Syndicat des Employés de Production d Québec et et l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 SCR 879

Citations
[1989] 2 S.C.R. 879

Case tabs

Text of decision

Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879

Syndicat des employés de production

du Québec et de l'Acadie Appellant

Canadian Human Rights Commission Respondent

and

Canadian Broadcasting Corporation

and the Attorney General of Canada Mis en cause

indexed as: syndicat des employés de production du québec et de l'acadie v. canada (canadian human rights commission)

File No.: 20181.

1989: February 2; 1989: October 12.

Present: Dickson C.J. and McIntyre*, Lamer, Wilson, La Forest, L'Heureux‑Dubé and Sopinka JJ.

on appeal from the federal court of appeal

Courts -- Jurisdiction -- Federal Court of Appeal -- Judicial review -- Canadian Human Rights Commission dismissing complaint of discrimination pursuant to s. 36(3) of the Canadian Human Rights Act -- Whether Commission's decision under s. 36(3) required by law to be made on a judicial or quasi‑judicial basis -- If so, whether the Commission committed a reviewable error -- Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 -- Canadian Human Rights Act , S.C. 1976‑77, c. 33, ss. 11, 36(3).

The appellant filed a complaint with the Canadian Human Rights Commission pursuant to the equal pay for work of equal value provisions of s. 11 of the Canadian Human Rights Act (the "Act "). The main complaint alleged that employees in the Section fabrication et manipulation des décors of the CBC, who were predominantly male, were paid more for work of equal value than employees in the Section fabrication et manipulation des costumes, who were predominantly female. Pursuant to s. 35 of the Act , an investigator was appointed to investigate the matter and prepare a report. The investigator tested CBC's existing classification levels against classification levels identified by Commission experts using first the former CBC job evaluation plan and then the Aiken Plan. During the investigation, the investigator was in constant touch with the appellant and the CBC and obtained the benefit of their comments from time to time. Some discrepancies were uncovered by the investigator but were not found to be significant in light of the overall consistency of the ratings. The investigator concluded that the existing salary disparities resulted from job misclassification. The investigator considered the group rather than individual members and examined the system rather than focussing on individual complaints. This is based on the Commission's interpretation of s. 11 of the Act . He recommended that the complaint be rejected by the Commission as unsubstantiated.

The investigator then sent appellant a copy of his report which explained the methodology (including references to the Aiken Plan) and the results of its application. This is based also on the Commission's interpretation of s. 11 of the Act . The appellant made written submissions to the Commission. The Commission considered these submissions and the investigator's report and, without a hearing, dismissed the complaint as unsubstantiated pursuant to s. 36(3) of the Act . The Federal Court of Appeal dismissed appellant's s. 28 application to review and set aside the Commission's decision. This appeal is to determine (1) whether the Commission's decision under s. 36(3) was one that is required to be made on a judicial or quasi‑judicial basis within the meaning of s. 28 of the Federal Court Act; and whether the Commission committed a reviewable error.

Held (Wilson and L'Heureux‑Dubé JJ. dissenting): The appeal should be dismissed.

Per Lamer, La Forest and Sopinka JJ.: The Federal Court of Appeal had no jurisdiction, under s. 28 of the Federal Court Act, to review the Commission's decision made pursuant to s. 36(3) of the Act . The Commission's decision was not one that was required to be made on a judicial or quasi‑judicial basis. Section 36(3) provides for two alternative courses of action upon receipt of the investigator's report: (1) the Commission may adopt the report "if it is satisfied" that the complaint has been substantiated (s. 36(3) (a)) and, in such case, a tribunal will be appointed under s. 39 of the Act unless the complaint is resolved by settlement; and (2) the Commission may dismiss the complaint if "it is satisfied that the complaint has not been substantiated" (s. 36(3) (b)). This will occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding; rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal; rather the process moves from the investigatory stage to the judicial or quasi‑judicial stage if the test prescribed in s. 36(3)(a) is met. Accordingly, in view of the administrative nature of the Commission's function, and giving effect to the statutory provisions, the Commission was not required to comply with the formal rules of natural justice. The Commission, however, was required to comply with the rules of procedural fairness in accordance with the principles in Nicholson.

Although it is not necessary to decide this issue, the Commission committed no reviewable error in dismissing appellant's complaint. There was no basis in this case for suggesting that there was a denial of natural justice or procedural fairness. The appellant was informed of the substance of the evidence obtained by the investigator and put before the Commission and it was given an opportunity to respond to this evidence and make all relevant representations. The Commission was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. All this was done.

The Commission's failure to give reasons in this case was not a basis for review. The appellant was notified that the Commission had decided that the positions which were the subject of comparison did not constitute work of equal value. The basis for this conclusion was the investigator's report which was in the hands of the appellant. Accordingly, the latter was fully apprised of the reasons for the Commission's decision.

Finally, the appellant was informed of the Commission's interpretation of s. 11 of the Act and the Commission correctly applied that section to the facts of this case. Section 11 is to prohibit discrimination by an employer between "male and female employees" who perform work of equal value; it is not to guarantee individual employees equal pay for work of equal value irrespective of sex.

Per Dickson C.J.: This appeal can be disposed of on jurisdictional and procedural grounds for the reasons given by Sopinka J., and accordingly, it is not necessary or appropriate to deal with the correctness of the Canadian Human Rights Commission's interpretation of s. 11 of the Act .

