[1996] 2 F.C. 113
T-1571-95
Brink’s Canada Limited (Applicant)
v.
Canadian Human Rights Commission, Arthur Stringer, Clarke Jerman (Respondents)
and
Canadian Human Rights Tribunal, Keith C. Norton, Ronald W. McInnes, S. Jane Armstrong and Murthy Ghandikota (Intervenors)
T-1844-95
Brink’s Canada Limited (Applicant)
v.
Canadian Human Rights Commission, Arthur Stringer, Clarke Jerman (Respondents)
and
Canadian Human Rights Tribunal, Anne Mactavish (Intervenors)
Indexed as: Brink’s Canada Ltd. v. Canada (Human Rights Commission) (T.D.)
Trial Division, MacKay J.—Toronto, November 27, 1995; Ottawa, January 10, 1996.
Human Rights — Application to quash appointment of three-person Tribunal to replace one-person Tribunal appointed to inquire into complaints of discrimination based on age; application for declaration decision not to appoint Review Tribunal invalid — One-person Tribunal already deciding preliminary procedural issues — Functus officio not applicable — President of Tribunal Panel having authority to make successor appointments where facilitates purposes of Act, despite lack of express authority — Exercise of authority bound by responsibility to act in accord with principle of fairness — Lack of notice at time of original appointment mandate might be limited to preliminary procedural issues unfair, particularly as Commission familiar with Tribunal’s practice, applicant not — Replacement of one-person Tribunal abrogating statutory appeal — CHRA, s. 56 providing for appointment of Review Tribunal where appeal made pursuant to s. 55 of —decision or order— — Not including decision or order of preliminary, procedural nature that may be subject to change — Including only final decisions or orders, not subject to change upon reconsideration — Finality determinable when decision or order made disposing of inquiry — As decisions herein not finally disposing of inquiry by Tribunal, applicant not entitled to appeal.
Administrative law — Judicial review — Canadian Human Rights Tribunal of three appointed to hear employment discrimination complaints after one-person Tribunal appointed, hearing evidence, argument on preliminary, procedural issues — Administrative tribunals having power to control own procedures — May have regard for efficiency — Functus officio principle not to be strictly applied — Authority to make successor appointments may not be exercised if breaching principle of fairness, causing prejudice to party — Unfairness resulting from lack of notice original Tribunal’s mandate limited to preliminary matters — Replacement of single member Tribunal abrogating statutory right to appeal — Parliament intending appeal to Review Tribunal available from decision of Tribunal composed of fewer than three — Tribunals, like courts, should publish rules of procedure so would be readily known to parties affected thereby.
The first application was for an order setting aside the appointment of a three-person Tribunal to inquire into complaints against the applicant. The second application was for mandamus directing the President of the Human Rights Tribunal Panel (the President) to appoint a Review Tribunal.
The respondents, Art Stringer and Clarke Jerman, filed complaints with the Canadian Human Rights Commission alleging that the applicant had discriminated against them on the basis of their age. The President issued a notice appointing Ronald W. McInnes “as a Human Rights Tribunal to inquire into the complaints” and “to determine whether the actions complained of constituted a discriminatory practice”. In a “first preliminary decision”, Mr. McInnes decided the order for presentation of evidence and argument on the preliminary issues raised by the applicant, the principle applicable to cross-examination of witnesses called to testify in relation to preliminary issues, and the arrangements in relation to evidence from Mr. Stringer who might not be able to testify at the hearing due to illness. Following that decision, the President appointed a three-person Tribunal, including Mr. McInnes as Chairperson “to inquire into the complaints” and “to determine whether the actions complained of constitute a discriminatory practice”. The notice of appointment stated that this appointment superseded the earlier appointment of a Human Rights Tribunal.
Canadian Human Rights Act, section 56 provides that the President must appoint a Review Tribunal where an appeal is made, pursuant to section 55, against a “decision or order” of a Tribunal composed of fewer than three members. The applicant filed a notice of appeal seeking to appeal the “first preliminary decision”. The President refused to appoint a Review Tribunal on the ground that the applicant was attempting to appeal an interim or preliminary procedural ruling and that appeals provided for in sections 55 and 56 are with respect to final decisions or orders.
The issues were: whether the President had jurisdiction to appoint the three-member Tribunal replacing the one-member Tribunal; whether the President had the discretion to refuse to appoint a Review Tribunal; whether sections 55 and 56 require the decision or order being appealed to be final in nature; and whether the first preliminary decision was a final or a preliminary decision.
Held, the first application should be allowed; the second should be dismissed.
There may be circumstances where later replacement of a Tribunal originally appointed is appropriate and thus the principle of functus officio is not apt in considering the authority of the President to appoint a Tribunal. The circumstances here did not require such action because there was no question of Mr. McInnes’ capacity to carry on at the time of the second appointment. While the President has authority to make successor appointments in circumstances where to do so facilitates the purposes of the Act, despite the lack of express authority to do so, that authority does not permit making such appointments in circumstances where doing so breaches the principle of fairness or causes prejudice to any party before the Tribunal. That authority is derived from the inherent power of an administrative tribunal to determine procedures appropriate for attainment of its legislated purposes, but exercise of the authority, is bound by the responsibility to act in accord with the principle of fairness. The applicant herein can claim unfairness arising from the lack of notice at the time of Mr. McInnes’ original appointment that his mandate might be limited to preliminary procedural matters and he might be replaced by a three-person Tribunal to consider the merits of the inquiry. Underlining the unfairness is the fact that the Commission, a party before the Tribunal, was familiar with the Tribunal’s practice of appointing a one-member Tribunal to conduct the pre-hearing conference and when the complexity of issues or availability of panel members demanded, supplementing or replacing it with other panel members for the ultimate hearing on the merits, while the applicant was not. The unfairness is further underlined by the expectation of certain rights to appeal decisions or orders of a single-member Tribunal. The later appointment effectively prevented appeal from the Tribunal’s decision under Act, sections 55 and 56, without any prior notice to, or opportunity for submissions on the matter from the applicant. Inclusion in the original notice of appointment of a single-person Tribunal that there are limits on its authority to consider matters before it, and of the possibility or likelihood that it might subsequently be replaced by a Tribunal, possibly of three persons, to consider the merits of major preliminary or substantive issues in the inquiry, or, in the alternative, making available at the outset of the inquiry a published summary of the Tribunal Panel’s process, would forestall any allegation of unfairness.
