Date: 20001129
Docket: A-698-00
CORAM: SHARLOW J.A.
BETWEEN:
COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION
OF CANADA
Moving Party/
Respondent
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondent/
Appellant
- and -
CANADIAN TELEPHONE EMPLOYEE ASSOCIATION
and FEMMES ACTION
Respondents
- and -
BELL CANADA
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1] The Communications, Energy and Paperworkers Union of Canada (CEP) seeks a stay of the order of Tremblay-Lamer J. of the Trial Division of this Court which prevents the continuation of hearings before the Canadian Human Rights Tribunal with respect to certain complaints made under the Canadian Human Rights Act, R.S.C. 1985, c. H-6, against Bell Canada by CEP, the Canadian Telephone Employees Association (CTEA) and Femmes Action.
[2] That decision is now under appeal. Counsel for the Attorney General of Canada appeared at the hearing of this motion to advise that the Crown in right of Canada intends to seek leave to intervene in the appeal.
[3] In May of 1996 the Canadian Human Rights Commission requested the appointment of a Tribunal to enquire into the complaints. A Tribunal was appointed in August of 1996 and proceedings commenced in October of 1996. Bell Canada brought a motion challenging the impartiality of the Tribunal, which was dismissed on June 4, 1997. Bell Canada sought judicial review of that decision (T-1257-97). On March 23, 1998, McGillis J. allowed the application for judicial review: [1998] 3 F.C. 244.
[4] The decision of McGillis J. was appealed but before the appeal was heard, the Canadian Human Rights Act was amended. On June 1, 1999, the Federal Court of Appeal ordered the appeal of the decision of McGillis J. to be adjourned sine die.
[5] A new Tribunal was appointed under the amended legislation and proceedings began anew before that Tribunal on April 17, 2000. On April 26, 1999, the Vice-Chairperson of the Tribunal issued an interim decision holding that the defects identified by McGillis J. had been cured by the new legislation. Bell Canada applied for judicial review of that decision. On November 2, 2000, Tremblay-Lamer allowed that application. She gave lengthy written reasons, but for present purposes I will refer only to her summary at paragraph 128:
| I conclude that the Tribunal's Vice-Chairperson erred in law and was not correct in determining that it [the Tribunal] was an institutionally independent and impartial body with respect to the power of the Commission to issue guidelines binding upon the Tribunal and the power of the Chairperson to approve the acting of a tribunal member after the expiry of his/her appointment to conclude a matter. |
[6] She quashed the interim decision and ordered a cessation of proceedings until the problems she had identified were corrected.
[7] As indicated above, the decision of Tremblay-Lamer J. has been appealed. The complainant CEP, supported by the complainant CTEA and the Commission, has moved for a stay of her decision so that the Tribunal can continue its work while the decision is under appeal. Bell Canada opposes the motion.
[8] The motion includes a request for an expedited hearing. Normally that would be heard at the same time as the motion for a stay. However, motions have been filed in other appeals to permit the joining of appeals on the basis that similar issues arise. Those motions are to be considered by the Chief Justice later today. The Chief Justice will deal at the same time with the motion for an expedited hearing in this matter.
[9] At the point at which the proceedings before the Tribunal were stopped, approximately four years had elapsed from the date of the initial complaint. That four year delay was due in large part to the successful challenge by Bell Canada to the impartiality of the first Tribunal.
[10] Before the new Tribunal, 36 days of hearings have been completed. The new Tribunal has heard all of the evidence of two witnesses and some of the evidence of a third witness for the Commission, which I understand has indicated its intention to two witnesses before completing its case in chief. There have been a number of interlocutory motions and judicial review applications relating to the proceedings before the new Tribunal.
[11] Because of the decision of Tremblay-Lamer J., approximately ten previously scheduled hearing dates have been lost. There will no doubt be further scheduling problems if the proceedings continue, but I infer from the material before me that the sooner it is known whether the proceedings will continue, the easier it will be solve those problems.
[12] In considering the motion for a stay I must apply the familiar tri-partite test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 312; Sauvé v. Canada (Chief Electoral Officer), [1997] 3 F.C. 643 (F.C.A.). I cannot grant a stay unless I am satisfied that there is a serious question to be tried (which in this case I read as a serious question to be considered in the appeal), that the party seeking the stay will suffer irreparable harm if the stay is not granted, and that the balance of inconvenience favours granting the stay.
[13] The first test requires a preliminary and tentative assessment of the grounds on which the appellants will argue that the decision of Tremblay-Lamer J. is incorrect. This is a low threshold. Having considered the arguments of the parties and reviewing the cases to which they referred me, I conclude that this first test is met.
