A-146-97
Ranjit Perera, Frank Boahene and Fred Bloch (Appellants) (Plaintiffs)
v.
The Queen in Right of Canada (Respondent) (Defendant)
and
Public Service Alliance of Canada (Intervenor)
Indexed as: Perera v.Canada (C.A.)
Court of Appeal, Pratte, Létourneau and McDonald JJ.A."Ottawa, February 24, 25 and March 31, 1998.
Practice — Preliminary determination of question of law — Appeal from order dismissing R. 474 motion for direction certain questions of law be determined before trial — R. 474 contemplating two-stage procedure: (1) decision whether to order questions be determined before trial; (2) decision answering questions of law — On appeal from decision rendered at first stage, F.C.A. empowered only to make decision ought to have been made at that stage — R. 474 conferring discretion to order determination of question of law — Questions must be pure questions of law i.e. may be answered without requiring any findings of fact — Legal question may be based on assumption of truth of allegations in pleadings provided facts, as alleged, sufficient to enable Court to answer question — Questions must be not merely academic but conclusive of matter in dispute i.e. may probably be decided in such way as to dispose of action or substantial part thereof — R. 474 should be resorted to only when will save time, money — All circumstances must be considered — Motions Judge properly exercising discretion as believed questions would be answered in appellants' favour, thus necessitating trial.
Constitutional law — Charter of Rights — Enforcement — Appeal from order striking out paragraphs of prayer for relief seeking letters of apology, directing adoption of special program to rectify adverse effect of discriminatory practices, directing employer to implement Employment Equity Program — Action alleging individual, systemic discrimination based on race, national or ethnic origin, colour — Founded on Charter, s. 24, conferring right to seek remedy from competent court — In action under s. 24, courts free to fashion remedies deemed appropriate in circumstances — As remedy requiring letter of apology, may contravene Charter, s. 2(b) (freedom of expression), must be justifiable under s. 1 — That question not answerable without trial — As CHRT having jurisdiction to impose programs to rectify effects of discrimination, supervisory courts having power to impose similar remedies when deemed appropriate.
Federal Court jurisdiction — Appeal from order striking out paragraphs of prayer for relief seeking letters of apology, directing employer to adopt program to rectify adverse effect of discriminatory practices, directing CIDA to implement Employment Equity Program on ground outside Court's jurisdiction — Statement of claim alleging individual, systemic discrimination — As superior court of record with supervisory jurisdiction, Federal Court having jurisdiction to enforce constitutional equality rights in federal sphere by providing appropriate, just remedy pursuant to Charter, s. 24 — As CHRT having jurisdiction to impose programs to remedy effects of discrimination, courts must have power to impose similar remedies if deemed appropriate — In context of systemic discrimination, such remedies, in order to be just, appropriate may take form of orders sought by appellants.
This was an appeal from a Trial Division order dismissing a Rule 474 motion, and striking out certain paragraphs of the prayer for relief under Rule 419; and a cross-appeal from the Judge's refusal to strike out the statement of claim in its entirety. The statement of claim alleged individual and systemic discrimination against the appellants, former CIDA employees, on the basis of race, national or ethnic origin and colour contrary to Charter, section 15. The prayer for relief sought a variety of remedies, including orders directing that letters of apology be written to the appellants, and that CIDA adopt a special program to rectify the adverse effect of discriminatory practices and implement an Employment Equity Program. The respondent filed a Rule 419 notice of motion to strike out the statement of claim as disclosing no cause of action. The appellants then filed a Rule 474 notice of motion seeking an order directing that certain questions of law be determined before trial. The Motions Judge dismissed the motion under Rule 474, and refused to strike out the statement of claim, but struck out the paragraphs of the prayer for relief claiming the above-mentioned remedies.
Held, the cross-appeal should be dismissed; the appeal should be allowed only in so far as it is directed against that part of the order of the Trial Division that struck out subparagraphs 12(a)(iii), (b)(iii), (c)(iii) and (d)(ii).
Rule 474 contemplates a two-stage procedure: if the Court decides that the proposed questions should be determined before trial, then it must, after a new hearing, render a second decision answering the questions of law. On an appeal from a decision rendered at the first stage of the procedure, the Court of Appeal is empowered only to make the decision that should have been made at that first stage of the procedure.
