T-1414-96
T-1985-96
T-2722-96
BETWEEN:
BELL CANADA
Applicant
- and -
COMMUNICATIONS, ENERGY AND PAPERWORKERS
UNION OF CANADA, CANADIAN TELEPHONE EMPLOYEES
ASSOCIATION AND FEMMES ACTION
Respondents
REASONS FOR ORDER
RICHARD J.:
Bell Canada seeks an interim order pursuant to section 18.2 of the Federal Court Act staying any further proceedings by the Canadian Human Rights Tribunal pending the final disposition of Bell Canada's judicial review applications in Court Files Nos. T-1414-96, T-1985-96 and T-2722-96.
BACKGROUND:
Between June 27, 1991 and June 21, 1994, the Canadian Telephone Employees Association (the "CTEA") filed five pay equity complaints with the Commission.
By Memorandum of Understanding dated April 26, 1991, the CTEA, the Communications, Energy and Paperworkers Union of Canada (the "CEP") and Bell Canada agreed to conduct a pay equity study covering the entire company. A Joint Committee was formed to perform this study. The final report of the Joint Committee was released on November 23, 1992 and found a substantial wage gap between male and female employees at Bell Canada.
After completing its investigation of the CTEA's pay equity complaints and other pay equity complaints against Bell Canada, the Commission released investigation reports in March 1994, May 1995 and November 1995. All of the parties made extensive submissions to the Commission with respect to the investigation reports.
On May 30, 1996, Bell Canada was informed of the Canadian Human Rights Commission's decision of May 27, 1996, to request the President to name a Tribunal to inquire into certain specified complaints brought by the respondents CTEA and CEP against Bell Canada alleging violations of section 11 of the Canadian Human Rights Act,1 (the "Act") by allegedly paying wages which discriminated on the basis of sex.
On June 14, 1996, Bell Canada began judicial review proceedings against this decision by the Commission. Among the grounds it relied upon where:
| - bias on the part of the Commission in that, among other matters, the Commission's investigator had solicited new complaints from the complainants during the course of her investigation, action incompatible with an unbiased (and neutral) investigation; |
| - the CTEA's and CEP's complaints were based on the wages they had freely bargained collectively with Bell; |
| - improper use by the Commission of documents provided to it by Bell on a confidential basis; |
| - the failure of the Commission to conduct any job to job study, such as is required to found a complaint under section 11 of the Act, and which alone could allow a reasonable inference that Bell had paid wages which discriminated on the basis of sex; |
| - requesting the President to name a single tribunal to hear a mass of vague and contradictory complaints against Bell, none of which identified specific jobs alleged to be of equal value as is required by section 11 of the Act, and which sought to compare different establishments over different time periods in a way which made it impractical for Bell to make a full answer and defence thereto as required by the rules of natural justice. |
After beginning its judicial review proceedings on June 14, 1996, in file T-1414-96, Bell Canada's solicitors informed the President on June 19, 1996, that it had begun judicial review proceedings of the Commission's decision of May 27, 1996, and requested her to refrain from naming a Tribunal pending the resolution of Bell Canada's judicial review application.
The President named a Tribunal to hear the complaints against Bell Canada on August 7, 1996.
Bell Canada's solicitors wrote to the President on August 14, 1996, alleging that her decision to name a Tribunal would be a legal nullity unless the Commission's decision of May 27, 1996, were upheld by the courts and requesting that the Tribunal take no steps prior to the resolution of Bell Canada's judicial review application in Court File No. T-1414-96.
On August 27, 1996, the deputy registrar of the Tribunal informed Bell Canada's solicitors by letter that the Tribunal intended to proceed with the complaints referred to it by the Commission regardless of Bell Canada's judicial review application.
Bell Canada brought a judicial review application dated September 6, 1996 against the President's decision of August 7, 1996 in Court File No. T-1985-96, on the basis that, since the Commission's request for her to name a Tribunal was a legal nullity, the naming of the Tribunal was necessarily a nullity.
The Tribunal held a hearing on October 23-24, 1996, on the question of adjourning its proceedings pending the resolution of Bell Canada's judicial review applications. It issued a decision on November 26, 1996, rejecting Bell Canada's request for an adjournment.