[14] Irreparable harm is harm not susceptible or difficult to be compensated in damages. While the remedy sought in this case is monetary, the wrong alleged to have been suffered is a breach of a right granted under human rights legislation. Normally, a delay in the obtaining of a monetary remedy is not the kind of harm that is characterized as irreparable. I see no reason to find irreparable harm in this case merely because of the nature of the underlying right.
[15] The complainants argue that even if the remedy is monetary, there is irreparable harm in this case because any further delay in the resolution of the complaints makes it more and more likely that even if the complaints ultimately succeed, some individuals will be unable to collect. Because of corporate restructuring within Bell Canada and the time that has passed between the initial complaints and the present, some of the women who were Bell Canada employees with an expectation of sharing in any award that may be made by the Tribunal are now employees of Bell Canada subsidiaries, or have retired, taken severance packages or died. It is suggested that the complainants might lose contact with those individuals if the proceedings before the Tribunal are further delayed, which could preclude them from realizing on any remedy that is finally granted. It is also argued that these employees and past employees of Bell Canada are suffering stress because of the length of the proceedings. It is argued most forcefully that I must consider the cumulative effect of the delays to date, as well as the further delays that will occur if no stay is granted at this stage.
[16] Bell Canada does not dispute that there are changes in its corporate structure that have also resulted in the job changes described above, and that there have been resignations, retirements and deaths among the class of employees who are represented by the complainants. However, its evidence is that it is a relatively easy matter to find a current address for anyone who remains employed within the Bell Canada corporate group or who is in receipt of a Bell Canada pension, and that Bell Canada maintains current addresses for other past employees who wish to keep them apprised of that information.
[17] The complainants have indicated that although they represent the present and past employees of Bell Canada who should be entitled to a remedy under the Canadian Human Rights Act, they have not kept track of who those people are. No satisfactory explanation was offered to me as to why that is the case. The evidence before me does not persuade me that the risk that the complainants might lose track of the people they represent is the kind of irreparable harm that would justify a stay.
[18] In this regard, I am left only with the delay factor. I accept that the delay to date and the further delays that are inevitable if no stay is granted represent a source of stress to the present and past employees of Bell Canada. However, as I read the record, those delays are an inevitable consequence of the difficult legal issues that have arisen in the context of this complaint and the decision of Bell Canada to vigorously defend what it sees, and has seen from the outset, as its right to a fair hearing of the complaints. I am not persuaded that the delays, even considered cumulatively, are the source of irreparable harm.
[19] It is argued that the terms of the members of the Tribunal may expire before the proceedings are concluded. The term of Grant Sinclair expires on December 21, 2003, the term of Shirish Chotalia expires on December 15, 2001 and the term of Pierre Deschamps expires on February 8, 2002. Their terms may or may not be renewed to permit them to continue to sit. However, the evidence of Bell Canada indicates that even if the proceedings continue immediately, the proceedings in all likelihood will not be completed before the expiry of the current term of at least one of these members. I am not persuaded that the possible expiry of the terms of Tribunal members represents irreparable harm.
[20] The remaining two points raised in argument are, in my view, best considered under the heading of balance of inconvenience.
[21] First, it is argued that if the Tribunal is permitted to continue, the effect of the guidelines that were such an important aspect of the decision of Tremblay-Lamer J. will not be the subject of argument for many months, and therefore Bell Canada will not be prejudiced by the continuation of the evidence-gathering phase of the proceedings. However, Bell Canada argues that the manner in which it conducts its case, including its cross-examination of witnesses presented by the Commission and the complainants, will depend to some extent on the legal effect of the guidelines. If that is so, then as long as the legal effect of the guidelines remains unsettled, Bell Canada will be in the difficult position of having to conduct itself as though the guidelines may or may not prove to be binding on the Tribunal.
[22] Second, any assessment of the balance of convenience must take account of the public interest. The public interest, it is argued, would be served by permitting the Tribunal to fulfil its statutory mandate in a timely fashion. On the other hand, Bell Canada argues that I must also recognize the public interest in the constitutional value of the independence and impartiality of tribunals. In most cases in which a stay of proceedings is sought in the context of proceedings before tribunals, a party is seeking to stop the proceedings pending a decision on the merits. Here, a party is seeking to have proceedings resume in the face of a judicial determination of a fatal flaw in the governing statute. Bell Canada should not lightly be denied the benefit of that decision.
[23] Taking these factors into account, I am compelled to conclude that the balance of inconvenience favours denying the stay. For that reason, and because I am not persuaded that the irreparable harm test is met, the application for a stay of the order of Tremblay-Lamer J. is denied.
Karen R. Sharlow
J.A.