A-703-84
Alistair MacBain (Appellant) (Applicant)
v.
Sidney N. Lederman, Wendy Robson and Peter
Cumming, Canadian Human Rights Commission
and Kristina Potapczyk and Attorney General of
Canada (Respondents) (Respondents)
A-704-84
Alistair MacBain (Appellant) (Plaintiff)
v.
Canadian Human Rights Commission and Sidney
N. Lederman, Wendy Robson and Peter Cum
ming, and Attorney General of Canada (Respond-
ents) (Defendants)
A-996-84
Alistair MacBain (Applicant)
v.
Canadian Human Rights Commission, Sidney N.
Lederman, Wendy Robson, Peter Cumming, Kris-
tina Potapczyk, and Attorney General of Canada
(Respondents)
Court of Appeal, Heald, Mahoney and Stone
JJ.—Toronto, September 12, 13; Ottawa, October
7, 1985.
Human rights — Tribunal finding sex discrimination com
plaint substantiated — Statutory procedure for adjucating
complaints — Whether giving rise to reasonable apprehension
of bias — Commission finding complaint "proved" before
appointing Tribunal — Connection between prosecutor (Com-
mission) and judge (Tribunal) — Independent administration
and adjudication absent under Act — "Properly informed
person" test — Tribunal statistics useful only if actual bias
alleged — Collier J. correctly finding reasonable apprehension
of bias — Impact of Bill of Rights altered by Supreme Court
of Canada judgment in Singh subsequent to decision by Collier
J. that Bill ineffective as mere statutory construction tool —
Tribunal decision set aside for denial of Bill of Rights guaran
tee of fair hearing in accordance with fundamental justice
principles — Canadian Human Rights Act, S.C. /976-77, c.
33, ss. 7(a),(b), 10(a), 35, 36, 39, 40, 41 — Canadian Bill of
Rights, R.S.C. 1970, Appendix III, ss. 1(b), 2(e), 5(2).
Bill of Rights — Fair hearing in accordance with funda
mental justice principles — Whether violated by Part III and
s. 39, Canadian Human Rights Act — Rehabilitation of Bill
by judgment of Beetz J. in Singh — Bill not mere interpreta
tion instrument — Bill not providing remedy where breached
— Offending provisions declared inoperative: Drybones — No
emergency — Rule of law not imperilled — Doctrine of
necessity preventing operation of Bill inapplicable — Canadian
Bill of Rights, R.S.C. 1970, Appendix III, ss. 1(b), 2(e), 5(2) —
Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 39.
Judicial review — Applications to review — Human rights
— Reasonable apprehension of bias — Commission investi
gating and finding complaint substantiated — Commission
appointing Tribunal and prosecuting complaint — Judicial
independence — Division of powers — Tribunal members
appointed on case-by-case basis — Commission (prosecutor)
able to choose "judge" — R. v. Valente (No. 2) distinguished
— Collier J. correctly applying Crowe test as to "reasonable
and right-minded person" — Tribunal statistics irrelevant as
actual bias not at issue — Trial Judge correct as to meaning
of "substantiate" — Caccamo case distinguished — Argument
relief should not demolish statute — Administrative conve
nience not overriding natural justice principles — Application
allowed, Tribunal decision set aside.
Judicial review — Equitable remedies — Declarations —
Canadian Human Rights Act, s. 39(1),(5) declared inoperative
in sex discrimination case for violation of Bill of Rights fair
hearing guarantee — Declaration affecting only portion of
statute and appellant/applicant — Legal chaos not resulting
— Previous Tribunal decisions not affected: Re Manitoba
Language Rights — Canadian Human Rights Act, S.C.
1976-77, c. 33, s. 39 — Canadian Bill of Rights, R.S.C. 1970,
Appendix III, s. 1(b), 2(e), 5(2).
A Human Rights Tribunal appointed under section 39 of the
Canadian Human Rights Act found that a complaint of
employment-related discrimination on the basis of sex filed
against the appellant/applicant had been substantiated. The
complaint was dealt with as follows, in conformity with the
procedure established by the Act (sections 32 and following).
The complaint was filed with the Commission which then
designated an investigator to investigate the complaint. In due
course, that investigator submitted a report to the Commission.