In the face of the decision by the Tribunal refusing to adjourn its proceedings pending the resolution of Bell Canada's two judicial review applications, Bell Canada brought a judicial review application on December 11, 1996 against the Tribunal's decision of November 26, 1996, in Court File No. T-2722-96.
The application for stay is brought in each judicial review application.
Bell Canada's allegations:
Bell Canada alleges that the Commission itself actively counselled the complainants in the various complaints against Bell Canada, suggesting the filing of new complaints and suggesting and accepting purported amendments to existing complaints which transformed them into new and untimely ones.
Bell Canada also alleges that the Commission's Investigation Report discloses information provided on a confidential basis during a mediation process engaged in by Bell Canada, the CTEA and the CEP between March and November 1994 in violation of the Commission's own undertaking. Bell Canada claims that such conduct by the Commission further demonstrates the bias vitiating its decision to request the naming of a Human Rights Tribunal.
Bell Canada claims that its judicial review applications in files T-1414-96 and T-1985-96 raise questions as to the sufficiency of the material relied on by the Commission in deciding to refer complaints against Bell Canada to the President and in deciding to deal with complaints against Bell Canada filed after the expiry of the one year time limit established by paragraph 41(e) of the Canadian Human Rights Act.
Bell Canada further alleges that its judicial review applications in files T-1414-96 and T-1985-96 against the Commission and the President raise additional serious questions to be tried. Among these are the issues of whether the Commission erred in not refusing to dismiss the complaints of the CTEA and CEP against the wages they had themselves freely negotiated in collective bargaining with Bell Canada and whether the Commission could lawfully refer the CEP's complaints to the President, when it had previously rejected the union's complaints of wage discrimination and had no evidence of any discriminatory wage increases before it.
Bell Canada alleges that the Tribunal erred in its decision of November 26, 1996, when it held that these grounds did not constitute a serious question to be tried. The Tribunal's decision appears to seek to pre-empt this Court in the exercise of its supervisory jurisdiction over federal tribunals in a manner, according to Bell Canada, that casts grave doubt upon the Tribunal's impartiality.
Bell Canada further claims that these issues are further reinforced by the scheme of the Canadian Human Rights Act, which permits the Commission to issue the Equal Wages Guidelines which purport to bind the Tribunal in its interpretation of section 11 of the Act upon which the CTEA and the CEP base their complaints. The resulting close institutional relationship between the Commission and the Tribunal raise serious concerns as to institutional bias affecting the Tribunal, particularly in the present circumstances.
ISSUE:
Whether a stay of proceedings before the Tribunal should be granted pending the final disposition of each of the three judicial review applications commenced by Bell Canada pursuant to s. 18.2 of the Federal Court Act.
PRELIMINARY SUBMISSION:
Bell Canada has questioned the jurisdiction of the Commission to appoint a Tribunal based on the conduct of the investigator and of the Commission and has alleged that the decision to appoint a Tribunal to inquire into the pay equity complaints is a nullity. Bell Canada claims that it is settled law that where a judicial review application raises issues going to the essence of an administrative tribunal's jurisdiction or of its constitution, then the courts will not hesitate to stay a tribunal's proceedings.2 I will deal with this preliminary submission by reviewing the scheme of the Act and the role and function of the investigator, the Commission and the Tribunal.
At the outset, it should be noted that Bell Canada does not challenge the Commission's jurisdiction or that of the Tribunal over the persons involved or the subject matter of its investigation. Bell Canada is a federal undertaking and there is no challenge to the constitutionality of the legislation.
