Canadian Human Rights Commission v. Canadian Broadcasting Corporation, docket T-2503-94

     T-2503-94

IN THE MATTER of an application to review and set aside,

pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7,

as amended, a decision of a Canadian Human Rights Tribunal established

under section 49 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6,

as amended, rendered by Lyman R. Robinson, Chairperson, on September 15,

1994 respecting a complaint filed pursuant to section 40 of the Canadian

Human Rights Act (TD File No. 14/94).

Between:

     CANADIAN HUMAN RIGHTS COMMISSION,

     Applicant,

     - and -

     CANADIAN BROADCASTING CORPORATION,

     Respondent,

     - and -

     PEGGY (JOHNSON) VERMETTE,

     Respondent.

     REASONS FOR ORDER

Muldoon J.

     This is a case of great documentary volume. The applicant started out by being the respondent Vermette's advocate with counsel provided, lost that status in favour of her chosen counsel, and now, that party is designated a respondent, but she did not appear either in person or by counsel before this Court.

     The ordinarily unnecessary and redundant (but informative) passage recited before and above the style of cause, does not need to be repeated here.

     The tribunal dismissed the respondent Vermette's complaint dated February 27, 1990, against the respondent Corporation (the CBC) a copy of which is displayed as exhibit HR-1 on p. 639 of the applicant's record, vol. III. The complaint against the CBC was made on the proscribed ground of disability, in a matter related to employment under section 7 of the Canadian Human Rights Act (the Act). The respondent, Ms. Johnson Vermette, can be conveniently referred to here as the complainant.

     The applicant (the CHRC) seeks an order quashing the tribunal's decision and referring the complaint to a differently constituted tribunal with directions.

ORIGINATING NOTICE OF MOTION

     The asserted grounds for this application stated in the applicant's originating notice are these:

1.      The Tribunal acted beyond its jurisdiction in dismissing the complaint on the grounds that the evidence upon which the Applicant based its decision to bring the complaint into time pursuant to section 41 of the Canadian Human Rights Act (the "CHRA") did not disclose a reasonable basis for denying the Respondent, Canadian Broadcasting Corporation, the benefit of the limitation period in section 41.

2.      The Tribunal denied the Applicant and the Respondent, Peggy (Johnson) Vermette, procedural fairness and breached the rules of natural justice:

(a)      by denying the Applicant's request for an adjournment to call expert evidence relating to the disability of the Respondent, Peggy (Johnson) Vermette;

(b)      by refusing to allow the Applicant and the Respondent, Peggy (Johnson) Vermette, to call reply evidence regarding the practices and procedures relating to the length of admission to the treatment centre;

(c)      by refusing to allow the Respondent, Peggy (Johnson) Vermette, to call evidence on her own behalf relating to her disability;

(d)      by denying the Applicant's request to re-open its case to call expert evidence relating to the disability of the Respondent, Peggy (Johnson) Vermette.

3.      The Tribunal erred in law:

(a)      in incorrectly applying the legal test with respect to the burden of proof regarding the disability of the Respondent, Peggy (Johnson) Vermette;

(b)      in its interpretation of section 25 of the Canadian Human Rights Act;

(c)      with respect to the duty to accommodate;

(d)      in its interpretation of section 16 of the Canadian Human Rights Act.

4.      The Tribunal based its decision on erroneous findings of facts that it made without regard for the evidence before it:

(i)      that the Respondent, Peggy (Johnson) Vermette, was not alcohol dependent within the meaning of section 25 of the Canadian Human Rights Act;

(ii)      that the Respondent, Canadian Broadcasting Corporation, had fulfilled the duty to accommodate up to the point of undue hardship.

     The application is supported, in part, by the affidavit of Fiona Keith, sworn October 14, 1994. Ms. Keith was counsel for the CHRC, and for the respondent during the first day and part of the second at the tribunal's hearing in Saskatoon, on February 7 to 9, 1994. (Applicant's record, vol. II, p. 346 et seq.) The affidavit appears to be an exculpation rather than an expiation for specified misunderstandings and false assumptions on the part of the CHRC's counsel. They are not objectively crucial to, nor in the critical path toward, determination of the application here.

THE PARTIES' PRELIMINARY AGREEMENT

     In September 1993, long before the tribunal's hearing of this matter in February and April, 1994, the Commission for itself and for the complainant, and the CBC, both by counsel conferred with the then designated tribunal chairman, Raymond W. Kirzinger, by telephone conference call. The purpose of the conference was to regulate the conduct of the parties and of the hearing to avoid surprises to one side or the other at the hearing and, in effect to provide for an orderly hearing in which each side could fairly present its full case for adjudication. The agreed conclusions of such conference were reduced to writing by the chairman under the aegis of "Human Rights Tribunal" and, with the parties' identification, titled Memorandum of Agreement. A copy of this document is reproduced at the beginning of the CBC's application record. Salient provisions of the parties' agreement run as follows:

1.0 PRELIMINARY MATTERS

1.1      It is the Complainant's intention that the Commission will conduct her case on her behalf so long as her interests coincide with the public interest (as represented by the Commission). The Complainant understands her right to act as a separate party if her interests and the Commission's interest differ at any time.

1.2      The Respondent [CBC] intends to challenge the jurisdiction of the Tribunal on two grounds:

(a)      that there has been undue delay between the time of the incident and the filing of the complaint to the prejudice of the Respondent; and

(b)      that the Respondent has a grievance procedure that should have been exhausted before the Commission dealt with the complaint as contemplated by Section 41(a) of the Act.

1.3      The jurisdictional issues are likely to be determined by the Tribunal either:

(a)      following argument at the outset of the hearing, if an agreed statement of all the relevant facts along with written representations, each as pertaining to the jurisdictional issue, are filed with the Registry not less than 14 days prior to the hearing; or

(b)      following the hearing, if oral evidence must be called in addition to or instead of an Agreed Statement of Facts on the jurisdictional issue.

2.0 ISSUES

2.1      The primary factual issue to be considered by the Tribunal will be whether or not the Complainant's employment was terminated because alcohol dependency or for some other reason (such as unexplained absenteeism, etc.).

2.2      The anticipated issues of law are, whether or not:

(a)      alcohol dependency is a "disability";

(b)      the employment/training program under which the Complainant was hired is permissible under the Act (note: at the time of the pre-hearing, the Commission did not expect to challenge the Respondent's position on this issue);

(c)      the Respondent has a duty of reasonable accommodation in this case and, if so, was it properly discharged; and

(d)      the Respondent can prove a BFOR defence if a prima facie case of discrimination is established.

3.0 AGREED STATEMENT OF FACTS

[None was ever generated.]

4.0 EVIDENCE

4.1      * * * it is expected by the Tribunal that the Commission will present all of its evidence first followed by the Respondent.

4.2      The Complainant expects to call the following witnesses (subject to the filing of an Agreed Statement of Facts and the extensiveness of it):

(a)      the Complainant (expected duration 2 to 3 hours);

(b)      a representative from Cardwell Human Resources (expected duration of less than 1 hour);

(c)      a representative from Pine Lodge (expected duration of 30 to 45 minutes) regarding contact made with the Respondent prior to the termination; and,

(d)      an expert witness in the medical/addiction field (duration unknown at this time) to give evidence on alcohol dependency as a disability.

4.3      At this time, the Respondent anticipates presenting the following evidence:

(a)      Dennis [sic] Stambuck, Human Resources Officer with the Respondent (duration unknown); and

(b)      Sandra Coates, Saskatchewan Government Special Programs Officer who is responsible for training aboriginal individuals employed with the Respondent (duration unknown).

5.0 DOCUMENTS/EXHIBITS

*** *** ***

6.0 EXPERT EVIDENCE

6.1      The Commission indicated that it will provide the other parties with a summary of the expert's qualifications and evidence to be adduced at least four weeks prior to the hearing.

7.0 OTHER INTERESTED PARTIES

*** *** ***

8.0 SCHEDULING AND DURATION OF HEARING

*** *** ***

9.0 PROCEDURAL AND OTHER MATTERS

9.1      There were no other matters to be discussed.

10.0 NOTATION

*** *** ***

11.0 ADJOURNMENT

*** *** ***

The memorandum is dated September 14, 1993 and signed by Mr. Kirzinger.

ABORTIVE NON-AGREED STATEMENT OF FACTS

     A draft agreed statement of facts had been produced on behalf of the CBC and tendered to the Commission's counsel but it never came into effect because, apparently, the Commission would not agree to it. It was therefore void, and indeed a nullity. Later, during the limited time of the tribunal's hearing in February, 1994, the Commission's counsel sought an adjournment in order to subpoena her witnesses anticipated under items 4.2(c) and (d) of the above memo. Why? Although that draft statement of agreed facts never came into effect, a copy is actually annexed to the Commission's counsel's affidavit filed herein (applicant's record, vol. I, pp. 67-70).

     Here is what appears, on p. 65, as paragraphs 3 and 4 of Fiona Keith's said affidavit:

3,      On September 11, 1993 I received by facsimile transmission a copy of a proposed statement of "Agreed Facts" prepared by counsel for the Respondent, Canadian Broadcasting Corporation. The statement of "Agreed Facts" was not finalized or filed before the Tribunal. I understood from the following statement of fact at [the second] paragraph 12 of the draft prepared by Respondent counsel that the Respondent did not intend to challenge that the Respondent, Peggy (Johnson) Vermette, was alcohol dependent: "Ms. Johnson was admitted to the Pine Lodge Center in Indian Head, Saskatchewan, on August 31, 1988 for treatment for alcohol dependency." A copy of the proposed statement of "Agreed Facts" received on September 11, 1993 is attached as Exhibit "A" to this Affidavit.

4.      The Memorandum of Agreement which was prepared by the Tribunal following the pre-hearing meeting indicates that on behalf of the Commission I anticipated calling an expert witness in the medical/addictions field to give evidence on alcohol dependency as a disability.

