Date: 20020513
Docket: T-732-02
Neutral citation: 2002 FCT 547
Montréal, Quebec, May 13, 2002
Before: Danièle Tremblay-Lamer J.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Plaintiff
- and -
MANON MALO
and
TÉLÉ-MÉTROPOLE INC.
and
NADIA CAZA
Defendants
REASONS FOR ORDER AND ORDER
[1] In view of the urgency, I have no alternative but to issue brief reasons in the case at bar.
[2] This is a motion to stay proceedings in Caza v. Group TVA and Manon Malo, T-633/2101, T-634/2201, before the Canadian Human Rights Tribunal ("the tribunal"), in accordance with s. 50 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, until judgment is rendered in the application for judicial review in this case.
[3] In an amended complaint dated November 7, 1996 and a complaint dated January 7, 1999, the defendant Nadia Caza alleged that the defendants Group TVA and Manon Malo had discriminated against her on account of her Egyptian nationality and Arab ethnic origin.
[4] The hearing of this case by the tribunal was presided over by presiding member Roger Doyon. It was to go forward on May 14, 2002.
[5] In a letter dated March 8, 2002 the Canadian Human Rights Commission ("the Commission") informed the tribunal that it would be making a motion requesting that the presiding member be disqualified because of a reasonable appearance of bias.
[6] In its motion to disqualify dated March 11, 2002 the Commission objected to the interventions made by the presiding member when the plaintiff was testifying, his refusal to hear her and his remarks about Osama bin Laden.
[7] The motion to disqualify was heard by the presiding member Roger Doyon on March 12 and 13, 2002, and the motion was dismissed in a decision dated April 29, 2002.
[8] On May 8, 2002 the Commission filed an application for judicial review of the presiding member's decision.
[9] In order to avoid irreparable harm from the holding of a hearing on the complaint in these circumstances, the Commission asked the tribunal on May 6, 2002 to stay proceedings until judgment was rendered on the application for judicial review in the case.
[10] On May 8, 2002 the tribunal had still not granted this request: the hearing was scheduled to resume on the following May 14, hence the instant application to stay proceedings.
[11] After hearing submissions by the parties and on the basis of the evidence in support of the instant application, I am persuaded that the three tests laid down by the Supreme Court of Canada in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, have been met.
[12] First, I am satisfied that there is a serious question to be tried, namely whether the conduct of the presiding member raised a reasonable apprehension of bias in hearing a complaint involving racial discrimination.
[13] After re-reading the transcript, I feel that the plaintiff's allegations of bias are serious:
first, despite a memorandum of agreement made between the parties on the complainant's right to intervene, I found four incidents in which she was deprived of her right to intervene;
it was further alleged, as the second reason, that the presiding member intervened several times in the cross-examination of the complainant: in fact, he apparently intervened 294 times in the three days of hearing;
the plaintiff also objected to the presiding member's remarks about a possible connection between herself and Osama bin Laden: in the plaintiff's submission, such remarks were likely to create an appearance of bias in the person making them.
[14] At this stage, therefore, I can conclude that the plaintiff has met the first test.
[15] Second, I feel that obliging the Commission and the complainant to proceed before a presiding member whose conduct suggests a lack of impartiality in the handling of the complaint can only create irreparable harm, which could not be corrected by a subsequent decision. The right to a fair and equitable hearing is an absolute right, which cannot be remedied when it appears that the proceeding has been seriously affected.
[16] As to the balance of convenience, as in Bennett v. British Columbia (Superintendent of Brokers), [1993] B.C.J. No. 246, cited by my brother Nadon J. in Canada (Royal Canadian Mounted Police) v. Malmo-Levine, [1998] F.C.J. No. 1912, I feel that the public interest does not require that the plaintiff be caused serious inconvenience by proceeding with a hearing which may prove to be invalid, because the Court has decided that there is a reasonable apprehension of bias on the part of the tribunal.
[17] I recognize that it is unusual to stay a proceeding before the tribunal. However, in my view the question of bias takes priority over any public interest in favour of proceeding with the hearing. Consequently, the motion is granted.
ORDER
THE COURT ORDERS that the proceedings in Caza v. Group TVA and Manon Malo, T-633/2101, T-634/2201, before the Canadian Human Rights Tribunal, be stayed pursuant to s. 50 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, until judgment is rendered on the application for judicial review in this case, with costs.
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Danièle Tremblay-Lamer
J.F.C.C.
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020513
Docket: T-732-02
Between:
CANADIAN HUMAN
RIGHTS COMMISSION
Plaintiff
and
MANON MALO
and
TÉLÉ-MÉTROPOLE INC.
and
NADIA CAZA
Defendant
REASONS FOR ORDER
AND ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-732-02
STYLE OF CAUSE: CANADIAN HUMAN RIGHTS COMMISSION
Plaintiff
and
MANON MALO
and
TÉLÉ-MÉTROPOLE INC.
and
NADIA CAZA
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 13, 2002
REASONS FOR ORDER: TREMBLAY-LAMER J.
DATE OF REASONS: May 13, 2002
APPEARANCES:
Daniel Chénard / Jean St-Antoine FOR THE PLAINTIFF
Nicola Di Iorio FOR THE DEFENDANTS
SOLICITORS OF RECORD:
Daniel Chénard FOR THE PLAINTIFF
Montréal, Quebec
Heenan, Blaikie FOR THE DEFENDANTS
Montréal, Quebec
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