - and -

                                       DARREN JUDGE

                                                                                               Respondent

                                                    - and -

             CANADIAN HUMAN RIGHTS COMMISSION

                                                                                                 Intervener

                     REASONS FOR ORDER AND ORDER

HENEGHAN J.

INTRODUCTION

[1]    The Canadian Broadcasting Corporation ("CBC") ("the Applicant") seeks judicial review of an order made by the Canadian Human Rights Commission (the "Commission") dated February 18, 1999, in which the Commission decided to accept a complaint filed by Mr. Darren Judge (the "Respondent") against the CBC, notwithstanding the fact that the complaint was filed more than twelve months after the date of the alleged discriminatory act.

[2]    The Respondent filed a complaint alleging that the CBC had discriminated against him on the basis of disability, by denying him training opportunities and dismissing him from employment, contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985 c. H-6, as amended (the "Act"). The Respondent is legally blind.

FACTS

[3]    The Respondent was employed by the CBC as a Radio Technician Group 4 in the Halifax station from 1990 until March 31, 1997. He worked as an operating technician for music programs and generally, the programs on which he worked were disc or pre-recorded programs with a host.

[4]    He was laid off on March 31, 1997 as part of a national reduction of the CBC's English radio work force following the introduction of new equipment and operating methods. In 1996, the CBC had introduced a computer based broadcasting system in its radio operation.

[5]                 This system, called Dalet, allowed employees to record, edit and play back audio material for broadcast using only a computer screen and keyboard. Technical employees at CBC Radio in Halifax whose jobs were affected by Dalet were given training in the new system. No training was provided to the Respondent because Dalet operates through graphic displays on a computer screen and his disability prevented him from working with the program without some form of accommodation.

[6]                 The first phase of staff reduction occurred in 1996 when eighteen positions were declared redundant. The second phase occurred in 1997. The Respondent's layoff was scheduled to take place during the fall of 1996, pending the location of alternative employment with the Applicant. However, because of his visual impairment, Halifax Radio management obtained money from a special fund, CBC Help, and his layoff was delayed until March 15, 1997. Additional funding was also found by CBC Radio management in the Halifax Radio budget to further extend this date until March 31, 1997.

[7]                 The Applicant states that it made many efforts to find alternative employment for the Respondent, but ultimately no such employment was available. The Respondent was also advised that a consultation process between his union, the Communications, Energy and Paper Workers Union of Canada, (the "CEP") and CBC was being initiated in order to seek possible alternative employment for him.

[8]                 The Respondent was the only radio technician at CBC Radio in Halifax who lost his job as the result of the introduction of the Dalet technology.

[9]                 Following his layoff, the Respondent worked with employment counsellors who specialize in finding employment opportunities for persons with disabilities. Through this process, the Respondent learned, in late summer or early fall of 1997, of the existence of computer software programs which are designed for visually impaired persons. These programs convert graphic images generated by systems such as Dalet into audio representations. The employment counsellors tested a program, called "JAWS", on the Dalet system operating at the CBC Studios in Halifax. The test demonstrated that JAWS successfully operated the Dalet system by substituting audio cues for graphic images.

[10]            On March 3, 1998, the Respondent filed a grievance under the CBC/CEP Collective Agreement alleging that the CBC had violated the terms of the collective agreement by unjustly laying him off on March 31, 1997. He sought reinstatement to his former position of Radio Technician Group 4.

[11]            On July 20, 1998, the Respondent filed a complaint with the Commission alleging that he had been discriminated against by the Applicant on the basis of his disability, contrary to section 7 of the Act. He alleged that he was denied training opportunities and was wrongfully released from employment.

[12]            The Applicant became aware of his complaint on August 13, 1998 when it received a letter, dated August 10, 1998, from the Commission. This letter advised that the Commission intended to investigate the complaint, despite the passage of time since the date of the alleged discriminatory act. The letter did not mention the one year time limit for filing complaints under section 41(1)(e) of the Act and that the Commission was proposing to extend this time limit by more than four months.

