Date: 20080423
Docket: T-558-08
Citation: 2008 FC 530
Ottawa, Ontario, April 23, 2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ATTORNEY GENERAL OF CANADA
(CANADIAN FORCES)
Applicant/Moving Party
and
MICHELINE ANNE MONTREUIL
CANADIAN HUMAN RIGHTS COMMISSION
Respondents/Respondents
and
J. GRANT SINCLAIR, Q.C., IN HIS CAPACITY
AS
CHAIRPERSON OF THE CANADIAN HUMAN RIGHTS TRIBUNAL
CANADIAN HUMAN RIGHTS TRIBUNAL
Third Party
REASONS FOR ORDER AND ORDER
[1]
Parliament
conferred on the Chairperson of the Canadian Human Rights Tribunal the power to
permit Tribunal members whose appointment has expired to conclude cases that
they have begun. Pierre Deschamps, a part‑time member of the Tribunal,
had been dealing with the complaint of Micheline Anne Montreuil against
the Canadian Armed Forces, and in December 2007, after presiding over the
hearing, which lasted 97 days over a period of 14 months, he reserved
his decision. In February 2008, while the decision was still pending, his
appointment with the Tribunal expired. He was not reappointed by the Governor
in Council.
[2]
On
behalf of the Canadian Armed Forces, the Attorney General asked the Chairperson
of the Tribunal, Mr. J. Grant Sinclair, to permit Mr. Deschamps
to conclude his inquiry and issue his decision. The Attorney General asked for
the opportunity to make representations. Chairperson Sinclair denied this
request.
[3]
The
Canadian Armed Forces filed an application for judicial review of that
decision. The Court is required to determine whether the proceeding before the Tribunal
should be stayed until a decision is made on the application for judicial
review.
[4]
As
a superior court of record, the Federal Court has the inherent power to stay
proceedings and, more specifically, to make interim orders, including a stay of
proceedings of any matter before a federal board or tribunal until an
application for judicial review is considered (section 18.2 of the Federal
Courts Act). The circumstances under which a stay may be granted until
other proceedings are determined are well known. As the Supreme Court stated in
R.J.R. - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311,
[1994] S.C.J. No. 17, there must be a serious question
to be tried that is neither frivolous nor vexatious; the applicant will suffer irreparable
harm if the stay application is dismissed; and the assessment of the balance of
convenience favours the applicant. The public interest must also be taken into
account.
DECISION
[5]
Section 48.2
(2) of the Canadian Human Rights Act states the following:
|
48.2 (2) A member whose appointment
expires may, with the approval of the Chairperson, conclude any inquiry that
the member has begun, and a person performing duties under this subsection is
deemed to be a part-time member for the purposes of sections 48.3, 48.6,
50 and 52 to 58.
|
48.2 (2) Le membre dont le mandat
est échu peut, avec l’agrément du président, terminer les affaires dont il
est saisi. Il est alors réputé être un membre à temps partiel pour l’application
des articles 48.3, 48.6, 50 et 52 à 58.
|
[6]
Although
Chairperson Sinclair refused the Canadian Armed Forces’ request to make representations,
the Registrar of the Tribunal issued a letter setting out the reasons why he
refused to allow Mr. Deschamps to complete the inquiry in this case. When
Mr. Deschamps’ appointment expired and was not renewed by the Governor in
Council, he was dealing with four cases including this one.
Chairperson Sinclair exercised his discretion to authorize Mr. Deschamps
to conclude the other cases; those decisions had to be issued by
September 12, 2008. In making that decision,
Chairperson Sinclair took into account a number of considerations
including his power to supervise and direct the work of the Tribunal subject to
natural justice, in particular, his power to allocate work among the members, the
duty to conduct proceedings expeditiously, the time and resources already
devoted to this matter and Mr. Deschamps’ jurisdictional workload from
other cases. The Chairperson also had to consider the limited length of time
granted to a member to allow him or her to complete an inquiry. In the circumstances
of this case, he concluded that the decision in Ms. Montreuil’s case could
not be issued within a reasonable period of time. He therefore appointed the
Vice‑Chairperson, Mr. Hadjis, to take over this inquiry.