Per Wilson and L'Heureux‑Dubé JJ. (dissenting): The Commission's decision to dismiss a complaint pursuant to s. 36(3) (b) of the Act is "required by law" to be made on a quasi‑judicial basis and is accordingly reviewable by the Federal Court of Appeal under s. 28 of the Federal Court Act. Three factors supported this conclusion. First, the Commission's function under s. 36(3) is to decide whether a complaint of discrimination is substantiated or not, given the findings set out in the investigator's report. The determination of whether work is of "equal value" within the meaning of s. 11(1) of the Act is a question of law. The Commission must interpret and apply a legal norm between two parties (the appellant and CBC) in an adversarial position. The Commission's function is accordingly closely akin to the adjudicative function traditionally performed by ordinary courts. Second, the Commission's decision constitutes a conclusive determination in respect of fundamentally important individual rights. Third, while the Act contains no express requirement of a hearing prior to the dismissal of a claim under s. 36(3) , the provisions of the Act , in particular ss. 36(4) , 39(1) , 40(1) and 41 , are consistent with the imposition of a duty to proceed on a quasi‑judicial basis. The existence of such a duty finds ample support in the case law.

The concept of "equal value" is central to the statutory prohibition against wage discrimination. Assessing the value of work, however, is inherently subject to individual bias and sexual stereotyping. In these circumstances, fairness requires that the job evaluation process be subjected to the purifying effect of the adversarial process. The vulnerability of the job evaluation plan method to individual bias and sexual stereotyping is best minimized by allowing the parties concerned an opportunity to tailor the elements of the testing to the special circumstances of each particular case. The Commission is accordingly under a duty to disclose to the parties at the proper time not only the factual basis of its decision but also the legal basis of its investigation -- namely, its interpretation of the statutory principle of equal pay for work of equal value. The parties must also be allowed to make an informed response to the Commission's interpretation and to urge upon it their own interpretation of the law.

In this case, the Commission failed to disclose the legal basis of its decision at a proper time. While the appellant made written submissions on a number of points in relation to the use of the Aiken plan, these submissions were allowed only after the investigation had proceeded on the basis that the Aiken plan was the only appropriate method to assess whether work was of equal value under s. 11, and that the choice of compensable factors and their relative weights by the Commission were the correct ones in light of that provision. The appellant should have been allowed to make informed submissions with respect to the legal standard of equal value under s. 11, and, if the Aiken method was chosen as that standard, then appellant should also have been heard on the selection and relative weight of the compensable factors as well. Any other aspect of the methodology proposed to be adopted by the Commission which the parties might have felt could unfairly prejudice the assessment of the value of the work could also be dealt at such a hearing. Such a hearing should have been granted so as to give the parties concerned an effective means of advancing their own interpretation of the applicable legal standard before the investigation proceeded. The Commission therefore failed to observe a principle of natural justice in proceeding without affording such an opportunity to the appellant and its decision must be set aside.

Cases Cited

By Sopinka J.

Referred to: Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12; Re Dagg and Ontario Human Rights Commission (1979), 102 D.L.R. (3d) 155; Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407; Cashin v. Canadian Broadcasting Corp., [1984] 2 F.C. 209; Re Downing and Graydon (1978), 92 D.L.R. (3d) 355; Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684; Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476.

By L'Heureux‑Dubé J. (dissenting)

Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Employment and Immigration Commission v. MacDonald Tobacco Inc., [1981] 1 S.C.R. 401; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; Brouillette v. Canadian Human Rights Commission (1986), 86 N.R. 393; Labelle v. Canada (Treasury Board) (1987), 76 N.R. 222; Whiteman v. Canada (Canadian Human Rights Commission) (1987), 9 C.H.R.R. D/4944; Attorney General of Quebec v. Udeco Inc., [1984] 2 S.C.R. 502; Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134; MacBain v. Lederman, [1985] 1 F.C. 856; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687; Cashin v. Canadian Broadcasting Corp., [1984] 2 F.C. 209; Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Corning Glass Works v. Brennan, 417 U.S. 188 (1974); Waddington v. Leicester Council for Voluntary Services, [1977] 2 All E.R. 633; Harmatiuk v. Pasqua Hospital (1982), 4 C.H.R.R. D/1177 (Sask. H.R.C.), aff'd (1983) 4 C.H.R.R. D/1650 (Q.B.); Re Downing and Graydon (1978), 92 D.L.R. (3d) 355.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , s. 15 .

Canadian Human Rights Act , R.S.C., 1985, c. H‑6 , s. 44(3) [rep. & sub. c. 31 (1st Supp.), s. 64].

Canadian Human Rights Act , S.C. 1976‑77, c. 33, ss. 11, 22(2) [rep. & sub. 1977‑78, c. 22, s. 5], 26, 32(1), (5), 33, 34(1), 35, 36, 39(1), 40(1), (2), 41(1), (2), 65.

Equal Pay Act of 1963, 29 U.S.C. {SS} 206(d).

Equal Wages Guidelines, 1986, SOR\86‑1082, s. 16.

Equal Wages Guidelines, SI/78‑155, s. 3.

Equal Wages Guidelines, amendment, SI/82‑2.

Fair Labor Standards Act of 1938, 52 Stat. 1060.

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28(1).

Human Rights Code, 1981, S.O. 1981, c. 53, s. 32.

Individual's Rights Protection Act, R.S.A. 1980, c. I‑2, s. 20 [am. 1985, c. 33, s. 9].

Statute Law (Canadian Charter of Rights and Freedoms ) Amendment Act, S.C. 1985, c. 26, ss. 68, 69.

Authors Cited

Abella, Rosalie A. Report of the Commission on Equality in Employment. Ottawa: Minister of Supply and Services Canada, 1984.

Blumrosen, Ruth G. "Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964" (1979), 12 U. Mich. J. L. Ref. 397.

Canada. Law Reform Commission of Canada. Federal Court: Judicial Review (Working Paper 18). Ottawa: Law Reform Commission, 1977.

De Smith, S. A. Judicial Review of Administrative Action, 4th ed. By J. M. Evans. London: Stevens & Sons Ltd., 1980.

Nelson, Bruce A. and Edward M. Opton and Thomas E. Wilson. "Wage Discrimination and the "Comparable Worth" Theory in Perspective" (1980), 13 U. Mich. J. L. Ref. 233.

Pépin, Gilles et Yves Ouellette. Principes de contentieux administratif, 2^e éd. Cowansville, Qué.: Éditions Yvon Blais Inc., 1982.

