Federal Court of Appeal Decisions

     A-490-96

     (T-2077-93)

CORAM:      THE CHIEF JUSTICE

     MARCEAU J.A.

     DESJARDINS J.A.

B E T W E E N:

     THE CANADIAN HUMAN RIGHTS COMMISSION

     Appellant

     - and -

     THE GOVERNMENT OF THE NORTHWEST TERRITORIES

     and PUBLIC SERVICE ALLIANCE OF CANADA

     Respondents

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Ottawa, Ontario,

     on Wednesday, February 5, 1997)

MARCEAU J.A.

     The decision of the Trial Division under attack before us today has set aside an action taken by the Canadian Human Rights Commission (the "Commission) in the course of dealing with a complaint filed under the Canadian Human Rights Act (the "Act") by the Public Service Alliance of Canada (the "Alliance") against the Government of the Northwest Territories (GNWT). The three interested parties have filed appeals (the first one registered as the appeal, the two others as cross-appeals). Two issues are raised by these appeals: one is a jurisdictional issue, the question being whether the Act applies to GNWT; the other, a natural justice issue, the question being there was bias on the part of the Commission in its dealing with the complaint.

     Dealing first with the jurisdictional issue, we are of the view that it has no merit.

     It may be that the precise scope of the application of the Canadian Human Rights Act to acts and omissions within the Northwest Territories is unclear under section 63. But reading it in conjunction with subsection 66(1) of the Act leaves no doubt in our minds that the acts and omissions of the Government of the Northwest Territories are within the scope of the Act and, therefore, the Trial judge was correct in concluding that the complaint in issue is within the jurisdiction of the Commission to investigate and determine.

     It is our unanimous opinion, however, that on the second issue of bias the appeals of the Commission and the cross-appeal of the Alliance must succeed.

     The existence of a reasonable apprehension of bias must be determined on an objective, rational and informed basis. It is clear that a mere suspicion of bias is not sufficient; there must be some factual basis to sustain the allegation. It is equally clear that, pursuant to the Supreme Court of Canada decisions starting with that of Newfoundland Telephone¹ with respect to bias of tribunals and boards, there is a continuum of the degree of apprehension that must be present, depending on the nature of the functions of the tribunal or board. The continuum flows from the lenient "closed mind" standard with respect to administrative boards dealing with matters of policy or acting at the investigatory stage, to the strict "reasonable apprehension" test with respect to boards with adjudicative functions.

     Looking at the process involved, the purely administrative nature of any of the actions that the Commission may take on receiving the investigative report along with the comments and submissions of the parties; considering that those actions, even if called decisions, if other than one rejecting the complaint, are strictly preliminary and do not bear on the validity of the complaint or affect the rights of the parties, a situation which is particularly striking when all that is done, as here, is to send the complaint to the informal settlement oriented attention of a conciliator; considering also that the criticisms made in order to suggest bias are directed only at the investigators, we believe that the appropriate standard in this case is the more lenient "closed mind" test at the opposite ends of the spectrum from the strict "reasonable apprehension" test. We agree in this respect with the conclusion reached by the Saskatchewan Court of Appeal in Reimer.²

     There is no doubt in our minds that if the learned trial judge had really applied what we consider to be the right test before reaching her conclusion, she would have rejected the allegations of bias in respect of investigator Dallas as unequivocally as she did, under the strict test, in respect of investigator Sadler. There is not a shred of evidence on the record that would suggest that Dallas had predetermined the issue before her, or that she had a closed mind. The mere fact that she is a voluntary member of the Alliance, which in turn advocates pay equity, is certainly not a reason, in our view, to suggest, by itself, to a reasonable person that she would lack any objectivity in assessing whether pay equity was in place within the GNWT or she would go out of her way to form a conclusion that it was not.

     The Commission's appeal and the Alliance's cross-appeal on the bias issue should therefore be allowed with costs, and the decision of the Trial Division setting aside the Commission's decision to send the complaint to conciliation overturned.

     The GNWT's cross-appeal should be dismissed with costs.

     "Louis Marceau"

     J.A.

     A-490-96

     (T-2077-93)

CORAM:      THE CHIEF JUSTICE

     MARCEAU J.A.

     DESJARDINS J.A.

B E T W E E N:

     THE CANADIAN HUMAN RIGHTS COMMISSION

     Appellant

     - and -

     THE GOVERNMENT OF THE NORTHWEST TERRITORIES

     and PUBLIC SERVICE ALLIANCE OF CANADA

     Respondents

Heard at Ottawa, Ontario, on Wednesday, February 5, 1997.

Judgment rendered from the Bench on Wednesday, February 5, 1997.

REASONS FOR JUDGMENT OF THE COURT BY:      MARCEAU J.A.

     IN THE FEDERAL COURT OF APPEAL

     A-490-96

     (T-2077-93)

B E T W E E N:

     THE CANADIAN HUMAN

     RIGHTS COMMISSION

     Appellant

     - and -

     THE GOVERNMENT OF THE

     NORTHWEST TERRITORIES

     and PUBLIC SERVICE

     ALLIANCE OF CANADA

     Respondents

     REASONS FOR JUDGMENT

     OF THE COURT

__________________

¹      Newfoundland Telephone Co. Ltd. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623.

²      Reimer v. Saskatchewan (Human Rights Commission) (1992), 20 C.H.R.R. D/27 (Sask.C.A.)