There was no obligation on the President to appoint a Review Tribunal at this stage in this case. The decision not to do so was within her implicit authority. The applicant was not entitled to appeal those decisions at this stage for they are not “decisions or orders” within the meaning of those words as used in sections 55 and 56. In the context of sections 53, 54 and 57, “decision or order” referred to in section 55 does not include a decision or order of a preliminary procedural nature that may be subject to change. That section is meant to include only decisions or orders which are final in nature, not subject to change upon reconsideration by the Tribunal, and finally disposing of a matter before it. Where an issue appears to be finally disposed of by a Tribunal in the sense that the Tribunal has made a decision or direction for its disposition, so long as the Tribunal’s task is not completed, it is only exceptional decisions which may be considered to be final. All decisions of a preliminary nature may prove to be final if they are not subsequently changed, but finality is determinable only when the Tribunal’s decision or order is made disposing of the inquiry. To permit appeals from decisions or orders dealing with preliminary matters as these decisions are made could lead to numerous appeals, and could frustrate the purposes of the Act, delaying the inquiry into a complaint. The “first preliminary decision” included only preliminary decisions, dealing primarily with issues of evidence and procedures to be followed. The decisions herein do not finally dispose of the inquiry before the Tribunal. They may be subject to appeal under section 55, but only after the Tribunal has finally disposed of the inquiry.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 48.1 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65), 49(1) (as am. idem, s. 66), (1.1) (as enacted idem), (2),(5) (as am. idem), (5.1) (as enacted idem), (6) (as am. idem), 52, 53, 54(1), 55, 56(1) (as am. idem, s. 67), (2),(3),(4),(5), 57.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1 (as enacted by S.C. 1990, c. 8, s. 5), 51.
Human Rights Code, 1981, S.O. 1981, c. 53, s. 41.
CASES JUDICIALLY CONSIDERED
APPLIED:
Industrial Gas Users Assn. v. Canada (National Energy Board) (1990), 43 Admin. L.R. 102; 33 F.T.R. 217 (F.C.T.D.); National Indian Brotherhood v. Juneau (No. 2), [1971] F.C. 73 (C.A.); Roosma v. Ford Motor Co. of Canada Ltd. (1988), 66 O.R. (2d) 18; 53 D.L.R. (4th) 90; 34 Admin. L.R. 87; 10 C.H.R.R. D/5761; 89 CLLC 17,013; 29 O.A.C. 84 (Div. Ct.).
CONSIDERED:
Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; (1990), 69 D.L.R. (4th) 489; [1990] 3 W.W.R. 289; 83 Sask. R. 81; 43 Admin. L.R. 157; 30 C.C.E.L. 237; 90 CLLC 14,010; 106 N.R. 17; Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; (1989), 101 A.R. 321; 62 D.L.R. (4th) 577; [1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40 Admin. L.R. 128; 36 C.L.R. 1; 99 N.R. 277; 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; Canada (Attorney General) v. Grover et al. (1994), 80 F.T.R. 256 (F.C.T.D.).
APPLICATIONS for an order setting aside the appointment of a three-person Tribunal replacing a one-person Tribunal (which had already received evidence and heard argument in relation to preliminary procedural issues) to conduct an inquiry into complaints of employment discrimination based on age; and for mandamus directing the appointment of a Review Tribunal to hear an appeal from certain rulings of the one-person Tribunal. The first application was allowed; the second dismissed.
COUNSEL:
George J. Vassos for applicant.
Rosemary G. Morgan for respondent Canadian Human Rights Commission.
Bruce C. Caughill for intervenor Canadian Human Rights Tribunal.
SOLICITORS:
Harris & Partners, Toronto, for applicant.
Rosemary Morgan, Ottawa, for respondent Canadian Human Rights Commission.
Stikeman Elliott, Ottawa, for intervenor Canadian Human Rights Tribunal.
The following are the reasons for order rendered in English by
MacKay J.: When these two applications for judicial review, brought pursuant to section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5], were heard at Toronto on November 27, 1995 I reserved decision, and invited written submissions which have now been received and considered. These reasons are now filed, in accord with section 51 of the Federal Court Act, in relation to orders now also filed.
By its originating notice of motion filed July 26, 1995 the applicant, Brink’s Canada Limited (Brink’s), seeks a declaration that the decision of Keith Norton, then President of the Canadian Human Rights Tribunal Panel (the Tribunal Panel), dated June 19, 1995 appointing a Tribunal of three persons to inquire into the complaints of two individuals against the applicant, is invalid, and Brink’s also seeks an order quashing that decision. In addition, orders of prohibition are sought to preclude the three-person Tribunal from commencing hearings as scheduled, and to preclude any Tribunal from commencing proceedings on preliminary issues or on the merits until a Review Tribunal is appointed pursuant to the Canadian Human Rights Act, R.S.C., 1985, c. H-6 as amended, (the Act), and its proceedings are completed. This application, referred to by counsel as “the prohibition application”, is that dealt with in Court file T-1571-95.
By the second application filed August 31, 1995 the applicant seeks an order declaring invalid and quashing the decision dated July 31, 1995, by Anne Mactavish, successor to Mr. Norton as President of the Tribunal Panel, determining not to appoint a Review Tribunal as requested in connection with the applicant’s notice of appeal. In addition this application seeks an order in the nature of mandamus directing the President to appoint a Review Tribunal to hear and decide the issues raised by the applicant’s notice of appeal, and an order prohibiting a Human Rights Tribunal from proceeding with an inquiry into the complaints until a Review Tribunal has disposed of the applicant’s appeal. This application, referred to by counsel at the hearing as “the mandamus application”, is that dealt with in Court file T-1844-95.
By order, on consent, dated October 16, 1995 the Canadian Human Rights Tribunal was added as an intervenor in relation to each of the applications and was removed as a named respondent in Court file T-1571-95. The orders now issued direct that individual members of the Tribunal, who at the time of hearing were still named as parties in the styles of cause, be removed as respondents and be added, with the Tribunal, as intervenors, and that the styles of cause be so amended.
The background
On May 15, 1989 and April 20, 1990, respectively, the respondents Art Stringer and Clarke Jerman, filed complaints with the Canadian Human Rights Commission (the Commission), alleging that the applicant, their former employer, had discriminated against them in regard to their employment on the basis of their age.
