Judgments

[1996] 1 F.C. 639

A-35-94

Albert Belloni (Appellant)

v.

Canadian Airlines International Ltd. (Respondent)

and

Canadian Human Rights Commission (Mise en cause)

Indexed as: Canadian Airlines International Ltd. v. Canada (Human Rights Commission) (C.A.)

Court of Appeal, Pratte and Décary JJ.A. and Chevalier D.J.A.—Montréal, November 22 and 24, 1995.

Administrative law — Judicial review — Prohibition — Appeal from order prohibiting proceeding with complaint before CHRC — Fifty months’ delay between filing complaint, appointment of Tribunal to investigate — Respondent not responsible for delay — Appeal allowed — Delay in proceedings of administrative tribunal not caused by applicant giving rise to prohibition only where delay preventing tribunal from adequately fulfilling legislative mandate in accordance with requirements of natural justice — Emphasis on nature of prejudice suffered rather than on cause or length of delay — Prejudice to respondent not attaining high degree of magnitude required before prohibition can issue — Reference to “unreasonable” delay when Charter rights involved, “unacceptable” delay when rules of natural justice involved.

Human rights — Appeal from order prohibiting proceeding with complaint before CHRC — Fifty months’ delay between filing complaint, appointment of Tribunal to investigate — Prejudice to respondent not attaining high degree of magnitude required before prohibition order can issue — Fading of recollection of witnesses prejudice inherent in legal system, not recognized as relevant even in most criminal cases — Delay not exceptional — As issue revolving around BFOR, circumstances of complaint of secondary importance — Inability to obtain potential witnesses not demonstrated — Increased exposure to liability not prejudice relating to fairness of proceedings.

Constitutional law — Charter of Rights — Life, liberty and security — Appeal from order prohibiting CHRC from proceeding with complaint on grounds fifty months’ delay unreasonable, causing prejudice to respondent — Appeal allowed — Charter, s. 7 not applicable to non-penal proceedings under human rights legislation.

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], s. 7.

CASES JUDICIALLY CONSIDERED

APPLIED:

Nisbett v. Manitoba (Human Rights Commission) (1993), 101 D.L.R. (4th) 744; [1993] 4 W.W.R. 420; 85 Man. R. (2d) 101; 14 Admin. L.R. (2d) 216; 18 C.H.R.R. D/504; 14 C.R.R. (2d) 264; 41 W.A.C. 101 (Man. C.A.); leave to appeal to S.C.C. refused [1993] 4 S.C.R. vi.

DISTINGUISHED:

Saskatchewan Human Rights Commission v. Kodellas (1989), 60 D.L.R. (4th) 143; [1989] 5 W.W.R. 1; 77 Sask. R. 94; 10 C.H.R.R. D/6305; 89 CLLC 17,027 (Sask. C.A.).

APPEAL from order prohibiting CHRC from proceeding with complaint on the grounds that a fifty-month delay between filing the complaint and appointment of a Tribunal to investigate was unreasonable and caused prejudice to respondent. Appeal allowed.

COUNSEL:

Julius H. Grey for appellant.

W. Ross Ellison for respondent.

J. Helen Beck for mise en cause.

SOLICITORS:

Grey, Casgrain, Montréal, for appellant.

Davis & Co., Vancouver, for respondent.

Canadian Human Rights Commission, Ottawa, for mise en cause.

The following are the reasons for judgment delivered orally in English by

Décary J.A.: On the basis that the Canadian Human Rights Commission (the Commission) “had breached its duty of fairness toward the applicant [Canadian Airlines International Ltd. (Canadian)] in that its delay in proceeding with the complaint was unreasonable and that it resulted in prejudice to Canadian”, the Motions Judge issued an order prohibiting the Commission “from proceeding with the complaint against Canadian before the Canadian Human Rights Tribunal”. In reaching his decision, he applied the five-facets Charter-based test developed by the Saskatchewan Court of Appeal in Saskatchewan Human Rights Commission v. Kodellas.[1]

Obviously, the Motions Judge was not aware that a few months earlier, in Nisbett v. Manitoba (Human Rights Commission)[2] the Manitoba Court of Appeal had, correctly in our view, refused to follow Kodellas. In Nisbett, the Court found that section 7 of the Charter [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]] “has no application to proceedings of a non-penal nature under human rights legislation, and that no useful purpose can be served in this regard by referring to s. 11, dealing as it does with persons accused of a criminal offence” (at page 755); that “It cannot now be doubted that the principles of natural justice and the duty of fairness which are part of any administrative civil proceeding include the right to a fair hearing, and that delay in the performance of a legal duty may amount to an abuse that the law will remedy” (at page 756); that “If there has been prejudice of such a kind and degree as to significantly impair the ability of a party to receive a fair hearing, then the administrative tribunal may well lose jurisdiction” (at page 756); that “In certain circumstances, unreasonable delay can constitute an abuse of process” (at page 756); and that “The question is simply whether or not on the record there has been demonstrated evidence of prejudice of sufficient magnitude to impact on the fairness of the hearing” (at page 757) (our emphasis).

