City of Yellowknife v A.B. et al, 2017 NWTSC 63
S-1-CV-2016-000101
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF the Human Rights Act,
S.N.W.T. 2002, c.18, as amended;
AND in the MATTER OF the Decision of the Adjudicator
of the Human Rights Adjudication Panel, No. 11-12 dated
December 14, 2016
BETWEEN:
THE MUNICIPAL CORPORATION OF
THE CITY OF YELLOWKNIFE
Appellant
- and -
A.B.
Respondent
- and -
THE NORTHWEST TERRITORIES
HUMAN RIGHTS COMMISSION
Respondent
__________________________________________________________
Transcript of the Oral Decision delivered by The Honourable
Justice S. H. Smallwood, sitting in Yellowknife, in the
Northwest Territories, on the 3rd day of August, 2017.
__________________________________________________________
APPEARANCES:
Ms. M. Theriault: Counsel for the Appellant
Mr. G. Rutland: Counsel for the Respondent, A.B.
Ms. A. Akgungor: Counsel for the Respondent, The NWT
Human Rights Commission
Ms. C. Levy: Counsel for the Human Rights
Adjudication Panel
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1 THE COURT: Good morning.
2 So the Appellant, the Municipal Corporation
3 of the City of Yellowknife has appealed the
4 decision of an adjudicator in the hearing of
5 A.B.'s human rights complaint. The appeal itself
6 is scheduled to be heard on December 6th to 7th,
7 2017.
8 This is a matter which arose from the
9 pre-hearing conference and was dealt with in
10 regular Chambers on July 14th, 2017, and concerns
11 the extent to which the Northwest Territories
12 Human Rights Adjudication Panel can participate
13 in the appeal.
14 The Respondent, A.B., filed a complaint with
15 the Respondent, Northwest Territories Human
16 Rights Commission, alleging discrimination on the
17 basis of family status by the Appellant,
18 Municipal Corporation of the City of Yellowknife.
19 The hearing was conducted before an
20 adjudicator in November 2015, a decision on the
21 merits was issued in April 2016, and a decision
22 on remedy in December 2016.
23 The adjudicator found that the City of
24 Yellowknife had subjected A.B. to discrimination
25 on the basis of family status and had not met its
26 duty to accommodate.
27 The City of Yellowknife appealed the
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1 decisions of the adjudicator in May 2016 and
2 January 2016. The two appeals were consolidated
3 into a single proceeding by an Order of the Court
4 in February 2017.
5 Pursuant to Rule 604 of the Rules of the
6 Supreme Court of the Northwest Territories, a
7 pre-hearing conference was held on June 9, 2017.
8 At the pre-hearing conference, counsel for the
9 City of Yellowknife, A.B., the Human Rights
10 Commission, and the Human Rights Adjudication
11 Panel were present. At the pre-hearing
12 conference, counsel for the City of Yellowknife
13 raised an objection to the participation of the
14 Human Rights Adjudication Panel in the appeal.
15 The position of the City was that if the Panel
16 was going to participate, they were required to
17 seek leave of the Court to be added as a party,
18 and the City also raised concerns with the Panel
19 making submissions on the standard of review.
20 The Adjudication Panel wants to participate
21 in the appeal and indicated that it wanted to
22 make submissions on jurisdiction and standard of
23 review and felt that it was not necessary to be
24 added as a party based on the practice in this
25 jurisdiction. A.B. and the Human Rights
26 Commission took the position that there was no
27 need for the Panel to become a party and there
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1 was no concern with the Panel participating and
2 making submissions on jurisdiction and standard
3 of review.
4 At the pre-hearing conference, Justice
5 Charbonneau framed the issues to be decided in
6 Chambers as follows: One, whether the Human
7 Rights Adjudication Panel is required to be named
8 as a Respondent in order to participate in the
9 appeal; two, if they are permitted to
10 participate, would the Human Rights Adjudication
11 Panel be permitted to make submissions on the
12 standard of review.
13
14 The Position of the Parties
15 The position of the City of Yellowknife is
16 now somewhat different than expressed at the
17 pre-hearing conference. The City is not opposed
18 to the Human Rights Adjudication Panel making
19 submissions on the standard of review in addition
20 to jurisdiction. Their position has not changed
21 that the Adjudication Panel should be named as a
22 party on the appeal and that the Panel is
23 responsible for seeking leave to participate as a
24 party. The only issue then is whether the Human
25 Rights Adjudication Panel is required to be named
26 as a Respondent in order to participate in the
27 appeal.