     The text of the deponent's paragraph 3 of her affidavit quotes only a small snippet of the second paragraph 12 of the draft statement of agreed facts. The full 2nd paragraph 12 (applicant's record, p. 69, vol. I) runs thus:

12.      Ms. Johnson was admitted to the Pine Lodge Center in Indian Head, Saskatchewan, on August 31, 1988 for treatment for alcohol dependency. It was some time after this date that the CBC was notified that Ms. Johnson was at Pine Lodge. Ms. Johnson in fact remained under treatment at Pine Lodge during the month of September 1988. The CBC was unaware of this until well after the fact.

The Commission's counsel made a false assumption on the basis of the above draft nullity and she never until February, 1994, attempted to confirm or repudiate it with the CBC's counsel, who was always only a telephone call away. That is why she never bothered to contact her two anticipated witnesses; and that is why she sought an adjournment of the short scheduled hearing in Saskatoon the following February. That is why she could not live up to her undertaking expressed in paragraph 6.1 of the memo of September 14, 1993. Nor could she comply with paragraph 4.1 thereof.

     The deponent, Ms. Keith, also exhibited copies of pp. 182 through 184, and 191 through 204 of the tribunal' hearing transcript (applicant's record, vol. I, pp. 72-88). Those transcript pages are introduced by paragraph 6 of the affidavit, thus:

6.      Following the cross-examination of the Respondent, Peggy (Johnson) Vermette, I asked Mr. Heenan, counsel for the Respondent, whether the Respondent intended to challenge that Ms. Vermette was alcohol dependent. It was at this point in time that I realized what the Respondent's position was and I requested an adjournment to call expert medical evidence regarding the complainant's alcohol dependency. A copy of pages 182-184 and pages 191-204 of the Transcript which is attached hereto to this my Affidavit as Exhibit "B".

PROCEDURAL FAIRNESS AND NATURAL JUSTICE

     A different counsel appeared for the Commission at the hearing before this Court and he remarked on how voluminous is this case. It is tempting to recite here the tribunal's reasons in full for refusing the Commission's application for an adjournment to call the expert witness, which refusal is impugned in the Commission's originating notice. In his reasons titled Decision of Tribunal, (applicant's record, vol. I, pp. 10 et seq.), the presiding and sole member Dean Lyman R. Robinson, Q.C., wrote these two paragraphs on the subject of that refusal to adjourn three days before the hearing so that the Commission's counsel could organize her expert-witness-calling logistics:

1.      Application by Commission Counsel to Call an Expert Witness Notwithstanding the lack of 30 days Notice

*** *** ***

The hearing was scheduled to begin and in fact began on February 7, 1994. Rather than providing the Respondent four weeks notice of the expert's qualifications and evidence to be adduced, counsel for the Commission sought an order permitting the Commission to call an expert on three days notice (two of which were on a weekend). The Respondent could have been significantly prejudiced by the production of an expert witness on such short notice. The respondent would not have had a reasonable opportunity to both review the expert's proposed evidence and, if the Respondent thought that it was desirable, to seek out its own expert and have the expert available in Saskatoon all within a matter of a few days.

By a notice dated December 8, 1993, the Commission had been notified that the hearing would commence on February 7, 1994. The pre-hearing conference with respect to this matter had been held in September, 1993. Therefore, the Commission had plenty of time to identify the witnesses that it proposed to call and to give the Respondent the four weeks notice provided by Paragraph 6.1 of the Pre-Hearing Agreement.

     A second procedural ruling was made and it appears at pp. 13 & 14 of the applicant's record, vol. I, thus:

2.      Application for an Adjournment to Call Expert Evidence and Subpoena Documents from Pine Lodge

After the examination and cross-examination of the Complainant and Mr. Cardwell had been completed, Commission counsel advised the Tribunal that she did not have any further witnesses available to call at that time. Commission counsel stated (Transcript, vol. 2, page 191) that she wished to lead further evidence relating to the issue of Ms. Vermette's alcohol dependency. She indicated that the person she had in mind was the former director of the Pine Lodge rehabilitation centre who is apparently a medical doctor. Commission counsel informed the Tribunal that the doctor was located in Regina and that she had not yet been able to confirm his availability. Commission counsel also referred to a discharge summary prepared by Pine Lodge pertaining to Ms. Vermette and stated that she wished to serve a subpoena on Pine Lodge to produce the Complainant's file and to have someone from Pine Lodge testify as to the documents but counsel had not yet identified who that individual would be. It was clear that the person was not then available and would not be available during the remaining period scheduled for the hearing of evidence during that week of February. Commission counsel requested an adjournment for the purpose of adducing the testimony of these witness [sic]. Counsel for the Respondent objected to the Commission tendering expert evidence when the Respondent had not received a summary of the expert's qualifications and evidence to be adduced at least four weeks prior to the hearing in accordance with Paragraph 6.1 of the Memorandum of Agreement following the pre-hearing.

I ruled that the proposed expert evidence of the doctor was not admissible because the Respondent had not been given the four weeks notice required by Paragraph 6.1 of the Pre-Hearing Memorandum of Agreement.

*** *** ***

(para. 6.1 recited here)

I also refused to grant an adjournment to either permit the Commission to call an expert on alcohol dependency or to subpoena somebody from Pine Lodge to produce documents relating to the Complainant's attendance at Pine Lodge. The Memorandum of Agreement following the pre-hearing in September, 1993 clearly contemplated that the Commission would be calling an expert on alcohol dependency and somebody from Pine Lodge. Paragraph 4.2 of the Agreement provided, in part:

*** *** ***

(4.2(c) and (d) recited here)

The Commission had been notified by a notice dated December 8, 1993 that the hearing was set to commence on February 7, 1994. Consequently, the Commission had plenty of time to identify and subpoena the witnesses that if required. Any adjournment would have meant adjourning the matter for at least two months for the purpose of completing the Commission's case before commencing the hearing of the Respondent's evidence. The Respondent had its witness, some of whom had travelled to Saskatoon from Ottawa and Alberta, ready and available to proceed with their evidence during the week of February 7, 1994. If I had granted an adjournment, those witnesses would have had to return to Saskatoon on a subsequent occasion. This would be an unwarranted expense for the Respondent and an unacceptable inconvenience to the witnesses.

3.      Application by Legal Counsel for the Complainant to Recall the Complainant to Give Evidence in Chief

[This originating motion by the CHRC does properly interfere to impugn this ruling,.]

*** *** ***

4.      Commission's Application to Call Reply Evidence and to Re-open the Commission's Case

After the hearing of evidence had been completed in February, 1994, the hearing was adjourned until April 7, 1994, to hear argument. By a letter dated March 11, 1994, counsel for the Commission applied for leave to present reply evidence and to re-open the Commission's case to adduce additional evidence. Counsel for the Complainant supported this application. Counsel for the Respondent opposed the application.

(a) Reply Evidence

The proposed reply evidence included testimony by Roly Gatin, the former director of Pine Lodge Rehabilitation Centre. In her letter of March 11, 1994, Commission counsel stated:

. . . it is anticipated that he will testify as to Ms. Vermette's anticipated discharge date as of September 6, 1989.

[Here the tribunal chairman cited Sopinka & Lederman, The Law of Evidence in Canada, at p., 880, Wigmore Evidence (Chadbourne rev. 1976), #1873 at 672, and Allcock, Laight & Westwood Ltd. v. Patten, [1967] 1 O.R. 18 (Ont. C.A.), Schroeder J.A. at p. 21, and he concluded:]

After considering the written submissions of counsel, I made an order that limited reply evidence to any conversations that Roly Gatin had with Dennice Stambuck, the Respondent's personnel officer, where Roly Gatin's evidence would contradict or qualify the evidence of Dennice Stambuck. Testimony of Roly Gatin relating to the following matters might properly be expected to have formed part of the Commission's case and could not be considered as proper reply evidence:

a)      the practices of Pine Lodge in relation to the period of time admitees remained as a resident at the rehabilitation centre;

b)      Ms. Vermette's condition when she arrived at Pine Lodge;

c)      Ms. Vermette's rehabilitation program at Pine Lodge;

d)      Ms. Vermette's anticipated discharge date from Pine Lodge unless it was testimony that this date was communicated to the Respondent; or

e)      testimony with respect to characteristics of alcoholism or alcohol dependency generally.

Counsel for the Commission by a letter dated March 28, 1994, advised that Roly Gatin did not remember whether he spoke to Dennice Stambuck and counsel for the Commission did not call him as a witness by way of reply.

(b)      Application to Re-open the Commission's Case

In her letter of March 11, 1994, counsel for the Commission also applied for leave to re-open the Commission's case by adducing additional evidence. The specific evidence was not stated in the letter but a reference was made to the application made by Commission counsel at the conclusion of the Commission's evidence in February to call an expert to give opinion evidence regarding Ms. Vermette's alcohol dependency.

Commission counsel's application for leave to re-open the Commission's case appeared to be an application to adduce essentially the same evidence that the Tribunal ruled against at the conclusion of the Commission evidence in February (see paragraph 2 above). However, counsel for the Commission submitted in the March application that the four week notice requirement with respect to expert evidence, provided by the Memorandum of Agreement following the pre-hearing, had been satisfied by the delivery to the Respondent of a summary of the expert's proposed testimony.,

Furthermore, copies of both Ms. Vermette's admission summary and her discharge summary had been provided to counsel for the Respondent.

Whether or not an application to re-open is granted is a matter of discretion for the Tribunal. This has been stated in civil cases such as B.F. Goodrich Canada Ltd. v. Mann's Garage Ltd., (1959) 21 D.L.R. (2d) 33 (N.B.Q.B.) and Clayton v. British American Securities Ltd. , [1934] 3 W.W.R. 259 (B.C.C.A.) and in criminal cases such as R. v. Scott, [1990] 3 S.C.R. 979 per Cory J. at p. 1002-03.

