Date: 20000620
Docket: T-756-00
Ottawa, Ontario, this 20th day of June 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
BELL CANADA
Applicant
- and -
CANADIAN TELEPHONE EMPLOYEES ASSOCIATION,
COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA, FEMMES ACTION
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
APPLICATION UNDER s. 18.1, Federal Court Act, R.S.C. 1985, c. F-7. as amm.
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] For a decade, Bell Canada ("Bell") and its employees, represented by the respondents" unions, have been grappling with the problem of pay equity. Individual and group pay equity complaints were made to the Canadian Human Rights Commission in 1991. In 1994, complaints of systemic violations of the pay equity provisions of the Canadian Human Rights Code ("the Code") were made. In 1996, these complaints were referred to a Tribunal appointed pursuant to the Code. In mid-2000, this application for judicial review of a ruling as to the admissibility of evidence is before the Court. The Court is advised that the Tribunal is hearing its second witness. By all appearances, pay equity claims are like education savings plans: they are investments made by one generation for the benefit of the next1.
[2] In 1988, pay equity was raised as an issue in collective bargaining between Bell and the respondent, Canadian Energy and Paperworkers Union of Canada ("CEP"), then known as the Communications and Electrical Workers Union of Canada. A committee of Bell and CEP representatives was established to review the issue. A similar committee of representatives of Bell and Canadian Telephone Employees Association ("CTEA"), another union which also represents Bell employees, was also established. In 1990-91, a committee representing all three parties was established to carry out a study on pay equity which came to be known as the Joint Pay Equity Study. That study, which was completed in 1992, revealed certain wage patterns which became the subject of bargaining in 1993.
[3] While this activity had been going on between management and labour, individual employees had filed complaints with the Canadian Human Rights Commission ("CHRC") alleging that Bell was violating section 11 of the Code which requires equal pay for work of equal value. Group complaints were then filed so that all employees in a class would receive the same treatment. As a result of the complaints, the CHRC was involved in the preparation of the study. The Joint Pay Equity Study did not deal directly with the complaints though it was intended that the study would be of assistance in resolving them. For various reasons, each of the three parties to the study wished to keep the data generated by the study confidential. As a result, the Terms of Reference of the study provide that the study material would not be released except with the consent of all the parties.
[4] In December 1992, the parties provided the CHRC, in its capacity as investigator of the individual and group complaints, with the Joint Pay Equity Study Final Report. The parties attempted to negotiate a solution to the patterns shown by the study but were unable to resolve the issue. The CHRC suggested conciliation pursuant to section 47 of the Code but Bell declined. However, all the parties agreed to mediation and in 1994, a mediator was appointed. The proceedings before the mediator were to be confidential and an agreement to that effect was signed by the parties. Bell provided the mediator with a series of documents prepared in the course of the Joint Pay Equity Study. It is these documents whose compellability is in issue in this motion.
[5] The mediation failed and in May of 1996, the CHRC referred the matter to a Human Rights Tribunal. Various challenges by way of judicial review were launched, decisions were rendered and appealed, legislation was amended, a new Tribunal was appointed; hearings into the complaints did not begin until January 1999. In August 1999, Bell moved before the Tribunal for an order excluding from evidence, on the ground of privilege, a large number of contested documents containing any oral or documentary evidence that was shared or generated during the Joint Pay Equity Study, as well as any oral or documentary evidence which violated the undertakings of confidentiality between the parties. The Tribunal received evidence on this issue in the form of affidavits, cross-examination upon affidavits and submissions arising from the documentary record. In a decision dated April 10, 2000, the Tribunal decided that the material in question was not privileged and could be put into evidence. Bell then launched this application for judicial review of the Tribunal"s decision.
[6] The Tribunal found that the intention of the parties, at the time of making the mediation agreement, was that documents submitted to the mediator would be treated as confidential for the purposes of the mediation and the CHRC investigation but were subject to disclosure if the complaints were referred to a tribunal. Bell rejects this contention and says that the material provided to the mediator had been treated as confidential by the parties and was intended to have the same protection as information provided to a conciliator, as set out in section 47(3)2 of the Code. Bell points to the documentary record where the Investigation Report with respect to the complaints acknowledges that the mediation process received the same protection as a conciliation. The Tribunal"s reasons show that it based its conclusion upon its acceptance of the evidence of Linda Wu, a representative of the respondent CEP, and that of Paul Durber, the Director of Pay Equity for CHRC at the time, which evidence qualified the documentary record.