Tarnopolsky, Walter S. Discrimination and the Law in Canada, 2nd ed. Toronto: Richard De Boo Ltd., 1982.

APPEAL from a judgment of the Federal Court of Appeal (1986), 90 N.R. 16, 9 C.H.R.R. D/4922, 16 C.C.E.L. 275, dismissing appellant's application under s. 28 of the Federal Court Act to review and set aside a decision of the Canadian Human Rights Commission. Appeal dismissed, Wilson and L'Heureux‑Dubé JJ. dissenting.

Luc Martineau and Lyne Robichaud, for the appellant.

Russell G. Juriansz and Anne Trottier, for the respondent.

Gaspard Côté, Q.C., and Raymond Piché, for the mis en cause.

//The Chief Justice//

The following are the reasons delivered by

THE CHIEF JUSTICE -- I agree with the reasons of my colleague, Justice Sopinka with one reservation. In my view, this appeal can be entirely disposed of on jurisdictional and procedural grounds, and accordingly, I do not find it necessary or appropriate to deal with the correctness of the Canadian Human Rights Commission's interpretation of s. 11 of the Canadian Human Rights Act , S.C. 1976-77, c. 33. The Commission chose not to give reasons for its decision to dismiss the complaint as unsubstantiated. The focus of the appellant's attack before this Court was on procedural and jurisdictional grounds and in the Federal Court of Appeal, the interpretation of s. 11 was not addressed. Accordingly, I concur with Sopinka J. but express no view with respect to the interpretation of s. 11.

//Sopinka J.//

The judgment of Lamer, La Forest and Sopinka JJ. was delivered by

SOPINKA J. -- This appeal raises the question of the appropriate classification of the function of the Canadian Human Rights Commission when it dismisses a complaint of discrimination under s. 36(3) of the Canadian Human Rights Act , S.C. 1976-77, c. 33. The appropriate classification of this function is relevant to determine not only the jurisdiction of the Federal Court to review the determination of the Commission, but also whether the manner in which the Commission proceeded in arriving at its decision violated the appellant's rights to either natural justice or procedural fairness.

Facts

The appellant represents all of the production workers employed by the Canadian Broadcasting Corporation ("CBC") in the province of Quebec and in Moncton, New Brunswick. It filed a complaint with the Canadian Human Rights Commission (the "Commission") dated November 10, 1981 pursuant to the equal pay for work of equal value provisions of s. 11 of the Canadian Human Rights Act (the "Act "). The complaint alleged that employees in the "fabrication and manipulation des décors section" of the CBC, who were predominantly male, were paid more for work of equal value than employees in the "fabrication and manipulation des costumes section", who were predominantly female. The complaint further alleged that employees in the maquillage section were similarly underpaid in comparison to employees in certain male-dominated jobs of equal value.

Upon receipt of the complaint, pursuant to s. 35 of the Act , an investigator was appointed to investigate the matter and prepare a report.

The investigation of an equal pay complaint requires the application of generally accepted job evaluation techniques to measure the relative value of the jobs in issue. This process is a three-step procedure:

1.The investigator must gain a thorough understanding of the job content of each job. This information is obtained from up-to-date job descriptions or position specifications obtained from the employer, and when there is doubt, from the incumbents of the job who are asked to complete questionnaires. These are known as job fact sheets.

2.The jobs are then evaluated using a job evaluation plan. The plan will contain techniques used to measure job content according to factors and criteria specified in the plan. This permits a quantitative comparison of the relative value of jobs.

3.The quantitative measures of job value are then co-related to appropriate levels of compensation.

The CBC's existing classification levels were tested against classification levels identified by Commission experts using first the former CBC plan and then a Treasury Board plan which is called the Aiken Plan.

This process took approximately four years and from beginning to end the investigator was in constant touch with the appellant and the CBC. The investigator obtained the benefit of their comments from time to time.

Although some discrepancies were found by the investigator, they were not significant having regard to the overall consistency of the ratings. The investigator concluded that the existing salary disparities were as a result of job misclassification, noting that they were also present in comparisons between properly and improperly classified male employees rather than based on sex. Accordingly, he recommended that the complaint be rejected by the Commission as unsubstantiated.

Notwithstanding the fact that the parties had been kept abreast of the investigation during its progress, on October 16, 1984 the regional investigator, Michel Pitre, wrote to the appellant as follows:

[TRANSLATION] We therefore enclose a copy of the documents that will be submitted to the Commission for its use in arriving at a decision in this case. You are requested to send your submission to the Director, Complaints and Compliance (Canadian Human Rights Commission, 400, 90 Sparks Street, Ottawa K1A 1E1) within thirty calendar days of the date of receipt of this letter.

Enclosed with the letter was a copy of his report which explained the methodology, including references to the Aiken Plan, and the results of its application. Furthermore, the discrepancies referred to above were fully identified. Under the heading "Discussion", the investigator explained that in investigating the matter, it was necessary to consider the group rather than individual members and to examine the system rather than focussing on individual complaints. This is based on the Commission's interpretation of s. 11 of the Act . This interpretation is adopted because of the Commission's view that s. 11 is so worded as to prevent "ratcheting" and other wage adjustments that are not in accordance with good compensatory practice. For example, ten different male employees performing dissimilar work and being paid different salaries, nevertheless may all be performing work of equal value to a lesser paid female employee. If the female employee were entitled to limit a complaint under s. 11 to a comparison of her wages only to those of the highest paid male, her wages would be adjusted to be equal to those of the highest paid male. Thereafter all other males could require adjustment of their wages to be equal to those of the female who would then be receiving the highest wage rate. The result of such an approach would be that all employees would eventually move to the highest wage rate. Administered in this way, s. 11 would not be a guarantee of equal pay between sexes, but a guarantee of equal pay for work of equal value irrespective of sex.