[13]            The Applicant replied to the Commission's letter on August 24, 1998 and noted that the Commission cannot investigate an untimely complaint unless it first expressly decides to extend the time limit. It argued that such extensions can only be made for compelling reasons and following a procedurally fair process in which the employer is informed of the facts relied on in support of the proposed extension of time.

[14]            The Applicant formally requested the Commission to determine whether to extend the time limits for the Respondent's complaint. Finally, the Applicant requested that the Commission forward the information referred to in its letter which had led to its decision to propose investigating a complaint filed more than sixteen months after the alleged discriminatory acts occurred.

[15]            On November 9, 1998, the Commission sent a "Sections 40/41 Analysis", dated November 9, 1998, to the Applicant. This Analysis sets out the basis upon which the investigating officer assigned to the file and the Director, Complaints and Investigations recommended to the Commission that it extend the time limit for dealing with the Respondent's complaint.

[16]            The Applicant commented on this Analysis in a letter dated December 21, 1998. In this letter, the Applicant took the position that the extension of time for bringing complaints under the Act affected the employer's "quasi constitutional right" under the Act not to be required to defend itself against complaints which are raised after the one year limitation provided in the Act.

[17]            The Applicant also said that the mere statement by the Commission that the time for bringing a complaint should be extended because such extension was in the public interest, is equivalent to saying that an extension of time should be granted for any complaint.

[18]            There was no further communication between the Applicant and the Commission about the Respondent's complaint until the Applicant received the letter dated February 18, 1999 in which the Commission advised that it had decided to proceed with the complaint.

[19]            On March 25, 1999, the Applicant filed its application for judicial review. In the course of proceeding with this application, documents were produced by the Commission. These documents contained facts of which the Applicant had been unaware prior to commencement of the judicial review application. These facts included the existence of a Compliance Manual which was in effect at the time the Commission prepared its report dealing with the Respondent's complaint. The Compliance Manual contained directives on the treatment of untimely complaints, as follows:

Since December 1991, Operational Units Regions have been given the administrative authority to commence investigation of a complaint even if it is out of time if, in the opinion of the Director, the situation is one that the Commission would likely treat in the same manner. The report, once written, must include a discussion related to section 41.

Should a respondent object to the complaint being investigated even though it is out of time, the Director should explain the benefits of saving time, freshness of evidence, etc., of immediately proceeding. However, should the respondent continue to object, the responsible officer should prepare a Section 41 report for presentation to the Commission recommending that the complaint be brought into time.

Intervener's Application Record, Afffidavit of Dianne Guimond, Tab A

[20]            Documents produced by the Commission also included a letter dated August 10, 1998, sent to the Respondent. This letter contained the following statement:

...If the Canadian Broadcasting Corporation does not formally object, the investigation will proceed without referral to the Commission. Upon completion of the investigation the investigator's report, which will deal with the delay issue as well as the substantive case, will be forwarded to the Commission for a decision on both aspects of the complaint at the same time. This is an administrative decision, and should the Canadian Broadcasting Corporation formally object to our investigating your complaint due to the timeliness issue, a report will be completed and forwarded to the Commission with a recommendation that the complaint be dealt with. [emphasis added]

Applicant's Application Record, page 286

[21]            The letter sent to the Respondent differed from that sent to the Applicant. In its letter dated August 10, 1998, addressed to the CBC, the Commission stated as follows:

...Based on the information at hand, we intend to proceed with the investigation of the complaint despite the time which has passed since the dated of the alleged acts. Upon completion of the investigation, the investigator's report will be forwarded to the Commission for decision on the timeliness issue as well as the substantive case. I can assure you that your rights will be protected and that you will have the usual opportunity to submit your views on all issues for the Commission's consideration. [emphasis added]

Applicant's Application Record, page 232

[22]            The Applicant now seeks judicial review of the Commission's decision made on February 18, 1999 on the grounds that the decision to investigate the Respondent's complaint raises a reasonable apprehension of bias on the part of the Commission and that the Commission has breached its duty of procedural fairness. The relevant portion of the decision which is subject to judicial review reads as follows:

Pursuant to paragraph 41(e) [sic] of the Canadian Human Rights Act, the Commission has resolved to deal with the complaint because:

after the respondent terminated the complainant's employment in March 1997, the complainant attempted to resolve the matter by filing a grievance;

the complainant contacted the Commission in June 1998, after he was advised that the grievance would be referred to arbitration but no date had been set;

there is no evidence of prejudice to the respondent in light of the fact that the matter is the subject of a grievance and the relevant information and documentation should be available.