The Commission requested the President of the Tribunal Panel, on December 19, 1994, to appoint a Tribunal to inquire into these complaints pursuant to section 49 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 66] of the Act. On January 24, 1995 Mr. Norton issued a notice under the Act, titled “Appointment of a Human Rights Tribunal”, stating that he appointed Ronald W. McInnes “as a Human Rights Tribunal to inquire into the complaints” of Messrs. Stringer and Jerman against Brink’s Canada Limited “and to determine whether the actions complained of constitute a discriminatory practice on the ground of age in a matter related to employment under section 7” of the Act.
The applicant was notified by letter dated February 2, 1995 that a pre-hearing conference would take place. Following this notice, a pre-hearing meeting was held on March 29, 1995 before Mr. McInnes, in order to deal with preliminary issues. At that meeting the applicant raised, as preliminary issues, the constitutional jurisdiction of the Tribunal, the matter of delay and alleged abuse of process, and the joinder of the complaints for a hearing. The week of August 14, 1995 was set aside to deal with these preliminary issues if the applicant after further consideration determined that those be raised for determination by the Tribunal. Following this meeting, on April 24, 1995 Mr. McInnes conducted a conference call with counsel for the parties and for the Commission, and including the named respondents Stringer and Jerman, to deal with outstanding matters from the pre-hearing meeting.
During the conference call and in written submissions thereafter, the Commission proposed arrangements for preservation of the evidence of Mr. Stringer, who has cancer, with a prognosis that presents a serious possibility that he may not be able to testify at the hearing considering the merits of the complaints. The Commission requested that Mr. Stringer be permitted to adduce his evidence prior to the hearing of the merits or that he be permitted to set out his evidence in a comprehensive affidavit upon which he would be cross-examined by Brink’s. The latter opposed this request, in part, initially because there was no medical evidence of Mr. Stringer’s condition, and because the costs associated with the suggested processes could be high and without prospect of recovery whatever the ultimate outcome on the merits.
In a “First Preliminary Decision”, dated June 15, 1995, Mr. McInnes decided, among other matters, the order for presentation of evidence and argument on the preliminary issues raised by Brink’s, the principle applicable to cross-examination of witnesses called to testify in relation to preliminary issues, and the arrangements in relation to evidence from Mr. Stringer. In the last matter the decision indicated Mr. McInnes was prepared to exercise discretion, which he found he had as a Tribunal, to order that Mr. Stringer’s evidence be taken in advance of the hearing on the merits, on condition that the Commission provide an undertaking to consent to the Tribunal determining the issue of costs and that it would abide by any order concerning Brink’s costs of cross-examining Mr. Stringer if cross-examination should prove to have been unnecessary by reason of a subsequent decision on a preliminary issue, which then avoided a hearing on the merits. Arrangements were directed for taking Mr. Stringer’s evidence, over two days to be scheduled as soon as possible, and if dates were not agreed upon by June 30, 1995, they would be set peremptorily by the Tribunal. If Mr. Stringer’s health should deteriorate significantly before he was to be examined, Mr. McInnes should be spoken to by conference call. Since the arrangements were not complete at the time of that decision it seems clear that Mr. McInnes considered himself as a Tribunal seized of settling arrangements to ensure a process for obtaining Mr. Stringer’s evidence, assuming the Commission would consent to meet the applicant’s costs if that should be ordered.
Following that decision, on June 19, 1995 Mr. Norton, as President of the Tribunal Panel, appointed a three-person Tribunal, including Mr. McInnes as Chairperson, “to inquire into the complaints” of Messrs. Jerman and Stringer and “to determine whether the actions complained of constitute a discriminatory practice on the ground of age in a matter of employment under section 7” of the Act. The notice of appointment dated June 19, 1995 stated that this appointment superseded the appointment of a Human Rights Tribunal dated January 24, 1995. Except for that statement and the newly named Tribunal members, the original and the successor notices were essentially similar, including an identical paragraph referring to the request made by the Commission and stating that in accordance with that request “I hereby appoint a single Human Rights Tribunal to inquire into the said complaints”, that is, the complaints of Messrs. Stringer and Jerman. It is the appointment of this three-member panel, made after the earlier appointment of Mr. McInnes to act alone, that the applicant questions by its first application for judicial review (Court file T-1571-95), filed on July 26, 1995.
By a notice of hearing, dated June 21, 1995 the Registrar of the Tribunal gave notice of a hearing before the three-member Tribunal, to inquire into the complaints, to commence on August 14 for an expected five days, the dates earlier settled at the pre-hearing conference in March for consideration of the preliminary issues raised by Brink’s.
By letter dated June 29, 1995 the applicant advised the Tribunal that it objected to the appointment of the three-person panel. In the applicant’s view Mr. McInnes was seized of all matters with respect to the complaints from the date of his appointment, he had received certain evidence and submissions, and he rendered certain decisions and retained authority to deal with some matters. Moreover, the Act provides no express authority for the President to appoint the second Tribunal. The Registrar of the Tribunal responded by letter dated July 6, 1995, advising the applicant that the current President, Anne Mactavish, had reviewed the situation and that the hearing would proceed with the three-person Panel constituted on June 19, 1995.
On July 12, 1995 the applicant filed a notice of appeal with the Tribunal seeking to appeal the first preliminary decision by Mr. McInnes dated June 15, 1995, alleging errors in relation to a number of matters decided. The Registrar of the Tribunal advised the applicant by letter dated July 31, 1995:
… your Notice of Appeal … was forwarded to Anne Mactavish, the President of the Human Rights Tribunal, for her decision. Ms. Mactavish has decided as follows: the Notice purports to appeal the ruling of the Tribunal Chairperson, Ronald McInnes, dated June 15, 1995, by way of the Review Tribunal mechanism provided for in Sections 55 and 56 of the Act. The ruling, however, is an interim or preliminary procedural ruling regarding the conduct of the Tribunal proceedings. The Tribunal takes the position that the Review Tribunal mechanism only applies to final decisions or orders of the Tribunal and accordingly is not the proper forum in which to hear this Appeal.
Your request that a Review Tribunal be appointed to review the decision of the Human Rights Tribunal dated June 15, 1995, has therefore been denied.
It is this decision which the applicant challenges by its second application for judicial review (Court file T-1844-95).
I note that by order of August 11, 1995 the Court directed a stay of proceedings relating to the preliminary objections of the applicant scheduled to commence before the Tribunal on August 14, until final disposition of the application for judicial review in Court file T-1571-95.