The appellant was given thirty days to make written submissions to the Commission and was granted an extension of time to make these submissions. Extensive written submissions were made to the Commission. After considering these submissions and the report of the investigator, the Commission dismissed the complaint as unsubstantiated. The appellant was notified of this decision by letter dated June 27, 1985 which stated:

[TRANSLATION] The Canadian Human Rights Commission has considered the investigation report in your complaint against Radio-Canada, in which you alleged a difference in wages in employment due to sex.

The Commission has decided that the positions that were the subject of comparison were not of equal value and that the complaint was therefore groundless. Accordingly, the Commission has decided to dismiss your complaint. The Commission has noted the observations by you dated January 29, 1985.

Issues

1. Appropriate Classification of the Decision of the Commission

Is the decision of the Commission one that is required to be made on a judicial or quasi-judicial basis within the meaning of s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10?

2. Reviewable Error

If the answer is yes, did the Commission commit a reviewable error?

Legislation

Federal Court Act

18. The Trial Division has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

28. (1) Notwithstanding section 18 or the provisions of any other Act , the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Canadian Human Rights Act

11. (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.

(2) In assessing the value of work performed by employees employed in the same establishment the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed.

(2.1) Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be a single establishment.

(3) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 22(2), to be a reasonable factor that justifies the difference.

(4) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages.

(5) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section.

(6) For the purposes of this section, "wages" means any form of remuneration payable for work performed by an individual and includes salaries, commissions, vacation pay, dismissal wages, bonuses, reasonable value for board, rent, housing, lodging, payments in kind, employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans and any other advantage received directly or indirectly from the individual's employer.

26. (1) Such officers and employees as are necessary for the proper conduct of the work of the Commission shall be appointed in accordance with the Public Service Employment Act.

(2) The Commission may, for specific projects, enter into contracts for the services of persons having technical or specialized knowledge of any matter relating to the work of the Commission to advise and assist the Commission in the exercise or performance of its powers, duties and functions under this Act , and such persons may be paid such remuneration and expenses as may be prescribed by by-law of the Commission.

32. (1) Subject to subsections (5) and (6), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.

33. Subject to section 32, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that

(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available; or

(b) the complaint

(i) is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act ,

(ii) is beyond the jurisdiction of the Commission,

(iii) is trivial, frivolous, vexatious or made in bad faith, or

(iv) 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.

34. (1) Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision.

35. (1) The Commission may designate a person (hereinafter referred to as an "investigator") to investigate a complaint.

(2) An investigator shall investigate a complaint in a manner authorized by regulations made pursuant to subsection (4) and the Commission may authorize an investigator,

(a) subject to such limitations as the Governor in Council may prescribe in the interests of national defence or security, at any reasonable time, to enter any premises other than a private dwelling place or any part of any premises that is designed to be used and is being used as a permanent or temporary private dwelling place, and carry out such inquiries as are reasonably necessary for the investigation of the complaint; and

(b) to require any individual found in any premises entered pursuant to paragraph (a) to produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom any books or other documents containing any matter relevant to the investigation of the complaint.

(3) No person shall obstruct an investigator in the investigation of a complaint.

(4) The Governor in Council may make regulations prescribing procedures to be followed by investigators and authorizing the manner in which complaints are to be investigated pursuant to this Part and prescribing limitations for the purpose of paragraph (2)(a).

36. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.

(2) If, on receipt of a report mentioned in subsection (1), the Commission is satisfied

(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or

(b) that the complaint could more appropriately be dealt with, initially or completely, by a procedure provided for under an Act of Parliament other than this Act ,

it shall refer the complainant to the appropriate authority.

(3) On receipt of a report mentioned in subsection (1), the Commission

(a) may adopt the report if it is satisfied that the complaint to which the report relates has been substantiated and should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in subparagraphs 33(b)(ii) to (iv); or

(b) shall dismiss the complaint to which the report relates if it is satisfied that the complaint has not been substantiated or should be dismissed on any ground mentioned in subparagraphs 33(b)(ii) to (iv).

(4) After receipt of a report mentioned in subsection (1), the Commission

(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and

(b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3).

39. (1) The Commission may, at any stage after the filing of a complaint, appoint a Human Rights Tribunal (hereinafter in this Part referred to as a "Tribunal") to inquire into the complaint.

40. (1) A Tribunal shall, after due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the Tribunal, any other interested party, inquire into the complaint in respect of which it was appointed and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, of appearing before the Tribunal, presenting evidence and making representations to it.

(2) The Commission, in appearing before a Tribunal, presenting evidence and making representations to it, shall adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint being inquired into.

Judgment of the Federal Court of Appeal

Marceau J. delivered the judgment of the court: (1986), 90 N.R. 16. With respect to the issue of jurisdiction under s. 28 he stated (at pp. 21-22):

. . . this is a question which though it may raise difficulties of jurisdiction is more one of form than substance, in the sense that it concerns primarily a definition of terms the exact content of which has in recent years become increasingly fluid as well as less important, and that there is nothing to be gained by a formal analysis of it, at least not in the case at bar.

Marceau J. disagreed with the premise put forward by the appellant that elaborate procedural requirements apply in the Commission proceedings, the final stage of which was a public and formal hearing. His view of the content of the procedural requirements was as follows (at p. 21):

What is required is for the complainant and all the parties concerned to have been fully informed of the substance of the evidence obtained by the investigator and the content of his report and to have had an opportunity to make, verbally or in writing, all the relevant representations they wished to make.

With respect to the complaints about the proceedings of the Commission, Marceau J. enumerated them as follows:

1.The Commission relied solely on the investigation report without examining the underlying evidence, in particular the expert evidence;

2.It failed to hold a public hearing or failed to require the investigator to hold a public hearing;

3.It failed to give written reasons;

4.The investigator's conclusions were not only his own but also those of the experts;

5.It did not give the appellant access to all matters contained in the record, namely spot check reports and check sheets.