Applicant's Application Record, page 251

[23]            By Order dated May 30, 2000, the Commission was granted leave to intervene in the present application.

ISSUE

[24]            The issue raised in this application is whether the Commission's decision to grant an extension of time for investigation of the Respondent's complaint is flawed by breaches of the duty of procedural fairness, including a reasonable apprehension of bias by the Commission.

APPLICANT'S SUBMISSIONS

[25]            The Applicant submits that the Commission's investigative staff owes a duty of fairness to affected parties, in this case, the employer. At a minimum, the Commission must keep an open mind and refrain from pre-determination of the issues raised by a complaint. In this regard, the Applicant relies on Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at 638.

[26]            The Applicant argues that the decision to grant an extension of time was pre-determined. On August 10, 1998, the day on which the Commission first sent a copy of a complaint to the Applicant, the Commission wrote to the Respondent and informed him that it intended to proceed with the investigation of his complaint, notwithstanding the fact that the alleged acts had occurred more than one year prior to the filing of his complaint. No copy of this letter was ever sent to the CBC and was produced only upon commencement of the present proceeding.

[27]            The Applicant argues that pre-determination of the issues is further illustrated by the letter written on August 10, 1998 by the Commission to the Applicant. In that letter, the Commission advised the Applicant that, on the basis of the information at hand, the Commission intended to proceed with the investigation of the complaint despite the passage of time since the date of the alleged act. The Director, Complaints and Investigations, advised the Applicant that upon completion of the investigation, the investigator's report would be forwarded to the Commission for a decision on the issue of an extension of time as well as the substantive case.

[28]            The letter does not indicate that if an objection was made about the timeliness of the Respondent's complaints, a decision had already been made to complete and forward a report to the Commission with a recommendation to deal with the complaint. The Applicant was not informed that the Commission had made a commitment to the Respondent to recommend an extension of the time limits for his complaint, regardless of any representations that might be made by the Applicant.

[29]            In this regard, it relies on the decisions in Canada (Attorney General) v. Canadian Human Rights Commission and Boone (1993), 60 F.T.R. 142 (T.D.) at 156 and Canada (Attorney General) v. Canadian Human Rights Commission et al (1991), 43 F.T.R. 47 (T.D.) at 64.

[30]            The Applicant submits that the report entitled "Sections 40/41 Analysis" dated November 9, 1998 can only be described as a charade to justify a forgone conclusion.

[31]            The Applicant says that the report attempts to justify the untimeliness of the complaint by stating that the Respondent has presented reasons for the delay in filing a complaint, since he was unaware of the existence of technology to accommodate his disability until the summer or early fall of 1997. The Applicant argues that even if this discovery was relevant, the report fails to even address the total lack of reasonable justification for the Respondent's inaction for at least nine months between the summer or early fall of 1997 and June 1998, when he first contacted the Commission.

[32]            As well, the Applicant says that the report relies on irrelevant considerations, such as the fact that the Respondent has secured temporary employment and if he fails to secure permanent work, he will lose the opportunity to develop skills in his work area. The Applicant argues that not only is this an irrelevant consideration, but it presumes the well-foundedness of the complaint, prior to the commencement of any investigation on its merits.

[33]            The Applicant also submits that the Commission had an obligation to be thorough in its investigation, and relies on Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 and Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.) at 598. The Applicant says the Commission breached its duty of thoroughness in pre-determining both the conclusion of the investigation and the timeliness issue, even before delivering a copy of the complaint to the employer and without providing it the opportunity to present facts and make representations on that issue.

[34]            This breach is magnified by the fact that the Compliance Manual provides that if a party should object to the investigation of an untimely complaint, the "responsible officer should prepare section 41 reports for presentation to the Commission recommending that the complaint be brought into time". This provision of the Compliance Manual operates to nullify the time limit established by Parliament in section 41(1)(e) of the Act.