The role and the function of the Canadian Human Rights Commission:
For our purpose, the relevant parts of the Canadian Human Rights Act are as follows:
Section 43:
Designation of investigator
| (1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint. |
Section 44:
Report
| (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation. |
Action on receipt of report
| (3) On receipt of a report referred to in subsection (1), the Commission |
| (a) may request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with section 49 to inquire into the complaint to which the report relates if the Commission is satisfied |
| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and |
| (ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or |
| (b) shall dismiss the complaint to which the report relates if it is satisfied |
| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or |
| (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e). |
Section 49:
Human Rights Tribunal
| (1) The Commission may, at any stage after the filing of a complaint, request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal, in this Part referred to as a "Tribunal", to inquire into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted. |
President to appoint Tribunal
| (1.1) On receipt of a request under subsection (1), the President of the Human Rights Tribunal Panel shall appoint a Tribunal to inquire into the complaint to which the request relates. |
Section 50:
Duties
| (1) A Tribunal shall, after due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the Tribunal, any other interested party, inquire into the complaint in respect of which it was appointed and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear before the Tribunal, present evidence and make representations to it. |
In Bell v. Canada (Canadian Human Rights Commission) and Cooper v. Canada (Canadian Human Rights Commission),3 the Supreme Court of Canada examined the role of the Canadian Human Rights Commission under the Canadian Human Rights Act, its constitutive Act. The Supreme Court came to the conclusion that, looking at the Act as a whole, the role of the Commission was to deal with the intake of complaints and to screen them for proper disposition. Mr. Justice La Forest wrote as follows:
| The Act sets out a complete mechanism for dealing with human rights complaints. Central to this mechanism is the Commission. There is no provision in the Act which explicitly gives the Commission power to determine questions of law and nothing in the scheme of the Act implies that the Commission has this power. Looking at the Act as a whole, the role of the Commission is to deal with the intake of complaints and to screen them for proper disposition. The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. The Commission's striking down s. 15(c) of the Act (which is what a referral to a tribunal would amount to) would be an assumption by the Commission of an adjudicative role for which it has no mandate. Administrative bodies and tribunals are creatures of statute; the will of the legislature as it appears in that statute must be respected. The role of the Commission as an administrative and screening body, with no appreciable adjudicative role, is a clear indication that Parliament did not intend the Commission to have the power to consider questions of law. |
In Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission),4 Sopinka J. wrote as follows:
| Section 36(3) provides for two alternative courses of action upon receipt of the report. The Commission may either adopt the report "if it is satisfied" that the complaint has been substantiated, or it may dismiss the complaint if "it is satisfied that the complaint has not been substantiated". If the report is adopted, I presume that it is intended that a tribunal will be appointed under s. 39 unless the complaint is resolved by settlement. |
Mr. Justice Dubé, in Miller v. Canada (Canadian Human Rights Commission),5 described the process following a complaint as follows:
| Subsection 40(1) of the Act provides that complaints may be filed by any individual or group of individuals having reasonable grounds for believing that a person has engaged in a discriminatory practice. Thus, an employee of the Commission is included. Under section 41, the Commission is obligated to deal with complaints over which it has jurisdiction and which are not frivolous, vexatious or made in bad faith. Section 43 provides that the Commission may designate an "investigator" who shall investigate a complaint in a manner authorized by regulations (no regulations have been promulgated as yet). Subsection 44(1) stipulates that the investigator shall, after the conclusion of an investigation, submit to the Commission a report of his findings. Under subsection 44(3), the Commission is obligated to dismiss the complaint if satisfied that, having regard to all the circumstances, an inquiry into the complaint is not warranted. Alternatively, it may request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal ("the Tribunal"), in accordance with section 49, to inquire into the complaint when satisfied that the circumstances so warrant. |
| Thus, subsection 44(3) confers a very broad discretion on the Commission to either dismiss a complaint or refer it to a Tribunal. As master of its own process, the Commission is mandated to weigh the evidence and to determine whether there is a reasonable basis for proceeding to the next stage. In the SEPQA decision, the Supreme Court has held that such a determination is part of the "investigatory" or "administrative" phase of the processing of a complaint and thus is not required to be made on a "judicial" or "quasi-judicial" basis. The Commission does not have to follow the whole panoply of the formal rules of natural justice, but it must adhere to the rules of procedural fairness in carrying out its determination. The Commission must inform the parties of the substance of the evidence secured by the investigator which was placed before the Commission. It must also provide the parties with the opportunity to respond and make all relevant representations. |
Deference:
In dealing with complaints, the Commission must assess the probative value of evidence and decide to further investigate or not. In Boahene-Agbo v. Canada (Canadian Human Rights Commission),6 Mr. Justice Teitelbaum wrote as follows:
| In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant's and respondent's interests in procedural fairness and the CHRC's interests in maintaining a workable and administratively effective system ... |
| Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554. |
| In contexts where parties have the legal right to make submissions in response to an investigator's report, such as in the case at bar, parties may be able to compensate for more minor omissions by bringing such omissions to the attention of the decision maker. Therefore, it should be only where complainants are unable to rectify such omissions that judicial review would be warranted. Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator's omissions would include: (1) where the omission is of such fundamental nature that merely drawing the decision maker's attention to the omission cannot compensate for it or (2) where fundamental evidence is inaccessible to the decision maker by virtue of the protected nature of the information or where the decision maker explicitly disregards it. |
In Canadian Broadcasting Corp. v. Canadian Human Rights Commission et al.,7 this Court held that in exercising its discretion under paragraph 41(e), the Commission owes a duty of fairness to those potentially affected by its decision. In that case, the Court found that the complainant was entitled by law to have the Commission examine all the circumstances surrounding her late filed claim and determine whether it ought to be investigated. In the circumstances of that case, the Court ordered the Commission to make a decision as to whether the time-barred complaint should be investigated on the basis of all relevant facts.