Satisfied that the complaint had been substantiated, the Com
mission passed a resolution adopting the report. The Commis
sion then appointed a Human Rights Tribunal from a panel of
prospective members to inquire into the complaint. The Com
mission appeared before the Tribunal, presenting evidence and
making representations to it, in effect acting as prosecutor. The
Tribunal found that the complaint was substantiated and made
an order accordingly. It also granted the complainant special
compensation.
From the outset, the appellant/applicant objected to the
procedure itself, asserting that the method of prosecuting and
deciding complaints raised a reasonable apprehension of bias.
Mainly on the basis of this argument, the appellant/applicant
went before the Federal Court, Trial Division, seeking a writ of
prohibition and a declaration that Part Ill of the Act (which
includes section 39) was inconsistent with section 7 and para
graph 11(d) of the Charter, and that Part Ill and section 39 of
the Act were inoperative as violating the appellant/applicant's
right to a fair hearing under paragraph 2(e) of the Canadian
Bill of Rights.
The Trial Judge found that there was a reasonable apprehen
sion of bias but dismissed both proceedings, the Charter being
found inapplicable and the Bill of Rights ineffective, being a
mere tool for construction.
That decision is now the object of two appeals, under differ
ent file numbers, one for each proceeding. The Human Rights
Tribunal's decision is attacked by a section 28 application.
Since the Commission's resolution, wherein it found that the
complaint had been substantiated, has not been questioned in
any of the proceedings, it remains a finding against the appel-
lant/applicant respecting his conduct towards the complainant.
The central issue in all three proceedings is that the method
of prosecuting and deciding the complaint raised a reasonable
apprehension of bias. There was no evidence of actual bias.
Held, the appeal on the writ of prohibition should be dis
missed, the subject-matter having become academic; the section
28 application should be allowed and the Tribunal's decision set
aside; the appeal on the declaratory relief should be allowed
and a declaration made that subsections 39(1) and (5) of the
Canadian Human Rights Act are inoperative in so far as the
complaint herein is concerned.
The Trial Judge based his finding that there was a reason
able apprehension of bias on the fact that the Commission had
already found that the case had been "proved" prior to the
appointment of the Tribunal. That was not, however, the only
reason for reaching that conclusion in this case. An apprehen
sion of bias also results from there being a direct connection
between the prosecutor of the complaint (the Commission) and
the decision-maker (the Tribunal), the former appointing the
latter. That connection easily gives rise to a suspicion of
influence or dependency. Even if the statute required the
Commission only to decide whether there was sufficient evi
dence to warrant the appointment of a Tribunal, reasonable
apprehension of bias would still exist.
The case of Valente (No. 2) is easily distinguishable. First,
the appointment of Provincial Court judges is permanent while
the Canadian Human Rights Act contemplates the appoint
ment of temporary "judges" on a case-by-case basis. This
leaves the "judge" in a state of dependency with respect to his
career and allows the prosecutor (the Commission) to choose
the "judge" (Tribunal members) to hear a particular case.
Second, there is a distinction to be made between independent
administration—which does not, at present, totally exist—and
independent adjudication. The latter requires that the "judici-
ary" alone be responsible for "caseflow management". Neither
independent administration nor independent adjudication exist
ed under the scheme of the Act.
It is apparent from reading of the Trial Judge's reasons that
he did not fail to properly apply the Marshall Crowe test with
respect to the criteria of a "properly informed person".
The number of complaints that Tribunals have found not to
have been substantiated cannot be used to show that there can
be no apprehension of bias, because such statistics would only
be relevant if the issue were actual bias rather than apprehen
sion of bias.
In view of what has been called a "presumption against a
change of terminological usage", there is no basis to the
submission that the Trial Judge erred in finding that "substan-
tiated" as used in subsections 36(3) and 41(1) meant "proved"
in both cases.
The situation in the Caccamo case is quite different from the
one at bar where the Commission, after deciding that the
complaint has been substantiated, chooses the part-time judges
who will hear the complaint, and at the hearing takes the
position that its earlier decision was correct.
The observations of Madam Justice Wilson in the recent
Singh case provide an answer to the plea that any relief granted
should not "demolish the statute". She therein expressed doubt
that "utilitarian considerations" can constitute a limitation on
the rights set out in the Charter. That opinion applies herein in
view of the constitutional or quasi-constitutional nature of the
rights under the Charter and Bill of Rights which are central to
this case.
In his reasons for judgment in Singh, Beetz J. has rehabili
tated the Canadian Bill of Rights, by putting to rest the
concept established in the pre-Singh case law that it was merely
an instrument of construction or interpretation.