[7]
In
short order, Mr. Hadjis asked the parties to indicate their availability
to participate in a case management conference. The Attorney General responded
on behalf of the Canadian Armed Forces indicating that an application for
judicial review would be filed along with a motion to stay the Tribunal proceeding
until the application for judicial review was determined and that, therefore, the
Attorney General would not participate in the discussion.
SUBMISSIONS
OF THE PARTIES
[8]
Since
the conditions under which a stay may be granted are known but not watertight,
it is appropriate to set out each party’s submissions before proceeding with my
analysis. In this case, the Tribunal is dealing with a complaint in which the
complainant, Micheline Montreuil, alleges that she was discriminated
against by the respondent, the Canadian Armed Forces, on the ground of her sex
and a perception of disability when the Forces refused to allow her to enlist
in the Forces in 1999.
Position of
the Canadian Armed Forces
[9]
As
of this date, the hearing of this inquiry is the second longest hearing in the
history of the Canadian Human Rights Tribunal. At the hearing, a number of
factual and expert witnesses testified. It should also be noted that there are
very few experts in the world, even fewer in Canada, on the
transgender issues that are the very basis of Ms. Montreuil’s complaint. This
has resulted in an enormous cost for the Canadian Armed Forces and, ultimately,
for Canadian taxpayers, not to mention the resultant constraints on the Forces’
human resources department.
[10]
For
the Canadian Armed Forces, recommencing this process would be a needless loss.
If it had had the opportunity to make representations on the Chairperson’s
power to authorize Mr. Deschamps to conclude the case, the Chairperson
would have seen that Ms. Montreuil’s credibility lies at the heart of this
inquiry and that, therefore, a de novo hearing would be required.
[11]
The
Chairperson’s refusal to give the Forces the opportunity to make representations
is a breach of natural justice. To advance an argument linked to section 48.4(2)
of the Canadian Human Rights Act that the Chairperson, as chief executive
officer of the Tribunal, was merely exercising his power to supervise and
manage its internal affairs including the power to allocate work among the members, the Attorney General referred to the Federal Court of
Appeal decision in Bell Canada v. Canada (Human Rights Commission)
(C.A.),
2001 FCA 161, [2001] 3 F.C. 481. In that case, the
issue was the Chairperson’s power to authorize a member to conclude an inquiry.
At paragraph 45 of his decision, Mr. Justice Stone wrote the
following:
It
is also to be noted that if the Chairperson were to abuse his power in
extending or refusing to extend the appointment of a Tribunal member for
reasons wholly extraneous to the proper administration of the Tribunal, his
decision would be reviewable pursuant to section 18.1 of the Federal Court
Act. I would add that, as a practical matter, the Chairperson would appear
to have a strong disincentive for refusing to extend a Tribunal member’s
appointment in appropriate circumstances since to do so would require starting
the case afresh. Given that many cases before the Tribunal take years to litigate,
frustrating the process in this manner would inevitably tend to discredit the
Tribunal and, by implication, the Chairperson himself.
[12]
The
Supreme Court dismissed the appeal from that decision, 2003 SCC 36, [2003] 1 S.C.R. 884,
[2003] S.C.J. No. 36. Chief Justice McLachlin and
Mr. Justice Bastarache stated the following at paragraph 52:
There
is an obvious need for flexibility in allowing members of the Tribunal to
continue beyond the expiry of their tenure, in light of the potential length of
hearings and the difficulty of enlisting a new member of a panel in the middle
of a lengthy hearing . . .
[13]
Pursuant
to the above‑noted remarks by Justice Stone, if the inquiry
continues before a new member, it must be de novo. An abridged
hearing, based on the transcript of what has already transpired, would be a
breach of the principles of natural justice.
[14]
The
inquiry should continue with a new hearing because of the Canadian Armed Forces’
position that the case involves Ms. Montreuil’s credibility. Section 50(1)
of the Act provides for a full and ample opportunity to appear and present
evidence. Since it would be necessary to ascertain the
availability of expert witnesses, the earliest the hearing could recommence
would be September 2008. In light of the difficulties raised by
Ms. Montreuil during the first inquiry, it is presumed that the hearing
would last another
97 days over a period of 14 months. This means that the decision on
the inquiry would not be reserved until the end of 2009. Chairperson Sinclair’s
decision only prolongs this ongoing matter.