Rule 474 confers on the Court merely the discretion to order that a determination of a question of law be made. The Court must be satisfied that the proposed questions are pure questions of law i.e. questions that may be answered without having to make any finding of fact. The purpose of the Rule is to have the question answered before trial; it is neither to split the trial in parts nor to substitute for part of the trial a trial by affidavits. The parties are not required to agree on the facts giving rise to the legal questions; a legal question may be based on an assumption of truth of the allegations of the pleadings provided that the facts, as alleged, are sufficient to enable the Court to answer the question.
Before exercising its discretion under Rule 474, the Court must also be satisfied that the questions to be answered are not academic and will be "conclusive of a matter in dispute". Rule 474 does not require an absolute certainty that the determination of the question will dispose, in whole or in part, of the litigation. The judge hearing the question must only be satisfied that the proposed question may probably be decided in such way as may dispose of the action or some substantial part of it. It is therefore not necessary that the question of law be one which, whatever way it is answered, will be decisive of the litigation. Once these requirements are met, the Court is under no obligation to grant the Rule 474 motion. It must, at that stage, exercise its discretion having in mind that the procedure contemplated by Rule 474 is exceptional and should be resorted to only when the Court is of the view that the adoption of that exceptional course will save time and expense. The Court must consider all the circumstances, including the agreement of the parties, the Judge's opinion as to the probability that the question will be answered in a manner that will not dispose of the litigation, the complexity of the facts that will have to be proved at the trial and the desirability, for that reason, of avoiding such a trial, the difficulty and importance of the proposed questions of law, the desirability that they not be answered in a "vacuum", and the possibility that the determination of the questions before trial might, in the end, save neither time nor expense.
The Motions Judge could not accede to the appellants' motion if he was not satisfied that the preliminary determination of the questions would save either time or costs. As the Motions Judge was of the opinion that the answers would favour the appellants, the trial would still have to take place. The predetermination of those questions would not likely shorten the proceedings. The Motions Judge did not wrongly exercise his discretion in rejecting the appellants' Rule 474 motion.
As to the motion to strike, it had to be remembered that the appellants' action was founded on Charter, section 24. As a rule, in an action under section 24, the courts must be free, if they find in the plaintiff's favour, to fashion the remedies that they deem appropriate in the circumstances. The prayer for relief requiring letters of apology should not have been struck out. As such a remedy may contravene Charter, paragraph 2(b) which protects freedom of expression, it may only be granted if it is justifiable under section 1, a question that cannot be answered in the abstract.
Remedies such as the imposition of programs to rectify and remedy the effects of the discrimination alleged, imposed by a Canadian Human Rights Tribunal to counter and remedy systemic discrimination, have been found to be justifiable. As a superior court of record with supervisory jurisdiction, the Federal Court does have jurisdiction to enforce constitutional equality rights in the federal sphere by providing to an aggrieved citizen an appropriate and just remedy pursuant to section 24. In the context of systemic discrimination, such remedies, in order to be just and appropriate, may take the form of the orders sought by the appellants.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b), 15, 24.
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), ss. 3(a), 10.
Federal Court Act, R.S.C., 1985, c. F-7, s. 39 (as am. by S.C. 1990, c. 8, s. 10).
Federal Court Rules, C.R.C., c. 663, RR. 419, 474 (as am. by SOR/79-57, s. 14).
Limitations Act, R.S.O. 1990, c. L.15, s. 45(1)(g).
cases judicially considered
applied:
Berneche v. Canada, [1991] 3 F.C. 383; (1991), 133 N.R. 232 (C.A.); Nelles v. Ontario, [1989] 2 S.C.R. 170; (1989), 60 D.L.R. (4th) 609; 41 Admin. L.R. 1; 37 C.P.C. (2d) 1; 71 C.R. (3d) 358; 42 C.R.R. 1; 98 N.R. 321; 35 O.A.C. 161; Krznaric v. Chevrette (1997), 154 D.L.R. (4th) 527; 98 CLLC 145,010 (Ont. Ct. (Gen. Div.)).
