Date: 20031203
Docket: A-362-03
Citation: 2003 FCA 466
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Applicant
AND:
MANON MALO
and
TÉLÉ-MÉTROPOLE INC.
and
NADIA CAZA
6080 Le Normand Street
St-Léonard, Quebec H1P 1B9
Respondents
Hearing held at Montréal, Quebec, on October 17, 2003.
Order delivered at Ottawa, Ontario, on December 3, 2003.
REASONS FOR ORDER: NADON J.A.
Date: 20031203
Docket: A-362-03
Citation: 2003 FCA 466
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Applicant
AND:
MANON MALO
and
TÉLÉ-MÉTROPOLE INC.
and
NADIA CAZA
6080 Le Normand Street
St-Léonard, Quebec H1P 1B9
Respondents
REASONS FOR ORDER
NadonJ.A.
[1] The applicant, the Canadian Human Rights Commission (the "Commission"), relying on section 50 of the Federal Court Act (the Act), is asking me to stay the proceedings currently before the Canadian Human Rights Tribunal (the Tribunal) in the cases bearing docket numbers T-633/2101 and T-634/2201.
[2] This application stems from complaints filed against the respondents, Télé-Métropole Inc. and Manon Malo by Ms. Nadia Caza, an employee of Télé-Métropole who claims to have been the victim of discrimination based on her racial or ethnic origin.
[3] The relevant facts may be summarized as follows. The hearing on Ms Caza's complaints began on January 15, 2002, before Roger Doyon, the presiding member designated by the Tribunal, and continued on January 15, 16 , 22, 23 and 24, 2002. During this period, Ms. Caza testified for two and a half days and was then cross-examined for two and a half days.
[4] On January 24, 2002, the hearing was adjourned to March 12, 2002. When the hearing resumed on March 12, counsel for the Commission asked Mr. Doyon to disqualify himself on the grounds that his interventions during the cross-examination of Ms. Caza and some of his remarks during this cross-examination were such that they gave rise to a reasonable apprehension of bias.
[5] On April 24, 2002, Mr. Doyon dismissed the motion to disqualify himself. Consequently, on May 8, 2002, the Commission filed an application in the Federal Court for judicial review of this decision.
[6] Since the hearing of Ms. Caza's complaints before Mr. Doyon was to resume on May 14, 2002, the Commission asked the Federal Court to stay the Tribunal hearing until a decision had been made on the application for judicial review. On May 13, 2002, Tremblay-Lamer J. ordered that the proceedings before the Tribunal be stayed.
[7] On July 14, 2003, Pinard J. of the Federal Court dismissed the Commission's application for judicial review.
[8] On July 30, 2003, the Commission advised the Chairperson of the Tribunal of its intention to appeal Pinard J.'s decision and asked that the proceedings before the Tribunal be stayed until the Federal Court of Appeal had disposed of the appeal that was going to be filed.
[9] On August 1, 2003, Mr. Doyon dismissed the application for stay and the Commission filed a notice of appeal of Pinard J.'s decision.
[10] On August 20, 2003, the Commission filed this motion under section 50 of the Act. On August 21, 2003, the Commission filed its written submissions and the respondents filed theirs on September 2, 2003.
[11] On October 17, 2003, at Montréal, I heard the oral submissions by counsel who afterward, at my request, sent me further written submissions.
[12] Before I continue, I would like to note that the hearing of Ms. Caza's complaints before the Tribunal is to resume in January 2004. In its motion, the Commission asks me to stay this hearing until this Court disposes of its appeal.
[13] This Court will not order a stay of proceedings unless it is convinced that the tests laid down by the Supreme Court of Canada in Manitoba (A.G.) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, have been met. Specifically, in this case, the Commission must show that its appeal raises a serious question, that it will suffer irreparable harm unless the stay of proceedings is ordered, and finally that the balance of convenience favours the Commission (see RJR-Macdonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311, at page 334).