The legislation
The Act provides for the establishment of the Human Rights Tribunal Panel, and for its President, and for operations of a Tribunal. Those provisions relevant for purposes of this case include [ss. 48.1 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65), 49(1) (as am. idem, s. 66), (1.1) (as enacted idem), (5) (as am. idem), (5.1) (as enacted idem), (6) (as am. idem), 56(1) (as am. idem, s. 67)]:
48. 1 There is hereby established a panel to be known as the Human Rights Tribunal Panel consisting of a President and such other members as may be appointed by the Governor in Council.
…
49. (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.
(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.
(2) A Tribunal may not be composed of more than three members.
…
(5) Subject to subsection (5.1), in selecting any individual or individuals to be appointed as a Tribunal, the President of the Human Rights Tribunal Panel shall select from among the members of the Human Rights Tribunal Panel.
(5.1) The President of the Human Rights Tribunal Panel may sit as a Tribunal or as a member of a Tribunal.
(6) Subject to subsection (7), where a Tribunal consists of more than one member, the President of the Human Rights Tribunal Panel shall designate one of the members to be the Chairman of the Tribunal.
…
52. A hearing of a Tribunal shall be public, but a Tribunal may exclude members of the public during the whole or any part of a hearing if it considers that exclusion to be in the public interest.
53. (1) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is not substantiated, it shall dismiss the complaint.
(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:
(a) that the person cease the discriminatory practice and, in order to prevent the same or a similar practice from occurring in the future, take measures, including
(i) adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) the making of an application for approval and the implementing of a plan pursuant to section 17,
in consultation with the Commission on the general purposes of those measures;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, such rights, opportunities or privileges as, in the opinion of the Tribunal, are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim, as the Tribunal may consider proper, for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; and
(d) that the person compensate the victim, as the Tribunal may consider proper, for any or all additional cost of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice.
(3) In addition to any order that the Tribunal may make pursuant to subsection (2), if the Tribunal finds that
(a) a person is engaging or has engaged in a discriminatory practice wilfully or recklessly, or
(b) the victim of the discriminatory practice has suffered in respect of feelings or self-respect as a result of the practice,
the Tribunal may order the person to pay such compensation to the victim, not exceeding five thousand dollars, as the Tribunal may determine.
(4) If, at the conclusion of its inquiry into a complaint regarding discrimination based on a disability, the Tribunal finds that the complaint is substantiated but that the premises or facilities of the person found to be engaging or to have engaged in the discriminatory practice require adaptation to meet the needs of a person arising from such a disability, the Tribunal shall
(a) make such order pursuant to this section for that adaptation as it considers appropriate and as it is satisfied will not occasion costs or business inconvenience constituting undue hardship, or
(b) if the Tribunal considers that no such order can be made, make such recommendations as it considers appropriate,
and, in the event of such finding, the Tribunal shall not make an order unless required by this subsection.
54. (1) Where a Tribunal finds that a complaint related to a discriminatory practice described in section 13 is substantiated, it may make only an order referred to in paragraph 53(2)(a).
(2) No order under subsection 53(2) may contain a term
(a) requiring the removal of an individual from a position if that individual accepted employment in that position in good faith; or
(b) requiring the expulsion of an occupant from any premises or accommodation, if that occupant obtained such premises or accommodation in good faith.
55. Where a Tribunal that made a decision or order was composed of fewer than three members, the Commission, the complainant before the Tribunal or the person against whom the complaint was made may appeal the decision or order by serving a notice, in a manner and form prescribed by the order of the Governor in Council, within thirty days after the decision or order appealed was pronounced, on all persons who received notice from the Tribunal under subsection 50(1).
56. (1) Where an appeal is made pursuant to section 55, the President of the Human Rights Tribunal Panel shall select three members from the Human Rights Tribunal Panel, other than the member or members of the Tribunal whose decision or order is being appealed from, to constitute a Review Tribunal to hear the appeal.
(2) Subject to this section, a Review Tribunal shall be constituted in the same manner as, and shall have all the powers of, a Tribunal appointed pursuant to section 49, and subsection 49(4) applies in respect of members of a Review Tribunal.
(3) An appeal lies to a Review Tribunal against a decision or order of a Tribunal on any question of law or fact or mixed law and fact.
(4) A Review Tribunal shall hear an appeal on the basis of the record of the Tribunal whose decision or order is appealed and of submissions of interested parties but the Review Tribunal may, if in its opinion it is essential in the interests of justice to do so, admit additional evidence or testimony.
(5) A Review Tribunal may dispose of an appeal under section 55 by dismissing it, or by allowing it and rendering the decision or making the order that, in its opinion, the Tribunal appealed against should have rendered or made.
57. Any order of a Tribunal under subsection 53(2) or (3) or any order of a Review Tribunal under subsection 56(5) may, for the purpose of enforcement, be made an order of the Federal Court by following the usual practice and procedure or, in lieu thereof, by the Commission filing in the Registry of the Court a copy of the order certified to be a true copy, and thereupon that order becomes an order of the Court.
The appointment of a second Tribunal
(the prohibition application) (T-1571-95)
The first issue raised by the applicant is whether the President of the Tribunal Panel has jurisdiction to appoint a three-member Tribunal replacing a one-member Tribunal which has already been appointed, where that person has already received evidence and heard argument in relation to some preliminary procedural issues and has left certain matters to be determined by himself, and where that person continues to be capable of serving as a Tribunal under the Act.
On behalf of the applicant it is submitted that section 49 of the Act permits the President to make only one appointment of a Tribunal and once an appointment has been made the President is functus officio with respect to her or his power to make appointments under section 49. Neither that section, nor any other provision in the Act, it is submitted, gives the President the authority to appoint a second Tribunal. It is the Commission, pursuant to section 49, that determines what complaint is to go forward to the Tribunal, and where the Commission makes only one request for the appointment of a Tribunal, the President of the Tribunal Panel shall appoint a Tribunal to investigate the matter, but having done so the President has no authority to appoint a second Tribunal. The applicant urges that here the President received from the Commission one request, regarding both of the complaints, to appoint a Tribunal, and the President then appointed a one-member Tribunal to investigate both of the complaints. With no outstanding request before him, the President, being functus officio, could not then appoint the three-member Tribunal as he purported to do.