considered:
Novopharm Ltd. v. Wyeth Ltd. (1986), 26 D.L.R. (4th) 80; 8 C.P.R. (3d) 448; 64 N.R. 144 (F.C.A.); Windsor Refrigerator Co., Ltd. v. Branch Nominees, Ltd., [1961] 1 All E.R. 277 (C.A.); David (Asoka Kumar) v. M. A. M. M. Abdul Cader, [1963] 3 All E.R. 579 (P.C.); Attorney-General for British Columbia v. Attorney-General for Canada, [1914] A.C. 153 (P.C.); Tilling v. Whiteman, [1980] A.C. 1 (H.L.); Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; (1987), 40 D.L.R. (4th) 193; 27 Admin. L.R. 172; 87 CLLC 17,022; 76 N.R. 16; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; (1987), 40 D.L.R. (4th) 577; 8 C.H.R.R. D/4326; 87 CLLC 17,025; 75 N.R. 303.
referred to:
R. v. Achorner, [1977] 1 F.C. 641; (1976), 16 N.R. 346 (C.A.); Page v. Churchill Falls (Labrador) Corp. Ltd., [1972] F.C. 1141; (1972), 29 D.L.R. (3d) 236 (C.A.); Asbjorn Horgard A/S v. Northwest Tackle Manufacturing Ltd., [1982] 1 F.C. 680; (1981), 56 C.P.R. (2d) 115 (T.D.); Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 93 N.R. 183.
APPEAL from order dismissing a Rule 474 motion, and striking out certain parts of the prayer for relief; and cross-appeal from the Judge's refusal to strike out the statement of claim in its entirety (Perera v. Canada, [1997] F.C.J. No. 199 (T.D.) (QL)). The cross-appeal should be dismissed; the appeal should be allowed only in so far as it was directed against that part of the order that struck out subparagraphs 12(a)(iii), (b)(iii), (c)(iii) and (d)(ii).
counsel:
Peter C. Engelmann for appellants.
Geoffrey S. Lester for respondent.
Andrew J. Raven for intervenor.
solicitors:
Caroline Engelmann Gottheil, Ottawa, for appellants.
Deputy Attorney General of Canada for respondent.
Raven, Allen, Cameron & Ballantyne, Ottawa, for intervenor.
The following are the reasons for judgment rendered in English by
Létourneau J.A.: This is an appeal and a cross-appeal from an order of the Trial Division [[1997] F.C.J. No. 199 (T.D.) (QL)] disposing of two motions: a motion made by the appellants under Rule 474 of the Federal Court Rules [C.R.C., c. 663 (as am. by SOR/79-57, s. 14)], which was dismissed, and a motion made by the respondent under Rule 419, which was granted only in part. The appellants' appeal is directed against the rejection of their Rule 474 motion and, as well, against the Judge's decision, under Rule 419, to strike out certain parts of the prayer for relief of their statement of claim. The respondent's cross-appeal attacks the Judge's refusal to strike out the appellants' statement of claim in its entirety as disclosing no reasonable cause of action.
The dispute between the parties arose out of the appellants' employment with the Canadian International Development Agency (CIDA). In their statement of claim, filed on March 16, 1992, as it was amended in 1994 and 1996, the appellants alleged that, while employed with CIDA, they had been subject to individual and systemic discrimination by servants of the respondent on the basis of their race, national or ethnic origin and colour contrary to section 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. They alleged that twenty-two named individuals working for CIDA and the respondent hindered their career ambitions. The discrimination related to selections for promotions and acting appointments, performance appraisal reviews, selections for postings abroad, assignment of work and responsibilities, and delegation of authority. They also alleged that, in answer to their complaints of discrimination, retaliatory actions culminating in the termination of their employment were taken against them. In their prayer for relief, the appellants sought a variety of remedies including an order directing that appropriate letters of apology be written to the appellants, an order directing CIDA to adopt a special program to rectify the adverse effect of discriminatory practices on visible minorities in CIDA and an order directing CIDA to implement an Employment Equity Program.
The respondent has not yet filed a defence to the amended amended statement of claim. However, in her amended statement of defence, the respondent denied liability in this matter. More particularly, she denied all allegations of discrimination and retaliation; she asserted that, in view of the Canadian Human Rights Act [R.S.C., 1985, c. H-6], paragraph 3(a) and section 10 of the Crown Liability and Proceedings Act [R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21)], section 39 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 10)] and paragraph 45(1)(g) of the Limitations Act [R.S.O. 1990, c. L.15], the statement of claim did not disclose a reasonable cause of action; finally, the respondent pleaded that the Court did not have jurisdiction to grant some of the remedies sought by the appellants.
The respondent filed a Rule 419 notice of motion asking that the appellants' statement of claim be struck out as disclosing no cause of action. The appellants counter-attacked by filing a Rule 474 notice of motion seeking an order directing that certain questions of law be determined before trial.