[35]            The Compliance Manual, by its own terms, establishes a process that will necessarily result in a unilateral report with a pre-determined recommendation which will render futile any representations or objections raised by an affected party. By following such a process, the Commission instills an institutional bias in the investigation process.

[36]            The Applicant further argues that the fact that the Sections 40/41 Analysis does not bind the Commission and that the Commission submits the report to each party for comments before reaching its decision, cannot remedy an analysis and recommendation which is reached in advance. Any decision by the Commission to extend the time limits for a complaint, in the circumstances provided for in the Compliance Manual, requires judicial review.

[37]            The Applicant seeks an order to quash the decision of the Commission, together with a further order prohibiting any other proceedings by the Commission in relation to the complaint filed by the Respondent. It submits that there is clearly an institutional bias arising from the circumstances in which the Commission has plainly stated its fixed intent of not dealing with the employer's representations, but rather to act pursuant to a policy of always recommending the extension of time for a late complaint.

[38]            The Applicant says that the process leading to the decision of February 18, 1999 was flawed by serious breaches of procedural fairness which negatively impact the Applicant. These breaches include a pre-determination of the issue prior to hearing representation from the employer and concealment of the Commission's plan to prepare a report recommending an extension of time even if the employer objected.

[39]            Should the matter be remitted back to the Commission, the question of the time extension would again have to be investigated and another decision made, with attendant delays. This process will simply increase the prejudice already caused to the Applicant because of the fading memories inevitably caused by the passage of time.

[40]            For these reasons, the Applicant submits that the breaches of fundamental principles of fairness and the delay already incurred without its fault, justify an order prohibiting any further proceedings by the Commission in relation to the present complaint, appropriate remedy.

RESPONDENT'S SUBMISSIONS

[41]            The Respondent argues that the Commission committed no breach of procedural fairness and furthermore, that this Court should not prohibit an investigation of his complaint since he has committed no wrong and should not be deprived of his right to have his complaint dealt with according to the law. In this regard, the Respondent relies on Canadian Broadcasting Corporation v. Canadian Human Rights Commission et al (1993), 71 F.T.R. 214.

[42]            In Canadian Broadcasting Corporation v. Graham et al (1999), 170 F.T.R. 142 (Fed. T.D.), the Commission followed the same process relative to a Section 40/41 Analysis as appears in the present case. In Graham, supra, Justice Pinard found there was no procedural unfairness towards the CBC. The fairness of this process has been recognized by this Court.

[43]            The Respondent also denies that there is any merit to the argument that the decision to investigate his complaint is tainted by bias. The Applicant, as the employer, was invited to make submissions in response to the Sections 40/41 Analysis. The Commission considered both the report and the Applicant's submissions in making its decision dated February 18, 1999. The record shows that the decision was not pre-determined.

[44]            The Respondent further argues that the Applicant has confused the role of the Director, Complaints and Investigations, with that of the Commission. The decision which was made on February 18, 1999 was a decision of the Commission, a statutory body which is separate and distinct from the Director.

[45]            The Respondent argues that there is nothing sinister about the directions contained in the Compliance Manual, concerning steps to be taken by an investigative officer who decides to investigate an untimely complaint. The Sections 40/41 Analysis does not occur unless an investigating officer decides to investigate a complaint and unless a Respondent objects to that decision. The Manual contemplates that the investigating officer will make a recommendation consistent with the initial decision. However, the decision whether to accept or reject the recommendation made by the investigating officer lies with the Commission.

[46]            Finally, the Respondent argues that if the Court decides to quash and set aside the decision of the Commission, the extraordinary remedy of prohibition should not be granted since this would deny him the legal right to file a complaint and to let it proceed for investigation by the Commission; in this regard, the Respondent relies on Canadian Broadcasting Corporation v. Canadian Human Rights Commission and et al, supra.

INTERVENER'S SUBMISSIONS

[47]            The Commission makes the preliminary submission that while this court has jurisdiction to review decisions and to supervise proceedings of the Commission, the court has previously held that decisions which are preliminary in nature attract less procedural protection then those which are adjudicative in nature. The Intervener here relies on Canada Post v. Barrette (1998), 157 F.T.R. 278 (T.D.).