The present case satisfies the two conditions for finding a
breach of paragraph 2(e): (I) the rights and obligations of the
appellant/applicant fall to be determined by a federal tribunal
and (2) he was not afforded a "fair hearing in accordance with
the principles of fundamental justice".
While the Bill of Rights does not expressly address the issue
of the consequences of a failure to comply with its provisions, it
is trite law that there can be no right without a remedy.
Furthermore, in Drybones, the Supreme Court of Canada has
established that the offending provisions of a statute can be
declared inoperative. That remedy must, however, be restricted
to the particular fact circumstances.
Since there are no conditions of emergency and since the
Rule of Law is not imperilled (see Re Manitoba Language
Rights), the doctrine of necessity does not apply in this case so
as to prevent the application of the Bill nor to deprive the
appellant/applicant of the declaratory relief to which he is
otherwise entitled thereunder.
CASES JUDICIALLY CONSIDERED
APPLIED:
Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369 (commonly
called the Crowe case); Giffels & Vallett of Can. Ltd. v.
The King ex rel. Miller, [1952] 1 D.L.R. 620 (Ont.
H.C.); Crawford v. Spooner (1846), 18 E.R. 667 (P.C.);
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177; R. v. Drybones, [1970] S.C.R.
282; R. v. Hayden (1983), 3 D.L.R. (4th) 361 (Man.
C.A.); Curr v. The Queen, [1972] S.C.R. 889; Re McGa-
vin Toastmaster Ltd. et al. and Powlowski et al. (1973),
37 D.L.R. (3d) 100 (Man. C.A.).
DISTINGUISHED:
R. v. Valente (No. 2) (1983), 2 C.C.C. (3d) 417 (Ont.
C.A.); Caccamo v. Minister of Manpower and Immigra
tion, [1978] 1 F.C. 366; (1977), 75 D.L.R. (3d) 720
(C.A.); Re Manitoba Language Rights, [1985] 1 S.C.R.
721; 59 N.R. 321.
REFERRED TO:
Cashin v. Canadian Broadcasting Corporation, [1984] 2
F.C. 209 (C.A.); Re Latimer (W.D.) Co. Ltd. et al. and
Bray et al. (1974), 6 O.R. (2d) 129 (C.A.); Hogan v. The
Queen, [ 1975] 2 S.C.R. 574; Attorney General of Canada
et al. v. Canard, [1976] 1 S.C.R. 170; R. v. Burnshine,
[1975] 1 S.C.R. 693; Attorney General of Canada v.
Lavell, [1974] S.C.R. 1349; Hunter et al. v. Southam
Inc., [1984] 2 S.C.R. 145.
COUNSEL:
P. Genest, Q.C. and S. John Page for
appellant.
Robert Rueter for respondents Sidney N.
Lederman, Wendy Robson, Peter Cumming.
R. G. Juriansz and J. Hendry for respondent
Canadian Human Rights Commission.
Mary F. Cornish for respondent Kristina
Potapczyk.
James J. Carthy, Q.C. and Robert E. Haw-
kins for respondent Attorney General of
Canada.
SOLICITORS:
Cassels, Brock & Blackwell, Toronto, for
appellant.
Stikeman, Elliott, Toronto, for respondents
Sidney N. Lederman, Wendy Robson, Peter
Cumming.
Canadian Human Rights Commission,
Ottawa, for respondent Canadian Human
Rights Commission.
Cornish & Associates, Toronto, for respond
ent Kristina Potapczyk.
Weir & Foulds, Toronto, for respondent
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
HEALD J.: These reasons apply to three differ
ent proceedings in this Court which, by order of
the Court, and on the consent of all parties, were
argued together.
The proceeding in File No. A-703-84 is an
appeal from a judgment of the Trial Division
[MacBain v. Canadian Human Rights Commis
sion, [1984] 1 F.C. 696] which dismissed, without
costs, the appellant's application for a writ of
prohibition. The proceeding in File No. A-704-84
is an appeal from a judgment of the Trial Division
[idem] which dismissed, with costs, the appellant's
claim for declaratory relief as specified in the
appellant's amended statement of claim filed in
that action. The proceeding in File No. A-996-84
is a section 28 [Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10] application which attacks a
decision made by the respondents Lederman,
Robson and Cumming, acting as a Human Rights
Tribunal (the Tribunal) appointed under section
39 of the Canadian Human Rights Act [S.C.