[14] For the purposes of this case, I am prepared to accept that the appeal filed by the Commission raises a serious question. With respect to the second test - the existence of irreparable harm - the Commission, at paragraphs 40 to 42 of its written submissions, raises the following arguments:
[Translation]
40. If this Honourable Court were to find that the motion to disqualify should have been granted and that consequently the application for judicial review should have been as well, pursuant to Zündel v. Citron, [2000] 4 F.C. 225 (paragraphs 65 and 66), the hearing that was already held as well as the one that would be continued under the authority of the same presiding member, would be invalidated.
41. The appellant as well as the complainant would have been obliged to participate in a hearing that would be nugatory.
42. If an order is not issued requiring a stay of the proceedings before the Canadian Human Rights Tribunal, the appellant as well as the complainant will have to proceed with a hearing under such circumstances.
[15] Unfortunately for the Commission, it has failed to persuade me that irreparable harm would result from a refusal to order the stay of the hearing before the Tribunal. In my opinion, neither the Commission nor Ms. Caza will suffer irreparable harm if they have to take part in the hearing before the Tribunal, which is to resume in January 2004. Participation in this hearing cannot in itself constitute irreparable harm within the meaning given to this expression by the Supreme Court of Canada in RJR-Macdonald, supra. At page 341, Sopinka and Cory JJ. wrote:
"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court's decision (R.L. Crain Inc. v. Hendry (1988), 48 D.L.R. (4th) 228 (Sask. Q.B.)); where one party will suffer permanent market loss or irrevocable damage to its business reputation (American Cyanamid, supra); or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined (MacMillan Bloedel Ltd. v. Mullin, [1985] 3 W.W.R. 577 (B.C.C.A.)). The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)).
[16] In the event that this Court were to allow the Commission's appeal, it would be in a position to remedy the harm cited by the Commission. The case would be sent back to the Tribunal and the matter would be reheard by another designated member. In my opinion, no irreparable harm will result if the application for stay is not granted.
[17] In Government of the Northwest Territories v. Public Service Alliance of Canada (2001), 33 Admin. L.R. (3d) 310, my colleague Sharlow J.A. had to determine whether there was cause to stay the proceedings in progress before the Canadian Human Rights Tribunal on a complaint of discrimination filed by the Public Service Alliance of Canada against the Government of the Northwest Territories (the government).
[18] As a result of the decision dated March 23, 1998, by the Honourable Madam Justice McGillis in Bell Canada v. C.T.E.A., [1998] 3 F.C. 244 (F.C.T.D.), in which she found that the lack of institutional independence of the Tribunal raised a reasonable apprehension of bias, the government asked the Tribunal to make a determination on this issue. In a decision dated December 4, 1998, the Tribunal found that as a result of amendments to the Canadian Human Rights Act, which came into force on June 30, 1998, there was no reason for concern about its institutional independence.
[19] After this decision by the Tribunal, the government filed an application for judicial review before the Federal Court that was dismissed on December 15, 1999, on the basis that the government did not have the requisite standing to file this application. The government then filed a notice of appeal to this Court.
[20] On November 10, 2000, after 76 days of hearing before the Tribunal, the government requested that the Tribunal stay the hearing until judgment had been rendered on its appeal. On November 14, 2000, the Tribunal dismissed the application for stay. At that point, the government asked this Court to stay the proceedings before the Tribunal. On January 10, 2001, Madam Justice Sharlow dismissed the application for stay on the grounds that no irreparable harm would result from the dismissal. In her opinion, the mere fact that a party is obliged to continue participating in a hearing already in progress could not constitute an incurable denial of its right to a fair hearing. At paragraphs 16 to 19, my colleague stated as follows:
[16] The second test requires me to consider whether a refusal of the stay would result in irreparable harm if the Government's appeal ultimately succeeds. Harm is irreparable if it cannot be cured or quantified in monetary terms: RJR-Macdonald (cited above) at page 341.
[17] The Government argues that its appeal, if successful, will finally establish that the Tribunal is institutionally incapable of providing it with a fair hearing, and if the stay is denied, its forced participation in Tribunal proceedings would be an incurable denial of its right to a fair hearing.