*** *** ***

Where the application to reopen is received prior to a decision being rendered, a broader discretion to reopen has been recognized. Sopinka and Lederman, The Law of Evidence in Civil Cases at page 541 suggest that a case may be reopened "where the interest of justice requires it". Among the cases cited by Sopinka and Lederman is Sunny Isle Farms Ltd. v. Mayhew (1972), 27 D.L.R. (3d) 323 (P.E.I.S.C.). In that case Nicholson J. adopted the statement by Boyle J. in Sales v. Calgary Stock Exchange [1931] 3 W.W.R. 392 at 394 (Alta. S.C.) where he said:

It is in my view a serious matter to open up a trial after all the evidence has been taken, and it should never be done unless it seems imperative in the interest of justice that the case should be reopened for further evidence.

*** *** ***

[further illustrations drawn from apt jurisprudence and doctrine]

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In Gass v. Childs (1958), 43 M.P.R. 87 at page 93, Ritchie J.A. set forth three criteria that should be satisfied before tribunal exercises its discretion to reopen:

In order to justify either the reception of fresh evidence or the ordering of a new trial the three conditions set out hereunder must be fulfilled:

1.      It must be shown the evidence could not have been obtained with reasonable diligence for use at the trial;

2.      The evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and

3.      The evidence must be such as presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

Notwithstanding that all of the above references relates to judicial proceedings, I find that the previously quoted statement of Wigmore, Evidence (Chadbourne rev. 1976), #1873 at 672, is equally applicable to both judicial and proceedings before a Human Rights Tribunal.

I have measured the application of the Commission to reopen against the above mentioned criteria of Gass v. Childs. The first question is whether the evidence could have been obtained with reasonable diligence prior to the close of the Commission's evidence in February. From the outset, the complaint has alleged discrimination related to a disability based on alcohol dependency. Alcohol dependency is one of the anticipated issues that was enumerated in paragraph 2.2 of the Pre-hearing Memorandum of Agreement. An expert witness in the medical/addiction field is one of the witnesses enumerated in paragraph 4.2 of the Pre-hearing Memorandum of Agreement as being a witness who the Commission intended to call to give evidence on alcohol dependency. There is nothing to indicate that this evidence or the testimony of the doctor who was the former director of the Pine Lodge rehabilitation centre or other expert could not have been obtained with reasonable diligence for tendering as part of the Commission's case. Similarly, there is nothing to indicate that the admission and discharge summaries and other documentary evidence in the possession of Pine Lodge could not have been obtained with reasonable diligence for tendering as part of the Commission's case. Therefore, I ruled that the first criterion of Gass v. Childs was not satisfied.

Having come to the conclusion that the first criterion of Gass v. Childs was not satisfied, it is not necessary to proceed to a consideration of the second and third criteria of Gass v. Childs.

The application to re-open the Commission's case was denied. Draft reasons for these decisions were forwarded to counsel prior to the hearing of argument. Counsel were advised that the final reasons with respect to these applications would be included in this decision.

     This Court finds that the tribunal performed fairly as well as correctly in law in all of the above recited dispositions. The Commission should at least be seen to understand that fairness is equitable: it cuts both ways. The CBC deserves to be treated and judged fairly as much as does the complainant. After thorough perusal of the material presented, and much deliberation, the Court has reached a conclusion. There is nothing in the tribunal's above dispositions to persuade this Court, on judicial review, to grant to the Commission any extraordinary remedy it seeks. The tribunal did not deny procedural fairness, nor did it breach any rule of procedural fairness, even if there had been no memorandum of agreement, made on September 14, 1993, above cited. But there was, additionally, such an agreement. Why, then, should the Commission have been allowed to lead the CBC on, and then be allowed to play fast and loose with the CBC in the very litigation which the parties sought to regularize by that pre-hearing agreement? Why should the Commission be exempted from honourable conduct and due diligence in keeping its word? The CHRC's conduct in seeking the adjournment was unreasonable. None of the grounds expressed in paragraph 2 ((a) through (d)) of the originating motion has been made out. The CBC's counsel's written arguments as well as oral arguments (transcript: pp. 144-59) are most persuasive and indeed, conclusive. Accordingly the Commission's application is, to this extent, dismissed.

ADEQUATE ALTERNATIVE REMEDY - SECTION 55

     Before proceeding to further consideration of this application for judicial review, the Court will now decide upon a matter of curial discretion as to whether his application ought even to be entertained in the first place. Here reference is made to the principle of "adequate alternative remedy". Ought this Court take jurisdiction over the CHRC's application when it clearly had an adequate alternative remedy?

     There is an appeal process provided within the Canadian Human Rights Act in section 55:

55. Where a Tribunal that made a decision or order was composed of fewer than three members, the Commission, the complainant before the Tribunal or the person against whom the complaint was made may appeal the decision or order by serving a notice, in a manner and form prescribed by order of the Governor in Council, within thirty days after the decision or order appealed was pronounced, on all persons who received notice from the Tribunal under subsection 50(1).

The permissive, non-compulsory formulation of the statute gives rise to a doctrine which empowers this Court to consider whether the applicant has or has not better alternative remedies than are provided in sections 18 and 18.1 of the Federal Court Act. Here is a situation which is not strictly or literally within the purview of the Federal Court Act's section 18.5. The law's doctrine and section 18.5 evince the same spirit.

     The CBC's counsel strongly argued in favour of the Court's dismissal of the CHRC's application on the grounds of the adequate alternative remedy (transcript: pp. 116-18 and 161). Two samples suffice:

MR. HEENAN: * * * I must say that our position is, and there is ample jurisprudence to support the fact that a discretionary prerogative writ should not be used when there is an appeal proceeding provided. In fact, the language of some of the prerogative writs is if there is no other equal, expeditious and normal proceeding for the applicant.

(transcript: p. 118)

*** *** ***

* * * I repeat and reiterate the comments I made before, that these are matters, in any event, which are not properly a section 18 matter. It's a straight appeal and section 18 should not be used for that purpose.

(transcript: p. 161)

     The Commission's counsel also argued, but strongly to the contrary, about why judicial review when there is an appeal already provided in the Canadian Human Rights Act, (transcript: pp. 173-78)? In summation, he urged:

MR. DUVAL: * * * So in a word, if you will, what I'm saying is that given the nature of the grounds that we have here, and because the Commission in its application is not asking the court, contrary to what was suggested by my friend, to sit in appeal from the tribunal, because if you remember my submissions, I talked about jurisdiction, I talked about natural justice and I talked about errors of law. So it seems to me that, given the nature of the grounds - and that is what I think should be the factor in determining whether or not to exercise discretion -- given that the issue is that new -- I mean the section 25(1) -- and the 41(1) is new too because the only jurisprudence that there is on 41 is your decision, which does not deal with the jurisdiction.

So given the newness of the points raised, it seems to me that this is a proper case for the court to exercise its discretion and, because of the court's credibility in these matters and technical matters, probably avoid a further step that there would possibly be had there been an appeal to a review tribunal.

So, again, it seems to me that when it comes to exercising your jurisdiction you have to take into account the nature of the grounds that are raised.

(transcript: pp. 177-78)

     Relevant to this issue of appropriate venue is the recent Supreme Court of Canada judgment in C.P. Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, in which the Court discussed the adequate alternative remedy, other than the remedies available from the Courts. The Court stated:

The adequate alternative remedy principle was fully discussed in Harelkin v. University of Regina, [1979] 2 S.C.R. 561">[1979] 2 S.C.R. 561, at p. 586, where Beetz J., for the majority, held at p. 576 that "even in cases involving lack of jurisdiction", the prerogative writs maintain their discretionary nature. Dickson J. (as he then was, dissenting), took a narrower view of discretion in the case of jurisdictional error (pp. 608-9). He nevertheless concluded, at p. 610, that where a jurisdictional error "derives from a misinterpretation of a statute, a statutory right of appeal may well be adequate".

In Harelkin, a student was required to discontinue his studies. His appeal to a university committee failed. Although there was a further appeal available to the university Senate, the student launched proceedings for certiorari and mandamus before the courts. The issue which is relevant to the case at bar was whether the student was prevented from proceeding to the courts because he had failed to exhaust the appeal opportunities within the university's own regime. Beetz J., for the majority, stated at p. 588:

In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of a previous finding, expeditiousness and costs.

Beetz J. reached the conclusion that the university's own appeal procedure was an adequate alternative remedy and that the lower court should therefore have exercised its discretion not to grant a remedy.

The adequate alternative remedy doctrine was later applied in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49. There, at p. 93, Dickson C.J. confirmed the discretionary nature of the prerogative writs, even in cases involving lack of jurisdiction. He also stated, at p. 95,

Albeit with the assistance of the wording and scheme of the Act in which the alternative remedy is found, both the fact that ouster needs to be implied and the fact that an evaluation of adequacy is called for suggest that the alternative remedies bar to discretionary judicial relief entails, in reality, a decision by the courts on the appropriateness of their intervention, and less a clear statement of intention by Parliament. By not unambiguously highlighting the exclusivity of the statutory remedy, Parliament leaves it to the judiciary to define its role in relation to that remedy, [Emphasis in original.]

It may well be that once the alternative remedy is found to be adequate discretionary relief is barred, but this is nothing but a reflection of the judicial concern to exercise discretion in a consistent and principled manner. Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant to the inquiry into adequacy.

On the basis of the above, I conclude that a variety of factors should be considered by courts in determining whether they should enter into judicial review, or alternatively should require an applicant to proceed through a statutory appeal procedure. These factors include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). I do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant.

In Harelkin v. University of Regina, [1979] 2 S.C.R. 561">[1979] 2 S.C.R. 561, Mr. Justice Beetz concluded:

But I cannot agree that the case is one of elementary justice. Nor do I agree that appellant's application for certiorari and mandamus should have been allowed: [the] appellant had and still has a better alternative remedy in his right of appeal to the senate committee; he ought to have exercised it.

     The Supreme Court in C.P. Ltd. v. Matsqui Indian Band, supra, spelled out issues which should be considered when dealing with adequate alternative remedies, specifically, the convenience of the alternative, the nature of the error and the powers of the appellate body. In the instant matter it is apparent that bringing the appeal before the review tribunal would be more convenient, in that the remedy sought from this Court would ultimately send the matter back to the Commission for re-hearing if it were successful. There is no question that the errors alleged by the applicant are reviewable by this Court but at the same time they are errors which could be adequately dealt with on appeal. The final issue to be considered is that of the powers of the appeal body. Section 56(5) of the Canadian Human Rights Act states:

(5) A Review Tribunal may dispose of an appeal under section 55 by dismissing it, or by allowing it and rendering the decision or making the order that, in its opinion, the Tribunal appealed against should have rendered or made.