The Commission is the master of its own procedure and judicial review of an allegedly deficient investigation or decision is only warranted where such investigation or decision is clearly deficient.8 In Selvarajan v. Race Relations Boards,9 Lord Denning gave the following reasons:10
| In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion.... In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. |
The Tribunal is entitled to make procedural rulings such as whether to adjourn its proceedings without having those decisions subject to judicial review. In Re Cedarvale Tress Ltd.11, the Ontario Court of Appeal wrote as follows:
| In my view there is an important distinction to be made between (i) the laying down of guidelines by the Court for the direction of persons who seek to invoke the jurisdiction of the Court, as to when and how they may do so when they seek to attack orders made by administrative tribunals as being in excess of or without jurisdiction, on the hand, and (ii) the laying down of guide lines as to the procedures to be followed by those tribunals themselves when an objection to their jurisdiction is made to them. The former is a proper exercise of the Court's function in relation to its own process. The latter, when directed to the processes of an administrative tribunal which has been given exclusive jurisdiction in its own field, is in my view not only unwise but unwarranted. It was pointed out by Wright, J., in the instant case, after reviewing various sections of the Labour Relations Act, that "the Board is supreme in its field and is free to exercise its supremacy on whatever evidence it chooses and, subject to a full right of audience, in whatever way it chooses" [p.385 O.R., p.415 D.L.R.]. He went on to observe, and rightly so, that the Supreme Court of Ontario retains its jurisdiction to act where it is made to appear that this Board, or any other administrative tribunal, has exceeded its jurisdiction. Notwithstanding his recognition of the Boards "supremacy", he then set forth his views as to how the Board should proceed. |
| It is clear to me that under the Labour Relations Act the Board is master of its own house not only as to all questions of fact and law falling within the ambit of the jurisdiction conferred upon it by the Act, but with respect to all questions of procedure when acting within that jurisdiction. In my view, the only rule which should be stated by the Court (if it be a rule at all) is that the Board should, when its jurisdiction is questioned, adopt such procedure as appears to it to be just and convenient in the particular circumstances of the case before it. |
Bias:
The applicant has also raised the issue of bias or impartiality. The Supreme Court formulated this test in Newfoundland Telephone Company Ltd. v. The Board of Commissioners of Public Utilities12: "The test is whether a reasonably informed bystander could reasonably perceive a bias on the part of an adjudicator".13 The standard of conduct which is applicable to those performing an adjudicative function is different from those performing a purely administrative or investigative function. In the case of an administrative or investigate function, the standard is not whether there is a reasonable apprehension of bias on the part of the investigator, but rather whether the investigator maintained an open mind, that is whether the investigator has not predetermined the issue.
This test was recently used by Dubé J. in Miller v. Canada (Canadian Human Rights Commission).14 Dubé J. wrote as follows:
| The basic test to insure fairness and to avoid a reasonable apprehension of bias has been enshrined in the jurisprudence15 : it is whether reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information, would perceive bias on the part of an adjudicator. The grounds of apprehension must be substantial. Mere suspicions are not sufficient. |
Based on the nature of Bell Canada's challenge to the appointment of the Tribunal, and upon reviewing the scheme of the Act and the role and function of the investigator, the Commission and the Tribunal, I have concluded that the Court should not intervene at this stage. The preliminary submission of Bell Canada is rejected. The motion for a stay of proceedings must therefore be determined in accordance with the three-stage test for the granting of a stay of proceedings.