[7] The respondents raised as a threshold issue the question of whether the application for judicial review is premature. They argued that rather than challenging individual rulings made by the Tribunal in the course of its hearings, the parties, in this case Bell, were bound to wait until the conclusion of the hearings before bringing an application for judicial review. The respondents relied upon a line of cases culminating with the decision of the Federal Court of Appeal in Zündel v. Citron, [2000] F.C.J. No. 678, (1999), 165 F.T.R. 113, in which the Court dealt with an appeal from a Trial Division decision disposing of two procedural rulings made in the course of hearings before a Human Rights Tribunal into a complaint about a website operated by Mr. Zündel. The Motions Judge heard the judicial review application on the ground that special reasons existed for him to do so.
[8] The Federal Court of Appeal disagreed. It stated the general rule as follows:
| As a general rule, absent jurisdictional issues, rulings made during the course of a tribunal proceeding should not be challenged until the tribunal's proceedings have been completed. The rationale for this rule is that such applications for judicial review may ultimately be totally unnecessary: a complaining party may be successful in the end result, making the applications for judicial review of no value. Also, the unnecessary delays and expenses associated with such appeals can bring the administration of justice into disrepute. For example, in the proceedings at issue in this appeal, the Tribunal made some 53 rulings. If each and every one of the rulings was challenged by way of judicial review, the hearing would be delayed for an unconscionably long period. |
[9] The Court of Appeal reviewed a number of cases where this principle had been stated or restated, an exercise which I need not repeat. The soundness of this principle is attested to by its pedigree and confirmed by common sense.
[10] Bell does not quarrel with the principle but says that there are jurisdictional issues raised in this application. In saying so, it relies upon the decision of the Supreme Court of Canada in Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471, (1993), 148 N.R. 209, and in particular, upon the following passage:
| An arbitrator does not necessarily commit a breach of the rules of natural justice, and therefore an excess of jurisdiction, when he erroneously decides to exclude relevant evidence. The arbitrator is in a privileged position to assess the relevance of evidence presented to him and it is not desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the arbitrator. An arbitrator commits an excess of jurisdiction, however, if his erroneous decision to reject relevant evidence has such an impact on the fairness of the proceeding that it can only be concluded that there has been a breach of the rules of natural justice. |
[11] Bell notes that Larocque, supra, concerns the exclusion of evidence while this is a case of inclusion of evidence sought to be excluded, but argues that the principle is the same. It says that the inclusion of the evidence for which it claims privilege will have such an impact on the fairness of the proceeding that it will amount to a breach of natural justice, which amounts to jurisdictional error.
[12] Bell"s argument turns upon an acceptance of Bell"s version of the facts as to the circumstances under which the documents were provided to the Commission. In Bell"s view, it was misled into believing that it was turning the documents over for a limited purpose and it is unfair to allow those who misled Bell to now take advantage of their wrongdoing. The Tribunal found otherwise.
[13] Quite apart from the issue of the Tribunal"s findings of fact, the principle in Larocque, supra, would not assist Bell since, in my view, there is a significant distinction between refusing to hear evidence and hearing evidence which is not admissible.
[14] In Larocque, supra, Lamer C.J.C. began his discussion of this issue with the following statement:
| The only rule of natural justice with which the Court is concerned here is the right of a person affected by a decision to be heard, that is, the audi alteram partem rule. The question is whether there is a breach of that rule whenever relevant evidence is rejected by a grievance arbitrator. In order to answer this question, we must determine whether judicial review should be available whenever an arbitrator errs, regardless of the seriousness of his error, in declaring evidence submitted by the parties to be irrelevant or inadmissible. (p. 488) |
[15] While it offends the rule audi alteram partem to fail to hear relevant evidence tendered by a party, it does not offend that rule to hear evidence to which objection is taken by a party. The rationale is that in the first case, the Tribunal is refusing to hear a party with respect to relevant evidence while in the second case, the party has been heard, even if its views have not prevailed. The reception of that evidence may subsequently give rise to an allegation that the Tribunal has acted on the basis of irrelevant considerations but only after the Tribunal has made a decision on the merits. To that extent, the principle in Larocque, supra, does not apply to this situation.