In our view, a delay in the proceedings of an administrative tribunal which has not been caused by the applicant will only give rise to prohibition where it is such that it prevents the tribunal from adequately fulfilling its legislative mandate in accordance with the requirements of natural justice. Thus, a tribunal may, by reason of its failure to proceed expeditiously, be unable to fulfill its mandate in accordance with these requirements, if there is evidence that the prejudice caused by the delay is such as to deprive a party of his right to a full and complete defence. The accent is to be put on the nature of the prejudice suffered by a party rather than on the cause for the delay or on the length of the delay. Since the test used with respect to non-penal proceedings is distinct from the test used with respect to penal proceedings, it may be less confusing to speak in terms of “unreasonable” delay when Charter rights are involved and of “unacceptable” delay when the rules of natural justice are involved.

In the case at bar, it is not seriously contested by the appellant that the delay incurred (some fifty months between the filing of the complaint on March 28, 1988 and the decision made by the Commission on May 13, 1992 to appoint a Human Rights Tribunal to enquire into the complaint) was unusually long and that Canadian was not to be blamed for it. It is indeed recognized by counsel that both parties are innocent victims. It is not contested, either, that Canadian does suffer some prejudice because of the delay. The issue, essentially, is whether that prejudice has attained the high degree of magnitude required before a prohibition order can issue.

The prejudice allegedly caused by the delay has been described in an affidavit filed by Canadian as follows:

29. The delay has caused Canadian considerable prejudice, the most fundamental of which is in regard to its greatly increased difficulty in making full answer and defence. In particular, the recollection of witnesses is bound to have faded over the 4”-year period. Similarly, the delay has impaired Canadian’s ability to obtain potential witnesses. For example, Dr. W.G. Hartzell, who would most certainly have been a witness, is no longer employed by Canadian.

30. In addition, the delay has caused and continues to cause Canadian significant prejudice because it, in and of itself, increases Canadian’s exposure to liability. Awards by Human Rights Tribunals often include damages for back pay. The complainant has not worked for Canadian during the period between Canadian’s offer to employ him and the date set for the hearing, roughly, 4” years. Canadian is exposed to this potential liability in the range of $120,000 entirely because of the Commission’s delay. [Appeal Book, vol. 1, at pages 12-13.]

We have not considered, for the reasons given earlier, the prejudice allegedly incurred by Canadian because of the Commission’s failure to put an offer of employment to the appellant. That prejudice might give rise to an action in tort against the Commission but this appeal is not the proper occasion to discuss that possibility.

The alleged prejudice falls way short, in our view, of the high threshold that has to be crossed by Canadian.

The fading of the recollection of witnesses is a prejudice inherent in our system and is not even recognized as relevant in most criminal cases where, for example, a new trial is ordered by a court of appeal or by the Supreme Court of Canada. We are talking here of a period of some fifty months, regrettably long but by no means exceptional. Furthermore, as the issue before the tribunal will revolve around the question of bona fide occupational requirement (BFOR), Canadian will most likely have recourse to expert evidence and the particular circumstances of the complaint will be relegated to a position of secondary importance.

The inability to obtain potential witnesses has not been demonstrated. The mere fact that a probable witness is no longer employed by Canadian does not indicate that he cannot be found. Nor does it indicate the impact the absence of that witness might have on the ability of Canadian to present a full defence.

The increase in Canadian’s exposure to liability should the complaint be allowed is not a prejudice related to the fairness of the proceedings. The tribunal in fashioning the proper remedies will be expected to take into account the realities of the situation.

The appeal will therefore be allowed, the judgment of the Motions Judge will be set aside and the application by Canadian Airlines International Ltd. for an order prohibiting the Canadian Human Rights Commission from proceeding further with the complaint of Albert Belloni will be dismissed.

Pratte J.A.: I agree.

Chevalier D.J.: I agree.

---