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1
2 Law
3 Part 44 of the Rules of the Supreme Court of
4 the Northwest Territories deal with judicial
5 review and appeals. Rule 596 states:
6 A tribunal named as a respondent in
an application for judicial review
7 or appeal shall seek leave and
directions from the Court where it
8 seeks to participate at the hearing
of the application or appeal, unless
9 the tribunal is already permitted to
do so by its enabling statute.
10
11 In this case, the tribunal has not been
12 named as a Respondent.
13 Rule 595 states that anyone directly
14 affected by the relief sought in the judicial
15 review or appeal or required to be named as a
16 party to the judicial review or appeal under a
17 statute shall be named as a Respondent by an
18 Applicant, and Rule 597 permits a person who can
19 demonstrate that they are directly affected by
20 the proceeding, that they can apply to take part
21 in the proceeding.
22 There is nothing in the Human Rights Act or
23 the Rules which require the Human Rights
24 Adjudication Panel to be named as a party in this
25 appeal and the tribunal is not directly affected
26 by the appeal. In this situation, the Rules are
27 silent on the participation of a tribunal in an
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1 appeal when it is not required to be named as a
2 party.
3 The Rules of Court govern the Court's
4 procedure and ideally would be comprehensive;
5 however, it unrealistic to expect that the Rules
6 could address every situation, and this is
7 acknowledged in the Rules. Rule 4 provides that
8 the Court can specify a procedure which is not
9 inconsistent with the Rules or any statute where
10 a provision for the exercise of a right is not
11 included in the Rules.
12 The Rules of Court are also supplemented by
13 the issuance of practice directions by the Court
14 and by the development of case law. In this
15 sense, the Rules of Court are comprehensive
16 because where the Rules are silent, the Court is
17 able to determine a procedure having reference to
18 the general principles set out in the Judicature
19 Act and the Rules of Court as well as the
20 existing jurisprudence in the area.
21 The practice of this Court has developed
22 that tribunals have participated in judicial
23 reviews or appeals and their participation has
24 generally been limited to making submissions on
25 jurisdiction, the record and/or the standard of
26 review. See Carter v. Northwest Territories
27 Power Corp., 2014 NWTSC 19. This is subject to
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1 the Court's discretion to determine the extent of
2 the tribunal's participation.
3 Generally, tribunals do not seek to
4 participate in every judicial review or appeal
5 and there are situations where their
6 participation may not be necessary. For example,
7 where the standard of review has been well
8 established, it may be that the Court will decide
9 that hearing from the tribunal on standard of
10 review is not necessary, barring some new
11 argument being presented or recent developments
12 in the case law.
13 There have also been decisions in this
14 jurisdiction which have considered the role of a
15 tribunal when participating in a judicial review
16 or appeal. In Baffin Plumbing & Heating Limited
17 v. Labour Standards Board and the Labour
18 Standards Officer, 1993 NWTR 301, the Court held
19 that the Board should not be named as a party
20 unless the sole basis for appeal was
21 jurisdictional error. The Court went on to state
22 at paragraph 36:
23 The Board, if it appears on the
hearing, will be limited to
24 arguments on jurisdictional issues
and to explanations, if requested by
25 the court, of the record of the
proceedings. If the Board wishes to
26 have a broader role to play then, in
the absence of statutory guidelines,
27 it must seek leave of the court to
do so.
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1 The idea that the tribunal's findings who
2 were being appealed should not be named as a
3 party was endorsed also in Karl Mueller
4 Construction Ltd. v. Commissioner of the NWT,
5 2007 NWTSC 97, at paragraph 94.
6 In Graham v. WCB et al, 2007 NWTSC 54, the
7 Court commented on the appeal tribunal's role in
8 judicial review proceedings. In that case, the
9 appeals tribunal had been added as a party by
10 consent prior to the hearing. The issue in that
11 case was not whether the appeals tribunal should
12 be a party but, instead, what should be the
13 extent of the appeals tribunal's participation.
14 In that case, the Court noted at paragraphs 58
15 and 59:
16 The traditional view is that in the
absence of statutory provisions as
17 to standing, the tribunal is
confined to arguments on the issue
18 of its jurisdiction to make the
decision and to an explanatory role
19 with respect to the record ... The
reason, simply put, is that a
20 tribunal, which is required to be
impartial, should not be seen as an
21 advocate in its own cause.