[48]            In the present case, the court is required to consider the proper interpretation of section 41(1)(e), whether substantive rights are affected by a decision made pursuant to that section, and finally, whether the requirements of procedural fairness in relation to decisions made under that section must reflect the nature of the rights affected.

[49]            According to the Commission, the scheme of the Act contemplates different stages in the processing of a complaint. After a complaint has been filed, section 41 requires the Commission to address the threshold question of whether a complaint will be "dealt with" or investigated in light of issues which may include the timeliness of the complaint or the availability of other redress. A reading of the Act as a whole indicates that the legislation does not detail the precise manner in which complaints must be processed. This court has recognized that the Commission properly exercises a wide discretion over the process of handling complaints.

[50]            The Commission says that in its role as a screening body, it has a statutory duty to deal with all complaints of discrimination. The language of section 41(1)(e) reflects this statutory duty, that the Commission must deal with all complaints filed within twelve months of alleged acts of discrimination. Complaints filed outside that twelve month period may be dealt with, in the discretion of the Commission.

[51]            The Act contemplates that the threshold issues raised by the limited exceptions in section 41 may be dealt with through a paper screening review "to assess whether further investigation is warranted". These limited exceptions to the general duty of the Commission to deal with all complaints filed before it, may also apply pursuant to sections 44(2) and (3)(b)(ii), following the investigation of a complaint.

[52]            The Commission argues that when read together, the language of sections 41 and 44 indicate that the application of section 41 occurs before an investigation, while section 44 applies after. It says that the language of the Act on this point is an important consideration in determining the appropriate requirements of procedural fairness.

[53]            The Commission disagrees with the Applicant's argument that section 41(1)(e) confers a right to be free from a "stale" complaint. It cites obiter comments from Barrette, supra, (T.D.), at paragraph 30, in support of its argument, as follows:

I am unable to accept that this is an appropriate approach to section 41. For one thing, as I have noted, the section is drafted in a way that leaves many issues to the discretion or judgment of the Commission: this is incompatible with the notion that it should be interpreted as if it created a legal right not to be investigated in specified circumstances. The Commission still has a discretion to deal with the complaint if it so chooses. While individuals against whom complaints are made undoubtedly benefit from the existence of the exceptions in section 41, the exceptions may also be regarded as inserted to enable the Commission to allocate its limited resources in an appropriate manner.

[54]            The Commission submits that these obiter comments are consistent with the wording of section 41(1)(e). The twelve month period identified in the Act prescribed the time frame within which the Commission had no discretion not to deal with complaints.

[55]            It then argues that the decision in Canadian Human Rights Commission v. Canadian Broadcasting Corporation, Re Vermette (1996), 120 F.T.R. 81 is flawed. As well, the Commission argues that reliance by the Applicant on Tolofson v. Jensen, [1994] 3 S.C.R. 1022 is misplaced.

[56]            In Vermette, supra, the court characterized section 41(1)(e) as creating a limitation period in favour of a respondent, on the basis of the decision in Tolofson, supra. The Intervener argues that the issue before the court in Tolofson, supra, was one of conflict of laws, not whether a limitation period gave rise to a substantive right.

[57]            The Commission argues that the Tolofson, supra, does not apply because section 41(1)(e) does not create a limitation period in favour of the employer. Rather, the right to file a complaint after a longer period of time is conditional upon the exercise of a discretion by the Commission. The powers of the Commission pursuant to section 41(1)(e) are administrative in nature; they do not determine substantive rights and do not address the merits of a complaint.

[58]            In conclusion, the Commission submits that the present application should be dismissed.

ANALYSIS

[59]            As noted above, the Applicant seeks to quash the decision of the Commission to allow the Respondent's complaint to proceed, notwithstanding the fact that the complaint was filed more than twelve months after the alleged discriminatory act. The Respondent's complaint alleges discrimination on the basis of disability. The relevant sections of the Act are sections 3 and 7. Section 3(1) provides as follows:

[60]            Discriminatory acts are broadly defined in section 7, as follows:

[61]            The Act requires the Commission to investigate any complaint filed with it, unless the complaint falls within one of the categories listed in section 41. Section 41(1) provides as follows:

[62]            While the court has previously found that section 41(1)(e) does not confer a right on an affected party to be exempt from investigation when a complaint is out of time, which was the situation in Barrette, supra, (T.D.), this line of jurisprudence has been substantially altered by the decision of the Federal Court of Appeal in Canada Post v. Barrette, [2000] 4 F.C. 145. In that decision, the Federal Court of Appeal found that the trial judge had misapprehended the evidence when he concluded that the Commission had considered the submissions presented by the employer.