Pursuant to an order of the Associate Chief Justice, these motions were heard together on February 10 and 11, 1997. On February 24, 1997, the Judge of first instance dismissed the appellants' motion under Rule 474 and, ruling on the respondent's motion under Rule 419, refused to strike out the appellants' statement of claim which, in his view, disclosed a reasonable cause of action, but struck out certain paragraphs of the prayer for relief claiming remedies that, in the Judge's opinion, the Court had no jurisdiction to grant. Hence this appeal and this cross-appeal.
I"The Appellants' Motion Under Rule 4741
By their motion, the appellants sought an order directing that five questions of law be determined before trial. Most of them had been raised by the respondent in her amended statement of defence and her Rule 419 notice of motion. These questions read as follows:
(a) whether the within action for damages and other appropriate and just remedies pursuant to Section 24 of the Canadian Charter of Rights and Freedoms (the "Charter") for a breach of equality rights under Section 15 of the Charter exist at law, and if so:
(i) whether Section 15 of the Charter imposes a fiduciary responsibility on the Crown and its agents not to discriminate on the basis of the grounds proscribed and those analogous thereto, or alternatively the responsibility is analogous to that of a fiduciary; and
(ii) whether the within action is restricted by Section 32 of the Charter in any way;
(b) whether the within Charter action is statutorily ousted by the Canadian Human Rights Act, R.S.C. 1985, c. H-6;
(c) whether the within action, or any part thereof is statute barred as a result of Section 39 of the Federal Court Act and Section 45 of the Limitations Act, R.S.O. 1990, chap. L.15;
(d) whether the principles of issues estoppel/res judicata have any application in the within case . . . ;
(e) whether punitive damages are available in actions involving breaches of Section 15 Charter rights and/or breaches of the Crown Liability and Proceedings Act.
The appellants also asked for an order that those questions of law be determined on a case consisting, inter alia, of
(a) affidavit evidence filed herein, or to be filed by the parties;
(b) transcripts of any cross examination on affidavits;
(c) the pleadings filed herein, or to be filed, by the parties; . . .
In support of their motion the appellants filed six affidavits and more than six volumes of exhibits to establish the accuracy of the very vague allegations of their statement of claim.
The Judge of first instance [at paragraphs 7-9 (QL)] dismissed that motion on three grounds, namely,
. . . the facts that go to the heart of this case are in dispute [and the parties disagree on the formulation of the question] . . . there is . . . no pure question of law that can be determined in the Rule 474 motion . . . because a ruling would require an adjudication on some of the facts in dispute . . . It has not been established that proceeding in the Rule 474 motion will expedite the trial.
That decision is apparently based on the decision of this Court in Berneche v. Canada, [1991] 3 F.C. 383 (C.A.), at page 388, where Mahoney J.A., after referring to decisions of the Trial Division which had refused to apply Rule 474 unless the parties agreed on the need for preliminary determination, stated:
With respect, the Trial Division has unduly restricted the application of the Rule.
What Rule 474(1)(a) requires is that there be application for preliminary determination by at least one of the parties: the Court cannot proceed ex proprio motu. It then requires that the Court be satisfied (1) that there is no dispute as to any fact material to the question of law to be determined; (2) that what is to be determined is a pure question of law, and (3) that its determination will be conclusive of a matter in dispute so as to eliminate the necessity of a trial or, at least, shorten or expedite the trial.
Counsel for the appellants conceded at the hearing the correctness of the decision under appeal with respect to questions (a)(i), (d) and (e). With respect to question (c), he did not make any express concession but seemed to acknowledge the obvious: in the circumstances of this case where he alleges that the discrimination suffered was of a continuing nature, no real benefit could be derived from an early determination of that question. That leaves us with three questions: (a), (a)(ii) and (b).
With respect to these three questions, counsel for the appellants argued that the three conditions formulated by Mahoney J.A. in the Berneche case were satisfied. He added that, in any event, the Judge had been wrong in failing to take into account that the proposed questions involved important Charter issues which, by their very nature, ought to be decided without delay. Finally, counsel invited us, not only to set aside the order of the Judge of first instance, but also to answer the three questions.