     It is clear that the review tribunal is vested with powers more appropriate to matter than this Court's. As was stated above, if the applicant is successful upon this judicial review application, this Court can at best order a re-hearing of the matter by a newly constituted tribunal. Moreover, the review tribunal has the power to make the decision the applicant actually seeks. Consequently, this Court finds that an adequate alternative remedy exists, and would further characterize it as a better and more effective remedy. The appeal process through the Act should have been sought, especially by the Commission which is created by, and charged with the administration of the Canadian Human Rights Act.

     Unfortunately, it would seem that the applicant Commission would then be out of time. However, the applicant Commission should know its own act and since the complainant is in fact a respondent in these proceedings, this Court should not exercise its discretion to hear the matter. It is too late for that, but not too late to dismiss the application, as this Court now does because of the clear adequate alternative remedy.

TRIBUNAL'S JURISDICTION AND PARAGRAPH 41(e)

     Lest the above dispositions be found to be incorrect by an appellate Court, the matter of the tribunal's decision that sufficient grounds were not demonstrated for depriving the CBC of the benefit of the Act's paragraph 41(e), ought to be determined. That provision runs:

41. 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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(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.

     On the Commission's behalf it is argued that the human rights tribunal

" * * * acted beyond its jurisdiction in dismissing the complaint on the ground that the evidence upon which the applicant based its decision to bring the complaint into time pursuant to section 41 of the Canadian Human Rights Act (the CHRA) did not disclose a reasonable basis for denying the respondent, the CBC, the benefit of the limitation period in section 41,

as stated as the CHRC's first ground in its originating motion.

     Could it be that the Commission is pursuing the same erroneous thinking which the Appeal Division of this Court evinced in regard to the positions and powers of the Canada Employment and Immigration Commission vis-à-vis boards of referees under the Unemployment Insurance Act, R.S.C. 1985, Chap. U-1? Over many years the Court of Appeal reversed boards of referees and umpires, except those whom it had induced into a rigid pattern of "case law that the Court has today repudiated" as stated by that Court in Morin v. C.E.I.C., (1996) 134 D.L.R. (4th) 724.

     The analogy between that other Commission and the CHRC in this case and between the boards of referees there and the human rights tribunals here is striking. In the Morin case the Court of Appeal at last restored to the referees, full-hearing tribunals too, the right and power to amend or discharge penalties imposed by the Canada Employment and Immigration pursuant to statutory powers which the Court, for years, held to be exclusive and untouchable on that Commission's part. As between the Commission which is not empowered to conduct a full hearing of the parties' dispute, and the statutory tribunal which is (a board of referees in Morin, and a human rights tribunal here), the power to adjudicate on the parties' substantive rights ought lawfully to reside in such a tribunal, even if it means varying or vacating the Commission's preliminary and procedural decision. The CHRC argues here that it, and it alone, (subject to judicial review) is empowered to push forward and initiate complaint litigation after the expiry of the one year datum provided in paragraph 41(e) of the CHRA. In order to test that proposition, one will have to consider the nature of the non-absolute limitation period, and the respective powers conferred by Parliament on the Commission and on a human rights tribunal. Ever since the landmark decision in MacBain v. Lederman, [1985] 1 F.C. 856 (F.C/A) and Parliament's creation of the office of president of the Human Rights Tribunal Panel, it has been the tribunals which have dealt with and disposed the substantive rights of not only complainants, but of persons against whom complaints are levied, also. In regard to the litigation between those parties, the CHRC acts in the matter of initial filtration of worthless complaints, and in the matter of administrative and procedural acts in having the more plausible complaints investigated and in some instances prosecuted before a tribunal. There the Commission's only influence on the parties' substantive rights in regard to the matter, is to be represented itself, pursuant to the CHRA's section 51, before a tribunal as if it were a party.

     For purposes of having a seemingly valid complaint enquired into in a full hearing by a tribunal, paragraph 41(e) accords to the Commission a procedural, preliminary authority to override the basic limitation period of one year, and extend it to what "the Commission considers appropriate in the circumstances". When compared with the statutory powers of a tribunal to conduct a "full hearing" accorded in paragraph 50(2)(a), the Commission's power under paragraph 41(e) is neither substantive nor ultimate, nor does it require for its exercise the hearing of any party's representations apart from such as the investigator might or might not pass on to the Commission. Furthermore lest it wield its power arbitrarily, randomly or whimsically, this Court must insist that the CHRC demonstrate something serious, and not trivial, which it "considers appropriate in the circumstances".

     Why should that be the Court's interpretation of paragraph 41(e)? It is because Parliament enacted the one year datum as a substantive right of, or benefit to, those against whom complaints are made, but the Commission does not deal with complaints by dealing with anyone's substantive rights. Tribunals, however, do determine substantive rights in according full hearings pursuant to powers provided in section 50, and in concluding whether complaints be substantiated against respondents, or not pursuant to section 53.

     Full, fair hearings are those in which the persons against whom complaints are made, are accorded each the opportunity to make a full answer and defence to the complainant's case. Clearly, being prevented from benefiting from the one-year limitation can be raised in a full answer and defence. This is the tribunals' province, because they, in the normal course of the litigation, hear (or read) all, inevitably more, of the evidence and more of the circumstances than does the Commission in its preliminary rôle. From that viewpoint it seems not perverse, but quite reasonable that tribunals should, as the present tribunal did, permit respondents to make out a defence case that it was inappropriate in the circumstances to deprive the respondent of the benefit of the limitation period stated by Parliament, if indeed it truly be inappropriate in all of the circumstances shown and known to the tribunal. Surely a tribunal can find, if it be the case, that the complainant was wan, tardy, uninterested, coy and uncaring about the prosecution and substantiation of her complaint. Such is an undoubted exercise of the powers which Parliament conferred on human rights tribunals.

     Present-day litigation appears to be on the cusp of a developmental change in the common law - which is, after all, the public law of all of Canada, including Québec. Such a change can be attributed to the ultimately unanimous decision of the Supreme Court of Canada written in large part by Mr. Justice La Forest in Tolofson v. Jensen, [1994] 3 S.C.R. 1022.

     He wrote on this topic, as is reported at p. 1068. He quoted from the "pragmatic approach" illustrated in Block Bros. Realty Ltd. v. Mollard, (1981) 122 D.L.R. (3d) 323 (B.C.C/A), thus:

* * * I think that legislation should be categorized as procedural only if the question is beyond any doubt. If there is any doubt they should be resolved by holding that the legislation is substantive.

This approach makes sense to me. It is right to say, however, that it is significantly different from the early common law position as it relates to statutes of limitation.

(pp. 1068-69)

     In regard to early acceptance by the common law of limitations as procedural, La Forest J. noted two main reasons for that, of which the first is of little relevance here.

* * * The second reason was the rather mystical view that a common law cause of action gave the plaintiff a right that endured forever. A statute of limitation merely removed the remedy in the courts of the jurisdiction that had enacted the statute.

Such reasoning mystified continental writers such as Mr. Jean Michel (La Prescription Libératoire en Droit International Privé, Thesis, University of Paris, 1911, paraphrased in Ailes, supra, at p. 494), who contended that "the distinction is a specious one, turning upon the language rather than upon the sense of limitation acts . . ." In the continental view, all statutes of limitations destroy substantive rights.

I must confess to finding this continental approach persuasive. The reasons that formed the basis of the old common law rule seem to me to be out of place in the modern context. The notion that foreign litigants should be denied advantages not available to forum litigants does not sit well with the proposition, which I have earlier accepted, that the law that defines the character and consequences of the tort is the lex loci delicti. The court takes jurisdiction not to administer local law, but for the convenience of litigants, with a view to responding to modern mobility and the needs of a world or national economic order.

Canadian courts have also begun to shatter the mystique of the second reason which rests on the notion that statutes of limitation are directed at the remedy and not the right. This Court has in another context taken cognizance of the right of the defendant to be free from stale claims in Martin v. Perrie, [1986] 1 S.C.R. 41.

(pp. 1069-70)

La Forest J., in Tolofson v. Jensen, is also reported on p. 1071 as having written this:

The Court [in Martin v. Perrie] circumvented the distinction between the plaintiff's right and her remedy by holding that the termination of a limitation period vests rights in the defendant. Chouinard J., at p. 49, quoted with approval Lord Brightman in Yew Bon Tew v. Kenderaan Bas Mara., [1983] 1 A.C. 553 (P.C.), at p. 563:

In their Lordship's view, an accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable. [Emphasis added.]

Also:

The limitation defence has been properly pleaded in the case at bar and all parties proceeded before us on the assumption that, if Saskatchewan law applies, it is a valid defence. I do not accept that this defence is so repugnant to public policy that a British Columbia court should not apply it. The extent to which limitation statutes should go in protecting individuals against stale claims obviously involves policy considerations unrelated to the manner in which a court must carry out its functions, and the particular balance may vary from place to place.

(p. 1073)

The appeal should be allowed * * * . The appellants' application for a declaration that the proper choice of law to be applied is the law of Saskatchewan and that the Saskatchewan limitation period is substantive should be granted.

(p. 1077)

     The Commission argues that "the tribunal is without jurisdiction to dismiss the complaint on grounds not related to its merits." This assertion takes too narrow a view on the new scope of "merits". The one year limitation accords to the person against whom a complaint is made a substantive right not to be later importuned by the Commission or the complainant, unless the Commission in a preliminary and procedural decision in a less-than-full hearing decides to override the one year limitation in appropriate circumstances. The legislation permits this in order to have the complaint brought before a tribunal in a full adversarial hearing. The law now exacts that this preliminary and procedural decision by the Commission pursuant to paragraph 41(e) is not etched in everlasting stone, but is subject to being modified according to a tribunal's appreciation of what is appropriate in the fully disclosed circumstances at the tribunal's full hearing in order to determine the respondent's substantive right to have the limitation period's benefit, or not.