Marceau J. concluded that some of these complaints proceeded from a misconception of the relative function of the Commission and the investigator. The Commission was entitled to retain the assistance of experts and to rely on the report of the investigator so long as it considered the representation of the parties and came to its own conclusion. With respect to other complaints, they were based on the view of the appellant that a formal hearing was required. Finally, Marceau J. concluded that the spot check reports and check sheets were simply confirmatory of the facts in other documents and had only a very incidental or comparatively insignificant function. Marceau J. concluded that the appellant was adequately informed of the substance of the evidence obtained by the investigator. The appellant had therefore failed to show that the decision was unlawful.

1. Appropriate Classification of the Decision of the Commission

The Attorney General of Canada submitted that the Federal Court of Appeal lacked jurisdiction to review the decision of the Commission under s. 28 of the Federal Court Act in that it was not a decision or order required by law to be made on a judicial or quasi-judicial basis. As pointed out above, Marceau J., in the Federal Court of Appeal, saw no purpose in answering this question since he concluded that no reviewable error had been committed. Much judicial energy has been expended in deciding the limits of s. 28, and while it is a daunting task, we are urged by the Attorney General to deal with this point and to dismiss the appeal on this ground.

The application of s. 28 and its companion s. 18 has been rendered difficult by reason of the fact that the clear-cut distinction between certain types of tribunals which existed when the Act was passed no longer exists. As a result of Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, many tribunals exercising so-called administrative or executive functions are required to comply to a limited extent with the audi alteram partem rule which is labelled as the duty to accord procedural fairness. Formerly, tribunals that were required to comply with the rules of natural justice were characterized as judicial or quasi-judicial tribunals. This classification along procedural lines was expressed by Megarry J. in Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373 (Ch. D.), at p. 1378, as follows:

. . . that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness.

This statement was adopted by Laskin C.J. in Nicholson, supra, at p. 324. Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided. The distinction between them therefore becomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative or executive tribunals. Accordingly, the content of the rules to be followed by a tribunal is now not determined by attempting to classify them as judicial, quasi-judicial, administrative or executive. Instead, the court decides the content of these rules by reference to all the circumstances under which the tribunal operates. In Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at p. 629, Dickson J. (as he then was) stated:

In general, courts ought not to seek to distinguish between the two concepts, for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework.

The Federal Court Act, however, compels classification for review of federal boards, commissions or other tribunals. Accordingly, the distinction referred to by Megarry J. and adopted by this Court in Nicholson, supra, must continue to serve as the basis for distinguishing between s. 28 and s. 18. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, Wilson J., writing for herself, the Chief Justice and Lamer J., applied this distinction in holding that the Minister's determination under s. 45 of the Immigration Act, 1976 was not reviewable under s. 28. Wilson J. stated, at p. 197:

Thus, despite Nicholson's tendency to eliminate the significance of the distinction between administrative and judicial or quasi-judicial functions for purposes of determining whether procedural fairness in decision-making is required, the Federal Court Act preserves the significance of the distinction for purposes of determining whether judicial review is available by means of certiorari under s. 18(a) or by way of review under s. 28: see Martineau, supra, at pp. 629 and 637. Since the appellants did not challenge the procedural fairness of the Minister's decision under s. 45 of the Immigration Act, 1976 by the proper procedures, I do not believe that the Court has any jurisdiction on these appeals to review those decisions or the mechanisms by which they were taken . . . .

Similarly, in Martineau v. Matsqui Institution Disciplinary Board, supra, this Court held that disciplinary proceedings respecting a prison inmate did not have to meet the full requirements of natural justice but that the tribunal owed a duty of fairness to the inmate which could be reviewed under s. 18 of the Federal Court Act.

It is therefore necessary to examine the nature of the proceedings before the Commission in order to determine whether it was required to comply with the full panoply of the rules of natural justice or was required rather to accord procedural fairness to the appellant.

The Canadian Human Rights Act was enacted after human rights legislation had been adopted in all of the provinces. Indeed, for example, a comprehensive human rights code was adopted in Ontario in 1962 and in Nova Scotia in 1963. See Tarnopolsky, Discrimination and the Law in Canada (1982), at pp. 30-31. The drafters of the Act were obviously influenced by these provincial codes and many of the provisions of the Act are similar to the provincial legislation. The procedure set out in the Act reflects the influence of the form of earlier provincial statutes and the experience of the provincial commissions.

By virtue of s. 32 of the Act an individual, or group of individuals, "having reasonable grounds for believing that a person is engaging . . . in a discriminatory practice", may initiate a complaint with the Commission. Section 33 provides that the Commission is to deal with the complaint unless it is disposed of on one of the grounds set out in this section. These include failure to exhaust other remedies which ought to have been resorted to, lack of jurisdiction in the Commission, that the complaint is trivial, frivolous, vexatious or made in bad faith or is out of time. If the Commission does not act under s. 33, there are only two ways of dealing with the complaint. One is to appoint an investigator under s. 35 to investigate the complaint and the other is to appoint a tribunal under s. 39. If the Commission adopts the former course of action, the complaint enters the investigative stage. Sections 35 and 36 appear under the heading "Investigation". There is no other provision in the Act for investigating the complaint other than the appointment of an investigator. Under some provincial codes, the Commission is specifically authorized to investigate the complaint in which case it may be done by the Commission staff itself or in some cases by the appointment of an investigator. See the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, s. 32, and the Alberta Individual's Rights Protection Act, R.S.A. 1980, c. I-2, s. 20. In general, complainants look to the Commission to lead evidence before a tribunal appointed under s. 39, and therefore investigation of the complaint is essential if the Commission is to carry out this role. Section 40(2) reflects this fact in the life of the Commission.

The investigator, in conducting the investigation, does so as an extension of the Commission. I do not regard the investigator as someone independent of the Commission who will then present evidence as a witness before the Commission. Rather the investigator prepares a report for the Commission. This is merely an example of the principle that applies to administrative tribunals, that they do not have to do all the work themselves but may delegate some of it to others. Although s. 36 does not require that a copy of the report be submitted to the parties, that was done in this case.