1976-77, c. 33] (the Act).
All three proceedings arise from a complaint
filed with the Canadian Human Rights Commis
sion (the Commission) by the respondent Potapc-
zyk. That complaint alleged that the appellant/
applicant Alistair MacBain (MacBain) engaged in
a discriminatory practice against her on the basis
of her sex during the course of her employment
with him in contravention of paragraphs 7(a), 7(b)
and 10(a) of the Act. After the filing of the
complaint, the Commission appointed an inves
tigator pursuant to section 35 of the Act who
completed an investigation into that complaint,
thereafter reporting her findings to the Commis
sion pursuant to section 36 of the Act. The rele
vant portions of sections 35 and 36 read as follows:
35. (1) The Commission may designate a person (hereinafter
referred to as an "investigator") to investigate a complaint.
36. (1) An investigator shall, as soon as possible after the
conclusion of an investigation, submit to the Commission a
report of the findings of the investigation.
(2) If, on receipt of a report mentioned in subsection (1), the
Commission is satisfied
(a) that the complainant ought to exhaust grievance or
review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt
with, initially or completely, by a procedure provided for
under an Act of Parliament other than this Act,
it shall refer the complainant to the appropriate authority.
(3) On receipt of a report mentioned in subsection (1), the
Commission
(a) may adopt the report if it is satisfied that the complaint
to which the report relates has been substantiated and should
not be referred pursuant to subsection (2) or dismissed on
any ground mentioned in subparagraphs 33(b)(ii) to (iv); or
(b) shall dismiss the complaint to which the report relates if
it is satisfied that the complaint has not been substantiated or
should be dismissed on any ground mentioned in subpara-
graphs 33(b)(ii) to (iv).
(4) After receipt of a report mentioned in subsection (1), the
Commission
(a) shall notify in writing the complainant and the person
against whom the complaint was made of its action under
subsection (2) or (3); and
(b) may, in such manner as it sees fit, notify any other person
whom it considers necessary to notify of its action under
subsection (2) or (3).
On November 22, 1983, the Commission passed
a resolution in which it found that Potapczyk's
complaint against MacBain was substantiated pur
suant to the authority conferred upon it pursuant
to subsection 36(3) of the Act.' This decision has
not been questioned in any of the proceedings
' This Court has held that the Commission is acting in a
judicial capacity when making such a determination. See:
Cashin v. Canadian Broadcasting Corporation, [1984] 2 F.C.
209 (C.A.).
presently before the Court. Accordingly, it
remains as a finding against MacBain respecting
his conduct towards Potapczyk. The Commission
further resolved to appoint a Tribunal to inquire
into the complaint and authorized the Chief Com
missioner to do so. The authority to appoint such a
Tribunal is contained in subsection 39(1) of the
Act.
Sections 39, 40 and 41 read:
39. (1) The Commission may, at any stage after the filing of
a complaint, appoint a Human Rights Tribunal (hereinafter in
this Part referred to as a "Tribunal") to inquire into the
complaint.
(2) A Tribunal may not consist of more than three members.
(3) No member, officer or employee of the Commission, and
no individual who has acted as investigator or conciliator in
respect of the complaint in relation to which a Tribunal is
appointed, is eligible to be appointed to the Tribunal.
(4) A member of a Tribunal is entitled to be paid such
remuneration and expenses for the performance of duties as a
member of the Tribunal as may be prescribed by by-law of the
Commission.
(5) In selecting any individual or individuals to be appointed
as a Tribunal, the Commission shall make its selection from a
panel of prospective members, which shall be established and
maintained by the Governor in Council.
40. (1) A Tribunal shall, after due notice to the Commission,
the complainant, the person against whom the complaint was
made and, at the discretion of the Tribunal, any other interest
ed party, inquire into the complaint in respect of which it was
appointed and shall give all parties to whom notice has been
given a full and ample opportunity, in person or through
counsel, of appearing before the Tribunal, presenting evidence
and making representations to it.
(2) The Commission, in appearing before a Tribunal, pre
senting evidence and making representations to it, shall adopt
such position as, in its opinion, is in the public interest having
regard to the nature of the complaint being inquired into.