     This is the practical effect: that it would seem that the tribunal reviews the Commission's decision pursuant to paragraph 41(e), when in essence, what the tribunal must do is to determine the respondent's substantive rights in the circumstances of the complainant's levying of her complaint. Because of the obvious practical effect, the reality of the distinction here is rather metaphysical, and subtle.

     Although Dean Robinson, the author of the tribunal's report herein did not mention the case of Tolofson v. Jensen, above, his reasoning seems to comprehend its import (applicant's record, vol. I, pp. 28 to 34). Despite the length already attained by these reasons, the Court deems it to be important to reproduce passages from the tribunal's reasons, below, thus:

2.      Section 41 of the Act

The Respondent's alternative submission was based on the argument that the Respondent should not be deprived of the limitation period found in section 41 of the Act and that the Tribunal should dismiss the complaint because it is based on an act that occurred more than one year before the receipt of the complaint by the Commission.

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It is clear that a Human Rights Tribunal does not have the power to quash a decision of the Commission that has been made under section 41 of the Act where the Commission had decided to proceed with a complaint notwithstanding that the act occurred more than one year before the receipt of the complaint. Only the Federal Court has the power to quash decisions of the Commission.

In Sinclair v. Peel Non-Profit Housing Corporation (No. 1), the Board of Inquiry suggested that there could be circumstances that rendered the Commission's decision a "travesty" when it could be said that there was no decision at all. In such circumstances, Mr. Friedland, the Chair of the Board of Inquiry in Sinclair, commented that the Board of Inquiry (a Human Rights Tribunal in the case of the Canadian Act) would not have jurisdiction to consider the complaint. Mr. Friedland stated the proposition in the following manner at page D/341:

It may be that the Commission's conduct of an investigation and request to the Minister is such a 'travesty' that it can be said that in effect there was no decision by the Commission at all. No doubt, such a travesty could affect the Board's jurisdiction.

I did not understand the Respondent to argue that the decision of the Commission in the case at bar could be described as a "travesty" or that this Tribunal did not have jurisdiction because of the alleged defects in the decision of the Commission.

I also wish to make it clear, that I do not regard the role of a Human Rights Tribunal to include reviewing a decision of the Commission made under section 41 of the Act for the purpose of determining whether the Commission properly or improperly exercised its discretion under section 41 of the Act. Any review of that nature may only be conducted by the Federal Court. However, that does not mean that a Tribunal is precluded from determining, based on the evidence before the Tribunal, whether a Respondent is to be deprived of the benefit which Parliament provided in relation to the limitation period provided in section 41 of the Act. In this respect, the observations of Muldoon J. in Attorney General of Canada v. Canadian Human Rights Commission et al., (1991), 36 C.C.E.L. 83 (F.C.T.D.) are instructive. Muldoon J. made the following comment about section 41 at page 105:

Now, it is apparent that Parliament in setting the datum-line criterion of 1 year's limit in par. 41(e) did so in order seriously to confer a benefit and not just wantonly to complicate the C.H.R.A. That 1 year's limit appears to be of no direct benefit to the complainant. Whom did Parliament intend to benefit? The limit - permeable as it is in terms of the Commission's consideration of what is appropriate - appears to be of direct benefit to a respondent employer, such as S.O.S. in this case. It is just too plain for elaboration that if the employer is to be deprived of the benefit which Parliament provided, the Commission must give some cogent signal or demonstration of why it considered it to be appropriate so to deprive the employer.

I have concluded that a Human Rights Tribunal has the jurisdiction to dismiss a complaint where the complaint is based on acts the last of which occurred more than one year before the receipt of the complaint by the Commission if the Tribunal concludes that there is no reasonable justification why, to use the words of Muldoon J., in Attorney General of Canada v. Canadian Human Rights Commission et al., the "employer is to be deprived of the benefit which Parliament provides" in relation to the limitation period in section 41 of the Act. In making its decision on whether there is a reasonable justification for depriving a Respondent of the benefit of section 41 of the Act, a Tribunal should consider the reasons why the Commission decided to proceed with the complaint but that is only one of the factors that a Tribunal should consider. The evidence before the Tribunal may include matters that were not before the Commission. Among the factors that a Human Rights Tribunal should consider are:

(i)      the period of time that elapsed between the act or omission that is the subject of the complaint and the time when the complaint was filed with or received by the Commission;

(ii)      the period of time that elapsed between the act or omission that is the subject of the complaint and the time when the Respondent received notice of the complaint;

(iii)      the reasons for the delay in filing the complaint or notifying the Respondent of the complaint;

(iv)      the reasons of the Commission for deciding pursuant to section 41 of the Act to proceed with the complaint notwithstanding that the complaint is based on acts or omissions the last of which occurred more than one year before receipt of the complaint; and

(v)      the prejudice caused to the Respondent by the delay.

There is obviously some overlap between these factors and the factors that must be considered in relation to the equitable doctrine of laches but the final test is different. The doctrine of laches requires a balancing of the expectation of reasonable diligence of the complainant and the prejudice caused by delay that may prevent a respondent from mounting a full answer and defence to the complaint. Here, the question is whether there is reasonable justification for depriving the Respondent of the benefit of the limitation period Parliament has provided by section 41 of the Act.

The first of the above mentioned factors is the time that elapsed between the act or omission which is the subject of the complaint and the time when the complaint was filed with or received by the Commission. Notwithstanding that the discussions between the Complainant and Virginia Menzie on July 20, 1989 led to the preparation of a draft form of complaint, a complaint was not signed by the Complainant until February 27, 1990 and it was not "received" by the Commission until March 2, 1990. Several facts lead me to the conclusion that the Complainant did not finally decide to file a complaint until January, 1990 at the earliest and perhaps as late as February 27, 1990. These facts include:

(a)      The substantial delay between the time when the Complainant received the draft complaint in mid-August, 1989, and her next contact with the Commission in January, 1990;

(b)      The fact that Virginia Menzie discussed the September, 1989 "filing" deadline with the Complainant; and

(c)      The fact that the Complainant did not tell Ms. Stambuck in their chance meeting in November, 1989 that she had filed or was in the process of filing a complaint with the Commission.

The second of the above mentioned factors is the period of time that elapsed between the act or omission that is the subject of the complaint and the time when the Respondent received notice of the complaint. The Respondent was not notified of the complaint until April 5, 1990. This period amounted to approximately one year and seven months. If, as was suggested by the Ritchot and Hosking report, the Complainant's communications with the Commission in July and August, 1989 were sufficient to fulfil the requirement of "filing", then it was inexcusable for the Commission not to notify the Respondent of the filing of the Complaint until April, 1990.

The third of the above mentioned factors is the reasons for the delay in filing the complaint or notifying the Respondent of the complaint. I do not accept this explanation as a reasonable explanation for the delay. The Complainant's testimony that she thought that once she had called Virginia Menzie, she had started the process within the one year time limitation, is not consistent with the memorandum of Virginia Menzie (Exhibit R-3) wherein Ms. Menzie records that the Complainant is aware of the September, 1989 deadline. If the Complainant thought by notifying the Commission in July, 1989, that she had fulfilled the filing requirement, there would not have been any need to be concerned with the September, 1989 deadline. The Complainant's reason for delaying from August, 1989 to January, 1990 was that she had some questions that she wanted to ask and that the person she had been dealing with would be away until January, 1990. No evidence was given with respect to the questions she felt she needed to ask. The complaint is the complaint of the complainant and does not require the agreement of the Commission or any of its officers. The Complainant could easily have made the modifications to the draft form of complaint sent to her by the Commission without discussing them with Virginia Menzie or another officer. When a Complainant is told that the Officer, with whom the Complainant has previously discussed the matter, is going to be away for five months, it is not reasonable to simply do nothing until that officer returns.

The fourth of the above mentioned factors are the reasons of the Commission for deciding pursuant to section 41 of the Act to proceed with the complaint notwithstanding that the complaint is based on acts or omissions the last of which occurred more than one year before receipt of the complaint. The Commission appears to have rendered its decision by simply adopting the recommendation embodied in the Ritchot and Hosking report. This form of decision making was considered by Noel J. in Canadian Broadcasting Corporation v. Canadian Human Rights Commission and Leila Paul et al., (15 December 1993), (F.C.T.D.) [unreported]. At page 19, Noel J. makes the following comment:

In Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, the Supreme Court of Canada held that, simply adopting the conclusions embodied in an investigator's report, the report can be looked upon as evidencing the reasons for the decision.

The Ritchot and Hosking report (Exhibit HR-14) omits two salient facts. First, it does not contain any reference to the fact that the Complainant was aware of the one year time limit for filing a complaint. It is clear from the memorandum of Virginia Menzie (Exhibit R-3) that the Complainant was aware of the limitation period and that the limitation period would expire in September, 1989. In her testimony before the Tribunal, the Complainant testified that she knew, from the time of her first contact with the Commission in September, 1988, about the one year limitation period for filing a complaint. When she was asked about her knowledge of the limitation period she testified at page 97 of the transcript:

I knew that because the following -- or the previous September when I called, I was informed that I had one year to file a complaint.

The Respondent's Mr. Claude J. Mason, who made the submission to the Commission with respect to the timeliness of the complaint (Exhibit HR-15), did not mention this fact. It is highly unlikely that he could have known, when he made that submission, that the Complainant was aware of the one year limitation.

Second, the Ritchot and Hosking report does no refer to the fact that the daily journal of Ms. Stambuck, the person at the Respondent's office in Saskatoon with whom the Complainant had the most contact, had been discarded by Ms. Stambuck in January, 1990, when Ms. Stambuck moved from Saskatoon to Ottawa. However, it must be observed that the submission of the Respondent's Mr. Claude J. Mason (Exhibit HR-15) by way of response to the Ritchot and Hosking report did not mention this fact and did not challenge the assertion by Ritchot and Hosking that prejudice to the Respondent is unlikely as relevant documents and witnesses should be available . . .