The applicant urges that the powers of the President are limited by the Act and that the President possesses no inherent powers. It is urged that since Parliament did not expressly include the authority for the President to appoint a second Tribunal, it intended that the President was not to have that authority.
Finally, for the applicant it is urged that serious prejudice, to both the applicant and the Commission, will result if the three-member Panel is permitted to continue, and that, even if the President has the authority to appoint a three-member Tribunal, he should not be permitted to do so in the circumstances here. If the practice of the Tribunal, as described by affidavit of its Registrar, was followed, Mr. McInnes may have been aware of limited terms of his initial appointment to consider preliminary procedural issues, but the applicant Brink’s had no notice that his appointment was limited or that it might subsequently be superseded by appointment of a three-person Tribunal. From the initial appointment the parties expected, or at least the applicant did, from the notice appointing him, that Mr. McInnes was the Tribunal to inquire into the complaints. That is what the notice of appointment said. From that appointment and the statutory provision for appeal to a Review Tribunal under sections 55 and 56, it is urged the parties had an expectation of a right to appeal to a Review Tribunal. Their statutory right of appeal pursuant to sections 55 and 56 is lost by reason of the appointment of the second Tribunal, for no appeal lies from the decision of a Tribunal composed of three members.
For the respondent Commission and the intervenor, the Tribunal, it is submitted that the Tribunal Panel’s power to control its own processes gives the President the authority to make a second appointment. It is said the President, acting for the Tribunal Panel which is master of its own procedure, has authority under the Act to determine the composition of a Tribunal, with up to three members from the Panel, once a request has been made by the Commission. It is urged, because what is in issue is a strictly procedural matter, determined before consideration by a Tribunal of the merits of the matter submitted for inquiry, that the President has jurisdiction to appoint a second Tribunal under his or her inherent power in regard to the processes of the Tribunal.
For the Tribunal and the Commission it is urged that the applicant’s interpretation of section 49 is overly-technical and not consistent with the broad, liberal interpretation this Court should give to the Act.
The Supreme Court of Canada has recognized the authority of administrative bodies to control their own procedures, subject to the terms of statutes applicable to them: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at page 685. In developing those procedures the administrative body may have appropriate regard for considerations of efficiency, a factor here said to be significant.
In Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, the Supreme Court [at page 862] determined that the principle of functus officio should not be strictly applied where there are “indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation”.
The Supreme Court has ruled that human rights legislation is to be given a fair, large and liberal interpretation which will further attainment of the objectives of the legislation: Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84. My colleague, Mr. Justice Cullen, relied on this principle in Canada (Attorney General) v. Grover at al. (1994), 80 F.T.R. 256 (F.C.T.D.) when he found that a Tribunal appointed under the Act was not functus officio with respect to an order rendered and that the Tribunal could reconvene the hearing on the matter and issue a new order despite the fact that the Act did not expressly allow for this. By that decision the Court also determined that some flexibility must be given to the Tribunal to develop its own procedures in attempting to fulfil its mandate.
The practice of the President in the appointment of a Tribunal, upon request of the Commission, is described in the affidavit of the Registrar of the Tribunal, as follows.
8. Subject to the three Panel member maximum under the Act, the numerical composition of the Tribunal is at the sole discretion of the President. Historically, the complexity of the issues in a particular case have determined Tribunal size.
9. Prior to the ultimate hearing on the merits, an appointed Tribunal is subject to change. Where, after appointment to a Tribunal by the President but before the ultimate hearing on the merits, a Panel member becomes unable to continue to act, the President will reconstitute the Tribunal to replace that member. Such reconstitution can occur after an unavailable member has heard submissions and made determinations with respect to preliminary procedural issues.
10. Since the origin of the Tribunal, there had been protracted delays in scheduled hearings caused by dealing with preliminary matters at the commencement of hearings. Many times these preliminary matters would raise issues requiring adjournments of the ultimate hearing on the merits and causing the attendant delays relating to the rescheduling of the hearing.
11. In order to deal with these delays, it has recently become standard practice in proceedings before the Tribunal to conduct a Pre-Hearing Conference in each case, at which time dates for the hearing on the merits are scheduled.
12. Matters dealt with at the Pre-Hearing Conference are procedural and involve the determination of preliminary issues prior to the hearing on the merits. Substantive issues going to the merits of the case are not dealt with at this stage of the proceeding.
13. The President often initially constitutes a one member Tribunal (the “Initial Tribunal”) to conduct the Pre- Hearing Conference. After the Pre-Hearing Conference, and when the complexity of issues or availability of Panel members demands, the President will supplement or replace the Initial Tribunal with other Panel members as required for the ultimate hearing on the merits (the “Practice”).
14. Panel members are advised when appointed as an Initial Tribunal that their mandate at that stage of the proceeding is to conduct the Pre-Hearing Conference and schedule hearing dates as quickly as possible. These members are also advised that in scheduling hearing dates their own availability is not to be considered since, if they are unavailable, the President will appoint another Tribunal to deal with the merits of the case. What is of primary importance to the Tribunal at this point is establishing hearing dates in a timely fashion.
15. Attached as Exhibit “A” to this my Affidavit is a copy of a document entitled “Suggested Procedures for the Tribunal Chairperson—Pre-Hearing Conferences” (the “Procedures”). The Procedures are provided by the Tribunal Registry to the Initial Tribunal Panel members and set out, among other things, the mandate and scheduling considerations of the Initial Tribunal discussed above.
16. The Practice has been adopted by the Tribunal and the President for reasons of expediency and efficiency in the face of limited Tribunal resources.
17. The Practice enables a Tribunal to be struck quickly and thereby move to the Pre-Hearing Conference phase of a proceeding in an expeditious fashion and with no prejudice to the parties to the proceeding.
18. In the absence of the Practice, the difficulties associated with arriving at an acceptable date for the Pre- Hearing Conference among all members of a more than one person Tribunal can often delay this step in the proceeding and thereby delay the ultimate hearing on the merits to the prejudice of all parties.
19. In recognition of the procedural nature of the matters in issue at Pre-Hearing Conferences the Practice involves appointing a legal member of the Panel to comprise the Initial Tribunal to make the primarily legal determinations associated with such procedural matters. It is the Tribunal’s position that it is unnecessary to involve more Panel members, some with no legal background, at this stage of the proceeding.