[16] Bell would argue that the issue is not whether the evidence is included or excluded, but whether the evidentiary ruling in question has the effect of making the process fundamentally unfair. In order to make that argument, Bell must set aside the Tribunal"s findings as to the content of the agreement between the parties. That is a question of fact. The effect of that agreement is a question of law. The standard of review for the latter is correctness. For the former, the standard of review is set out in section 18.1(4)(d ) of the Federal Court Act, R.S.C. 1985 c. F-7 which says that the Court can grant relief when findings of fact are made in a perverse or capricious manner or without reference to the material before the Tribunal. In this case, there was evidence before the Tribunal in the evidence of Linda Wu and Paul Durber, upon which the Tribunal could find as it did. Others might have found otherwise but that is not the test. If the findings of fact stand, as they must, Bell"s argument as to fundamental unfairness cannot succeed.
[17] Bell argued that the disclosure of the documents in question was a violation of the protection which the documents were to receive, which was the same as that provided to documents used in a conciliation as set out in section 47(3) of the Code. Bell also argued that the forced production of the documents was a violation of section 50(4) of the Code which preserves the privilege which would otherwise attach to the documents at common law. In other words, if a document was otherwise privileged, it was privileged for purposes of the Tribunal. Both of these positions depend upon a view of the facts which the Tribunal refused to adopt. As a result, there is no factual foundation for Bell"s legal arguments.
[18] It is instructive to return to the the Federal Court of Appeal"s treatment of rulings in Zündel :
| The rulings at issue in these appeals are mere evidentiary rulings made during the course of a hearing. Such rulings are made constantly by trial courts and tribunals and if interlocutory appeals were allowed from such rulings, justice could be delayed indefinitely. Matters like bias and a tribunal's jurisdiction to determine constitutional questions or to make declaratory judgments have been held to go to the very jurisdiction of a tribunal and have therefore constituted special circumstances that warranted immediate judicial review of a tribunal's interlocutory decision. By contrast, rulings made by a coroner refusing to permit certain questions to be asked have been considered not to result in the loss of jurisdiction sufficient to warrant immediate judicial review of an interlocutory decision. Similarly, in Doman v. British Columbia (Securities Commission), Huddart J. (as she then was) held that "the fact that an evidentiary ruling may give rise to a breach of natural justice is not sufficient reason for a court to intervene in the hearing process." |
Huddart J. added:
| I find support for that conclusion in the policy of the appeal courts not to review a judge's ruling under the Charter made during the course of a trial. Substantive rights are at stake, the trial judge can be wrong, evidence may be inadmissible, the decision may be overturned, a new trial may be required, but nothing should be allowed to interfere with the trial process once it has begun. |
| (Citations omitted and emphasis added) |
[19] As can be seen, the types of rulings which go to the Tribunal"s jurisdiction are other than "mere evidentiary rulings" even if they give rise to a breach of natural justice. There is a great deal of language in the reports which equates breach of natural justice with jurisdictional error. Whatever may be the case where judicial review is governed by common law (i.e. non-statutory) principles, this Court"s powers of judicial review are statutorily defined in the Federal Court Act and in particular, section 18.1(4) which sets out the grounds upon which this Court may grant relief. In the enumeration of grounds of review, lack of jurisdiction and breach of natural justice are treated as separate headings suggesting there may be instances of breach of natural justice which do not amount to lack of jurisdiction. There is nothing in the material before the Court which would lead to a conclusion of error going to the Tribunal"s jurisdiction.
[20] Counsel for the respondents argued that the bringing of this application for judicial review was an example of a practice which should be curbed. I was urged to apply sanctions in the form of an order of costs on a solicitor-client basis in order to make clear the Court"s disapproval of this practice. I am told that this is one of a number of judicial review applications being heard more or less simultaneously. If one is to judge by the volume of material filed in this application and the associated motion for an injunction, considerable resources have been consumed by this process. Something was made of the discrepancy in the economic positions of the parties but this is not in evidence before me.
[21] It is obvious that proceedings such as this hinder and delay the work of a body charged with discharging a statutory duty. However, in the absence of some evidence of an intent to delay or to wage litigation by attrition, I am not prepared to sanction Bell by the imposition of solicitor and client costs. But given the efforts to which the respondents were put, they shall have their costs at the high end of Column V, payable upon assessment.
ORDER
The application for judicial review of a decision with respect to a panel of the Canadian Human Rights Tribunal dated April 10, 2000 and received by the applicant, Bell Canada on April 11, 2000 is dismissed with costs to be assessed at the high end of Column V payable forthwith.
"J.D. Denis Pelletier"
Judge
__________________1 And like any investment, they may fail to bring a return. Nothing herein is to be taken as expressing an opinion upon the merits of the claim.
2 Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information.
Les renseignements recueillis par le conciliateur sont confidentiels et ne peuvent être divulgués sans le consentement de la personne qui les a fournis.