[15]
An
abridged hearing, based on the transcript of what has already been addressed,
would deprive the Canadian Armed Forces of a full and ample opportunity to
present its case. The transcript does not
reveal everything, particularly Ms. Montreuil’s behaviour. In addition,
there was a [translation] “viewing”
at Valcartier military base, over the objections of Ms. Montreuil. This
visit clearly demonstrated Ms. Montreuil’s unsuitability for becoming an
employee of the Canadian Armed Forces. No notes were taken during that visit.
[16]
If
the Canadian Armed Forces succeeds on its application for judicial review,
putting aside for the moment the possibility of an appeal, the case will be
returned to the Chairperson or someone on his behalf for review. The review
would be based on things being what they were at that time, and should therefore
also take into account the status of the inquiry (Myle v. Canada (Minister
of Citizenship and Immigration), 2007 FC 1073, [2007] No. 1389
at paragraph 13 and following).
[17]
Consequently,
the right of the Canadian Armed Forces could be futile if the new member had
moved the case forward to a certain extent.
[18]
There
is a risk of contradictory decisions or two members who are actually dealing with
the same case at the same time. Such a situation should be avoided.
[19]
The
Canadian Armed Forces submits that Ms. Montreuil would not suffer any harm
if the Tribunal inquiry were stayed while the application for judicial review
proceeds since, if the application is allowed, her complaint is essentially based
on a claim for lost income.
Ms. Montreuil’s
position
[20]
Ms. Montreuil,
who is a lawyer, represented herself before the Tribunal and now before the
Court. Unlike the Canadian Armed Forces, she is not opposed to the Chairperson’s
decision to not allow Mr. Deschamps to conclude this file and to designate
the Vice‑Chairperson to take over. In her view, if Mr. Deschamps continued
to deal with this case, since he had reserved decisions on other matters, and
since Chairperson Sinclair ordered him to issue his decisions before the
September 2008 deadline, it is reasonable to believe that the decision in
this file would not be issued before mid‑2009.
[21]
She
would be satisfied if Vice‑Chairperson Hadjis proceeded on the basis
of the transcript of what has transpired to date. If her credibility is at
issue, she is prepared to testify again.
[22]
Chairperson Sinclair’s
decision simply involves the management of a proceeding. There is no serious
question. In addition, given that the Canadian Armed Forces boycotted Vice‑Chairperson Hadjis’
request for a preliminary case management conference, it is not their place to
complain about the manner in which the case is advancing at the Tribunal. Comments
relating to the progress and management of the inquiry should be addressed to
the Tribunal itself, not to this Court. The position of the Canadian Armed
Forces is completely premature and speculative. Who knows how Vice‑Chairperson Hadjis
will dispose of the inquiry?
[23]
Ms. Montreuil
claims that it is she who is suffering irreparable harm, not the Canadian Armed
Forces. Dealing with this case has taken up so much time that she had no choice
but to leave her employment. Everyone else involved in this inquiry, with the exception
of herself, is remunerated through public monies. Ms. Montreuil believes
that it is she who is being inconvenienced in this case.
Position of
the Commission
[24]
The
Commission is of the opinion that if someone is going to suffer irreparable harm,
it is Ms. Montreuil and that the balance of convenience lies in her
favour. With respect to a serious question to be tried, the Commission even
argues that the decision is not really justiciable. This matter is really only
an interlocutory case management issue.
[25]
If
anyone has a basis for an application for judicial review, which Ms. Montreuil
seriously doubts, it is not up to her or the Canadian Armed Forces to bring the
application; it is up to Mr. Deschamps.
[26]
In
this case, it is the Commission that represents the public, not the Canadian
Armed Forces. The latter is, in fact, an employer, although putative in this
case, the same as any other employer. Section 51 of the Act provides that,
in appearing at a hearing, the Commission shall adopt such position as, in its
opinion, is in the public interest having regard to the nature of the
complaint.
[27]
Since
Vice‑Chairperson Hadjis has not yet ruled on how this inquiry will
unfold, the Commission agrees with Ms. Montreuil that the application by
the Canadian Armed Forces is premature and speculative.