20. Furthermore, the Practice is particularly efficient in light of the potential settlement of proceedings after the Pre-Hearing Conference but before the ultimate hearing on the merits. By initially involving one Panel member only, the Practice avoids the unnecessary expense associated with appointing a full Tribunal from the outset only to have the proceeding settle prior to the substantive hearing. This preservation of resources facilitated by the Practice is particularly important in the face of reduced Government funding for the Tribunal’s operation.
21. The Practice has been applied in the vast majority of cases before the Tribunal initiated after July 1, 1992, and greatly assists in the timely determination of these proceedings.
Counsel for the Tribunal and for the Commission emphasize the authority of the Tribunal, and of the President on behalf of the Tribunal, to control its own processes. They also stress the factor of efficiency in the process by appointment of a single member of the Panel to be a Tribunal for consideration of preliminary procedural matters. On both grounds, and because it is urged that the principle of functus officio should not be applied to frustrate the purposes of the statute, they urge that it is within the implied authority of the President under the Act to appoint a Tribunal consisting of one person to consider preliminary matters and to subsequently appoint a three-person Tribunal to consider the merits of the complaint or complaints referred by the Commission for inquiry. In argument it was urged for the Tribunal that the process permits the President to appoint a three-person Tribunal to replace a one-person Tribunal when the issues appear to be complex after preliminary matters are raised, but no standard of complexity was referred to and no apparent consideration was given to consultation with the parties about complexity of the issues or about replacing the one-person Tribunal with a three-person Panel.
I agree there may be circumstances where later replacement of a Tribunal originally appointed is appropriate and thus the principle of functus officio is not apt in considering the authority of the President to appoint a Tribunal. For example, a person appointed as a one-person Tribunal may be incapable of carrying on before the inquiry is completed and it would seem entirely consistent with the purpose of the Act in its provisions for a Tribunal that the President make a replacement appointment. Unless there be consent by the parties, a successor Tribunal could not simply continue but would have to begin again the process of the hearing and in those circumstances one, two or three persons might be appointed to replace the person originally named as the Tribunal, just as the President might have done in making the initial appointment.
In my opinion the power to appoint a Tribunal is vested exclusively in the President of the Tribunal Panel, an authority required to be exercised upon request by the Commission, and an administrative authority not subject to the principle of functus officio, if circumstances permit or require that the authority be exercised more than once in relation to certain complaints, for the purposes of the Act to be served. The circumstances here did not require such action for there was no question, at the time of the second appointment, of the capacity of Mr. McInnes to carry on with the inquiry for which he was originally appointed.
While I find that the President possesses authority to make successor appointments in circumstances where to do so facilitates the purposes of the Act, despite the lack of express statutory authority to do so, that authority in my view does not permit making such appointments in circumstances where doing so breaches the principle of fairness or causes prejudice to any party before the Tribunal. That authority is derived from the inherent power of an administrative tribunal and of its administrative officers to determine procedures appropriate for attainment of its legislated purposes, but exercise of the authority, like any administrative action, is bound by the responsibility to act in accord with the principle of fairness.
I am persuaded that in the circumstances of this case the applicant can rightly claim unfair treatment, and real prejudice, if the three-person Tribunal is permitted at this stage to continue and to hear the preliminary or substantive issues of the inquiry. The unfairness arises from the lack of notice to the applicant, Brink’s, at the time of the original appointment of Mr. McInnes that the latter’s mandate might be limited to preliminary procedural matters and he might subsequently be replaced by a three-person Tribunal to consider the merits of the inquiry in accord with what is now said to be a practice developed by the Tribunal. The unfairness of the process is underlined by the fact that the Commission, a party before the Tribunal as provided by statute, is familiar with the practice of the Tribunal and of the President, while the applicant, in responding to complaints to the Commission, is not. It is further underlined by the expectation about possible rights to appeal that the applicant would ordinarily derive, upon reading the Act’s provisions for an appeal to a Review Tribunal and learning of the appointment of a single member Tribunal to inquire into the complaints. Here the later appointment effectively prevents the applicant, and the Commission, from appealing the decision of the Tribunal under sections 55 and 56 of the Act, without any prior notice to, or opportunity for submissions on the matter from, the applicant.
The Review Tribunal as provided in the statute, in my opinion, is an important element in the framework for consideration of complaints under the Act, if those appear serious and are not settled. Parliament specifically provided for an appeal “against a decision or order of a Tribunal on any question of law or fact or mixed law and fact” (subsection 56(3)), where the Tribunal that made the decision or order was composed of fewer than three members (section 55). A Review Tribunal is not limited to considering the record of the Tribunal whose decision or order is appealed and to submissions of the parties, and it may admit additional evidence or testimony if this seems essential in the interests of justice (subsection 56(4)). A Review Tribunal may dismiss an appeal, or allow it and render the decision that, in its opinion, the original Tribunal should have made (subsection 56(5)). An appellate body with authority to consider additional evidence or testimony and to render decisions the original Tribunal should have made, has broad authority indeed.
The Review Tribunal as here constituted, apart from the regular judicial process, is a specialized appellate body concerned with complaints of discrimination under the Act. It is my opinion that in providing such a body Parliament intended to ensure that parties to complaints which are not settled have a full opportunity for presentation of their respective positions, including an appeal of decisions of a Tribunal if it be constituted of less than three persons. If that appeal process is not fostered, or is not available, there is no appeal from the decision of the Tribunal. Its decision may be subject to judicial review, but not to an appeal in the ordinary sense.
I do not deny the discretion of the President under subsection 56(1) to appoint a three-person Tribunal in the first instance, thus foreclosing any possible subsequent appeal if the three persons participate in the ultimate decision or order of the Tribunal. Nor does this Court, or the applicant, suggest that this is the only process by which a three-person Tribunal may be appointed. I recognize that the Tribunal Panel must be free to develop its own processes, as it sees fit in light of its purposes and its resources. Thus, arguments here concerning efficiency and expediency in settling preliminary procedural questions by a one-person Tribunal may be important for the Tribunal Panel. This Court does not seek to frustrate those arrangements. In my opinion, the concerns I here recognize for fairness in process, and the prejudice to the applicant from the second appointment of a Tribunal, could have been adequately addressed by including in the original notice of appointment, of a single-person Tribunal, notice of limits on his or her authority to consider the matters before the Tribunal and of the possibility or likelihood that he or she might subsequently be replaced by a Tribunal, possibly of three persons, to consider the merits of major preliminary or substantive issues in the inquiry. Notice of that sort, or a published summary of the Tribunal Panel’s adopted process made available at the commencement of any inquiry would eliminate any claim to unfairness, or to prejudice from exercise of the President’s authority to appoint a successor Tribunal, provided the published notice or description includes reference to the possibility of additional or replacement appointments of an initial Tribunal, even by a three-person Panel, which would generally preclude possibility of appeal to a Review Tribunal under the Act.