STAY OF PROCEEDINGS - THE APPLICABLE TEST:
A stay of proceedings and an interlocutory injunction are remedies of the same nature and they have sufficient characteristics in common to be governed by the same rules16. Accordingly, the three-stage test set for the granting of interlocutory injunctions should be applied to applications for stays.17 In Whirlpool Corp. and Inglis Ltd. v. Camco Inc. and General Electric Co.18, I reviewed this test:
| On an application for an interlocutory injunction, the three-part American Cyanamid19 test (adopted in Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.20) should be applied21. The factors to be considered are as follows: |
| - At the first stage, the applicant must demonstrate a serious question to be tried. Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits. A motions' court should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action. Unless the case on the merits is frivolous or vexatious, a judge on a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores22 test. |
| - At the second stage, the applicant must convince the court that it will suffer irreparable harm if the relief is not granted. "Irreparable" refers to the nature of the harm 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; where one party will suffer permanent market loss or irrevocable damage to its business reputation; or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined. 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. Proof of irreparable harm must be clear and not speculative23. |
| - The third stage, called the balance of convenience, involves a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits. It has also been referred to as the balance of inconvenience. The factors which must be considered in assessing the balance of convenience and the relative weight to be attached to them are numerous and will vary in each individual case. |
| In the RJR-MacDonald24 case, Justices Sopinka and Cory, on behalf of the Court, noted that in the course of discussing the balance of convenience in American Cyanamid, Lord Diplock stated that when everything else is equal, "it is counsel of prudence to ... preserve the status quo". They stated that this approach would seem to be of limited value in private law cases. |
I will now apply these principles to this case.
Serious Question to be Tried:
The Supreme Court of Canada has held in the RJR-MacDonald case25 that the threshold to satisfy the test of a serious question is a low one.
Since this application for a stay can be disposed of on the ground that Bell Canada has not satisfied the test of irreparable harm or balance of convenience, I am prepared, for the purpose of this stay application only, to assume, without deciding, that the application for judicial review in Court File No. T-1414-96 raises a serious question to be tried. The judicial review in Court File No. T-1985-96 of itself, does not raise any additional question and appears to be entirely dependent on the outcome of the application in Court File No. T-1414-96. Based on the material before me, the allegation of apprehended bias on the part of the Tribunal made by Bell Canada in Court File No. T-2722-96 does not raise a serious question to be tried. It is a bare, unsubstantiated claim which appears to rest only on Bell Canada's disagreement with the decision the Tribunal reached in disposing of its application for an adjournment. Bell Canada's allegation of institutional bias does not, in my opinion, raise a serious question either. The adoption of guidelines is contemplated and authorized by statute. The remaining allegations in Court File No. T-2722-96 also seem to be dependent on the outcome of the application for judicial review in Court File No. T-1414-96.
Irreparable Harm:
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 stay 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.
| 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.). |
Accordingly, the applicant Bell Canada does not satisfy the second stage of the test.
Balance of Convenience:
In arriving at a decision on to the balance of convenience, the Court must consider the public interest in having complaints of discrimination dealt with expeditiously.28 The pay equity provisions are part of the Canadian Human Rights Act, a public statute which has been referred to by the Supreme Court of Canada as quasi-constitutional. The Commission and the complainants hear the onus of proof before the Tribunal. Bell Canada has the right to be represented by counsel, to cross-examine witnesses and to call evidence and make submissions on its own behalf. Any substantive issues can be raised before the Tribunal.
The affidavit evidence indicates that the potential recipients of pay equity adjustments have already waited six years since the joint pay equity study commenced at Bell Canada which identified significant wage gaps between male-dominated and female-dominated groups. In the meantime, many employees have ceased to be employed by Bell Canada, have taken buy outs, have died and have retired. It will be very difficult for those employees who have left and who continue to leave Bell Canada to receive any money which would be owed to them as a result of pay equity adjustments. Every day that passes, it becomes more difficult to locate these employees and more employees leave.
