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T-944-79
Attorney General of Canada (Plaintiff)
v.
Canadian Human Rights Commission (Defendant)
Trial Division, Addy J.—Ottawa, March 22, 1979.
Practice — Motion to strike pleadings — Parties — Application for declaration that statement of claim and action a nullity, or alternatively, striking out the statement of claim — Act creating Canadian Human Rights Commission did not create it a corporation and has no provisions regarding right of Commission to sue or be sued — Whether or not the Commis sion is a suable entity — Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 26(2), 28(1), 29(1),(2) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 — Federal Court Rule 419(1).
Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board [1952] 3 D.L.R. 162, followed. Burnell v. The International Joint Commission [1977] 1 F.C. 269, fol lowed. "B" v. Department of Manpower & Immigration [1975] F.C. 602, followed.
APPLICATION.
COUNSEL:
Duff Friesen and Leslie Holland for plaintiff.
Gordon F. Henderson, Q. C., E. S. Binavince and R. Juriansz for defendant.
SOLICITORS:
Deputy Attorney General of Canada for plaintiff.
Gowling & Henderson, Ottawa, for defend ant.
The following are the reasons for order ren dered in English by
ADDY J.: Upon application by the defendant for an order,
(a) declaring the statement of claim and this action a nullity;
(b) or alternatively, striking out the statement of claim and dismissing this action pursuant to Rule 419(1) of the Rules of this Court on the ground that:
(i) the statement of claim discloses no reason able cause of action;
(ii) the statement of claim is scandalous, frivol ous or vexatious;
(iii) the statement of claim is otherwise an abuse of the process of the Court.
REASONS FOR ORDER
The Canadian Human Rights Commission established by the Canadian Human Rights Act, S.C. 1976-77, c. 33, is undoubtedly a "federal board, commission or other tribunal" as defined in section 2 of the Federal Court Act, R.S.C. 1970, (2nd Supp.), c. 10.
One of the main questions raised, however, is whether it is a legal entity capable of being sued in an action.
Nowhere in its Act is the Commission created a corporation or a legal person and nowhere in the Act is there any provision to the effect that it may either sue or be sued.
Counsel for the plaintiff argued that section 26(2), which gives the Commission the right to enter into contracts to hire, for specific projects of the Commission, persons possessing technical or special knowledge of any matter and to determine the remuneration of those persons as prescribed by by-law of the Commission, implies that it is a legal entity capable of being sued.
The fact that it may hire personnel for very specific purposes and fix their remuneration does not create the Commission a legal person. It is no more capable of being sued for that reason than a department or branch of Government. In any legal dispute arising out of any such contracts of hire the proper party to sue or be sued would be the Attorney General of Canada.
It was also argued that section 28(1) and section 29 render it liable to be sued. Section 28(1) merely states that the head office of the Commission shall be in the National Capital Region. The expression "head office", because it is often used to describe the principal place of business of a corporation, is of no help: separate branches, departments or
undertaking of a corporation are often referred to as having their head offices at a certain place. Head office means simply the principal place where it carries out its undertaking. Section 29(1) states that the Commission may make by-laws for the conduct of its affairs including calling of meet ings, fixing of quorums, conducting meetings, dele gating powers to committees, prescribing salaries to be paid to the Human Rights Tribunal and other such administrative matters. Section 29(2), however, states in effect that no by-law covering expenditures shall have any effect without approv al of the Treasury Board.
Although the method of exercising the powers of a corporation and its administrative and financial regulations is contained in its by-laws, the term "by-laws" is also used to describe the permanent rules governing non-incorporated bodies such as non-incorporated clubs or associations, partner ships, etc. Jowitt in its main definition of "by-laws" describes them as:
The rules made by some authority (subordinate to the legisla ture) for the regulation, administration or management of a certain district property, undertaking, etc., and binding on all persons who come within their scope. [The underlining is mine.]
I can find nothing in the Act which either constitutes the Canadian Human Rights Commis sion a legal person or renders it an entity capable of being sued. In many other statutes where public authorities, boards or commissions are created some specific provision is to be found effectively making it amenable to control by the courts by way of ordinary action. The omission of any such provision can only lead one to conclude that Par liament did not intend the Canadian Human Rights Commission subject to be sued as a party in an action. Similar results were found in the case of Hollinger Bus Lines Ltd. v. Ontario Labour Rela tions Board [1952] 3 D.L.R. 162 and Burnell v. The International Joint Commission [1977] 1 F.C. 269.
The plaintiff argued finally that section 18 of the Federal Court Act gave this Court jurisdiction in an action against the defendant where relief was requested by way of declaratory judgment. Section 18(a) reads as follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi tion, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
He argued that that section, although it might not make the Commission amenable to any such action instituted by a member of the general public, gives the Attorney General the right to sue the Commission and request a declaratory judg ment where, as in this case, it appears to have exceeded its jurisdiction.
I have never heard of a case where an entity would be liable to be sued at the instance of one party, yet, would be incapable of being sued by others. The question of whether a body is or is not capable of being sued can in no way depend on the identity of the person instituting the action against it, unless of course there were expressed statutory authority to that effect, which is certainly not the case here.
I dealt in some detail with the general effect of the exclusive jurisdiction granted to the Federal Court pursuant to section 18 in the case of "B" v. Department of Manpower & Immigration [1975] F.C. 602. In that particular case I stated at pages 618-619 of the above-mentioned report:
... I cannot subscribe to the view that, in using the words "any board, etc." in an enactment such as this which grants jurisdic tion to a court, Parliament intended also to make such substan tial and extensive changes to the law as to make all of the forms of relief mentioned applicable as such, against all and every federal board, etc., regardless of their respective functions. Jurisdiction is given to the Court over any federal board or tribunal and the relief mentioned may be granted by the Federal Court against any such board, etc., in so far as the latter is subject to control, having regard to the fundamental nature of the relief sought and to the character and function of the Board against whom relief is sought.
After hearing the arguments advanced by coun sel, I see no reason to change my view in this regard.
Finally, although the question does not fall within the purview of Rule 419, it is trite law that, where an action is instituted against the person who is not amenable before a court, it may dismiss the action as against that person without any statutory authority to that effect. In view of the fact that both parties draw their funds from the same public purse, there will be no costs.
ORDER
The motion is granted and a judgment will issue dismissing the action without costs.
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