The main argument put forward by counsel for the respondent in support of the decision under attack was that these questions ought not to be decided before trial because, if they were to be answered in the manner proposed by the appellants, the matter would not be concluded one way or another; there would still need to be a trial in order to establish the allegations of the statement of claim. According to counsel, the only questions that may be determined before trial under Rule 474 are those which will be decisive of the trial, whatever be the answers that are given to them. Counsel also opposed the appellants' request that the Court, if it allowed the appeal, answer the proposed questions of law.
Dealing first with this last point, it seems clear that the Court would have no jurisdiction, on this appeal, to answer the proposed questions of law. Rule 474 contemplates a two-stage procedure: first, the Court decides whether to order that the proposed questions be determined before trial; second, if it makes such an order, then the Court must, after a new hearing, render a second decision answering the questions of law. On an appeal from a decision rendered at the first stage of the procedure, the only decision that the Court of Appeal is empowered to make is the decision that the Judge of first instance ought to have made at that first stage of the procedure; the Court, then, has no jurisdiction to make the order that the Judge of first instance has not yet made but ought to make at the second stage of the procedure.2
The only issue on this branch of the appeal, therefore, is whether the Judge of first instance erred in concluding that the proposed questions of law ought not to be decided before trial.
It may be useful to recall that Rule 474 does not confer on anyone the right to have questions of law determined before trial; it merely confers on the Court the discretion to order, on application, that such a determination be made. In order for the Court to be in a position to exercise that discretion, it must be satisfied, as was stated in the Berneche case, that the proposed questions are pure questions of law, that is to say questions that may be answered without having to make any finding of fact. Indeed, the purpose of the Rule is to have the questions answered before trial; it is neither to split the trial in parts nor to substitute for part of the trial a trial by affidavits.3 This is not to say, however, that the parties must agree on the facts giving rise to the legal questions; a legal question may be based on an assumption of truth of the allegations of the pleadings provided that the facts, as alleged, be sufficient to enable the Court to answer the question.4
Before exercising its discretion under Rule 474, the Court must also be satisfied that the questions to be answered are not academic and will be "conclusive of a matter in dispute". In this regard, it is important to note that, contrary to what was argued by counsel for the respondent, Rule 474 does not require an absolute certainty that the determination of the question will dispose, in whole or in part, of the litigation. The judge hearing the question must only be satisfied that the proposed question, as said by Jackett C.J. in R. v. Achorner ,5 "may probably be decided in such a way as may dispose of the action or some substantial part of it". It is therefore not necessary that the question of law be one which, whatever way it is answered, will be decisive of the litigation.6
Once these requirements are met, the Court is under no obligation to grant the Rule 474 motion. It must, at that stage, exercise its discretion having in mind that the procedure contemplated by Rule 474 is exceptional and should be resorted to only when the Court is of the view that the adoption of that exceptional course will save time and expense. It is in that light that the Court must take into consideration all the circumstances of the case which, in its view, militate in favour or against the granting of the motion. It is not possible to give a list of all these circumstances. The agreement of the parties is obviously one of them. Less obvious, perhaps, is the fact that the Judge may take into account his opinion as to the probability that the question will be answered in a manner that will not dispose of the litigation. He may also consider the complexity of the facts that will have to be proved at the trial and the desirability, for that reason, of avoiding such a trial. He must also take into consideration the difficulty and importance of the proposed questions of law, the desirability that they not be answered in a "vacuum", and the possibility that the determination of the questions before trial might, in the end, save neither time nor expense.7
This being said, I turn to the various attacks made by the appellants against the dismissal of their Rule 474 motion.
I see no merit in the appellants' contention that the Judge of first instance erred in ignoring that the proposed questions of law raise Charter issues which, because of their importance, ought to be determined before trial. No doubt, Charter issues are important and very often difficult to resolve. But it is precisely for that reason that the courts are reluctant to answer them "in a vacuum" or on the basis of facts that are not proven.8
The appellants also say that the Judge of first instance was wrong in concluding that the facts material to the proposed questions of law were in dispute and that those questions were not pure questions of law. I am ready to assume, for argument's sake, that the Judge fell into these errors and that the questions were pure questions of law that could have been answered on the sole basis of the very vague allegations of the statement of claim. I cannot help saying, however, that the appellants themselves, who insisted that the questions be answered on the basis of the affidavit evidence that they had filed with their notice of motion, should share the blame for those errors.
What is important, however, is the last finding of the Judge, namely, that the preliminary determination of the questions would save neither time nor costs. Even if his other findings were wrong, he could not accede to the appellants' motion if he was not satisfied on this last point.