(3) In relation to a hearing under this Part, a Tribunal may
(a) in the same manner and to the same extent as a superior
court of record, summon and enforce the attendance of
witnesses and compel them to give oral or written evidence
on oath and to produce such documents and things as the
Tribunal deems requisite to the full hearing and consider
ation of the complaint;
(b) administer oaths; and
(e) receive and accept such evidence and other information,
whether on oath or by affidavit or otherwise, as the Tribunal
sees fit, whether or not such evidence or information is or
would be admissible in a court of law.
(4) Notwithstanding paragraph (3)(c), a tribunal may not
receive or accept as evidence anything that would be
inadmissible in a court by reason of any privilege under the law
of evidence.
(5) Notwithstanding subsection (2), a conciliator appointed
to settle a complaint is not a competent or compellable witness
at a hearing of a Tribunal appointed to inquire into the
complaint.
(6) 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 such exclusion to be in the
public interest.
(7) Any person summoned to attend a hearing pursuant to
this section is entitled in the discretion of the Tribunal to
receive the like fees and allowances for so doing as if sum
moned to attend before the Federal Court of Canada.
41. (1) If, at the conclusion of its inquiry, a Tribunal finds
that the complaint to which the inquiry relates is not substan
tiated, 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,
subject to subsection (4) and section 42, it may make an order
against the person found to be engaging or to have engaged in
the discriminatory practice and include in such order any of the
following terms that it considers appropriate:
(a) that such person cease such discriminatory practice and,
in consultation with the Commission on the general purposes
thereof, take measures, including adoption of a special pro
gram, plan or arrangement referred to in subsection 15(1), to
prevent the same or a similar practice occurring in the
future;
(b) that such 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 such person compensate the victim, as the Tribunal
may consider proper, for any or all of the wages that the
victim was deprived of and any expenses incurred by the
victim as a result of the discriminatory practice; and
(d) that such person compensate the victim, as the Tribunal
may consider proper, for any or all additional cost of obtain
ing alternative goods, services, facilities or accommodation
and 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 in employment that is based on a
physical handicap of the victim, 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 impede physical access thereto by, or
lack proper amenities for, persons suffering from the physical
handicap of the victim, the Tribunal shall, by order, so indicate
and shall include in such order any recommendations that it
considers appropriate but the Tribunal may not make an order
under subsection (2) or (3).
After the Commission decided to substantiate
the complaint and to appoint a Tribunal, a short
list of potential members was prepared for the
Chief Commissioner of the Commission. The
Chief Commissioner proceeded to personally select
the respondents Lederman, Robson and Cumming
to constitute the Tribunal to inquire into the com
plaint against MacBain. As of December, 1983,
approximately one hundred persons had been
appointed by the Governor-in-Council as prospec
tive members of Tribunals to be selected under
subsection 39(5) of the Act. The Chief Commis
sioner, in testimony before the House of Commons
Standing Committee on Justice and Legal Affairs,
on December 13, 1983, stated that only twenty-six
of these prospective members had been selected
during 1982 to sit as Tribunals.
The Tribunal commenced its hearing into the
complaint against MacBain on April 9, 1984 with
the Commission appearing as prosecutor. Mean
while, on March 30, 1984, MacBain had com
menced an action in the Trial Division of this
Court for a declaration, inter alia, that Part III of
the Act (which includes section 39) was inconsist
ent with paragraph 11(d) of the Canadian Charter
of Rights and Freedoms (the Charter) [being Part
I of the Constitution Act, 1982, Schedule B,
Canada Act, 1982, 1982, c. 11 (U.K.)]. On June
21, 1984, MacBain filed an amended statement of
claim wherein the declaration asked for in respect
of Part III and section 39 was broadened to allege
inconsistency with section 7 of the Charter as well.
The amended statement of claim also asked for a
declaration that Part III and portions of section 39
of the Act were inoperative as abrogating, abridg
ing and infringing MacBain's right to a fair hear
ing under paragraph 2(e) of the Canadian Bill of
Rights (the Bill) [R.S.C. 1970, Appendix III].
As noted supra, MacBain also sought a writ of
prohibition to prohibit the Tribunal from proceed
ing to hear the complaint against him citing in
support of that application, the same grounds on
which the declaratory relief was sought. On March
29, 1984, MacBain had requested in writing that
the hearing scheduled to commence on April 9,
1984 be adjourned pending resolution of the appli
cant's proceedings in the Trial Division. The
adjournment request was declined by the Tribunal
at the opening of the hearing on April 9. It also
declined to stay its proceedings pending the
application for prohibition. The Tribunal went on
to hear the complaint in the absence of MacBain
and his counsel who withdrew from the hearing.
