Date: 20030704
Docket: T-732-02
Citation: 2003 FC 811
Between:
CANADIAN HUMAN RIGHTS COMMISSION
344 Slater Street
Ottawa, Ontario K1A 1E1
Plaintiff
- and -
MANON MALO
- and -
TÉLÉ-MÉTROPOLE INC.
- and -
NADIA CAZA
6080 rue Le Normand
St-Léonard, Quebec H1P 1B9
Defendants
REASONS FOR ORDER
PINARD J.
[1] This application for judicial review is from a decision of the Canadian Human Rights Tribunal ("the Tribunal"), signed on April 29, 2002, by the Panel Roger Doyon, dismissing the motion for his withdrawal made by the Canadian Human Rights Commission ("the Commission"), a motion dated March 11, 2002.
Facts
[2] Nadia Caza ("the complainant") is an employee of Télé-Métropole Inc. She filed with the Commission complaints based on discrimination against her employer and against her fellow employee Manon Malo ("the defendants"). The complainant, who was born in Egypt, is of Arab ethnic origin. Her father was a Moslem and her mother Catholic.
[3] After these complaints were filed hearings were held before the Tribunal's Panel, Roger Doyon, on January 15, 16, 22, 23 and 24, 2002. These first five days of hearing were devoted to the examination and cross-examination of a single witness, the complainant. The hearing was to continue on March 12 and 13, 2002.
[4] Before beginning the examination of the complainant, counsel for the defendants asked that certain points of procedure be clarified. He wanted to know whether the complainant was adopting the same position as the Commission. In this regard, it was established at that time that for the rest of the hearing, Mr. Vigna would speak not only for the Commission but also for the complainant, as the Panel indicated that the latter should consult Mr. Vigna before deciding to intervene. These clarifications made at the start of the proceedings were described by the plaintiff as constituting the [TRANSLATION] "memorandum of understanding", an understanding to which the complainant clearly subscribed.
[5] When the hearing resumed on March 12, 2002, the Commission filed a motion for withdrawal asking that the Panel be declared unable to perform his function of hearing the complaints because of the existence of a reasonable fear of bias on his part. The Panel's decision to dismiss this motion is the subject of the application at bar.
[6] On July 31, 2002, the prothonotary Roger Lafrenière allowed the plaintiff's motion to add to the evidence the audio recording, in the form of a digital CD, of certain passages from the hearing held before the Tribunal, on two conditions:
[TRANSLATION]
(a) that the plaintiff also enter in the Court record, after service on counsel for the defendants, a complete copy of the audio cassettes of the hearings held before the Canadian Human Rights Tribunal on January 15, 16, 22, 23 and 24, 2002; and
(b) that the defendants reserve the right to raise an objection in this Honourable Court as to the relevance of the digital CD and the audio cassettes in the application for judicial review.
Objection to evidence
[7] I intend to dispose forthwith of the objection by counsel for the defendants to the admissibility in evidence of the digital CD and the audio cassettes, the filing and use of which at the hearing in this Court was allowed under reserve.
[8] The defendants submitted essentially that this material cannot be entered in evidence because the Panel whose decision is at issue did not have it before him, and consequently it is not relevant. For her part, the plaintiff argued that this evidence is intended to show the tone used by the Tribunal's Panel and is the best and most reliable argument on this point which is highly relevant to the question of withdrawal.
[9] It appeared that the digital audio CD contained 17 tracks and its recording resulted from the recording by audio cassettes done by the official stenographer Johanne Allard during the hearing before the Tribunal.
[10] As I was able to see that the digital audio CD recording accurately reflects the transcript of the hearing before the Tribunal, I feel, in the absence of any proof of a better means of establishing the tone used by the presiding member, that the two items of evidence objected to by the defendants are in fact the best reliable means of establishing that tone. Of course, I could not arrive at this conclusion without the transcript, which the Tribunal that dismissed the motion for withdrawal was able to consult.
[11] In view of the relevance of the allegation by the plaintiff that the Panel of the Tribunal used an unsuitable tone, therefore, I feel for reasons of fairness and justice that the items of evidence in question, in the particular situation of this application for judicial review alleging a reasonable fear of bias, are admissible. In thus departing from the rule that an application for judicial review can only be based on what was available to the tribunal in question, I consider that I am making an exception of the kind approved by the Federal Court of Appeal in Arthur v. Canada (Attorney General), 2001 FCA 223, (2001), 283 N.R. 346, where at para. 8 the Court said the following:
An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation . . . It must be supported by material evidence demonstrating conduct that derogates from the standard. It is often useful, and even necessary, in doing so, to restore to evidence extrinsic to the case. That is why such evidence is admissible in derogation of the principle that an application for judicial review must bear on the matter as it came before the court or tribunal.