A more serious flaw in the Ritchot and Hosking report is found in Paragraph 16 of the report. It provides in part:

Furthermore, as the complainant had expressed her desire to file a complaint within one year of the alleged discriminatory act, and in light of the Federal Court of Appeal decision Woldemar Madisso v. Can. Human Rights Commission, the respondent was notified of this complaint on April 5, 1990. Although the respondent was advised that based on the aforementioned court decision, this complaint was timely, the respondent disputes this opinion and has requested that the complaint be referred to the Commission for a decision.

Does Woldemar Madisso v. Can. Human Rights Commission, (1988), 10 C.H.R.R. D/5680 (F.C.A.) stand for the proposition suggested in the Ritchot and Hosking report?

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[This short decision of the Federal Court of Appeal does not appear to be relevant, here.]

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The Federal Court of Appeal states in Madisso that no specific form of complaint is required but surely there must still be a complaint. In Madisso, the Federal Court of Appeal treated Mr. Madisso's request for permission to file a complaint as being equivalent to filing a complaint because that was all Mr. Madisso could do in light of the Commission's refusal to proceed with his case. Those are not the circumstances that prevail in this case. Peggy Johnson did not sign a complaint until February 27, 1990. Until that date, it cannot be asserted with any degree of certainty, for the reasons expressed earlier, that she had definitely decided to proceed with the complaint against the Respondent.

The fifth of the above mentioned factors is the prejudice caused to the Respondent by the delay. Counsel for the Respondent submitted that the Respondent had suffered several types of prejudice. The Respondent had suffered several types of prejudice. The Respondent's claims of prejudice were described earlier in this decision and they are only summarized here. The primary claim of prejudice related to the discarding of Mr. Stambuck's daily journal in which she kept a record of telephone calls and other events. I found earlier that the discarding of Ms. Stambuck's daily journal caused some prejudice to the Respondent. The second claim of prejudice was the fact that memories of witnesses called by the Respondent had faded over the five and one-half years since the Respondent's termination of the Complainant. As stated earlier in this Decision, if the complaint had been filed within one year after the termination, it is unlikely that the Tribunal Hearing into the complaint would have occurred much more than six months earlier if the Complainant had filed her complaint within the normal one year limitation period. It is doubtful that memories of the witnesses would have been significantly better if the Tribunal hearing had occurred six months earlier.

After considering all of these factors, I have concluded that there is no reasonable justification for depriving the Respondent of the benefit which Parliament provided in relation to the limitation period provided in section 42 of the Act and, therefore, the complaint should be dismissed.

     In this Court's opinion the tribunal's reasoning is sound, and in accord with applicable law, and the tribunal's conclusion is correct. All things considered, the Commission has not succeeded in persuading this Court that the tribunal was in any manner in error. Therefore paragraph 1 of the originating motion, the first ground expressed by the CHRC for quashing the tribunal's decision on the matter of section 41 of the CHRA, fails, and the application is dismissed in that regard.

ERRORS IN LAW ALLEGED

     Paragraph 3 of the originating notice alleges four errors in law on the tribunal's part.

     (a) The CHRC alleges that the tribunal incorrectly applied "the legal test with respect to the burden of proof regarding the disability of the [complainant], Peggy (Vermette) Johnson".

     The complainant was employed by the CBC in Saskatoon, as a trainee in a CBC program for aboriginal and métis people to enable them to develop competence for jobs in radio and television broadcasting. The training program, which was underwritten by the Saskatchewan government, as an educational service, was initiated by Ron Smith who was CBC's Saskatchewan regional director from 1985 to 1989. The complainant was selected as a television journalist trainee, in a position classified as "Temporary Announcer assigned to Television", in Saskatoon. Sandra Coates, the co-ordinator of the Native Career Development Program in the province's Indian and Native Affairs Secretariat testified that this program was a higher level program where the trainees were expected to have some prior experience in broadcasting before being selected. Mr. Smith testified that the training attempted to fit trainees, over only 12 months, with the type of education which a journalism school would provide over 3 or 4 years. The term of appointment was stated to be between May 30, 1988 and May 28, 1989, but, the parties agreed to postpone the starting date until June 27, 1988, to accommodate the complainant's scheduled surgery in the second week of May, 1988. Documentation regarding the program was exhibited before the tribunal as exhibits HR-3, -4 and -5, and R-4 and -9.

     Here are selected paragraphs in the tribunal's written decision, which bear on this issue:

5. The Termination of the Complainant

On Monday, August 29, 1988, the Complainant arrived at the Respondent's place of business. During that morning, she testified that she had difficulty concentrating on her work because she was very upset by events that had occurred on the immediately preceding weekend in relation to her boyfriend. During that morning, the Complainant went to see Ms. Stambuck, the Respondent's Human Resources Officer in Saskatoon. The Complainant testified that she informed Ms. Stambuck that she was upset because of a "fight with her boyfriend". The Complainant inquired whether she could be referred to the Respondent's Employee Assistance Program and after some discussion Ms. Stambuck agreed. Ms. Stambuck's testimony confirmed the essential elements of the discussion that took place between her and the Complainant. Ms. Stambuck testified that the Complainant never informed her that she had consumed alcohol on the preceding weekend and that the Complainant never indicated that the Complainant was dependent on alcohol or had abused the use of alcohol. The Complainant acknowledged in cross-examination that she did not say anything to Ms. Stambuck about the Complainant's consumption of alcohol.

*** *** ***

After discussing her problems with the counsellor,the Complainant testified that she decided, based on the recommendation of the counsellor, to enter the residential rehabilitation centre in Indian Head, Saskatchewan. When asked why she decided to do that she testified at page 76 of the transcript:

Because it was recommended to me. I had decided that whatever I was asked to do to deal with this alcoholism, whether it was attend an outpatient or residential rehabilitation centre, or if I should go to a hundred meetings in the next hundred days, I would do that.

The Complainant testified that she entered the rehabilitation centre on August 31, 1988.

Ms. Stambuck recalled that the Complainant did not come into work on Tuesday, August 30, 1988, which was the day following her meeting with the Complainant when the Complainant sought a reference to Respondent's Employee Assistance Program. Ms. Stambuck became concerned about the Complainant's absence when she received a visit from the Complainant's daughter later in that week who inquired whether Ms. Stambuck knew the whereabouts of the Complainant. Ms. Stambuck could not recall the precise day when the Complainant's daughter came to see her. After speaking to the Complainant's daughter, Ms. Stambuck informed Mr. Smith, that the Complainant was absent from work and that the Complainant's daughter did not know where she was.

Later in the week of August 29, 1988, Ms. Stambuck recalled receiving a telephone call from somebody at Cardwell and Associates who informed her that the Complainant was suffering from substance abuse but she could not remember when she received that call. This call was the first occasion that Ms. Stambuck had heard anything that suggested that the Complainant had a substance abuse problem. Ms. Stambuck testified that she believes she received a second call from Cardwell and Associates during which she was informed that arrangements were being made for the Complainant to attend the Pine Lodge rehabilitation centre. Ms. Stambuck subsequently spoke to somebody at Pine Lodge but she could not remember the identity of the person. She could not be certain, but she believes that she made the call to Pine Lodge. The purpose of the call was to attempt to find out how long the Complainant would be at the Pine Lodge rehabilitation centre. Ms. Stambuck testified that the person at Pine Lodge with whom she spoke was unable to tell her how long the Complainant would be at Pine Lodge. Ms. Stambuck recalls reporting this information to Mr. Smith.

*** *** ***

After her meeting with Ms. Stambuck on August 29, 1988, the Complainant never contacted the Respondent to inform the Respondent that she would be absent from the training program or that she was entering a residential treatment program. The Complainant's explanation for not communicating with the Respondent was that she assumed that either Cardwell & Associates or the counsellor, Mickey Locke, would notify the Respondent.

(applicant's record, vol. I, pp. 37 & 38)

*** *** ***

Prior to receiving this information from Ms. Stambuck, Mr. Smith testified that he had not heard or seen anything that would have indicated that the Complainant had a dependency on alcohol or a substance abuse problem.

     The CBC people finally learned that the rehabilitation centre's staff could not foretell how long the complainant would stay at Pine Lodge. Mr. Smith called Ms. Coates and explained the situation and asked her what the CBC should do. He recalls her response as being:

We pay you to train; we don't pay you to rehabilitate. No training, no money.

Ms. Coates recalled that she responded to this effect.

We pay for training, not for rehabilitation.

It is definitely established that the government of Saskatchewan would not reimburse the CBC for the complainant's wages for time away from work. All were hopeful of opening new opportunities to the complainant at such time as she would again be well, but Mr. Smith did not know whether such training would be funded in the future.

     The tribunal further recounted:

Acting on Mr. Smith's instructions, Ms. Stambuck prepared and sent a letter addressed to the Complainant dated September 6, 1988 (Exhibit HR-7). The text of the letter is reproduced below.

This is to advise that your temporary employment with CBC in Saskatoon is terminated effective September 2, 1988.

You will receive salary up to and including Friday September 2nd and in addition, under Article 14.3 of the Cupe O & P Collective Agreement, you will receive an additional 3 days pay in lieu of notice.

Peggy, when your treatment is over, please call me. Perhaps we can meet for coffee . . . I'd like to see you.

Yours sincerely,

The letter was addressed to the Complainant at the Pine Lodge Treatment Centre in Indian Head, Saskatchewan. The Complainant testified that she received the letter while she was at Pine Lodge.

Mr. Smith testified that the termination of the Complainant was dealt with in the same manner as the termination of any probationary or temporary employee who had less than three months service with the Respondent.

*** *** ***

The Complainant remained at Pine Lodge until late September. She never attempted to contact either Ms. Stambuck or Mr. Smith with respect to the invitation contained in the last paragraph of Ms. Stambuck's letter of September 6, 1988. There were no further attempts by the Respondent to contact the Complainant. An unplanned meeting between Ms. Stambuck and the Complainant occurred in November, 1989, when both of them happened to be attending the same conference. Ms. Stambuck testified that she recalled the Complainant telling her that she was "unhappy with the whole situation" but Ms. Stambuck did not get the impression that the Complainant was going to make a complaint to the Canadian Human Rights Commission. Ms. Stambuck apparently did not make any overtures to the Complainant relating to participation in future training programs that the Respondent might be offering in conjunction with the Native Career Planning Program.