Section 36(3) provides for two alternative courses of action upon receipt of the report. The Commission may either adopt the report "if it is satisfied" that the complaint has been substantiated, or it may dismiss the complaint if "it is satisfied that the complaint has not been substantiated". If the report is adopted, I presume that it is intended that a tribunal will be appointed under s. 39 unless the complaint is resolved by settlement. I come to this conclusion because otherwise there is no provision for any relief to the complainant consequent on adoption of the report. This aspect of the Commission's procedure has been clarified by amendments to the Act (S.C. 1985, c. 26, s. 69). The current version of s. 36(3) is contained in s. 44(3) of the R.S.C., 1985, c. H-6 (as amended by c. 31 (1st Supp.), s. 64 ) and now provides that, upon receipt of the report of the investigator, the Commission may request the appointment of a tribunal if it is satisfied that, having regard to all the circumstances, an inquiry into the complaint is warranted.

The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met. Accordingly, I conclude from the foregoing that, in view of the nature of the Commission's function and giving effect to the statutory provisions referred to, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson, supra, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness. In this regard, I adopt the statement of Lord Denning, M.R., in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), quoted hereunder. The Race Relations Board was charged with duties similar to those of the Canadian Human Rights Commission. In determining that it was an investigatory body with the duty to act fairly, Lord Denning said, at p. 19:

In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion . . . . In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.

A similar conclusion was reached by the Ontario Divisional Court in Re Dagg and Ontario Human Rights Commission (1979), 102 D.L.R. (3d) 155. The Ontario Human Rights Commission was required to make a recommendation to the Minister as to whether or not a board of inquiry should be appointed. The Commission recommended against the appointment of a board of inquiry after determining that the complainant's complaint of discrimination on the basis of sex was not substantiated. The applicant alleged that both the Commission and the Minister, in following the Commission's recommendation, were exercising a judicial function. The Divisional Court held that both were exercising administrative functions not subject to the requirements of natural justice. Under the Canadian Human Rights Act , although both functions are exercised by the Commission, that does not alter their administrative nature.

In Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407, the Commission conceded that it was required to act on a quasi-judicial basis when it decided to dismiss a complaint as unsubstantiated under s. 36(3)(b). The Commission also acknowledged that procedural fairness required that the complainant be provided with an opportunity to make submissions, at least in writing, before any action was taken on the basis of the report and that, in order that such submissions could be made on an informed basis, it was required to disclose the substance of the case to the party prior to its decision. The Commission denied, however, that a hearing was necessarily required. Lamer J. stated (at p. 410):

Without pronouncing upon all aspects of the standard of conduct the Commission must meet, I agree that the standard enunciated by the respondent is one which must, in all cases, be met.

Radulesco was therefore not a case in which the availability of review under s. 28 of the Federal Court Act was in issue. In any event, the standard of conduct required of the Commission in Radulesco was one consistent with the requirements of procedural fairness rather than those of natural justice.

In Cashin v. Canadian Broadcasting Corp., [1984] 2 F.C. 209, the Federal Court of Appeal was faced with the question of whether the Commission's decision not to appoint a tribunal to hear a complaint alleging discrimination on the basis of sex and marital status should be set aside. The Federal Court of Appeal decided to set aside the decision on the basis that the requirements of natural justice had not been met. Without commenting on the substance of the Court of Appeal's reasons, I would merely note that, as observed by Mahoney J. at p. 213, the availability of s. 28 review was not disputed.

Re Downing and Graydon (1978), 92 D.L.R. (3d) 355 dealt with the Ontario Employment Standards Act, S.O. 1974, c. 112. The majority judgment of Blair J.A., with concurring reasons by Wilson J.A. (as she then was), found that, although a formal hearing was not required, the employment standards officer had failed to bring to the attention of the complainant adverse information that was pertinent to enable the complainant to reply. Although the judgment of Blair J.A. refers to judicial proceedings, the obligation imposed on the officer was merely a duty of fairness. The distinction between the duty to act judicially and the duty of fairness was not one that was crucial to the case and of course was not made for the purpose of determining whether s. 28 of the Federal Court Act applied.

Accordingly, I agree with the submissions of the Attorney General of Canada that the Federal Court of Appeal had no jurisdiction to hear this application on the ground that the decision of the Commission was not one that was required to be made on a judicial or quasi-judicial basis.

2. Reviewable Error

Although it is not, strictly speaking, necessary to decide this issue in view of the conclusion reached above, the matter was dealt with extensively in the Court of Appeal and was fully argued here. It is therefore appropriate to observe that had I determined that the decision of the Commission was reviewable, I would have concluded as Marceau J. did that the Commission committed no reviewable error. I agree with the reasons of Marceau J. that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto.

The Commission was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. All this was done.

Two matters require special comment. First, it is submitted that failure to give reasons is itself a basis for review. Assuming without deciding that this is so in the absence of a statutory requirement to give reasons (compare Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684, at p. 706, and Lamer J. in Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, at pp. 500-501), in my opinion there is no basis for such review in this case. The appellant was notified that the Commission had decided that the positions which were the subject of comparison did not constitute work of equal value. The basis for this conclusion was the very extensive report of the investigator which the Commission adopted. This, the Commission was entitled by statute to do. The report which it adopted was in the hands of the appellant. Accordingly, the latter was fully apprised of the reasons for the Commission's decision. There is, therefore, no ground for suggesting that there was any denial of natural justice or procedural fairness in this regard.