[Emphasis added.]
Analysis
[12] At the hearing in this Court counsel for the plaintiff formulated and submitted the three objections against the Tribunal's Panel set out in his memorandum of fact and law:
[TRANSLATION]
First objection
Can a Panel, even in jest, ask whether a female complainant of Arab race and ethnic origin has connections with Osama Bin Laden? Can he, even as a jest, make a distinction between the preceding statements and the following one: "she is the same as Bin Laden, it is the same".
Second objection
Can a Panel refuse to hear the complainant and deny her the right to make submissions during the hearing, when this right was formally recognized at the start of the hearing?
Third objection
Can a Panel intervene or question the complainant 294 times in the latter's cross-examination, which had so far lasted for two and a half days, and at that time, make comments to her which could be regarded as insulting, condescending and reckless?
[13] I intend to consider these objections in light of the general rules defined by the courts on the impartiality of decision-makers. First, the leading case which is still an authority is that of Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, in which the Supreme Court of Canada clearly confirmed the definition given by the Federal Court of Appeal of the test applicable in a case of this kind, at 394 and 395:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is: "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly."
I can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonable suspicion of bias', or 'real likelihood of bias'. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
This is the proper approach which, of course, must be adjusted to the facts of the case. The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative description exercised in the light of its experience and of that of its technical advisers.
A basic principle is of course the same, namely that natural justice be rendered. But its application must take into consideration the special circumstances of the tribunal. As stated by Reid, Administrative Law and Practice, 1971, at p. 220:
. . . 'tribunals' is a basket word embracing many kinds and sorts. It is quickly obvious that a standard appropriate to one may be inappropriate to another. Hence, facts which may constitute bias in one, may not amount to bias in another.
[Emphasis added.]
[14] The Court must also consider the presumption of impartiality as discussed in the Supreme of Canada judgment R. v. S. (R.D.), [1997] 3 S.C.R. 484, at 503:
The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England, Book III, cited at footnote 49 in Richard F. Devlin, "We Can't Go On Together with Suspicious Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S." (1995), 18 Dalhousie L.J. 408, at p. 417, "the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea". Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect: R. v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) 50 (C.A.), at pp. 60-61.
Notwithstanding the strong presumption of impartiality that applies to judges, they will nevertheless be held to certain stringent standards regarding bias - "a reasonable apprehension that the judge might not act in an entirely impartial manner is ground for disqualification": Blanchette v. C.I.S. Ltd., [1973] S.C.R. 833, at pp. 842-843.
[15] Finally, the Court must require a real likelihood or probability of bias, as the Quebec Court of Appeal noted in R. v. Laroche, [1999] J.Q. No. 5660 (QL), at para. 21:
[TRANSLATION]
The mere suspicion of bias is not sufficient. There must be a real likelihood or probability of bias. In this regard Cory J. noted in R. v. S. (R.D.) . . . that the allegation of bias must be thoroughly examined as it calls in question an aspect of judicial integrity. Indeed, he noted:
. . . an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice . . . Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly . . .
[16] In Arthur, supra, at para. 8, the Federal Court of Appeal made it clear that mere suspicions of bias are not sufficient.
It seems to me that the applicant's counsel has confused the "audi alteram partem" rule with the right of his client to a hearing by an impartial tribunal. An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard. It is often useful, and even necessary, in doing so, to restore to evidence extrinsic to the case. That is why such evidence is admissible in derogation of the principle that an application for judicial review must bear on the matter as it came before the Court or tribunal.
[Emphasis added.]
First objection
[17] To properly understand the plaintiff's first objection it is very important to set out in full the relevant passages from the transcript before the Panel of the Tribunal.
[18] First, at pp. 849, line 16, to 851, line 6, of the transcript:
[TRANSLATION]
Mr. DI IORIO:
Q. So, at some point, was there something, an act which you saw, which you heard and which came from Manon, so you saw Manon or you heard Manon, you touched Manon or you felt Manon or you tasted Manon, something which was perceived with the senses involving Manon, which made you conclude that she did not like Arabs?