In written submissions following the hearing counsel for the Tribunal suggests that the process adopted by the President in appointing a successor Tribunal to hear substantive issues arising in an inquiry is analogous to the process of a court where interlocutory procedural issues may be determined by one or more judges other than the judge who ultimately hears and determines the substance of the matter in dispute. Restricting determination of all issues to the Tribunal originally appointed, it is suggested, imposes more stringent procedural requirements on a Tribunal than upon a court. I am not persuaded that the analogy is helpful to the Tribunal’s position. The Tribunal Panel, its President and an appointed Tribunal derive their authority from the Act, not from comparisons with other bodies. While the Tribunal Panel, and the President on its behalf, should have substantial discretion to develop processes that serve its purposes under the Act, those processes should be readily known to parties who may be affected by them, just as judicial processes are known by published rules and decisions applying them. Here the practice of the President in Tribunal appointments as it has evolved was not known by published descriptions or by advice to all parties to proceedings of a Tribunal at the time its work commenced.
Counsel also urged in written submissions that if an order in the nature of prohibition as sought by the applicant were to be granted, this Court should “provide clear directions as to the manner in which the Tribunal and the parties to this particular complaint are to proceed in order to avoid further delay. Specifically, we would ask the Court to confirm, if prohibition is to issue, that the Tribunal as initially struck in this case is validly constituted and free to hear the complaint and any and all issues related thereto”. That sort of advice would, in my opinion, be beyond the scope of judicial authority and would be mere dicta in any future questioning of the Tribunal’s process.
Nevertheless, I note the following. There is no dispute that the initial appointment of Mr. McInnes was valid. An order setting aside or quashing the decision of June 19, 1995 which appointed a successor three-person Tribunal and superseded the initial appointment, leaves the original appointment in effect. If Mr. McInnes is still able to serve as the Tribunal, his doing so would appear likely to provide the most expeditious hearing of the matters before the Tribunal. If he should not be able to so serve at this stage, of necessity the President of the Tribunal Panel has authority under subsection 49(1.1) to make an appointment of a Tribunal in accord with the statute. In the latter case, the process as developed for the Tribunal may well be followed, assuming a Tribunal replacing Mr. McInnes commences the inquiry ab initio, and provided appropriate notice is given of the process contemplated by the President in appointing a Tribunal.
I conclude, in relation to the application in Court file T-1571-95, that the decision of Mr. Norton as President of the Tribunal Panel, made June 19, 1995 should be set aside in the circumstances of this case, to avoid unfairness in the process to the applicant Brink’s and to avoid prejudice to its statutory right to appeal a decision or order of a Tribunal composed of less than three persons, pursuant to sections 55 and 56 of the Act. If the one-person Tribunal, Mr. McInnes, initially appointed to inquire into the complaints, is still willing and capable to act as a Tribunal, no other or others should be appointed to supersede his appointment or to replace him as the Tribunal charged with the inquiry into the complaints of Messrs. Stringer and Jerman, so long as he can serve in that capacity. The order issued so provides.
The refusal to appoint a Review Tribunal
(the mandamus application (T-1844-95))
By its second originating motion, filed August 31, 1995 (Court file T-1844-95) the applicant seeks an order declaring that the decision of the President not to appoint a Review Tribunal is invalid. In addition, the following consequential relief is sought: an order quashing that decision, an order for mandamus requiring the President to appoint a Review Tribunal, an order referring the matter back to the President with directions and an order for prohibition preventing any Human Rights Tribunal from proceeding to hear the applicant’s preliminary objections or the merits of the complaints until a Review Tribunal is appointed pursuant to sections 55 and 56 of the Act and has considered the applicant’s appeal.
For the applicant it is submitted that the President does not have the discretion to refuse to appoint a Review Tribunal; rather the President is obligated by section 56 to appoint a Review Tribunal upon receipt of an appeal initiated in accord with section 55. Further, in the view of the applicant it is a Review Tribunal, and not the President, that must determine the Review Tribunal’s jurisdiction to hear the appeal.
On behalf of the applicant it is also urged that the first preliminary decision of Mr. McInnes dated June 15, 1995 is a final and not merely a preliminary or interlocutory decision. Alternatively, it is also submitted that the wording of sections 55 and 56 does not require the decision or order being appealed to be final in nature.
For the Tribunal and the Commission it is submitted that “a decision or order” from which an appeal lies under the Act is a final decision or order disposing of the matter before the Tribunal. Otherwise, unlimited appeals on preliminary issues, such as the matters determined by Mr. McInnes, would inevitably frustrate the object of dealing expeditiously with complaints, and could unreasonably tax the financial and part-time personnel resources of the Tribunal Panel.
In my view, the applicant is not entitled at this stage to appeal the first preliminary decision of Mr. McInnes under sections 55 and 56 of the Act and the President does possess the authority to refuse, at this stage, to appoint a Review Tribunal in the circumstances.
This application, in my view, raises two considerations in regard to the appeal process initiated under section 55 of the Act. The first is the nature of the decision or order which may be subject to appeal and counsel dealt with this in argument concerning appeals in relation to preliminary or final decisions. The second consideration concerns the time for considering appeals, a matter not always dealt with distinctly in some of the jurisprudence referred to me.
Section 56 of the Act provides that the President must appoint a Review Tribunal where an appeal is made, pursuant to section 55, of a “decision or order” of a Tribunal composed of fewer than three members. By subsection 56(3) “an appeal lies … against a decision or order of a Tribunal on any question of law or fact or mixed law and fact”.
The Act does not define “decision or order”. Those words are used in sections 55 and 56, and the word “order” is used in sections 53, 54 and 57 where it seems clear to me that, in the context of the latter sections, the word is used in relation to an order finally disposing of a complaint before the Tribunal, or of an appeal before a Review Tribunal. Those sections speak of findings or orders made “at the conclusion of its inquiry” by a Tribunal. As my colleague Madam Justice Reed found in Industrial Gas Users Assn. v. Canada (National Energy Board) (1990), 43 Admin. L.R. 102, at pages 111-115 the context of an Act, in which provisions for an appeal are included, may support a construction of “decision” or “order” as meaning a final order disposing of an issue before the Tribunal.
