Federal Court Decision

RE:  Canadian Human Rights Commission v. Canadian Telephone Employees Association et al., Federal Court of Appeal, [2001] 3 F.C. 481

SUMMARY:  The power of the Chairperson to allow a Tribunal member whose appointment would expire during the hearing to continue to sit until the conclusion of the case does not infringe judicial independence.

Procedural background

On May 24, 2001, the Federal Court of Appeal allowed an appeal from a decision of the Trial Division of the Federal Court and dismissed Bell Canada’s application for judicial review alleging that the Human Rights Tribunal was not an independent and impartial tribunal.

The judicial review application originated in a number of wage disparity complaints filed by Bell Canada employees with the Canadian Human Rights Commission in 1996. The case went before a Human Rights Tribunal. Bell Canada challenged the Tribunal’s institutional independence.

In an initial decision, the Federal Court held that the tribunal’s review of the complaints gave rise to a reasonable apprehension of bias because of the Commission’s power to issue guidelines which governed the tribunal’s hearing of a particular case. The Court also held that the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (hereinafter the Act) did not provide sufficient security of tenure to the members because the possibility for a member whose mandate would expire during a hearing to continue to sit until the end of the hearing depended exclusively on the discretionary decision of the Minister of Justice. Finally, the Court held that the Act did not provide a sufficient guarantee of financial security because the remuneration of the tribunal members was determined by the Commission, which is a party in all cases submitted to the tribunal’s review. The Court therefore barred the tribunal from continuing to hear the case until statutory amendments were made to remedy the issues of bias, security of tenure and financial security.

In 1998 the Act was amended to address the concerns raised by the Federal Court. In regard to the power of a member whose mandate would expire during a hearing to continue to sit until the case was concluded, the statutory provision that was adopted reads as follows:

48.2(2) A member whose appointment expires may, with the approval of the Chairperson, conclude any inquiry that the member has begun, and a person performing duties under this subsection is deemed to be a part-time member for the purposes of sections 48.3, 48.6, 50 and 52 to 58.

The other amendments provided that guidelines adopted by the Commission were binding on the tribunal only for specific classes of cases and not in a particular case. In regard to the remuneration of the members, this is now fixed by the Governor in Council.
In 1999, the vice-chairperson of the Human Rights Tribunal rendered a decision holding that the issues of bias and institutional independence were now settled. Bell Canada disputed the decision of the Vice-chairperson of the Tribunal in another application for judicial review that again dealt with guidelines, remuneration and the extension of appointment.
 
Federal Court Trial Division

The Trial Division held that the amendment providing that Commission guidelines bind the tribunal only in specific classes of cases and not in a particular case did not dispose of the issue, since the guidelines were still mandatory. The Court concluded, however, that the amendment placing remuneration of tribunal members under the Governor in Council did meet the financial security test. But in the Court’s view, the amended subsection 48.2(2) dealing with the extension of members’ appointments still created an apprehension of institutional bias since it was not a sufficient guarantee of the members’ security of tenure.

Madam Justice Tremblay-Lamer, citing case law to this effect, noted that the principle of institutional independence requires that the actual structure of the tribunal guarantee the independence of its members. In this case, she thought, the problem lay not so much in how the discretionary authority of the tribunal Chairperson was exercised as in the very existence of that authority. The mere fact that a member’s ability to continue to sit until the conclusion of the case was subordinated to the Chairperson’s discretionary authority infringed the institutional independence of the tribunal. And since it was a tribunal exercising a purely decision-making role in regard to rights of a quasi-constitutional nature, Tremblay-Lamer J. thought the necessary degree of independence had to be increased. In her opinion, only an objective guarantee of security of tenure would provide the requisite protection for the member in question and the serenity needed to render a decision without duress. She noted, for example, that the status of members of the Competition Tribunal provides an objective guarantee of security of tenure in that the Tribunal’s incorporating Act provides that a person may continue to act as a member of the Tribunal after the expiration of his or her term of appointment in respect of any matter in which he or she became engaged during the term of his appointment.

The Canadian Human Rights Commission appealed this judgment to the Federal Court of Appeal.

Federal Court of Appeal

On the issue of the mandatory nature of the guidelines adopted by the Commission, Mr. Justice Stone, on behalf of his colleagues Justices Létourneau and Rothstein, was of the opinion that the Commission’s ability to influence the decision-making process in a particular case had now been essentially removed. Since the guidelines apply generally and impersonally to some classes of cases, they are less likely to give rise to a reasonable apprehension of institutional bias. Consequently, the fact that the functions exercised by the Commission as a party to a complaint overlap with those it exercises in its guideline-making capacity does not give rise to a reasonable apprehension of bias, since the Commission adopts guidelines in its capacity as an expert body fulfilling a number of different functions relating to the administration of the Act, and not as a party to a complaint.

On the issue of the members’ term of appointment, Stone J.A. noted that the Chairperson is  appointed by the Governor in Council for a term of not more than seven years to hold office during good behaviour and is removable only for cause. The Chairperson is the chief executive of the Tribunal and, as such, is responsible for the supervision and direction of its work including the allocation of work among the members and the management of the Tribunal’s internal affairs. Stone J.A. found, therefore, that the Chairperson could not be removed without cause because of decisions made by him or her in the performance of his or her duties. He noted that if the Chairperson were to abuse his or her power in extending or refusing to extend the appointment of a Tribunal member for reasons wholly extraneous to the proper administration of the Tribunal, his or her decision would be reviewable in the Federal Court. As a practical matter, he added, it is of no advantage to the Tribunal if the Chairperson refuses to extend a member’s appointment in appropriate circumstances. The credibility of the Tribunal, and by extension of its Chairperson, would inevitably suffer given the considerable time it may take to hear a case. Stone J.A. thought, therefore, that the Chairperson’s authority was sufficiently insulated from the executive as to not give rise to a reasonable apprehension of institutional bias.

Stone J.A. allowed the appeal and dismissed Bell Canada’s application for judicial review alleging that the Human Rights Tribunal was not an independent and impartial tribunal.

Prepared by: Véronique Joly, Counsel, Canadian Transportation Agency