A. Her attitude. That is all.
Q. Attitude. But are there no words coming from Manon which indicated to you she did not like Arabs?
A. No, apart from "Well, he was a Moslem". Apart from that, no.
Q. And you agree with me that "Well, he is a Muslim", is not a racist statement?
A. Perhaps not, but it is not always what you say, it is the way you say it.
BY THE CHAIRPERSON:
Q. Or the perception you have of it.
A. Yes. I - I can say - I do not know - I can make a joke with someone, he may find it very, very funny. If I change the tone of my voice, it might be very insulting. I mean it depends how the thing is said, with what degree of stiffness and . . .
Q. Madam, I can tell you with a smile this afternoon, as you have told us that you are of Moslem origin, that you are a Moslem, I can still make a joke and ask you if you have connections to Bin Laden.
A. That is the not the same thing. That is not the same, it is a joke.
Q. Yes. If I say to you that she is the same as Ben Laden, it is the same.
A. Yes, that is different.
Q. That is different?
A. Yes.
Q. You agree?
A. Yes.
[19] The way in which the plaintiff's first objection is formulated is misleading to say the least. Reading the preceding passage clearly shows that there is no factual basis. This formulation of the objection distorts the remarks of the Panel by suggesting that he himself was making a jest in his references to Bin Laden. That was not the case. The transcript makes it quite clear that the Panel was relating his comments to jests by a third party. In so doing, the Panel was simply giving the witness, the complainant, an opportunity to clarify or confirm what she thought, by giving her examples of statements the perception of which might decrease or increase the seriousness of their racist connotation. In this context, therefore, it is not surprising that, as indicated from listening to the digital audio CD entered in evidence, we find that the Panel's tone of voice rose significantly to illustrate his second example. Intervention by the Panel was perhaps not necessary to correctly assess the complainant's testimony. It would undoubtedly have been better if his examples did not refer specifically to such a reprehensible figure because of his connection with the recent terrorist attacks on September 11, 2001. However, in questions of disqualification, as the Quebec Court of Appeal noted in Droit de la famille_1559 (C.A.), [1993] R.J.Q. 625, at 635, the test is not determining what might have been better:
[TRANSLATION]
With respect, I do not think the test involves determining what would be "better". Rather, it must be determined whether the fear alleged in support of the disqualification meets its conditions of application. As Lamer C.J. noted in the foregoing case of R. v. Lippé . . . "the Constitution does not always guarantee the 'ideal'". This statement applies equally to a right recognized by the Canadian Charter of Rights and Freedoms.
[20] In my view, when the comments by the Panel are seen in their proper context, his remarks could not be capable of leading an informed person who was neither very sensitive nor scrupulous to conclude that it was more likely than not that he could not decide with complete impartiality.
[21] There was another comment by the Panel complained of by the plaintiff, though that comment was not specifically mentioned in her first objection. In this regard, the plaintiff referred in her memorandum of fact and law to the following passage from p. 911 of the transcript:
[TRANSLATION]
BY THE CHAIRPERSON:
Q. I will put the question to you myself.
A. O.K.
Q. Just a moment. If I say to you, madam, because you are an Arab - you are an Arab, we are agreed on that?
A. Yes.
Q. I say you are an Arab and it is not part of your culture to help others. I say that to you: is that correct?
A. No, it is not correct.
[22] The plaintiff submitted that by associating himself with contemptuous comments about members of the Arab community and the complainant the Panel was giving the impression that he was biased against the latter on account of her Arab ethnic origin.
[23] Once again, to properly understand the argument it is important to look at the context of the Panel's intervention, and set out in full the relevant passage from the transcript, to be found at pp. 910, line 7 to 913, line 11, of the transcript:
[TRANSLATION]
Mr. DI IORIO:
Q. So, there is: "It is not in her culture to help others". She made this comment?
A. Yes.
Q. In your opinion that comment is incorrect, is it not?
A. Right.
Q. It is not in someone's culture whether you help or do not help others. Is that what you are saying?
A. Yes, it depends on the person.
Q. In your view, that statement is incorrect, is it not?
A. You want me to speak about what Manon said?
Q. I want you to speak about your complaint, Ms. Caza. Right? Here in Canada, if someone is accused of something, it has to be proven.
A. Well, she said it and I was a witness, what more do you want? You want me to analyze her words, but I am not qualified.
Q. I am not asking you to analyze, I am asking you whether you agree or disagree. Do you agree that "It is not in her culture to help others", do you agree with that statement?