The appellant submitted, apparently for the first time in this Court, that it was not apprised of the Commission's interpretation of s. 11 of the Act . While I agree with Wilson J.'s statement in Re Downing and Graydon, supra, that this is an aspect of the duty of procedural fairness to inform a party of the case to be met, I am satisfied that the appellant was expressly advised of the manner in which s. 11 was being applied by the Commission. Indeed, in the appellant's response a separate section entitled "L'Application de la loi" is devoted to this matter. Furthermore, I am satisfied that the Commission correctly applied s. 11 to the facts of this case. The intention of s. 11 is to prohibit discrimination by an employer between "male and female employees" who perform work of equal value and not to guarantee to individual employees equal pay for work of equal value irrespective of sex.

In the result, the appeal is dismissed with costs.

//L'Heureux-Dubé J.//

The reasons of Wilson and L'Heureux-Dubé JJ. were delivered by

L'HEUREUX-DUBÉ J. (dissenting) -- I must respectfully come to a different conclusion from that reached by my colleague Sopinka J. as regards the nature of the process which the Canadian Human Rights Commission is required to follow in dismissing a complaint pursuant to s. 36(3) (b) of the Canadian Human Rights Act , S.C. 1976-77, c. 33. Such a decision is in my view "required by law" to be made on a quasi-judicial basis and is accordingly reviewable by the Federal Court of Appeal under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. Moreover, I cannot subscribe to my colleague's conclusion that the Commission committed no reviewable error in the present case. The equal pay provisions of the Canadian Human Rights Act and the Equal Wages Guidelines, SI/78-155, constitute a complex legal standard which may be interpreted in a variety of ways. I am of the view that the Commission was under a duty to disclose not only the factual basis of its decision but the legal basis as well before reaching a conclusion on the complaint filed by appellant. The Commission's failure to do so amounted in my opinion to a breach of the rules of natural justice and, upon review, its decision must accordingly be set aside. I will now deal with these two propositions in greater detail.

I - Is the Decision Under s. 36(3) Required to be Made Judicially?

In light of this Court's judgments since Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, the importance once enjoyed by the distinction between "administrative" and "quasi-judicial" decisions has faded away. For instance, under the common law, that distinction no longer determines when judicial review can be obtained. As Laskin C.J., writing for the Court, remarked in Employment and Immigration Commission v. MacDonald Tobacco Inc., [1981] 1 S.C.R. 401, at p. 407:

In my view, it is no longer sensible to retain the old stereotyped classifications of statutory authority as being either administrative or judicial (or quasi-judicial) as providing a basis for review by the courts in the latter case but not in the former. It is more compatible with substance to look at statutory tribunals or boards or authorities in terms of the functions which, either at large or in a particular situation, they are obliged to discharge.

The same cannot be said, however, for judicial review under s. 28 of the Federal Court Act. Courts cannot avoid characterizing processes as either administrative or quasi-judicial when dealing with the review jurisdiction of the Federal Court of Appeal. This is so because Parliament maintained the distinction in s. 28:

28. (1) Notwithstanding section 18 or the provisions of any other Act , the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal . . . commission . . . upon the ground that the . . . commission . . .

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. [Emphasis added.]

That provision preserves the significance of the distinction between judicial and administrative decisions for the limited purpose of determining whether judicial review is available by way of application to the Federal Court of Appeal (see Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 197, per Wilson J.)

Section 28 has been the object of harsh criticism. This Court once referred to the wording of s. 28 as "convoluted language" which "has presented many difficulties" (Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495, at p. 499). The distinction preserved by s. 28 has been called "notoriously unclear" and criticized as "depend[ing] on inarticulated criteria" and "reduc[ing] the rational element in law" (Law Reform Commission of Canada, Working Paper 18, Federal Court: Judicial Review (1977), at pp. 35-36). Professors Gilles Pépin and Yves Ouellette describe this field of administrative law as being [TRANSLATION] "characterized by juridical impressionism" (Principes de contentieux administratif (2nd ed. 1982), at p. 144). In Nicholson, supra, Laskin C.J. stated "that the classification of statutory functions as judicial, quasi-judicial or administrative is often very difficult, to say the least" (p. 325).

The difficulty inherent to the classification may underlie in part the apparent hesitation of the Federal Court of Appeal in the case at bar in deciding the jurisdictional issue, even though that issue had been argued before it. Referring to s. 28, Marceau J., who delivered the judgment of the court, explained ((1986) 90 N.R. 16, at pp. 21-22):

. . . we feel that this is a question which though it may raise difficulties of jurisdiction is more one of form than substance, in the sense that it concerns primarily a definition of terms the exact content of which has in recent years become increasingly fluid as well as less important, and that there is nothing to be gained by a formal analysis of it, at least not in the case at bar.

In other recent cases the Federal Court of Appeal also refrained from dealing with the same jurisdictional issue and simply proceeded on the basis that it had jurisdiction to review a decision made by the Commission pursuant to s. 36(3): see Brouillette v. Canadian Human Rights Commission (1986), 86 N.R. 393; Labelle v. Canada (Treasury Board) (1987), 76 N.R. 222 and Whiteman v. Canada (Canadian Human Rights Commission) (1987), 9 C.H.R.R. D/4944.

Difficult as the task may be, it is nonetheless a condition precedent to the finding of jurisdiction in the Federal Court of Appeal under s. 28 of the Federal Court Act. In order to identify whether a function is truly judicial or quasi-judicial in that context, a number of useful criteria have developed in the law. Professors Pépin and Ouellette, who observe that courts have adopted a pragmatic approach in this area, discuss many of these criteria. These are (op. cit., at pp. 154-76): (1) the organic criterion, that is, whether the decision is made by a court of justice or by an executive body; (2) the firm decision criterion, that is, whether the tribunal is empowered to make a binding and enforceable decision, as opposed to simply advising or making a recommendation; (3) the criterion of the basis for the decision, that is, whether the tribunal applies a pre-existing rule to a disputed set of facts, as opposed to making new policy in each case; (4) the consequences of the decision criterion, namely, whether the decision affects individual rights or interests; (5) the judicial process criterion, that is, whether the tribunal has been endowed with the usual characteristics of the adversarial process; and (6) considerations of public policy as discerned in the objectives served by the enabling statute. Referring to these criteria, this Court commented in Attorney General of Quebec v. Udeco Inc., [1984] 2 S.C.R. 502, at p. 511:

The case law . . . contains a number of criteria by which a given power may be classified. These criteria are grouped by G. Pépin and Y. Ouellette, in Principes de contentieux administratif, 2nd ed., 1982, under the following headings: the organic criterion; the criterion of the firm decision; the criterion of the basis for the decision; the criterion of the decision affecting rights; the criterion of the judicial process; and considerations of public policy.