In my opinion, the “decision or order” referred to in section 55 does not include a decision or order of a preliminary procedural nature that may be subject to change. That section is meant to include only decisions or orders which are final in nature, not subject to change upon reconsideration by the Tribunal, and finally disposing of a matter before the Tribunal.
In National Indian Brotherhood v. Juneau (No. 2), [1971] F.C. 73 (C.A.) Jackett C.J., in interpreting the meaning of the phrase “decision or order” in section 28 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] as it was then, said as follows [at pages 77-79]:
Probably the most important question that has to be decided concerning the application of s. 28(1) is the question as to the meaning of the words “decision or order”. Clearly, those words apply to the decision or order that emanates from a tribunal in response to an application that has been made to it for an exercise of its powers after it has taken such steps as it decides to take for the purpose of reaching a conclusion as to what it ought to do in response to the application. I should have thought, however, that there is some doubt as to whether those words—i.e., decision or order—apply to the myriad of decisions or orders that the tribunal must make in the course of the decision-making process. I have in mind such decisions as
(a) decisions as to dates of hearings,
(b) decisions on requests for adjournments,
(c) decisions concerning the order in which parties will be heard,
(d) decisions concerning admissibility of evidence,
(e) decisions on objections to questions to witnesses, and
(f) decisions on whether it will permit written or oral arguments.
Any of such decisions will be a part of the picture in an attack made on the ultimate decision of the tribunal on the ground that there was not a fair hearing. If, however, an interested party has a right to come to this Court under s. 28 on the occasion of every such decision, it would seem that an instrument for delay and frustration has been put in the hands of parties….
I do not pretend to have formulated any view as to what the words “decision or order” mean in the context of s. 28(1), but it does seem to me that what is meant is the ultimate decision or order taken or made by the tribunal under its statute and not the myriad of incidental orders or decisions that must be made in the process of getting to the ultimate disposition of a matter.
In Roosma v. Ford Motor Co. of Canada Ltd. (1988), 66 O.R. (2d) 18 (Div. Ct.) the Court dealt with the issue of the availability of an appeal from preliminary decisions of a board of inquiry appointed under the Ontario Human Rights Code, 1981 [S.O. 1981, c. 53]. That case deals with section 41 of that Code, which provided for an appeal from a “decision or order” of a board of inquiry. The Court in that case determined that a “decision or order” subject to an appeal only included final decisions or orders rendered by a board. In the context, finality of the board’s process was implied before there could be an appeal. Under the Ontario legislation then applicable, an appeal to the Divisional Court, as provided by the Human Rights Code, 1981 resulted in an automatic stay of proceedings before the board, pending determination of an appeal. To permit an appeal on interim or interlocutory decisions or orders would frustrate the purpose of the Code to deal expeditiously with complaints.
Where an issue appears to be finally disposed of by a Tribunal in the sense that the Tribunal has made a decision or direction for its disposition, so long as the Tribunal’s task is not completed, it is only exceptional decisions which may be considered to be final. Thus a decision to release a party from an inquiry may be final, but a decision on procedures to be followed, as was the essence of all of the decisions here appealed from, may be subject to review and possible change by a Tribunal before its task is completed. All decisions of a preliminary nature may prove to be final if they are not subsequently changed, but finality is determinable only when the Tribunal’s decision or order is made disposing of the inquiry at the conclusion of its task. Until then, in my opinion, decisions or orders of a Tribunal are not generally subject to appeal under section 55 of the Act.
To permit appeals from decisions or orders dealing with preliminary matters as these decisions are made could lead to numerous appeals before one or more Review Tribunals, and could frustrate the purposes of the Act, delaying the inquiry into a complaint. In my opinion, the first preliminary decision by Mr. McInnes, dated June 15, 1995, included only preliminary decisions, dealing primarily with issues of evidence to be adduced and procedures to be followed at the hearing of the preliminary issues raised by Brink’s or with the taking of evidence of the respondent Stringer in advance of the hearing on the merits.
Those decisions may be, as the applicant submits, final, but only if they are not overruled or varied. Whether a decision is final depends upon its effect; it is final if it finally disposes of a claim or an issue (see Roosma, supra). Here they do not finally dispose of the inquiry before the Tribunal. They deal with preliminary procedural issues. All of them, if unchanged, may ultimately be matters for appeal on general grounds of fairness of the hearing by the Tribunal, but only after the Tribunal has finally disposed of the inquiry.
In my opinion, the applicants are not entitled to appeal those decisions at this stage for they are not “decisions or orders” within the meaning of those words as used in sections 55 and 56. At this stage they cannot be considered truly final. When the Tribunal’s task is completed they may be subject to appeal under section 55. Appeals of decisions before that time would tend to defeat the objective of expeditious dealing with complaints.
In my opinion, there is no obligation on the President to appoint a Review Tribunal at this stage in this case. The decision not to do so is within her implicit authority under the Act, subsection 56(2), and an order in the nature of mandamus, as requested, is inappropriate.
When the Tribunal’s inquiry is completed, an appeal initiated by the applicant concerning the issues raised by the decision of June 15, 1995 by Mr. McInnes, if those issues still be of concern to the applicant, may create the obligation upon the President of the Panel to appoint a Review Tribunal pursuant to subsection 56(1).
For these reasons, an order goes dismissing the application in Court file T-1844-95.
Conclusion
I summarize my conclusions. In Court file T-1571-95 the application is allowed and the order issued sets aside the decision dated June 19, 1995 to appoint a successor three-person Tribunal to inquire into the complaints of the respondents Stringer and Jerman and it also provides that, so long as Mr. McInnes is willing and able to act as a Tribunal in accord with the notice of appointment dated January 24, 1995, no additional or replacement appointments of a Tribunal shall be made to consider those complaints. In all other respects the application is dismissed, as is the application in Court file T-1844-95.
The orders now issued, one for each application and each file, also provide for inclusion of the Presidents and members of the Canadian Human Rights Tribunal Panel, originally named as respondents in the two proceedings, to be removed as respondents but be named as intervenors, together with the Tribunal, and for the respective styles of cause to be as they are set out at commencement of these reasons and in the orders now filed.
A copy of these reasons is to be filed on each of the Court’s files respecting these applications.