A. I don't understand.
BY THE CHAIRPERSON:
Q. Madam.
A. I do not understand what he means whether I agree . . .
Q. I will put the question to you myself.
A. O.K.
Q. Just a moment. If I say to you, madam, because you are an Arab - you are an Arab, we are agreed on that?
A. Yes.
Q. I say you are an Arab and it is not in your culture to help others. I say that to you: is that correct?
A. No, it is not correct.
Q. But that is the question he is asking you.
A. I'm sorry.
Q. That's all it is. Is this correct or not correct?
A. It is not correct that people are not accustomed to help others in my culture.
Q. In your culture, it is not correct that you do not help others?
A. That's it.
Q. Or that you are not willing to help others?
A. No, that is not true.
Q. Right.
Mr. DI IORIO:
Q. So this statement is wrong, it is not correct to say, you cannot say that about Arab culture?
A. No, but I am not the one who said it.
Q. It cannot be said about Arab culture that it does not involve helping others.
A. O.K.
BY THE CHAIRPERSON: You cannot say that, madam.
Mr. DI IORIO: This statement is wrong.
BY THE CHAIRPERSON:
Q. Can that be said?
A. No, you cannot say that.
Q. It is not true?
A. No, it is not true.
Q. That is all he is asking you.
A. But I already told him it is not true.
[24] It can readily be seen from reading the passage as a whole that it was the complainant herself in cross-examination who indicated, in response to a question by counsel for the defendants, that she did not understand, and that was why the Panel intervened to explain the question to the witness. I do not see how the Panel made the question his own or how he associated himself with contemptuous remarks, as the plaintiff maintained. In the case of this intervention as with the preceding one, the question is not whether it would have been better for the Panel not to intervene. Here again, I consider that the plaintiff's objections can in no way justify the existence of a reasonable apprehension of bias in accordance with the tests laid down by the courts, to which I referred above.
[25] It goes without saying that my reasons for dismissing the plaintiff's first objection, including the latter complaints which I have just disposed of, are reinforced by the following reasons supporting dismissal of her other two objections. These additional reasons, as will be seen, make it clear among other things that at no time before the motion for disqualification was filed, about a month after the last day of hearing for the complainant Nadia Caza's complaints, did she or counsel for the Commission indicate their disapproval of the Panel's statements or attitude in any way.
Second objection
[26] When the plaintiff referred to the "memorandum of understanding" in her submissions, she referred to the agreement made between the parties at the start of the hearing on January 15, 2002, that the complainant was entitled to intervene and the way in which this should be done. It is thus important to refer to the full text of the relevant passage of the transcript to see just what the nature of the agreement was and its consequences for the continuance of the hearing (at pp. 5, line 23, to 9, line 15, of the transcript):
[TRANSLATION]
Mr. DI IORIO: Another comment, Mr. Chairperson: we need to know whether Ms. Caza is adopting a position different from that of the Commission in this matter. They have had an opportunity to prepare themselves. Of course, the statement of claim can only come from Ms. Caza. If she is taking a position that differs from that of the Commission, she should tell us now because we have to take it into account, or if it is . . . of course, it is Mr. Vigna who will speak on her behalf?
Mr. VIGNA: Do I have permission, Mr. Chairperson, to say a few words to her to explain what that means?
BY THE CHAIRPERSON: Yes.
Ms. CAZA: Yes, I adopt the same thing as the Commission.
BY THE CHAIRPERSON: You adopt the same position as the Commission.
Ms. CAZA: As the Commission. However, I reserve the right to question the witnesses. But if as we go along there is something which is not exactly - well - I would like to be able to speak, if you would allow me.
Mr. DI IORIO: But I understand that if that happens she will tell us at once. I will explain - if something is not going right, she will tell us when it happens.
BY THE CHAIRPERSON: Yes, yes, she will tell us when an incident that does not please her occurs.
Mr. DI IORIO: Right.
BY THE CHAIRPERSON: I imagine she will discuss first with Mr. Vigna or his colleague, but her intervention will be on the spot. We are agreed on that.
Ms. CAZA: Yes.
Mr. DI IORIO: Because I - of course - when Mr. Vigna speaks, I assume he is also speaking for the complainant and will not have to ask her each time: Do you have something to say? I was making this comment for the sake of convenience.
BY THE CHAIRPERSON: Yes, yes, I understand. In principle, it is Mr. Vigna who . . . you adopt the position that will be taken by Mr. Vigna.
Ms. CAZA: Yes.