The Judge was obviously of opinion that the three questions with which we are concerned would eventually be answered in the appellants' favour. He said so when he disposed of the respondent's Rule 419 motion. He could hardly, in those circumstances, find that the predetermination of those questions would likely shorten the proceedings. Indeed, if the questions were given answers favourable to the appellants, the trial would still have to take place and there could be appeals not only from the final decision on the merit but also on the answers given to the questions of law.
Taking into account all the circumstances of this case, I cannot say that the Judge of first instance, in spite of the errors he may have made, wrongly exercised his discretion in rejecting the appellants' Rule 474 motion.
II"The Respondent's Rule 419 Motion
The respondent, by her motion, sought an order striking out the appellants' statement of claim as disclosing no reasonable cause of action. The Judge of first instance rejected that request. He was satisfied that the appellants had an arguable case. There is no reason to interfere with that conclusion.
The Judge, however, struck out subparagraphs 12(a)(iii), (b)(iii), (c)(iii), (d)(i) and (d)(ii) of the appellants' amended amended statement of claim which, in the Judge's opinion, claimed remedies which the Court had no jurisdiction to grant.
Subparagraphs 12(b)(iii) and (c)(iii) are identical to 12(a)(iii) but refer to different appellants; it is therefore sufficient to reproduce paragraphs 12(a)(iii), (d)(i) and (d)(ii):
12. The Plaintiffs claim as follows:
(a) . . .
(iii) an appropriate letter of apology from the Minister responsible for CIDA or the President of CIDA for the harassment and discrimination that the Plaintiff Perera was subjected to and appropriate action to correct the continuing derogatory effects that discriminatory reprimands and appraisals given to him on his professional reputation;
. . .
(d) (i) to cease forthwith the discriminatory practices and, in order to prevent the occurrence of the same or similar practices, to take measures, within a reasonable time, including the adoption of a special program or plan, designed to rectify the adverse effect of the discriminatory practices on visible minorities in CIDA, particularly the discrimination that prevailed in the period between April 1985 to March 1992;
(ii) to implement an Employment Equity Program which would ensure that in the next five years:
(aa) at least 20% of all new appointments to the senior management category in CIDA, in each year, will be from the visible minority group;
(bb) at least 20% of all new hires in CIDA, in each year, will be from the visible minority group; . . .
The appellants' action is founded on section 24 of the Charter. That section, as stated by Lamer J. (as he then was) in Nelles v. Ontario,9 "confers a right to an individual to seek a remedy from a competent court" and allows "courts to fashion remedies when constitutional infringements occur".
As a rule, therefore, on an action under section 24 of the Charter, the courts must be free, if they find in the plaintiff's favour, to fashion the remedies that they deem appropriate in the circumstances.
The only objection that may be raised against the part of the appellants' prayer for relief requiring letters of apology is that it seeks a remedy which, by its very nature, would contravene paragraph 2(b) of the Charter which protects freedom of expression.10 That objection is well founded, but it follows that such a remedy may only be granted if it is justifiable under section 1, a question that cannot be answered in the abstract without knowledge of all the circumstances of the case. For that reason, subparagraphs 12(a)(iii), (b)(iii) and (c)(iii) should not have been struck out at this stage of the proceedings.
As to subparagraphs 12(d)(i) and (ii), which were also struck out by the Judge of first instance, they seek the imposition of programs to rectify and remedy the effects of the discrimination alleged by the appellants. The Supreme Court, in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission),11 found that remedies of that type, imposed by a Canadian Human Rights Tribunal to counter and remedy systemic discrimination, were entirely justifiable. In Robichaud v. Canada (Treasury Board)12, the Supreme Court found that, in cases where attitudes or behaviour need to be changed, an instrumental approach to remedies is necessary in order to enforce compliance with the purposes and objectives of human rights codes or legislations. It necessarily follows, in my view, that the courts must have, under section 24 of the Charter, the power to impose similar remedies when they deem it appropriate.
Indeed, it would be astonishing if the Federal Court, as a superior court of record with a supervisory jurisdiction, did not have jurisdiction to enforce constitutional equality rights in the federal sphere by providing to an aggrieved citizen an appropriate and just remedy pursuant to section 24 of the Charter. It would be all the more so if such jurisdiction found to be lacking in the Court were to exist in other instances subject to the supervisory powers of the Court, especially when these other instances, through statutory limitations, would not be in a position to grant a remedy which is appropriate and just in the circumstances. As Pardu J. of the Ontario Court (General Division) stated in Krznaric v. Chevrette,13 superior courts of record have played and continue to play a role in redressing wrongs committed in the employment context.