I do not believe that this is in the public interest to delay proceedings before the Tribunal. As McKeown J. stated in Federation of Women Teachers' Association v. Ontario Human Rights Commission,29 the role of the Commission as representing the public interest must be considered when deciding whether to stay its proceedings. As a matter of balance of convenience, taking into account the public interest, and the interest of the complainants, no stay should be granted30.
Therefore, the third part of the test favours the respondents.
CONCLUSION:
Accordingly, the motion by Bell Canada to stay the proceedings of the Tribunal pending the final disposition of each of its applications for judicial review, in Court Files Nos. T-1414-96, T-1985-96 and T-2722-96, is dismissed.
__________________________
Judge
Ottawa, Ontario
February 21, 1997
__________________2 Pfeiffer v. Redling, unreported, May 2, 1996, no. T-2127-95 (F.C.T.D.) at p. 8.
Great Atlantic & Pacific Tea Co. of Canada Ltd. v. Ontario (Human Rights Commission) (No. 2) (1993), 18 CHRR D/89 (Ont. Div. Ct.) at D/94-96.
Re Law Society of Upper Canada v. Canada (Attorney General) (1996), 28 O.R. (3d) 460 (Gen. Div.) at pp. 467-469.
International Association of Machinists v. Air Canada, supra, at 208-9.
Ontario College of Art v. Ontario (Human Rights Commission) (No. 1) (1992), 19 C.H.R.R. D/195 (Ont. Gen. Div.) at D/198.
3 (1996) 140 D.L.R. (4th) 193 (S.C.C.).
4 [1989] 2 S.C.R. 879, at pp. 898-899.
5 (1996) F.T.R. 195, May 29, 1996.
8 Miller v. Canada (Canadian Human Rights Commission), (1996) F.T.R. 195, May 29, 1996, Dubé J.
9 (1976) 1 All. E.R. 12 (C.A.) at. p. 19.
10 See also Canada (A.G.) v. Mossop, [1993] 1 S.C.R. 554; Slattery v. Canada (Canadian Human Rights Commission), [1994] 2 F.C. 574.
11 (1971) 22 D.L.R. (3d) 40 (Ont. C.A.).
12 [1992] 1 S.C.R. 623, at p. 636.
13 This test was also used by the Federal Court of Appeal in Arthur v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 94; (1992) 98 D.L.R. (4th) 254; (1992) 147 N.R. 288; (1992) 18 Imm. L.R. (2d) 22.
14 (1996) F.T.R. 1995, May 29, 1996.
15 Dubé J. refers to the following authorities:
Committee for Justice and Liberty v. National Energy Board et al., [1978] 1 S.C.R. 369, at p.p. 394- 395; Re. W.D. Latimer Company Limited and Bray (1974) 52 D.L.R. (3d) 161, at p. 170 (Ont. C.A.); Vezina v. Canada (Canadian Human Rights Commission), [1992] 3 F.C. 675, at p. 680.
16 Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.
17 RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311. National Bank of Canada v. Granda, [1984] 2 F.C. 249 (C.A.) at p. 255. International Association of Machinists v. Air Canada, (1991) 44 F.T.R. 206, at pp.208-209.
18 (1996) 105 F.T.R. 268. (1996) 65 C.P.R. (3d) 63.
19 American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.).
21 RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
23 Nature Co. v. Sci-Tech Educational (1992), 41 C.P.R. (3d) 359 at 367.
24 RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 SC.R. 311, at p.347. I note that there are additional considerations of public interest involved in Charter matters.
26 Brocklebank v. Canada (Minister of National Defence), (1994) Court File No. T-2333-94, October 13, 1994, Rothstein J., 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.
28 Federation of Women Teachers' Associations of Ontario v. Ontario Human Rights Commission, (1989), 67 O.R. (2d) 492 at p. 518 (Div. Ct.).
30 Federation of Women Teachers' Association of Ontario v. Ontario Human Rights Commission, (1989) 10 C.H.R.R. D/5877 (Ont. Div. Ct. per McKeown J.).