PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
and
KEITH DREAVER, NORMA FAIRBAIRN, SUSAN GINGELL,
PAMELA IRVINE, JOHN MELENCHUK, RICHARD ROSS,
AILSA WATKINSON, HARLAN WEIDENHAMMER
and CARMAN WILLET
Respondents
and
SPEAKER OF THE HOUSE OF COMMONS
Intervener
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Applicant seeks a stay of proceedings of the Canadian Human Rights Tribunal (Tribunal) in the matter of Willet et. al. and Pankiw (CHRT file T969/8904) pending a determination, by this Court, of an application for judicial review of the Tribunal's decision rendered on 21 July, 2005 (2005 CHRT 28).
[2] The facts giving rise to this motion are not in dispute. During the course of 2003, nine separate complaints were filed with the Canadian Human Rights Commission (Commission) stemming from the distribution of a printed brochure, known as a Householder, to constituents by Mr. Pankiw, then a Member of Parliament (M.P.) for the riding of Saskatoon-Humbolt. Each of the 308 Members of the House of Commons sends up to four Householders per year.
(Affidavit of Charles Duperreault in the main application, sworn in the City of Ottawa on August 25, 2005)
[3] The complainants alleged that a Householder distributed by Mr. Pankiw, M.P., in October 2003, contained discriminatory comments in violation of sections 5, 12 and 14 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. The Commission referred the matter to the Tribunal.
[4] The Respondent brought a motion for an order that the Tribunal lacked the requisite jurisdiction to hear the complaint. This motion was dismissed by the Tribunal on 21 July, 2005 (2005 CHRT 28). This dismissal is now the subject of judicial review.
(Affidavit of Charles Duperreault, above; Willet et. al. v. Pankiw (21 July, 2005), Interim Ruling of the Canadian Human Rights Tribunal (2005 CHRT 28).
ISSUE
[5] Should proceedings before the Canadian Human Rights Tribunal in the matter of Willet et. al. and Pankiw be stayed?
ANALYSIS
[6] The Federal Court may, by way of an interim order, make such orders as it considers just pending the final disposition of an Application. A motion for a stay of tribunal proceedings is such an order. (Federal Courts Act, R.C.S., 1985, c. F-7, s. 18.2)
[7] The granting of a stay of proceedings is a discretionary remedy that, while based on various "tests", by its very nature, calls for "flexibility". The primary basis for the granting of a stay is the weighing of the balance of convenience between the various interests. (Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 F.C. 451 (C.A.), [1989] F.C.J. No. 14 (QL); American Cyanamid Co. v. Ethicon Ltd., [1975] 1 All ER 504 (H.L.)
[8] The general framework for determining whether or not to stay a proceeding pending judicial review is a tripartite one. (Manitoba(Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110; RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311)
[9] The test is composed of three branches:
(a) A serious issue of fact and/or law to be tried;
b) Irreparable harm; and
c) A balance of convenience.
(Metropolitan Stores (MTS) Ltd. and RJR-MacDonald Inc., above)
[10] While the courts often address these branches of the test in order, and in a fashion that requires a positive answer on each branch before the examination of the next, the tests often overlap when the questions considered involve legal challenges requiring the courts to consider and balance "competing" public interests.
I should say here that I favour the view that these factors do not constitute a series of mechanical steps that are to be followed in some sort of drilled progression. Professor Robert J. Sharpe cautions against such rigidity of approach in Injunctions and Specific Performance (Toronto, 1983), when he notes that each of the factors should be "seen as guides which take colour and definition in the circumstances of each case." He further observes that they are not to be seen "as separate, water-tight categories," and also that they "relate to each other, and strength on one part of the test ought to be permitted to compensate for weakness in another". In other words, considerable flexibility is called for, bearing in mind that the balance of convenience is of paramount importance...
(Turbo Resources Ltd., above, from paragraph 29; see also RJR-MacDonald Inc., above, particularly at paragraphs 50 and 57)
Serious issues of law
[11] The threshold at this first branch of the test for a stay is, where there is a challenge to jurisdiction, a low one. An applicant is not required to demonstrate a 'strong prima facie case' but only that the "claim is not frivolous or vexatious; in other words, that there is a serious question to be tried."(RJR-MacDonald Inc., above, at paragraph 49; American Cyanamid Co., above, as cited in RJR-MacDonald Inc., above, at paragraph 44)
[12] Whether the first branch of the test has been satisfied must, especially in the context of a constitutional challenge, be determined on the basis of "common sense and an extremely limited review of the case on the merits." (RJR-MacDonald Inc., above, at paragraph 78)
[13] The Applicant's application for judicial review may raise constitutional law issues as well as statutory interpretation questions, none of which may be qualified as frivolous or vexatious. The essence and consequences of the decision under review, in addition to the grounds set out in the Notice of Application, raise a number of serious issues to be considered, namely:
(a) The scope and meaning of Members of Parliament carrying out their parliamentary functions, in particular, in publishing and distributing "Householders" to constituents;
(Parliament of Canada Act, R.S.C. 1985, c. P-1, s.52.6; By-laws 101, 012 and 301 of the Board of Internal Economy, Exhibit B to the Affidavit of Charles Duperreault, above)
(b) The application of legal aspects of the separation of powers in Canada and the relationships that may thereby ensue:
(i) The principles of a democratic society;
(ii) The role and function of Members of Parliament within the democracy;
(Canada(House of Commons) v. Vaid, 2005 SCC 30, [2005] S.C.J. No. 28 (QL); Parliament of CanadaAct)
(iii) The scope of free political speech within the democracy;
(iv) The rights of elected representatives in regard to freedom of speech;
(v) The separation of powers and their meaning for the role and function of Members of Parliament; (Vaid, above, at paragraphs 4 and 21)
(vi) The separation of the executive and government in the democratic process and the content and context of political discourse;
(vii) The extent of independence of boards and tribunals.
Irreparable harm
[14] The second branch is whether irreparable harm may occur should the stay of proceedings be denied. The standard of "irreparable harm" refers to the nature of the alleged harm and not its magnitude. This leg of the test is met once it is established that, unless the stay of proceedings is granted, irreparable harm of a nature such that it could not be remedied by an award in monetary damages, or otherwise be adequately treated if the applicant ultimately succeeded on the underlying application for judicial review. (RJRMacDonald Inc., above, at paragraphs 58-59)
[15] "...In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined..." (RJR-MacDonald Inc., above, at paragraph 71)
[16] The result of any inquiry by the Commission, and the Tribunal could have an effect on the content of the Householders:
(a) Members of the House of Commons could be required to modify their communications with constituents;
(b) Proceedings before the Tribunal would examine certain views of Members of Parliament and conclude with a judgment.
The Balance of Convenience
[17] The final, and most important, branch of the three branch test for the issuance of a stay of proceedings before an administrative tribunal involves a "...determination of which of the two parties will suffer the greater harm from the grant or refusal of [the stay,] pending a decision on the merits." (Metropolitan Stores (MTS) Ltd., above, at paragraph 35)
[18] In ascertaining whether the balance of convenience exists, any number of factors may need to be taken into account and it would be unwise even to attempt to list these factors. Relevant factors will vary from case to case. (American Cyanamid Co., above)
[19] In such matters, the public interest is qualified as a special factor that must be taken into account when assessing the balance of convenience and "given the weight it should carry." (RJR-MacDonald Inc., above, at paragraph 64)
[20] It is accepted that a strong public interest in allowing statutorily-mandated administrative processes to proceed exists; such public interest considerations are to take into consideration compelling interests, if any, exist. (RJR MacDonald Inc., above, at paragraph 92)
[21] A public interest in protecting the fundamental principles of democracy, the separation of the branches of government, and the rights of freedom of expression, therein, are in question.
[22] In addition to broad public interest, considerations of additional factors exist in weighing the balance of convenience.
[23] The stay of proceedings requested does not have the effect of staying a decision or order already made but rather it seeks only to delay temporarily the commencement of any possible proceeding.
If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary to undertake;..
(Turbo Resources Ltd., above, at paragraph 27)
[24] The application for judicial review is scheduled to be heard, next month, in the fourth week of June 2006. Thus, no additional delays are envisaged in the ultimate disposition of the judicial review.
CONCLUSION
[25] A stay of proceedings is granted in this matter, pending a determination, by this Court, of the application for judicial review.
ORDER
THIS COURT ORDERS that the stay of proceedings be granted until the issues in question, in the judicial review application, are determined.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1329-05
STYLEOF CAUSE: JIM PANKIW
Applicant
and
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
and
KEITH DREAVER, NORMA FAIRBAIRN, SUSAN GINGELL, PAMELA IRVINE, JOHN MELENCHUK, RICHARD ROSS, AILSA WATKINSON, HARLAN WEIDENHAMMER and CARMAN WILLET
Respondents
and
SPEAKER OF THE HOUSE OF COMMONS
Intervener
PLACE OF HEARING: Ottawa, Ontario
REASONS FOR ORDER
APPEARANCES:
| Mr. Steven R. Chaplin Ms. Melanie J. Mortensen
|
AND FOR THE INTERVENER |
| Mr. Philippe Dufresne
|
CANADIAN HUMAN RIGHTS COMMISSION |
SOLICITORS OF RECORD:
| Mr. Steven R. Chaplin Parliamentary Counsel (Legal) Office of the Law Clerk and Parliamentary Counsel House of Commons Ottawa, Ontario
|
AND THE INTERVENER
|
| Mr. Philippe Dufresne Canadian Human Rights Commission Litigation Services Division Dispute Resolution Branch Ottawa, Ontario
|
CANADIAN HUMAN RIGHTS COMMISSION
|