(applicant's record, vol. I, pp. 40 & 41)

     The complainant was at all material times included in a collective agreement (exhibits HR-3 and R-10) which provided that all new employees underwent a three-month probation period during which time the CBC was entitled to release an employee without cause. Any such release was not subject to a grievance, except in certain circumstances not relevant here, and the complaint never attempted to raise a grievance.

     The tribunal found that the CBC's requirement of regular attendance by trainees was a bona fide occupational requirement (BFOR), and this was acknowledged by CHRC's counsel. She, however, also asserted that this is a case of adverse effect discrimination. Where a complainant asserts that her employer wronged her by discrimination in breach of her human rights, the onus is on the complainant to show that the employer knew of her vulnerable plight and nevertheless continued to discriminate against her in breach of her asserted human right. If, as here, she coyly declined to make her disability known to the employer, it could hardly be culpable of discrimination, nor again could it know how to accommodate that disability. After all, the complainant never evinced alcohol abuse or dependence while on the job (applicant's record, vol. I, p. 207, lines 11 to 14, inter alia).

     The tribunal cited the words of Mr. Justice McIntyre in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536, at pp. 558-59:

Following the well-settled rule in civil cases, the plaintiff bears the burden. He who alleges must prove. Therefore, under the Etobicoke rule as to burden of proof, the showing of a case of discrimination, I see no reason why it should not apply in cases of adverse effect discrimination. The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer."

     As if in corroboration of the complainant's coyness, one can note how she corrected the draft complaint form sent to her on August 10, 1989. She sent it back to the CHRC on January 15, 1990, well knowing of the one-year limitation stated in paragraph 41(e) of the CHRA. Exhibit R-6, (applicant's record, vol. III, p. 684) shows that the draft alleged that the complainant confided in Ms. Stambuck that "while I never used alcohol during work hours I was nevertheless" I was encountering difficulties in functioning at work "because of my use of alcohol". The words within the quotation marks were struck out by the complainant. So also was an allegation that she "contacted [her] employer to ask why [she] was terminated". The complainant's complaint form, on which this case was initiated (exhibit HR-1, vol. III, p. 639) was not signed until February 27, 1990, and the CBC was not notified of it until April 5, 1990, (applicant's record, vol. I, p. 166; vol. III, p. 673 [chronology]), (exhibit HR-1).

     The complainant's coyness was evinced by her because, as she testified, she was ashamed of herself for her abuse of alcohol and she did not wish to inform, and did not inform, anyone at CBC of her two weekend bouts of drinking. The CBC was left entirely in the dark about her drinking bouts and alcoholism (except for a hint of "substance abuse") from the complainant's last day at work on August 29, 1988 until April 5, 1990, when her human rights complaint was received. (Applicant's record, vol. I, pp. 190-91, 206-09; and vol. III, p. 673.)

     The complainant's coyness in regard to disclosing her alcohol dependence, her keeping her employer in the dark on that score, and her languid lack of any sense of urgency about signing a complaint until February 27, 1990, all bear on her failure to discharge the burden of proof regarding her alleged disability. For a literate, articulate person of higher then average intellect, the complaint's lame excuse for not evincing a sense of urgency although she knew, and had been told by an official of the Commission, Virginia Menzie, since at least July 20, 1989, "of the September 1989 deadline in her case", as revealed in exhibit R-3, dated August 23, 1989, (applicant's record, vol. III, p. 680), is, if not just languid, then incredible.

     In her oral examinations by the Commission's and the CBC's counsel, earlier cited, the complainant testified about receiving a draft complaint form, exhibit R-6 in early August, 1989, but she declined to sign it, because it needed to be amended. Instead of returning it promptly to the CHRC, she stalled around until January 20, 1990. Why? She said it was because she had some questions in August, 1989, but had been told (when?) by someone (whom?) that she had to continue to deal with the same CHRC official (she never said it was Virginia Menzie or anyone else by name), but that official was said to be away on leave until January, 1990. Why did not the complainant, that literate, articulate claimant of higher than average intellect, state to her unnamed adviser, as she knew full well, that there was a "September 1989 deadline in her case"? Well, the complainant would not sign that incorrect, draft complaint because it had allegations in it that she informed CBC of her alcohol dependence, which was untrue.

     It does not seem credible that the complainant believed that her initial contact by telephone and post with the Commission instituted her complaint against CBC without any signed complaint form. If that were so, why in the world would Virginia Menzie have been so punctilious as to write in the memo of August 23, 1989, "When she [complainant] first contacted me on July 20th, 1989 she indicated that she was aware of the September 1989 deadline in her case? That makes no sense. Then also, the complainant still waited over a month from January 20, 1990 until February 27, 1990 until she deigned to sign the one-and-only complaint herein, in which she, for the first time, officially revealed her allegation of an alcohol-related disability. The CBC learned of it only in April 1990.

     In those circumstances, if the tribunal found that, having concealed her alleged disability from the CBC, the complainant failed to discharge "the burden of proof regarding the disability", as stated in paragraph 3(a) of the originating notice, the tribunal is not seen to have incorrectly applied any legal test whatever. In part, the tribunal wrote:

I find that the Respondent terminated the Complainant [her employment surely] because of the Complainant's inability to regularly attend the training program and because she would not have been able to complete the program prior to the conclusion of the Service Agreement. I find nothing in the evidence to suggest that the Respondent's termination of the Complainant was based on any disability of the Complainant related to a dependence on alcohol.

(applicant's record, vol. I, p. 44)

In those findings the tribunal was quite correct, and the Commission's allegation in paragraph 3(a) of its notice of motion is dismissed.

     Paragraph 3(b) of the originating notice of motion runs:

3. The tribunal erred in law:

(b) in its interpretation of Section 25 of the CHR Act.

The particular provision of the Act to which relevant reference is made, must be:

25. In this Act,

*** *** ***

"disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.

The tribunal accepted and adopted the definition of the word "dependence" found in Dorland's Illustrated Medical Dictionary, 26th Edition, where the term is defined at page 359 as:

the psychophysical state of an addict in which the usual or increasing doses of the drug are required to prevent the onset of withdrawal symptoms

     The CHRC's counsel, in addition to admitting that generally faithful attendance by trainees at the job was a bona fide occupational requirement (BFOR) of the program in which the complainant was engaged, also urged to the tribunal that the complainant was based on adverse effect discrimination. This is, stated McIntyre, J. in OHRC and O'Malley v. Simpsons Sears, cited earlier above, at p. 551, where for genuine business reasons a workplace rule or standard, neutral on its face, and applicable to all employees, impacts on a prohibited ground on one employee, or a few, because of some special characteristic of the one or few making him, her or them subject to certain obligations or penalties not imposed on the other employees. Here in avoidance of the requirement of regular attendance, the CHRC submitted that the requirement had a discriminatory effect on the complainant because she was unable to attend regularly due to an alleged alcohol-consumption dependence. Therefore, it was submitted, it was the CBC's duty to accommodate the complainant's coyly concealed disability in some manner. Surely the rule of regular nearly-perfect attendance in a relatively short, but intensive, training program does not discriminate on its face, and therefore the reasons of Madam Justice Wilson for the Supreme Court's majority in Alta HRC v. Central Alberta Dairy Pool, [1990] 2 S.C.R. 489 can be reconciled with those of Mr. Justice Sopinka for the Court's minority, in circumstances such as these. Clearly, CHRC's counsel's admission about the simultaneous presence herein of both a BFOR and a duty to accommodate would have destroyed her case in light of the Supreme Court's decision in Bhinder v. CNR Co., [1985] 2 S.C.R. 561, partially quoted in above mentioned Alta HRC case. In Bhinder, McIntyre J. is reported at p. 590:

As framed in the Canadian Human Rights Act, the bona fide occupational requirement defence when established forecloses any duty to accommodate.

     The tribunal, in the person of Dean Lyman Robinson, Q.C., wrote:

With respect to an "existing dependence" on alcohol, I interpret section 25 to mean that where a complaint is based on an existing dependence on alcohol or a drug", there must be evidence of an existing dependence on alcohol and consequent disability during the period extending from the commencement of the Complainant's participation in the training program until her termination.

*** *** ***

This [therein above noted] evidence constitutes at least prima facie evidence that the Complainant had a "previous dependence" on alcohol. The Complainant's evidence in this regard was not seriously challenged by the Respondent and I am prepared to find that the Complainant had dependence on alcohol prior to her selection for enrollment in the training program.

While there is evidence of "previous dependence" on alcohol, there is little, if any, evidence to support a finding that the Complainant had any continuing disability which was related to the previous dependence on alcohol that manifested itself during the period extending from the commencement of the Complainant's participation in the training program until her termination that is related to the previous dependence on alcohol. The Complainant testified that she did not consume any alcohol from a time prior to her surgical operation in April, 1988 until the weekend preceding July 18, 1988 and that she only consumed alcohol on one other occasion during her participation in the training program. There was no evidence that her previous dependence on alcohol affected her ability to carry out her assignments in the training program. Therefore, I find that there is no sufficient evidence to support a finding that the Complainant had, at any time which is material to this complaint, a disability related to a previous dependence on alcohol.

(applicant's record, vol. I, pp. 46 & 47)

     This is consonant with the statutory definition to the end that previous dependence on alcohol is a disability. The CBC was, and is, in common with others, prohibited from discriminating against anyone in employment matters on the ground of a disability (unless there be a BFOR established). So, since previous dependence on alcohol is a disability, an employer cannot lawfully decline to hire someone, or to retain someone, afflicted with a previous dependence on alcohol. Here, of course, the complainant never let CBC know of her disability, that is, her previous dependence on alcohol. Therefore in asserting its admitted BFOR, the CBC was not, could not have been discriminating against the complainant.

