Date: 20040304
Docket: T-912-03
Citation: 2004 FC 318
Ottawa, Ontario, March 4, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
CORPORATION OF LOWER ST. LAWRENCE PILOTS, a Partnership
Applicant
and
JEAN BOUCHARD
and
ATTORNEY GENERAL OF CANADA
Respondents
and
CANADIAN HUMAN
RIGHTS COMMISSION
Intervener
REASONS FOR ORDER AND ORDER
[1] The applicant, by a motion under subsection 18(2) of the Federal Courts Act, R.S.C. 1985, c. F-7 and section 369 of the Federal Court Rules, requests that the Court order that the Canadian Human Rights Commission (Commission) stay its hearing of a complaint filed by the respondent Jean Bouchard pending final judgment by this Court on the application for judicial review filed by the applicant contesting the Commission's jurisdiction to hear the respondent's complaint.
[2] To succeed, the applicant must show that he meets the three tests stated in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110:
The first test is a preliminary and tentative assessment of the merits of the case. The traditional way consists in asking whether the litigant who seeks the interlocutory injunction can make out a prima facie case. A more recent formulation holds that all that is necessary is to satisfy the court that there is a serious question to be tried as opposed to a frivolous or vexatious claim. The "serious question" test is sufficient in a case involving the constitutional challenge of a law where the public interest must be taken into consideration in the balance of convenience. The second test addresses the question of irreparable harm. The third test, called the balance of convenience, is a determination of which of the two parties will suffer the greater harm from the grant or refusal of an interlocutory injunction, pending a decision on the merits.
THE PRIMA FACIE CASE
[3] Assuming without deciding, I note that some serious questions will have to be decided by the Court. The applicant therefore satisfies this first test.
IRREPARABLE HARM
[4] The respondent's complaint alleges employment discrimination against him and pilots aged 60 and over, because of their age.
[5] The applicant claims that the restriction for the pilots to not work as harbour pilots for the Port of Québec as of their 60th birthday is related to the safety of marine operations. The applicant adds that it is in the public interest that it not be placed in a situation where it must set aside, even temporarily, the safety regulations that it considers reasonable.
[6] According to the applicant, the complaint may prove to be moot and totally unnecessary if this Court rules in favour of the applicant. Efforts and monies invested in the hearing of the complaint would be lost, thereby bringing the administration of justice into disrepute.
[7] Besides the question of safety, the whole administrative and assignment system of the pilots should be reviewed in the event that the Commission decides in favour of the respondent, causing irreparable harm to the applicant. Other pilots now on duty or retired want to take advantage of the Commission's decision.
[8] There is no evidence in the record from a marine surveyor supporting the allegation of danger to navigation safety.
[9] It is not the constitutionality of the Human Rights Commission that is at issue in this case, but its jurisdiction to investigate pursuant to the complaint filed by the respondent. The principles of Southam Inc. v. Canada (Attorney General), [1991] 2 F.C. 292 (F.C.T.D.) do not apply.
[10] As for the possibility of multiple proceedings for other pilots, either on duty or retired, this is entirely hypothetical.
[11] Finally, I agree with paragraph 23 of the respondent's reply record, which refers to The Canadian Human Rights Commission v. Canada 3000 Airlines Limited, (May 10, 1999) T-795-99 (F.C.T.D.):
As to the second element of the test for a stay, I see no possibility of irreparable harm if the stay is not granted. If the Tribunal is allowed to complete its work, the resulting decision may be the subject of judicial review. Remedies are available to the Commission and to Mr. Nijjar for any possible error by the Tribunal in respect of the document in issue.
[12] As the applicant has not persuaded me that an irreparable harm would be caused to it, I do not intend to analyze the third element, the balance of inconvenience.
[13] The applicant's motion to stay proceedings is dismissed. The respondent will be entitled to his costs.
ORDER
THE COURT ORDERS that the applicant's motion to stay proceedings be dismissed and that the respondent be entitled to his costs.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-912-03
STYLE OF CAUSE: CORPORATION OF LOWER ST. LAWRENCE PILOTS, a Partnership
and
JEAN BOUCHARD AND THE
ATTORNEY GENERAL OF
CANADA
and
THE CANADIAN HUMAN RIGHTS
COMMISSION
WRITTEN MOTION WITHOUT APPEARANCE BY THE PARTIES
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Michel Beaudry
DATE OF REASONS: March 4, 2004
WRITTEN REPRESENTATIONS:
Pierre Cimon FOR THE APPLICANT
Charles Taschereau
Yann Duguay FOR THE RESPONDENT
(Jean Bouchard)
Johanne Boudreau FOR THE RESPONDENT
(Attorney General of Canada)
Andréa Wright FOR THE INTERVENER
SOLICITORS OF RECORD:
OGILVY RENAULT FOR THE APPLICANT
Montréal, Quebec
ÉTUDE LÉGALE GUY VAILLANCOURT FOR THE RESPONDENT
Québec, Quebec (Jean Bouchard)
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada (Attorney General of Canada)
Montréal, Quebec
ANDRÉA WRIGHT FOR THE INTERVENER
Ottawa, Ontario