At the hearings before the Tribunal, the Commis
sion, pursuant to section 40, prosecuted the com
plaint against MacBain.
The applications for prohibition and for judg
ment in the action were heard together by Collier
J. on May 7 and 8, 1984 and he delivered oral
reasons for judgment on May 9, 1984. When the
motions before Collier J. were heard, the Tribunal
had heard only part of the evidence and had
adjourned its hearings to a date to be fixed. The
Tribunal proceeded with its hearings on May 17
and 18, 1984. When the hearings resumed, Mac-
Bain's counsel asked for an adjournment pending
an appeal from the judgment of Collier J. That
motion was refused and the Tribunal went on to
hear the remainder of the evidence in the absence
of MacBain and his counsel who withdrew from
that hearing also. Like the Commission, the Tri
bunal found that Potapczyk's complaint against
MacBain had been substantiated and made the
following order dated July 23, 1984:
(a) That the Respondent, Alistair MacBain, cease any further
contravention of Section 7(b) of the Canadian Human Rights
Act in the manner set out in the aforesaid Reasons and that he
refrain henceforth from committing the same or similar contra
ventions against his employees;
(b) That the Respondent, Alistair MacBain, pay to the Com
plainant, Kristina Potapczyk, compensation in the amount of
$1,500.00 under section 41(3) of the Canadian Human Rights
Act.
Decision of Tribunal, Case, Vol. 1, pages 64-65
REASONABLE APPREHENSION OF BIAS
The central issue in all three proceedings pres
ently before the Court is an allegation that Mac-
Bain had a reasonable apprehension of bias arising
out of the method of prosecuting and deciding the
complaint. It is common ground that in the cir
cumstances of this case, there was no evidence of
actual bias. The matters, both in the Trial Division
and in this Court were argued on the basis of
reasonable apprehension of bias. In this Court,
counsel for the appellant/applicant supported that
finding. In essence his submission was to the fol
lowing effect: in the instant case, and pursuant to
the scheme envisaged in the Act, the Commission
investigated, made findings of substantiation and
then prosecuted this complaint; the very same
Commission also appointed the Tribunal members
who heard and decided the case adversely to the
appellant/applicant. Such a scheme violates the
principle that no one will judge his own cause since
it cannot be said that there is any meaningful
distinction between being your own judge and
selecting the judges in your own cause. According
ly, the scheme is inherently offensive and gives rise
to a reasonable apprehension of bias thereby
violating the principles of natural justice.
Counsel all agreed that the proper test to be
applied when considering the issue of reasonable
apprehension of bias was that set out by Mr.
Justice de Grandpré in the Crowe' case. The rele
vant portion of his reasons read as follows:
The proper test to be applied in a matter of this type was
correctly expressed by the Court of Appeal. As already seen by
the quotation above, the apprehension of bias must be a reason
able one, held by reasonable and right minded persons, apply
ing themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that
test is "what would an informed person, viewing the matter
realistically and practically—and having thought the matter
through—conclude. Would he think that it is more likely than
not that Mr. Crowe, whether consciously or unconsciously,
would not decide fairly."
I can see no real difference between the expressions found in
the decided cases, be they `reasonable apprehension of bias',
`reasonable suspicion of bias', or 'real likelihood of bias'. The
grounds for this apprehension must, however, be substantial
and I entirely agree with the Federal Court of Appeal which
2 Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369 at pp. 394-395.
refused to accept the suggestion that the test be related to the
"very sensitive or scrupulous conscience".
This is the proper approach which, of course, must be
adjusted to the facts of the case. The question of bias in a
member of a court of justice cannot be examined in the same
light as that in a member of an administrative tribunal en
trusted by statute with an administrative discretion exercised in
the light of its experience and of that of its technical advisers.
Collier J. after reviewing the facts, the scheme of
the Act and the test set out in the Crowe case
supra, concluded that (page 707):
... the reaction of a reasonable and right-minded person,
viewing the whole procedure as set out in the statute and as
adopted in respect of this particular complaint, would be to say:
there is something wrong here; the complaint against me has
been ruled proved; now that complaint is going to be heard by a
tribunal appointed by the body who said the complaint has been
proved; that same body is going to appear against me in that
hearing and urge the complaint to be found to be proved.