This is not to say that a power must be examined in each case in light of each of the given criteria in order to determine its nature; but that, depending on the circumstances, one or more of these criteria should be used in arriving at a conclusion. [Emphasis added.]

I agree that in determining whether a decision is required by law to be made judicially there is no inflexible approach to which the courts must adhere. No single element is by itself determinative; it is the combination of a number of the relevant characteristics which classifies the decision in each particular case. Discussing these characteristics in Minister of National Revenue v. Coopers and Lybrand, supra, Dickson J. (as he then was), delivering the opinion of the Court, stated (at p. 504):

It is possible, I think, to formulate several criteria for determining whether a decision or order is one required by law to be made on a judicial or quasi-judicial basis. The list is not intended to be exhaustive.

(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?

(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?

(3) Is the adversary process involved?

(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?

These four criteria are relied upon by Professors Pépin and Ouellette in their discussion of what they label the criterion of the firm decision, the basis of the decision criterion, the consequences of the decision criterion and the criterion of the judicial process. Commenting on the role played by each of these elements, Dickson J. added (at pp. 504-5):

These are all factors to be weighed and evaluated, no one of which is necessarily determinative. Thus, as to (1), the absence of express language mandating a hearing does not necessarily preclude a duty to afford a hearing at common law. As to (2), the nature and severity of the manner, if any, in which individual rights are affected, and whether or not the decision or order is final, will be important, but the fact that rights are affected does not necessarily carry with it an obligation to act judicially.

. . .

The existence of something in the nature of a lis inter partes and the presence of procedures, functions and happenings approximating those of a court add weight to (3). But, again, the absence of procedural rules analogous to those of courts will not be fatal to the presence of a duty to act judicially. [Emphasis added.]

The firm decision criterion and the criterion of the basis for the decision have been long-standing indications of the judicial nature of decisions. In Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134, at p. 149, the Judicial Committee of the Privy Council remarked:

It is a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties . . . and that it is the duty of the court to decide the issue between those parties, with whom alone it rests to initiate or defend or compromise the proceedings.

The conclusive adjudication of a point of law which is disputed by opposing parties is quintessentially judicial. In Udeco Inc., supra, this Court held that the power to suspend the board of directors of a corporation and to substitute another for it based on reasons of public interest in securities trading was not a judicial power. A major element in the reasoning of this Court was the absence of any true lis between the parties (see the discussion at pp. 511-13 and at p. 517).

The criteria discussed by Pépin and Ouellette reiterate to some extent those which are proposed by Professor Stanley A. de Smith to characterize the judicial function. The first is whether "the performance of the function terminates in an order that has conclusive effect" (Judicial Review of Administrative Action (4th ed. 1980), at p. 81). This criterion excludes from the judicial sphere bodies exercising mere advisory, investigatory or conciliatory powers and corresponds to the firm decision criterion. The second is whether "a body has been endowed with many of the "trappings of a court"" (p. 82), although that is expressly stated not to be a conclusive factor. This element relates to Pépin and Ouellette's judicial process criterion. Third, according to Professor de Smith, is whether the body is called upon to interpret and declare how the law stands between two opposed parties (at p. 85):

A typical lis inter partes culminates in a decision by a tribunal resolving any disputed questions of law or fact; the legal issues are determined by reference to principles and rules already in being. A tribunal or other deciding body is therefore likely to be held to be acting in a judicial capacity when, after investigation and deliberation, it determines an issue conclusively by the application of a pre-existing legal rule or another objective legal standard to the facts found by it. That interpreting, declaring and applying the law are characteristic hallmarks of the judicial function is too elementary a proposition to call for authoritative support. [Emphasis added.]

This third element coincides with the criterion of the basis for the decision. There is much overlap in the doctrinal analyses of the classification of decisions, although not all authors use similar language to define the relevant criteria. For the purpose of discussion, I will group under a single heading the criteria which Pépin and Ouellette refer to as the firm decision criterion, the criterion of the basis for the decision and the judicial process criterion. These elements share the common feature of being concerned with the formal characteristics of the process by which the decision is reached. I will then turn to the consequences of the decision criterion, which focuses not on the formal aspects but rather on the material characteristics of the decision. Finally, I will review the statutory context and examine the policy considerations which the statute raises.

1. Formal Characteristics

The Canadian Human Rights Act allows the Commission to dispose of complaints on grounds which are entirely extraneous to the merits of a complaint. For instance, s. 32(5) imposes certain conditions in order for a complaint to be considered. Similarly, ss. 33 (b)(ii) to (iv) exclude frivolous and time-barred complaints, and those complaints for which the Commission has no jurisdiction:

33. Subject to section 32, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that

. . .

(b) the complaint

. . .

(ii) is beyond the jurisdiction of the Commission,

(iii) is trivial, frivolous, vexatious or made in bad faith, or

The Act further excludes complaints which may be more appropriately dealt with by grievance or other procedures reasonably available to the complainant (s. 36(2)) as well as complaints relating to pension funds or insurance plans (s. 65).

The combined effect of these provisions is to enable the Commission to sift through the complaints and remove a number of them from the time-consuming process of investigation. The power to bar certain complaints from proceeding any further regardless of their merit reflects Parliament's overriding commitment to considerations of administrative efficiency and to specific policy objectives.

As it stood at the relevant time, the Act also allowed the Commission to dismiss a complaint which it believed was "unsubstantiated". Section 36 then stated: