T-1699-97
MONTREAL, QUEBEC, THIS 26th DAY OF AUGUST 1997
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
BETWEEN:
MOHAWK COUNCIL OF KAHNAWAKE
Applicant
-AND-
PETER AND TRUDY JACOBS
-and-
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
ORDER
The filing of the affidavit of Grand Chief Joe Norton dated August 21, 1997 is allowed.
The applicant's motion for a stay is otherwise dismissed.
Richard Morneau
Prothonotary
T-1699-97
BETWEEN:
MOHAWK COUNCIL OF KAHNAWAKE
Applicant
-AND-
PETER AND TRUDY JACOBS
-and-
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR ORDER
RICHARD MORNEAU, ESQ.,
PROTHONOTARY:
This is a motion by the applicant for an interim order under section 18.2 of the Federal Court Act directing the Canadian Human Rights Tribunal hearing the complaint of the respondents Peter and Trudy Jacobs (the Tribunal) to refrain from any further hearings in this matter pending the final disposition of the applicant's application for judicial review.
The hearing before the Tribunal is scheduled to resume on September 8, 1997 for a possible duration of seven days. This motion must therefore be dealt with promptly.
The applicant's judicial review application is directed on its merits against the decision of the Tribunal rendered on June 18, 1997 which dismissed the applicant's motion to have the Tribunal decline jurisdiction to continue to hear the complaint filed by Peter and Trudy Jacobs on the basis of various changes over time in the composition of the Tribunal.
The changes in the composition of the Tribunal occurred as follows. On June 9, 1994 Lise Leduc was appointed by the President of the Canadian Human Rights Tribunal as the Tribunal to hear the complaint. On October 14, 1994 a new three (3) person panel composed of Stanley Sadinsky, Q.C. (Chairperson), Lise Leduc and Pundit Kachroo was appointed as a Tribunal to hear the complaint instead of the one (1) person panel. Pundit Kachroo resigned from the Tribunal on April 12, 1995 and a new three (3) person Tribunal consisting of Stanley Sadinsky, Lise Leduc and Judith Alexander was appointed as a Tribunal to hear the complaint. On March 19, 1997 the Registrar of the Human Rights Tribunal advised the parties of the resignation of Judith Alexander from the Tribunal panel and advised that the President of the Human Rights Tribunal had directed that the matter should now proceed with the remaining two (2) panel members namely, Mr. Sadinsky and Mrs. Leduc.
On October 22, 1991, Peter and Trudy Jacobs complained to the Canadian Human Rights Commission (the Commission) regarding the applicant's refusal to include them and their children as band members.
Analysis
At the beginning of the hearing of this motion, I reserved my decision on the admissibility into the Court's record of an affidavit dated August 21, 1997 sworn by Grand Chief Joe Norton on behalf of the applicant. Although the said affidavit should have been attached to the notice of motion when filed and served, I will allow this affidavit into evidence since counsel for the Commission did not establish that her client was prejudiced by this late filing and did not request an adjournment for purposes of cross-examining Grand Chief Norton or for filing an additional affidavit.
Counsel for both parties agreed that this request for a stay be decided in accordance with the tripartite test enunciated in the case of Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 et al., [1987] 1 S.C.R. 110. Therefore, the applicant must show that it has an arguable case on its application for judicial review, that it would suffer irreparable harm if the stay were not granted and that the balance of convenience rests in its favour.
I assume - solely for the purpose of deciding this motion - that the applicant has an arguable or serious case on its judicial review application. As to the second test that the applicant had to fulfil, upon reading the affidavits filed by the applicant and after having heard the arguments of both parties, I am of the view that the applicant has not established by evidence that it would suffer irreparable harm if the stay were not granted.
As to the irreparable harm the applicant would suffer if a stay is not granted, the applicant alleges more specifically that a resumption of the hearing before the Tribunal would involve a great expenditure of resources on the part of the applicant which, by virtue of the applicable legislation, could not be recovered from the respondents even if the applicant proves to be successful before the Tribunal.
In Bell Canada v. Canadian Telephone Employees Association, Communications, Energy and Paperworkers Union of Canada, Femmes Action and Canadian Human Rights Commission, an unreported decision dated February 21, 1997 of the Federal Court, Trial Division, in Court File Nos. T-1414-96, T-1985-96 and T-2722-96, this Court rejected a similar argument advanced by Bell Canada. At page 15, the Court indicated:
| Bell Canada claims it will be required to expend considerable effort, undergo a disruption of its business as witnesses are prepared and called to testify, and incur the costs of litigation. All of this is preparation for the Tribunal hearings which will be unnecessary if any of its judicial review applications succeed. According to Bell Canada, it cannot be compensated for any of these matters in the event of success of any of its judicial review applications, not even for the monetary costs incurred during the hearing before the Tribunal, because the Tribunal, being legally non-existent, could not order any compensation for it. |
| Bell Canada argues that the exposure of a respondent to such costs and disruptions is well recognized in law as constituting irreparable harm under the second branch of the test for interim relief. |
| I do not accept that submission. Mr. Justice Rothstein stated as follows about this matter:26 |
| Counsel for the applicant did cite one case in which a court has held that inability to recover costs constituted irreparable harm. See Re Island Telephone Company Limited (1987), 206 APR 158 (P.E.I.S.C.). It is the only case brought before me that seems to touch on the issue, but it is specifically pertinent to the relationship between a regulated utility and the regulatory commission having jurisdiction over it. I do not say that the inability to recover costs may never constitute irreparable harm, but only that such inability has not been considered sufficient to meet the irreparable harm test where costs are incurred in the ordinary course of litigation. |
| In the case at bar, I do not find any special circumstances permitting the Court to treat costs or alleged disruptions as irreparable harm. |
| [my emphasis] |
| As Madam Justice Reed stated in ICN Pharmaceuticals Inc. v. Canada (Patented Medicine Prices Review Board):27 |
| I have not been persuaded that the circumstances are such that I should stay the proceedings. While unnecessary time and costs will have been expended if the proceeding goes ahead and it is ultimately decided that the Board is without jurisdiction, this is more a matter of inconvenience than irreparable harm. See D & B Companies of Canada Ltd. v. Director of Investigation and Research (1994), 58 C.P.R. (3d) 342, at 345 (F.C.A.). |
| 26 Brocklebank v. Canada (Minister of National Defence), (1994) Court File No. T-2333-94, October 13, 1994, reported at (1994), 86 F.T.R. 23. |
| 27 Court File No. T-2541-95, December 6, 1995, Reed J., reported at (1995) 65 C.P.R. (3d) 1. |
Counsel for the applicant alleged that special circumstances were present here as the aforementioned costs would be incurred before a two (2) member tribunal which might very well bring the matter to a deadlock and therefore to a non-decisive decision.
This situation is hypothetical in nature and cannot, in my opinion, magnify this issue of costs into a special circumstance as the expression is used in Bell Canada, supra. In addition, as indicated by counsel for the Commission, even if the Tribunal comes to a split decision, a rehearing of the whole matter before another tribunal is not a foregone conclusion. If the establishment of a second tribunal is ordered or agreed upon, evidence gathered before the Tribunal might be admissible before the second tribunal. Accordingly, the applicant does not satisfy the second stage of the test.
Since I am of that view, I do not have to weigh the third element of the test, i.e., the balance of convenience.
Consequently, the applicant's motion for a stay will be denied.
Richard Morneau
Prothonotary
Montreal, Quebec
August 26, 1997
T-1699-97
MOHAWK COUNCIL OF KAHNAWAKE
Applicant
PETER AND TRUDY JACOBS
-and-
CANADIAN HUMAN RIGHTS
COMMISSION
Respondents
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-1699-97
MOHAWK COUNCIL OF KAHNAWAKE
Applicant
AND
PETER AND TRUDY JACOBS
-and-
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
PLACE OF HEARING:Montreal, Quebec
DATE OF HEARING:August 25, 1997
REASONS FOR ORDER BY:Richard Morneau, Esq.,
Prothonotary
DATE OF REASONS FOR ORDER:August 26, 1997
APPEARANCES:
Mr. Stephen Ashkenazy for the Applicant
Ms. Helen Beck for the Respondents
SOLICITORS OF RECORD:
Mr. Stephen Ashkenazy for the Applicant
Mohawk Council of Kahnawake
Legal Services
Kahnawake, Quebec
Ms. Helen Beck for the Respondents
Canadian Human Rights Commission
Ottawa, Ontario