[28]
However,
counsel noted that hearsay evidence is admissible before the Tribunal and that
the right to question witnesses is not unlimited. The decision of a tribunal to
not allow a party against whom a complaint has been filed to call witnesses was
recently confirmed by the Federal Court of Appeal in Goodwin v. Birkett,
2008 FCA 127, [2008] F.C.J. No. 537.
[29]
Notwithstanding
the foregoing, the Canadian Armed Forces’ complaint is that the Governor in
Council did not renew Mr. Deschamps’ appointment. The Court is not seized
of this issue here.
ANALYSIS
Serious question
to be tried
[30]
In
RJR - MacDonald Inc., above, the Supreme Court recognized the difficulties
that trial judges face on these motions. A decision must be made quickly based
on a limited review of a file. Although there were almost five hours of
submissions and reference to more than a dozen decisions, the Attorney General would
like to obtain a decision as soon as possible because the final date proposed
by Vice‑Chairperson Hadjis for a case management conference is
April 25.
[31]
It
appears to this Court that the Canadian Armed Forces has met the rather low
burden of establishing that there is a serious question to be tried. The points
that it raises are neither frivolous nor vexatious. There is no case law
regarding the circumstances that the Chairperson of the Tribunal must consider
in determining whether a member whose appointment has expired must nonetheless
conclude matters that he or she has begun. We can readily say that the state of
the proceedings and the cost to the parties are relevant issues that must be
addressed. Relying on the recent Supreme Court decision in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] S.C.J. No. 9, it may well be that the discretionary decision
must be reviewed against a standard of reasonableness simpliciter.
[32]
The
Attorney General has also raised the issue of natural justice, which must
always be reviewed against a standard of correctness. The Attorney General
should have had the opportunity, as requested, to make representations that
would have been along the same line as those made to this Court.
[33]
I
will spend almost no time on the aspect of a serious question to be tried since
I am convinced that it has been established, at least at this stage of these proceedings.
I will now assess the issues of irreparable harm and the balance of
convenience.
Irreparable
harm
[34]
It
is both too speculative and too premature to assume anything about how this
inquiry will unfold. The Attorney General should have cooperated with the Tribunal
and participated in the case management meeting, of course, without prejudice
to his application for judicial review and his stay motion.
[35]
At
this stage, there is no reason to assume that the Attorney General will be
deprived of an impartial hearing as the case progresses. Perhaps a new hearing
is necessary, as suggested by Mr. Justice Stone in Bell Canada,
above.
[36]
Similarly,
if, as the Attorney General submits, there must be a new hearing and it cannot
begin until September, this new hearing would not have progressed very far by
the time the decision on the application for judicial review is made. In the
same vein, I am going to grant the Attorney General’s oral motion and order
that this matter proceed as a specially managed case so that this application
will be heard on the merits as quickly as possible.
BALANCE OF
CONVENIENCE
[37]
With
respect to irreparable harm and the balance of convenience, these two aspects seem,
at this stage of the proceedings, to favour Ms. Montreuil, not the Canadian
Armed Forces. The expense and the time required to make a motion pending
judicial review would have very little influence (see: Fournier v. Attorney
General of Canada, 2003 FC 996, [2003] F.C.J. 1257). A stay
of proceedings would cause a loss of precious time if the application for
judicial review were dismissed, either by the applications judge or on appeal.
[38]
I
recognize that the Tribunal may issue its decision even before the decision on
the judicial review is rendered, and that, even if the judicial review is
granted, a new review would be at a more advanced stage of the inquiry that is
being conducted. The Canadian Armed Forces could take some comfort in its
victory.
[39]
However,
these are not the facts before me, and, consequently, I am going to dismiss the
motion for a stay of proceedings, without prejudice to the Attorney General’s
right to make a new motion if circumstances change.
[40]
Costs
will be in the cause.
ORDER
THE COURT
ORDERS:
1.
The
motion is dismissed.
2.
The
case will proceed as a specially managed case and will be sent to the
Chief Justice so that he can assign a case management judge in this
proceeding.
3.
Costs
will be in the cause.
“Sean Harrington”
Mary
Jo Egan, LLB
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