Bell Canada v. Communications, Energy and Paperworkers Union of Canada, docket T-1414-96

     T-1414-96

     Applicant

          Respondents

     REASONS FOR ORDER and ORDER

DENAULT J:

     This is a motion filed by the Canadian Human Rights Commission (the Commission) for the right to intervene in an application for judicial review brought by Bell Canada.

Background

     On May 27, 1996, the Commission issued a decision to request the President of the Canadian Human Rights Tribunal to name a Human Rights Tribunal to inquire into the complaints by the Respondents against the Applicant. Bell seeks an order in the nature of certiorari quashing the Commission's decision as well as other forms of relief. Briefly, the Commission received complaints from the Respondents alleging wage disparities, a form of gender-based discrimination. The Commission's investigation resulted in a decision to request the President of the Canadian Human Rights Tribunal to name a Human Rights Tribunal. Bell argues that the Commission's decision is tainted by bias as well as by several errors of law and that, in the result, Bell was denied the procedural fairness to which it was entitled.

     The Commission now seeks leave to intervene in Bell's application, pursuant to rule 1611 of the Federal Court Rules. The Commission seeks leave to file affidavit evidence and an intervenor record, and to make oral submissions at the hearing of the judicial review application with the right to appeal any decision that is rendered therein. In addition, counsel for the Commission amended its application at the hearing, requesting the right to cross-examine affiants, if need be.

     Counsel for the Commission argues that the Commission's interest in this application flows from its mandate to represent the public interest in matters of Human Rights public policy and to defend its jurisdiction and procedures. Specifically, the Commission wishes to explain the record and to be heard on a number of questions of law which flow from the judicial review application, with particular emphasis on the interpretation of sections 11, 11(3), 40(2), 40(4), 41 b), 41 d) and 41 e) of the Canadian Human Rights Act. The Commission also proposes to defend its jurisdiction by arguing that the Court "ought not to second guess the merits of its decision" and that the Court "ought not to preempt an inquiry by the Human Rights Tribunal into the complaints".

     It is now well established that an administrative tribunal would have standing, on judicial review of its decision, to make submissions explaining the record and to defend its jurisdiction if the tribunal's expertise was required to draw the Court's attention to specialized knowledge and considerations without which a reasonable decision might appear unreasonable.¹ However, the tribunal's participation does not include the right to make representations justifying or explaining its failure, or potential failure, to adhere to the rules of natural justice. Where Parliament has not seen fit to grant a tribunal status to participate fully in proceedings, the Court should refrain from doing so.² It is also clear that Rule 1611 of the Federal Court Rules gives the Court the discretion to grant leave to intervene to an interested party. The Court may limit the extent of the intervention by imposing "such terms and conditions as it considers just". In the instant case, there can be little doubt that the Commission is an interested party in the legal sense of the word. While granting the Commission the right to intervene can only add to the integrity of the proceedings, limiting the Commission's participation to the issue of jurisdiction is of paramount importance in that the tribunal's impartiality must be preserved, unequivocally.³

     It follows that the salient issue in this case is the proper scope of the Commission's intervention. Specifically, this Court must decide what rights the Commission should be granted as intervenor in the judicial review proceedings. This determination is a matter requiring the exercise of discretion, pursuant to Rule 1611(3) of the Federal Court Rules. "The Commission must presuppose that the Motions Judge hearing the application for leave to intervene will be sensitive to the concerns and needs of the complainant as well as to those of the Court and will exercise his or her discretion judicially."⁴

     In the case at bar, the Commission proposes to defend its jurisdiction, to explain the record relative to the issues of bias and misuse of confidential information, and to be heard on general questions of law which flow from the application. Counsel for the Commission forcefully argued that its purpose in applying for leave to intervene is not to defend the Commission's decision (paragraph 2 of Margaret Kelly's affidavit). I find, however, that no issue of jurisdiction can properly be said to arise on these facts. Those arguments which the Commission advances, ostensibly to address the issue of jurisdiction, are in effect arguments which go squarely to the merits of its decision. And on this point the law is clear: an intervenor is not to be granted status to argue the merits of the case. It behooves me, therefore, to find that the Commission cannot do through the back door that which it has no status to do through the front door.

     Counsel also insisted on the importance of preserving the Commission's image of impartiality. I agree that it is imperative that the Commission preserve its impartiality. However, I am of the opinion that the status which the Commission is seeking in the present case is properly that of a party rather than that of an intervenor. This is not a case where the Respondents are without resources, financial or otherwise. On the contrary, the Respondents, being a union and an association of workers, are quite capable of debating the legal issues at bar; they are represented by competent counsel and the complaints brought to the attention of the Commission relate to the possibility of systemic discrimination within the context of freely negotiated collective agreements. I cannot overemphasize the point that the Commission must not be perceived to be defending its decision. "There is a strong public interest to be served in refusing to a tribunal the right to take sides in a court battle between parties to a proceeding currently pending before it."⁵

     Counsel suggested that the Commission ought to be provided with the opportunity, as intervenor, to explain the internal workings of the Human Rights Complaints System. In my opinion, such explanations would be superfluous: the Court can readily arrive at a final disposition on the judicial review application without such explanations. In addition, I find no compelling reason to grant the Commission the opportunity to provide the reasons for its decision to request the President of the Canadian Human Rights Tribunal to name a Human Rights Tribunal to inquire into the complaints filed by the Respondents. Such intervention would be both untimely and unwarranted.

     There is yet another reason for limiting the Commission's scope as intervenor. While counsel for the Respondents argued that the exclusion of the Commission as intervenor would prejudice their case, the Applicant forcefully argued that the Commission's participation would jeopardize its position. Given that the Commission may be called upon to make a fresh decision at a later date, the Applicant's argument is persuasive and provides further impetus for limiting the role of the Commission in the judicial review proceedings.

     I recognize that, to the extent that the Commission wishes to be heard on broad and general questions of law relative to the interpretation of sections 40(2) and (4), and 41 b), d) and e) of the Canadian Human Rights Act, there is an interest to be served in granting the Commission the intervenor status which it seeks.

     For these reasons, the Commission is granted a limited status of intervention in the within application for judicial review.

     O R D E R

THIS COURT ORDERS THAT:

OTTAWA, October 11, 1996

J.F.C.C.

     ¹[1979] 1 S.C.R. 684">      Northwestern Utilities Ltd. et al. v. Edmonton , [1979] 1 S.C.R. 684.

     ²      Canadian Human Rights Commission v. Canada (A.G.) and Bernard, [1994] 2 F.C. 447 (C.A.).

     ³      Adams v. Royal Canadian Mounted Police (Comm.) et al., (1995) 182 N.R. 354.

     ⁴      Bernard, supra note 2 at p. 463.

     ⁵      Canadian Pacific Airlines Ltd. et al. v. Canadian Air Line Pilots Association et al., (1988) 84 N.R. 81 at p. 83.