[63]            Significantly, the Court of Appeal found that while there was no duty to investigate at the preliminary screening stage, the Commission is required to investigate on a prima facie basis whether the grounds set out in section 41(1) are present, and if so, to decide whether to deal with the complaint. However, the Commission may not simply ignore or routinely dismiss submissions made by a party at the preliminary stage on the ground that in any event the affected party will have the opportunity to repeat its submissions at the screening stage. Most importantly, the Court of Appeal found that unless the Commission addresses the issues raised by the affected party, it neglects a duty imposed by law.

[64]            The court stated its view of the matter in paragraphs 22 to 25, as follows:

It seems to me, having read the memorandum of fact and law of the Commission and heard from its counsel, that the Commission does not take very seriously the preliminary screening process set out in section 41 of the Act. It is true that the courts have repeatedly held that they would not intervene lightly with decisions of the Commission made in the performance of its screening function under section 44 of the Act and even less so when the decisions are made in the performance of the Commission's preliminary [page156] screening function under section 41 of the Act. However, these judicial rulings were made on the assumption that the Commission did in fact perform its functions under these two sections and that it did not do so lightly.

Section 41 imposes a duty on the Commission to ensure, even proprio motu, that a complaint is worth being dealt with. There is obviously no duty to investigate at that stage and the Commission is asked no more than to examine on a prima facie basis whether the grounds set out in subsection 41(1) are present and, if so, to decide whether to nevertheless deal with the complaint.

With respect to the grounds set out in paragraphs 41(1)(a) to (e), a person against whom a complaint is made is expressly given two opportunities to raise them: one at the section 41 preliminary screening stage, the other at the section 44 screening stage (see paragraphs 44(2)(a) and (b) and subparagraphs 44(3)(a)(ii) and (b)(ii). The Commission may not simply ignore or routinely dismiss submissions made by a person at the preliminary screening stage on the ground that in any event that person still has the opportunity to reiterate its submissions at the screening stage. The person is entitled to expect the Commission to examine its submissions on their merit, as required by the statute, at the preliminary screening stage albeit, as I have indicated, in a summary way.

Unless the Commission turns its mind to the issues raised by the person against whom a complaint is made, in this case the employer, it neglects a duty imposed by law. An employer has a legal right to seek an early brushing aside of a complaint for the reasons set out in subsection 41(1). This is not to suggest that stringent procedural standards be imposed on the Commission at that stage nor that a close scrutiny of decisions made under subsection 41(1) be undertaken by the courts. This is only to say that the Commission must do its work diligently even at a preliminary stage [page157] where only a prima facie screening is required.

[65]            This decision of the Federal Court of Appeal marks a departure from the earlier jurisprudence which had stated that an affected party does not have the right to have a complaint dismissed if it is filed more than one year after the alleged discriminatory act.    Graham, supra, relied on the trial decision of Barrette, supra, (T.D.), and consequently, is no longer an accurate statement of the law. To the extent that the Commission relies on Graham, supra, and its successors, its arguments must fail.

[66]            The decision of the Federal Court of Appeal in Barrette, supra, establishes that the Applicant had the right to seek a "brushing aside" of the Respondent's complaint for the reasons set out in section 41. However, the question remains whether the Commission addressed its mind to the issues raised by the Applicant in its letter dated August 24, 1998, to the Commission.

[67]            As noted above, that letter stated the Applicant's position that the Commission cannot investigate an untimely complaint unless it first expressly decides to extend the time limits because such an extension can only be made for compelling reasons. By its letter, the Applicant formally requested that the Commission make a determination on whether to extend the time limits.