BY THE CHAIRPERSON: Unless there are exceptions. At that point, you will consult Mr. Vigna and decide if you must intervene yourself at that specific point or . . .
Mr. DI IORIO: On the spot.
BY THE CHAIRPERSON: On the spot, or if you are going to leave the initiative with Mr. Vigna. Does that meet with your approval, madam?
Ms. CAZA: Yes. And retain the right to . . .
BY THE CHAIRPERSON: Pardon?
Ms. CAZA: And question, retain the right to be able to question the witnesses.
BY THE CHAIRPERSON: You can retain the right to be able to question a witness, yes, but when he or she is testifying.
Ms. CAZA: Yes, absolutely.
BY THE CHAIRPERSON: What we will do, is if you are confronted by a witness called by the respondent, Mr. Vigna will conduct a cross-examination and if you think you should put questions after Mr. Vigna's cross-examination, you can do so.
Ms. CAZA: Thank you.
BY THE CHAIRPERSON: Is that agreeable to you, Mr. Di Iorio?
Mr. DI IORIO: Yes, that is fine. And I will surprise no one, Mr. Chairperson, when I say that it is subject to the usual rules when there is more than one party, that does not result in repetition of questions.
BY THE CHAIRPERSON: Exactly.
Mr. DI IORIO: Simply new questions on new points.
BY THE CHAIRPERSON: On points which have not been dealt with by Mr. Vigna's cross-examination. In other words, if Mr. Vigna puts a question to a witness in cross-examination, and that witness gives a reply, you may not be satisfied with the reply, but you cannot cross-examine on that question. On other questions which may seem relevant to you and which Mr. Vigna did not cover in his cross-examination, or after having discussed the matter with Mr. Vigna, you can allow him an opportunity to do so. Is that all right?
Mr. DI IORIO: Yes.
Ms. CAZA: Thank you.
[27] It is well settled that in a case of this type the complainant and the Commission are two separate parties who have the right to act independently of each other. However, in the case at bar, with an obvious intention of simplifying and facilitating the hearing, it was deliberately agreed to partially depart from this separate status and the rights relating to it, as all the parties concerned, including the complainant, had clearly accepted the procedure described in the preceding passage. In particular, the agreement was that the complainant was adopting the same position as the Commission but reserving the right to question the witnesses. The agreement also reserved the complainant's right to intervene, provided the intervention was made "on the spot", after consultation with Mr. Vigna, counsel for the Commission. The other points in the agreement are not relevant for the case at bar, as so far only the complainant has been heard as a witness at the hearing of her complaints.
[28] After reading the transcript of the hearing before the Panel in its entirety, and considering even more carefully the many extracts from the transcript referred to by counsel at the hearing in this Court, I see absolutely nothing which does not comply with the agreement in question between all parties concerned. The complainant was certainly not given the right to interrupt her own cross-examination several times so that counsel for the defendants could explain to her in advance the purpose of his specific questions. It was clear from the agreement that it was for Mr. Vigna to object to irrelevant questions subject to the right of the complainant, being cross-examined, to consult him before intervening. At no time did the complainant request permission to consult Mr. Vigna or Mr. Maillet, the other counsel for the Commission. At no time did the said counsel intervene to support the complainant's interventions and complain that the agreement was being wrongly applied by the Panel. The complainant also could not object, as she tried to do, to the Panel's decisions on the objections of relevance raised by counsel for the Commission. In my opinion, the Panel of the Tribunal did not err in fact or in law in deciding that after a realistic analysis of the objections made by the Commission a well-informed person could not conclude, in view of the agreement between the parties on the procedure that was to be followed, that his interventions raised a reasonable apprehension of bias.
[29] In the circumstances, I see no departure from procedural equity and the principles stated in s. 48.9(1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, set out below, seem to me to have been fully observed:
|
48.9 (1) Proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow. |
48.9 (1) L'instruction des plaintes se fait sans formalisme et de façon expéditive dans le respect des principes de justice naturelle et des règles de pratique. |
Third objection
[30] In reviewing the plaintiff's third objection, my reading of the entire transcript, and in particular my consideration of the many passages from that transcript referred to by counsel at the hearing in this Court, enable me to conclude, first, that the Panel was far from actually having intervened or questioned the plaintiff 294 times. It appeared that the Commission included in this number of 294 every time the Panel asked the witness or the person examining her to repeat what he had not properly understood, every time he asked for clarification so he could understand more clearly what was said and every other "intervention" of this type.