It is clear from a perusal of the reasons of the
learned Trial Judge in their entirety that, in his
view, the most serious problem with the scheme of
the Act is the requirement initially for the Com
mission to determine whether the complaint has
been "substantiated" (subsection 36(3)) whereas
the Tribunal is obligated in its deliberations to
make the same determination—namely substantia
tion of the complaint (subsections 41(1) and (2)).
He observed that the same word "substantiate"
was used in both subsections and it was his opinion
that the same meaning should be ascribed to that
word in both subsections. He defined "substanti-
ate" to mean "prove" and applied that definition
to both subsections. In his view, it was the fact
that the Commission had already found that the
case against MacBain had been "proved" prior to
the appointment of the Tribunal that gave rise to a
reasonable apprehension of bias. The Trial Judge
made it clear that his finding of apprehension of
bias rested on the provisions requiring substantia
tion and that if the statute had simply required the
Commission to be satisfied that there was enough
evidence to warrant a hearing, no apprehension of
bias would exist. I say this because of that portion
of his reasons which reads (page 707):
No feeling of disquietude could arise, nor indeed any com
plaint be made, if the provisions regarding substantiation of the
complaint by the Commission were absent. Or, if the proce
dural provision there merely required the Commission to be
satisfied there was enough material or evidence warranting a
hearing and decision by a tribunal.
With respect, I differ from the view of the
learned Trial Judge that the issue of substantiation
is the only factor when considering apprehension
of bias. In my view, the apprehension of bias also
exists in this case because there is a direct connec
tion between the prosecutor of the complaint (the
Commission) and the decision-maker (the Tri
bunal). That connection easily gives rise, in my
view, to a suspicion of influence or dependency.
After considering a case and deciding that the
complaint has been substantiated, thé "prosecu-
tor" picks the Tribunal which will hear the case. It
is my opinion that even if the statute only required
the Commission to decide whether there was suffi
cient evidence to warrant the appointment of a
Tribunal, reasonable apprehension of bias would
still exist.
The situation in the case at bar is quite differ
ent, in my view, from the issue decided by the
Ontario Court of Appeal in the case of R. v.
Valente (No. 2) (1983), 2 C.C.C. (3d) 417. The
issue there was the independence of provincially
appointed judges in the Province of Ontario. It is
beyond argument that the principle of judicial
independence is essential to the administration of
justice in our system. This principle is supported
by the tradition of a division of powers. However,
as a practical matter, absolute independence is not
possible at present. This is so because the Govern
ment of Canada as well as the Government of the
Provinces exercise considerable, albeit varying
degrees of administrative oversight over the judici
ary. I refer to the financial and administrative
control over judges which presently resides in the
Executive Branch of the Federal and most Provin
cial Governments. It is to this nebulous area where
the division of powers is not absolute that the
Ontario Court of Appeal addressed itself in
Valente (No. 2), supra and concluded that the
principle of independence had been maintained.
I see at least two very important differences
between the system of appointment of provincial
judges in Ontario which was reviewed in Valente
(No. 2), supra, and the system employed by the
Commission under this Act. Firstly, in most juris-
dictions in this country, the appointment of judges
is permanent' whereas the scheme of this Act
contemplates the appointment of temporary
"judges" on a case-by-case basis.
At page 105 of his study, Chief Justice Des -
chênes said:
An appointment during pleasure or for a probationary period
is inconsistent with the independence necessary to the judicial
function.
In this way, the executive hangs a sword of Damocles over
the head of a new judge. A judge who accepts a one-year
appointment is, in all likelihood, interested in carving out a
career in the judiciary but this career will hinge on the goodwill
of the Prince. Clearly, a judge on probation is not independent
and there is a risk that his decisions may be coloured by his
plans for the future. Could he rule against a government from
whose "pleasure" his appointment derives? And in private
litigation, could he take the position that the law and his
conscience dictate but that might displease the government of
the day? Then too, what criteria will the government apply in
deciding after one year of probation whether a judge merits a
permanent appointment?
His firm recommendation was, accordingly, that
the system of appointing judges during pleasure or
for a probationary period should be abolished.
That criticism of the system of probationary and
"at pleasure" appointments applies even more
forcibly to the system of case-by-case assignments
employed under this Act. At the very least, the
prosecutor should not be able to choose his
"judge" from a list of temporary "judges". That,
however, is precisely what happens when the Com
mission chooses the Tribunal members who will
hear a particular case.