22 This is not a clear-cut issue,
however, and the question of
23 standing is one that usually depends
on an exercise of the court's
24 discretion in the circumstances of a
particular case. [Citations omitted]
25
26 Neither the Rules nor the case law require
27 that the tribunal be named as a Respondent in
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1 order to participate in the appeal. There are
2 situations where the tribunal will be named as a
3 Respondent, such as when they are required to be
4 named by the statute or where there is no other
5 party to be named. See Ontario Energy Board v.
6 Ontario Power Generation Inc., 2015 SCC 44, at
7 paragraph 54.
8 The bigger issue, in my view, and this is
9 the focus of much of the case law in this area,
10 is the extent of the participation of a tribunal
11 in an appeal. Courts have had to balance the
12 valuable information and expertise that a
13 tribunal can bring to an appeal and also with
14 ensuring that their participation respects the
15 principles of finality and impartiality; finality
16 being the principle where the tribunal should not
17 speak on a matter once it has made its decision
18 and provided reasons for its decision, and
19 impartiality involves maintaining confidence in
20 the tribunal's impartiality because the tribunal
21 may have to hear similar issues in the future and
22 some decisions may be remitted to the tribunal
23 for further consideration.
24 Ultimately, the extent of the tribunal's
25 participation in an appeal, if it is not
26 prescribed by statute, is within the discretion
27 of the Court. See Ontario Energy Board, supra,
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1 at paragraphs 49 to 59.
2 The issue of the extent of the participation
3 of a tribunal in an appeal should be addressed at
4 the pre-hearing conference held pursuant to Rule
5 604. In that sense, Rule 596 is applicable and a
6 tribunal who wishes to participate at the
7 judicial review hearing or appeal should seek
8 leave and directions from the Court regarding its
9 participation. That will ensure that everyone
10 involved in the appeal will know the extent of
11 the tribunal's participation prior to the
12 hearing, and, in my view, it is not necessary,
13 subject to my earlier comments, to add the
14 tribunal as a Respondent in order for the
15 tribunal to participate in the appeal.
16 Therefore, the Human Rights Adjudication Panel is
17 permitted to participate in the appeal and they
18 do not have to be added as a Respondent. The
19 Adjudication Panel has leave to make submissions
20 on matters related to jurisdiction, standard of
21 review, and any explanation of the record that is
22 required.
23 The Human Rights Adjudication Panel seeks
24 their costs for this portion of the proceeding,
25 arguing that it was an unnecessary proceeding and
26 that the City of Yellowknife introduced
27 additional formality to the process. The City of
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1 Yellowknife argues that there should be no costs
2 as the City was only asking the Panel to comply
3 with the Rules and no costs would have been
4 incurred if the Panel had agreed to enter into a
5 consent order, being added as a party prior to
6 the hearing before me. The Panel had declined to
7 enter into a consent order on the basis that they
8 were not required to be added as a party and they
9 felt there would continue to be issues with
10 regard to the extent of their participation and
11 that this matter would have ended up in court on
12 this issue in any event.
13 In my view, this matter could easily have
14 been dealt with at the pre-hearing conference.
15 The issue of whether the Panel needed to be added
16 as a Respondent in order to participate in the
17 appeal is not a question that needed to be
18 answered given that the parties ultimately agreed
19 on the extent of the Panel's participation.
20 Pursuing this added level of formality and
21 parsing of the Rules is not in line with Rule 3
22 which states that the Rules are intended to
23 secure the just, speedy, and inexpensive
24 determination of every proceeding. Therefore,
25 A.B., the Northwest Territories Human Rights
26 Commission and the Northwest Territories Human
27 Rights Adjudication Panel will have their costs
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1 for the appearance in July 14, 2017 and for
2 today's appearance. Pursuant to Rule 606.1,
3 these costs will be according to Column 3 of
4 Schedule "A".
5 Thank you, counsel. Is there anything else
6 that we need to address?
7 MR. RUTLAND: No, Your Honour.
8 MS. LEVY: No, Your Honour.
9 MS. THERIAULT: No, Your Honour.
10 THE COURT: Ms. Akgungor?
11 MS. AKGUNGOR: No. Thank you, Your Honour.
12 THE COURT: All right. Then we will
13 adjourn. Thank you.
14 COURT CLERK: All rise. I declare the
15 Supreme Court closed.
16 .................................
17
18
19 Certified Pursuant to Rule 723
of the Rules of Court
20
22
Jane Romanowich, CSR(A)
23 Court Reporter
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27
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