[68]            The documents produced by the Commission demonstrate that the Commission had indeed decided to investigate the Respondent's complaint as early as August 10, 1998 notwithstanding the letter of the same date that was sent to the Applicant. The letter of August 10, 1998 sent to the Respondent, shows that the Commission had decided to proceed with the investigation of his complaint event before it solicited submissions from the Applicant.

[69]            In my opinion, the decision made by the Commission on February 18, 1999 does not reflect consideration of the arguments and submissions made by the Applicant. Although dated February 18, 1999, the decision actually reflects a decision reached by the Commission as early as August 10, 1998. The mere existence of the letter dated August 10, 1998 to the Respondent is sufficient to cast doubt over the entire process leading to the decision dated February 18, 1999.

[70]            On the basis of the decision of the Federal Court of Appeal in Barrette, supra, I would allow the application in part, set aside the decision dated February 18, 1999, and remit the matter back for reconsideration by the Commission in accordance with the decision of the Federal Court of Appeal in Barrette, supra.

[71]            The sole matter outstanding, then, is the Applicant's request for an order of prohibition, to prohibit the Commission from further dealing with the complaint filed by the Respondent. An order of prohibition is an extraordinary remedy which lies within the discretion of the court. In Krause v. Canada, [1999] 2 F.C. 476 (C.A.), the Federal Court of Appeal said at page 498:

The design of prohibition, on the other hand, is preventative rather than corrective. It affords a measure of judicial supervision not only of inferior tribunals but of administrative authorities generally. Specifically it is available "to prohibit administrative authorities from exceeding their powers or misusing them". Indeed, prohibition has been granted to supervise the exercise of statutory power by such authorities including an act as distinct from a legal decision or determination, and a preliminary decision leading to a decision that affects rights even though the preliminary decision does not immediately do so. [footnotes omitted]

[72]            The remedy of prohibition should not be granted in the absence of compelling circumstances. In Canadian Airlines International Ltd. v. Canada (Canadian Human Rights Commission), [1996] 1 F.C. 638 (C.A.); leave to appeal to S.C.C. refused (1996), 205 N.R. 399 (S.C.C.), the court held that prohibition is available on the basis of delay not caused by the applicant when there is evidence that the prejudice caused by that delay would deprive an applicant of its right to a full and complete defence.

[73]            In Canadian National Railway Co. v. Canada (Human Rights Tribunal), [1990] 1 F.C. 627 (T.D.), the court concluded that while the remedy of prohibition should be used sparingly, to avoid pre-empting the statutory human rights process provided by Parliament, an inquiry should be prohibited where it will be useless, costly and abusive.

[74]            In the present case, the Applicant seeks an order of prohibition against any further handling of the Respondent's complaint on the basis of alleged institutional bias by the Commission against it, as an employer.

[75]            In effect the Applicant argues that the Commission cannot be trusted to respect the rights of a employer to object to the timeliness of a complaint, and that it should not be forced to defend itself again in the face of institutional bias.

[76]            On the other hand, the Respondent argues that he was not involved in the decision-making process followed by the Commission and should not be deprived of his right to pursue his complaint.

[77]            There is merit in the arguments advanced by the Applicant in support of an order of prohibition. However, in all the circumstances, I conclude that it would be unfair to deprive the Respondent of the legal right to have his complaint investigated, as the consequence of the errors committed by the Commission. The Respondent should not be penalized for the acts of the Commission.

[78]            Accordingly, the application for judicial review is allowed and the decision of the Commission dated February 18, 1999 is quashed. The complaint of the Respondent is referred back to the Commission to be dealt with in accordance with the decision of the Federal Court of Appeal in Barrette, supra. Specifically, the Commission is to deal with the question of the timeliness of the complaint in accordance with the decision of the Federal Court of Appeal.

[79]            No costs were sought by the Applicant and there will be no order as to costs.

                                                  ORDER

The application for judicial review is allowed and the decision of the Commission dated February 18, 1999 is quashed. The matter is referred back to the Commission to be dealt with according to the reasons of the Federal Court of Appeal in Canada Post v. Barette, [2000] 4 F.C. 145, no order as to costs.

                                                                                           "E. Heneghan"                    

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

March 22, 2002