     If the complainant hid her previous dependence on alcohol, she succeeded at the same time in doing the same with her alleged existing dependence on alcohol as the evidence amply demonstrated. The tribunal wrote:

In her testimony at the Tribunal hearing, the Complainant testified that she only consumed alcohol on two occasions during her enrollment in the training program. The first occasion was during the weekend preceding July 18, 1988. As a consequence of her consumption of alcohol on that weekend, she did not participate in the training program on July 18 and 19, 1988. She reported to the Respondent that she had been sick on those two days but did not mention anything about alcohol. In response to a question from Commission counsel as to why the Complainant did not tell the Respondent that her consumption of alcohol was the reason for her absence, the Complainant testified at page 69 of the transcript:

"A      I felt so ashamed, I never thought that my alcoholism was going to come back and be a -- I wanted this job to work so badly. I think I was just too ashamed, I thought, well, I'll just go to some meetings, I'll get the support I need and then I won't be a problem and they don't need to know about it.

(applicant's record, vol. I, p. 47)

*** *** ***

The second occasion was on Saturday, August 27, 1988. It was on the following Monday, August 29, 1988, that the Complainant discussed her problems with Ms. Stambuck. She informed Ms. Stambuck that she had a "fight with her boyfriend" but she never mentioned anything to Ms. Stambuck that would suggest that she had a dependency on or a problem with alcohol.

The Complainant had never informed any of her supervisors at the CBC that she had dependency on alcohol.

(applicant's record, vol. I, p. 48)

The removal of references to drinking in the complainant's signed complaint, exhibit HR-1, as distinct from the draft complaint of August, 1989, exhibit R-6, has already been noted above in these reasons. The modified language does not allege any difficulties at work because of alcohol consumption.

     The tribunal drew these conclusions:

The evidence does not support a finding that "usual or increasing doses" of alcohol were "required" by the Complainant "to prevent the onset of withdrawal symptoms", as those words are used in the definition of "dependency" found in Dorland's Illustrated Medical Dictionary.

* * * The tribunal finds that there is no sufficient evidence to support a finding that the Complainant had, at any time which is material to this complaint, a disability related to a previous or existing dependence on alcohol.

The consequence of this finding is that there was not been any adverse effect discrimination.

(applicant's record, vol. I, pp. 49 & 50)

     None of the Commission's submissions demonstrates to or persuades this Court of, any flaw or other illegality or error whatever in the tribunal's interpretation of section 25 of the CHR Act. Accordingly the Commission's application for any remedy, based on paragraph 3(b) in its originating notice of motion, is dismissed.

     These reasons have become too voluminous. Suffice it to indicate that after much perusal of written material (including the transcript of the Court's hearing herein) and after deliberation, the Court finds that the tribunal did not put a foot wrong, despite the Commission's allegations and submissions regarding paragraph 3(c) on the alleged duty to accommodate; and (d) in interpreting section 16 of the CHRA. The Commission's application for remedies based on those paragraphs is dismissed.

ALLEGED ERRONEOUS FINDINGS OF FACTS

     The applicant CHRC's originating notice of motion in paragraph 4, alleges the following erroneous finding of fact made without regard to the evidence before the tribunal:

4. i)      that the [complainant] was not alcohol dependent within the meaning of section 25 of the CHRA;

Surely, after having correctly found that the complainant failed to discharge the onus of proving such dependence (except for prima facie proof of previous dependence) the tribunal cannot be faulted on this score. In view of the Court's earlier conclusion about the tribunal's correct dealing with onus, there is no merit in this ground for a remedy on judicial review. Accordingly, insofar as the application is based on this ground, the application is dismissed.

     The second alleged erroneous finding of fact stated:

4. ii)      that the [CBC] had fulfilled the duty to accommodate up to the point of hardship.

The tribunal made this finding conditionally only in the event that the earlier conclusion of no adverse effect discrimination were overruled on a review or on an appeal. The tribunal once again recited the words of McIntyre J. in Ontario H.R.C. and O'Malley v. Simpsons Sears, above cited, now at p. 555:

Accepting the proposition that there is a duty to accommodate imposed on the employer, it becomes necessary to put some realistic limit upon it. The duty in a case of adverse effect discrimination . . . is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer's business and without undue expense to the employer.

(applicant's record, vol. I, pp. 50-51)

     Exploring the dimensions of undue hardship, the tribunal recited passages from Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at pp. 984 and 984-85, and 988, and from the Central Alberta Dairy Pool case, supra, at p. 521. The tribunal, at p. 52, looked at the complainant's duty to facilitate accommodation, and in vol. I at p. 53 the tribunal examined what of CBC's actions could be regarded as a fulfilment of any duty to accommodate and some five proposals by the Commission's counsel as to how CBC could have accommodate the complainant, setting out the evidence and/or response which applied to each of them. The tribunal also held:

The only accommodation made by the Respondent after the Respondent became aware that the Complainant had been admitted to Pine Lodge was the invitation contained in the termination letter where Ms. Stambuck invited the Complainant to call her when her treatment was over and Ms. Stambuck's expression that she would like to see the Complainant. It may have been the intention of both Mr. Smith and Ms. Coates to encourage the Complainant to apply in the future for training in similar programs but the termination letter did not expressly convey that sentiment. The letter does not contain any explanation of the reasons why the Complainant was terminated.

(applicant's record, vol. I, p. 53)

The foregoing is all quite correct in logic and law.

     After reviewing all of the Commission's five proposals, the tribunal correctly stated the evidence and response to each. Those statements are all correct and conclusive. Then at vol. I, p. 56, it is written:

I do not find that any of the proposals advanced by counsel for the Commission can be regarded "reasonable steps" that the Respondent would have been under a duty to undertake in the circumstances of this case in order to fulfil the duty to accommodate.

     On page 57 (vol. I) there is an important finding, well reasoned:

Financial cost was another potential manifestation of undue hardship mentioned by Wilson J. in the Alberta Dairy Pool case that could be taken into account in determining whether a respondent had satisfied a duty to accommodate. It was suggested on behalf of the Complainant that the Respondent, being a large Crown corporation, had resources of its own to carry on with the Complainant's training program notwithstanding that funds would not be provided by the Government of Saskatchewan under the Service Agreement. However, the evidence of Mr. Smith was that during this period, the budget of the Respondent was being reduced and that regular full time employees were being laid off to meet the reduced budget of the Respondent. I find that it would have been an undue hardship on the Respondent and its regular employees to expect the Respondent to use funds from its regular budget in order to accommodate the Complainant in the manner suggested.

     The tribunal (still in vol. I, p. 57) found that the complainant did not fulfil her obligation to facilitate accommodation (if it had been needed). The written decision records:

* * * After leaving Ms. Stambuck's office on August 29, 1988, the Complainant never attempted to contact Mr. Smith, Ms. Stambuck or any of her supervisors at the CBC to let them know where she was or to inquire whether there was any possibility of rejoining the training program. The Complainant did not contact Ms. Coates or anyone in the office of Native Career Development to advise them of her whereabouts after August 29, 1988. The Complainant testified that she was stunned when she received the termination letter. Surely, a person who unexpectedly received a termination letter would call the employer and inquire why he or she was terminated. The termination letter specifically invites the Complainant to call Ms. Stambuck when the Complainant's period of treatment was over but the Complainant did not do so. In these circumstances, the Respondent did not know whether the Complainant was even interested in rejoining the training program.

Surely the duty of an employer to accommodate is predicated on the employee responding to invitation to meet with the employer and on the employee expressing some minimal interest in rejoining the program in accommodated circumstances.

(applicant's record, vol. I, pp. 57-58)

     Finally, the tribunal is again quite correct in these following conclusions:

If I had found that there was adverse effect discrimination and a consequent duty to accommodate, I would have found that the Respondent had fulfilled its duty to accommodate the Complainant. The termination letter invited the Complainant to contact the Respondent when her treatment was over. The Complainant never responded to that invitation and never communicated any expression of interest to the Respondent in returning to the training program. The use of the funds provided by the Government of Saskatchewan pursuant to the Service Agreement was restricted both in terms of the purposes for which they could be used and the duration of their availability. It would have been an undue hardship on the Respondent and the Respondent's regular staff to expect the Respondent to use its regular budget to accommodate the Complainant in relation to a training program where the salaries for trainees were provided by the Government of Saskatchewan.

(applicant's record, vol. I, pp. 58-59)

     There were no erroneous findings of fact as alleged by the CHRC. Therefore, insofar as the application is based on paragraph 4.ii), it is dismissed.

NO AWARD OF COMPENSATION

     It was apparent from the evidence and arguments that the remedy sought by the complainant through the CHRC was money. The memorandum to file, exhibit R-5 (applicant's record, vol. III, p. 683) by Anita Thompson, a human rights officer, shows that she contacted Claude Mason of CBC by telephone on February 7, 1992, on the complainant's behalf to tell him that the complainant "would be prepared to accept $5,000 with CBC paying the tax component and she would then withdraw her complaint". The tribunal noted other monetary claims, applicant's record, vol. I, pp. 60 & 61. The even then financially beleaguered CBC could not claim over against the Saskatchewan Government, and it presented little enough proof to the tribunal, or this Court, that the $5,000+ payment would have constituted a hardship, (transcript: pp. 163-66). The tribunal found undue hardship. However, this Court finds that the CHRC's counsel's suggestion that the complainant would have been satisfied just to be kept on the CBC's nominal roll of employees, without pay, was never seriously advanced on the complainant's behalf at any of the material times. It was just pure recent invention, or inspiration, on the part of the Commission's counsel. The CBC's counsel dealt effectively with this, among other aspects of the case as is reported on pages 167-69 of this Court's hearing transcript.

     Generally, it is this Court's impression that the tribunal correctly and lawfully redressed the CBC's shabby treatment by the CHRC and the complainant in this case.

     In summation, the Canadian Human Rights Commission's application to quash the human rights tribunal's decision (TD File No. 14/94), communicated and released on September 15, 1994, as framed in the Commission's originating notice of motion dated and filed on October 14, 1994, is dismissed, along with its application for a consequent remitting back order.

    

Judge

Ottawa, Ontario

October 4, 1996