I believe the Trial Division of this Court has jurisdiction pursuant to section 24 to provide effective remedies for breaches of a citizen's constitutional rights to equality and it cannot be ruled out that, in the context of systemic discrimination and circumstances warranting, such remedies, in order to be just and appropriate, may take the form of the orders sought by the appellants.
For these reasons, I would dismiss the respondent's cross-appeal, allow the appellants' appeal only in so far as it is directed against that part of the order of the Trial Division that struck out subparagraphs 12(a)(iii), (b)(iii), (c)(iii), (d)(i) and (d)(ii), and substitute the following sentence for the second paragraph of the order of the Trial Division:
It is hereby ordered that the motion pursuant to Rule 419 is dismissed.
I would not make any order as to costs.
Pratte J.A.: I agree.
McDonald J.A.: I agree.
1 S. 474 (1) of the Rules reads in part as follows:
Rule 474. (1) The Court may, upon application, if it deems it expedient to do so
(a) determine any question of law that may be relevant to the decision of a matter, or
. . .
and any such determination shall be final and conclusive for the purposes of the action subject to being varied upon appeal.
2 R. v. Achorner, [1977] 1 F.C. 641 (C.A.), at p. 647.
3 For that reason, the appellants' request that the question be answered on the basis of the voluminous affidavit evidence that they had filed could obviously not be granted.
4 See Page v. Churchill Falls (Labrador) Corp. Ltd., [1972] F.C. 1141 (C.A.) and Berneche v. Canada, supra, at p. 388.
5 Supra, note 2, at p. 646.
6 The contrary view finds support in the decision of this Court in Novopharm Ltd. v. Wyeth Ltd. (1986), 26 D.L.R. (4th) 80 (F.C.A.). It should be noted, however, that only one of the four authorities cited by the Court in that decision in support of its opinion was to the point: the decision of the Trial Division in Asbjorn Hogard A/S v. Northwest Tackle Manufacturing Ltd., [1982] 1 F.C. 680.
7 See Windsor Refrigerator Co., Ltd. v. Branch Nominees, Ltd., [1961] 1 All E.R. 277 (C.A.), where Lord Evershed said, at p. 283:
. . . the course which this matter has taken emphasises as clearly as anyone in my experience the extreme unwisdom"save in very exceptional cases"of adopting this procedure of preliminary issues. My experience has taught me . . . that the short cut so attempted inevitably turns out to be the longest way round.
and also David (Asoka Kumar) v. M. A. M. M. Abdul Cader, [1963] 3 All E.R. 579 (P.C.) where Viscount Radcliffe said, at p. 583:
Useful as the argument of preliminary issues can be when their determination can safely be foreseen as conclusive of the whole action in which they arise, experience shows that great care is needed in the selection of the proper occasion for allowing such procedure. Otherwise, the hoped-for shortening of proceedings and saving of costs may prove in the end to have only the contrary effect to what which is intended.
8 See Attorney-General for British Columbia v. Attorney-General for Canada, [1914] A.C. 153 (P.C.), at p. 162, per Viscount Haldane L.C. "Not only may the question of future litigants be prejudiced by the Court laying down principles in an abstract form without any reference or relation to actual facts, but it may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied.
and also, Tilling v. Whiteman, [1980] A.C. 1 (H.L.), at pp. 17-18 per Lord Wilberforce: "So the case has reached this House on hypothetical facts, the correctness of which remains to be tried. I, with others, have often protested against the practise of allowing preliminary points to be taken, since this course frequently adds to the difficulties of courts of appeal and tends to increase the cost and time of legal proceedings. If this practice cannot be confined to cases where the facts are complicated and the legal issue short and easily decided, cases outside this guiding principle should at least be exceptional."
9 [1989] 2 S.C.R. 170, at p. 196.
10 See Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.
11 [1987] 1 S.C.R. 1114, at p. 1141 and 1143 ff.
12 [1987] 2 S.C.R. 84.
13 (1997), 154 D.L.R. (4th) 527 (Ont. Ct. (Gen. Div.)), at p. 541.