[18] I am unable to accept this argument, particularly in light of the decision of the Tribunal to adjourn the proceedings to await the outcome of this appeal after the evidence of the Commission and the PSAC is completed and before their case is closed (unless it is persuaded by counsel that the proceedings should continue). The Government has suggested no basis on which I can conclude that merely permitting the Commission and the PSAC to adduce the remainder of their evidence will cause irreparable harm to the Government. In this regard, I note that the Government has not argued that the manner in which it might conduct its cross-examination of the remaining witnesses for the Commission and the PSAC, or the manner in which it may deal with any evidentiary arguments, will depend on the legal effect of the guidelines.
[19] The Government also argues that if the stay is not granted but its appeal eventually succeeds, it will have wasted all of the time and money required to prepare for and attend the hearing (including travel to Ottawa, where most of the hearings are held), and will have no means of recovering the wasted funds. I am unable to agree that resources that may be wasted on litigation is irreparable harm: Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1997] 127 F.T.R. 44 at 56 (F.C.T.D.).
[21] The remarks by Rothstein J.A. in Director of Investigation and Research, Competition Act v. D & B Cos. of Canada Inc. (1994), 175 N.R. 306 are in the same vein as those made by Sharlow J.A. In that case, the appellant D & B asked this Court to stay the proceedings commenced by the Director of Investigation and Research before the Competition Tribunal seeking to demonstrate that the appellant was engaged in anti-competitive conduct. This Court, per Rothstein J.A., dismissed the motion for stay and stated, at paragraphs 28 and 30:
[28] I turn next to the irreparable harm test. Counsel for the respondent submits that, if the hearing proceeds as scheduled, the Tribunal may make findings and draw conclusions on the evidence before it which might be prejudicial to the respondent. He says that such findings may be recorded in the trade press and this could cause damage to the respondent's reputation. Further, he argues that if the case proceeds and the respondent is successful on appeal, the proceedings will be subject to serious disruption. Examinations and cross-examinations may be different. It may be necessary for the Tribunal to rehear the matter in its entirety with a differently constituted panel. Finally, he states that a favourable decision on appeal could be rendered nugatory.
[ . . . ]
[30] The issue of disruption to Tribunal proceedings is not one that, in my view, can be characterized as coming within the category of irreparable harm. It is true that there could be serious inconvenience but that is not of itself tantamount to irreparable harm. It may be that examinations and cross-examinations may change if the respondent is successful on appeal and further information is produced and the matter is reheard. However, again, this is a matter of inconvenience and not irreparable harm. Whenever a case is sent back for rehearing as a result of appeal or judicial review, the parties are in the same position. Such rehearings are a regular part of the judicial process; I cannot conclude that this case is in some way unique so as to cause irreparable harm to the respondent if indeed examinations and cross-examinations have to change. [My emphasis]
[22] In the case at bar, the Commission's position, as it is clearly apparent in paragraphs 40 to 42 of its written submissions, is that the mere fact of being forced to participate in a hearing that could be ruled invalid amounts to irreparable harm. I am unable to agree with this proposition. Nothing in the evidence before me or in the arguments put forward by the Commission has persuaded me that in this case the Commission and Ms. Caza will suffer irreparable harm if I do not grant the application for stay. As I indicated earlier, if the Commission's appeal is allowed, any harm that might be caused to the Commission and to Ms. Caza will be remedied by an order that will send the matter back to the Tribunal for rehearing before another designated member.
[23] For these reasons, the Commission's application for stay will be dismissed with costs.
"M. Nadon"
J.A.
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-362-03
STYLE OF CAUSE: CHRC v. Manon Malo et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 17, 2003
REASONS FOR HEARING: Nadon J.A.
DATE OF REASONS: December 3, 2003
APPEARANCES:
Daniel Chénard FOR THE APPLICANT
Nicola Dilorio FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Daniel Chénard FOR THE APPLICANT
Montréal, Quebec
Heenan Blaikie SRL FOR THE RESPONDENTS
Montréal, Quebec