[31] Further, in view of the background to the interventions and the questions by the Panel, it does not appear that their effect was to favour counsel for the defendants in his cross-examination. On the contrary, some of the interventions or questions actually had the effect of helping the complainant by enabling her to correct an inaccuracy or contradiction in her testimony. The Panel said nothing insulting to the complainant. He did not in any way engage in an excessive or unacceptable cross-examination of the complainant. The Court was certainly not persuaded that it was unreasonable for the Panel to intervene as he did, as he himself said at para. 36 of his decision, to [TRANSLATION] "determine the truth so that justice should be done". Finally, as in the case of the two preceding objections, neither the complainant nor counsel for the Commission objected in any way to the comments or the attitude of the Panel during the days the complaints in question were being heard. Here again, therefore, I must conclude that the Panel of the Tribunal did not err in fact or in law in finding that a well-informed person, after a realistic analysis of the objections made regarding the number and nature of his interventions and questions during the complainant's testimony, could conclude that they created a reasonable apprehension of bias.
Conclusion
[32] The courts have made it quite clear that a decision-maker is not a sphinx. The plaintiff has taken certain passages from the transcript of the hearing out of their particular context and given them a subjective and erroneous interpretation. The comments and interventions by the Panel, the tone used by him and the occasional impatience he displayed must all be assessed in the proper context, which emerges from the transcript of the hearing before him. That transcript actually made it quite clear that the Panel sought to preside over the hearing in the most liberal and equitable way possible for the complainant, as indicated by these short passages reflecting his remarks at the start of the hearing of her complaints:
page 17, lines 2 to 22:
[TRANSLATION]
BY THE CHAIRPERSON: On the other hand, I will tell you something, Mr. Di Iorio, if you will permit me. In this type of case particularly, the complainant has often been waiting for a long time for a chance to tell the Tribunal what she claims she suffered, what she felt. I have to say that compared with - when we speak of evidence in civil law especially - the Canadian Human Rights Tribunal is much more liberal, although when the decision is to be made it will separate the most relevant parts from those which are not relevant.
That is something which I have had to experience several times as a member of this Tribunal: I have to tell you that we have a somewhat greater latitude than in a civil court. However, that does not mean that when the complete analysis of the case is undertaken and the decision made . . . the evidence which was submitted and which was not greatly relevant is set aside in the analysis. I would just like to mention that point to you.
p. 18, line 22, to p. 19, line 7:
[TRANSLATION]
BY THE CHAIRPERSON: You understand that if we speak of human rights, people who come before this Tribunal do not have the necessary knowledge about what should be entered in evidence compared with what is not relevant and should not be entered into evidence. Often, we move away from that relevance to some degree, but as a Tribunal we still try to give the person a chance to express as fully as possible why he or she has come before the Tribunal, subject to sifting what is said when the decision is made.
and p. 20, lines 17 to 23:
[TRANSLATION]
Personally, for me, time becomes something secondary because it will be on your side at the time of your defence, and especially in the case of Ms. Malo, she will also want to say everything, as the complainant will also want to say everything. I think there must be some latitude in this regard. Is that acceptable?
[33] Accordingly, if the proper context is taken into account, the Panel of the Tribunal did not err in refusing to disqualify himself, concluding on the objections made to him by the Commission that his comments, the number and nature of his interventions, the tone he sometimes used and the impatience he may have occasionally displayed were not such as to lead an informed person, viewing the matter realistically and practically, and having thought the matter through, to conclude that there was a reasonable apprehension of bias.
[34] Consequently, the application for judicial review is dismissed with costs.
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"Yvon Pinard"
Judge |
OTTAWA, ONTARIO
July 4, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-732-02
STYLE OF CAUSE: CANADIAN HUMAN RIGHTS COMMISSION v. MANON MALO, TÉLÉ-MÉTROPOLE INC. and NADIA CAZA
PLACE OF HEARING: Montréal, Quebec
DATES OF HEARING: June 2 and 3, 2003
REASONS FOR ORDER BY: Pinard J.
DATED: July 4, 2003
APPEARANCES:
Daniel Chénard FOR THE PLAINTIFF
Nicola Di Iorio FOR THE DEFENDANTS
SOLICITORS OF RECORD:
Daniel Chénard FOR THE PLAINTIFF
Attorney
Montréal, Quebec
Heenan, Blaikie SRL FOR THE DEFENDANTS
Attorneys
Montréal, Quebec