The second important distinction between the
Valente facts and the facts in the case at bar
relates to the distinction which has to be made
between independent administration (which, as we
have seen does not totally exist at the present time)
and independent adjudication which, in my view, is
a necessary and vital component of judicial in
dependence and the proper administration of jus-
' The only exceptions noted by Chief Justice Deschênes in his
study on the independent judicial administration of the Courts
[Masters in their own housel—September, 1981, are the
Yukon, Nova Scotia and Newfoundland.
tice. Independent adjudication must necessarily
include such matters as the preparation of trial
lists, decisions on the order in which cases are to
be tried, the assignment of judges to the cases and
the allocation of court rooms. Chief Justice Des -
chênes characterizes these items as being "case-
flow management". His comments read as follows
(See Deschênes supra, p. 124):
These are all factors on which the integrity of the judicial
process itself depends. Leave its control to outsiders, civil
servants or others, and soon one will see a particular judge
being assigned to a particular case for reasons irrelevant to the
proper administration of justice. The independence of the
judiciary requires absolutely that the judiciary and it alone
manage and control the movement of cases on the trial lists and
the assigning of the judges who will hear these cases.
In my view, those comments have particular perti
nence to the appointment of a Tribunal under this
Act. Given a scheme in which both of the objec
tionable features discussed by Chief Justice Des -
chênes supra, are present, I have no hesitation in
concluding that an informed person, viewing the
matter realistically and practically, and having
thought the matter through, would conclude that a
reasonable apprehension of bias exists under this
scheme and in this case.
In attempting to impeach the findings of the
learned Trial Judge on reasonable apprehension of
bias, counsel for the Commission submitted that
Collier J. did not properly apply the test from the
Crowe case. More particularly, it was his submis
sion that the Trial Judge omitted from the Crowe
test the issue as to whether a reasonable and
right-minded person was properly informed. I do
not agree with this submission. A reading of the
reasons of Collier J. persuades me that he did in
fact apply the Crowe test. At page 707, Mr.
Justice Collier clearly prefaces his conclusion with
the following: "Keeping in mind the test propound
ed in the Marshall Crowe case ...". It is correct to
observe that later on at pages 28 and 29 of the
Appeal Book, he does not include in his reference
to "a reasonable and right-minded person" the
further qualification that such a person must also
be "properly informed". However, in my view, in
applying the Crowe test, he did not lose sight of
this additional requirement since he applies the
test of a reasonable and right-minded person (at
page 707 F.C.) "viewing the whole procedure as
set out in the statute and as adopted in respect of
this particular complaint". I think it clear from
this passage that in the view of Collier J. a "prop-
erly informed person" was one who was knowl
edgeable about the scheme of the statute and was
also knowledgeable as to the way in which that
scheme was applied in the processing of the com
plaint at bar. Accordingly, I do not think he failed
to properly apply the Crowe test. Counsel for the
Commission then went on to analyze the cases
which had been heard by Tribunals under this Act.
The analysis indicates that during the years 1979
to 1984, approximately one-half of the Tribunals
appointed did not substantiate the complaints
before them. With respect, I fail to appreciate the
relevance of such statistics. They would only be
relevant, in my view, if the issue being discussed
was actual bias rather than apprehension of bias.
Counsel also submitted that Mr. Justice Collier
erred in finding that "substantiate" as used both in
subsections 36(3) and 41(1) meant "proved" in
both subsections.
As stated earlier herein, I do not consider the
issue of substantiation to be the only factor when
considering apprehension of bias. Having said that,
let me hasten to add that, in my view, Mr. Justice
Collier was correct in concluding that "substanti-
ate" has the same meaning in subsection 36(3) as
it does in subsection 41(1). I so conclude because,
in my view, since the word is used in two sections
of the Act, both of which form part of the same
procedure for the disposition of complaints, it
should be presumed initially that the same word
should have the same meaning. Dr. Driedger, in
the Construction of Statutes, Second Edition, says
at page 93:
There is another draftsman's guide to good drafting and
hence also a reader's guide, namely, the same words should
have the same meaning, and, conversely, different words should
have different meanings. (Called the "presumption against a
change of terminological usage" by Lord Simon in Black-
Clawson International Ltd. v. Papierwerke Wadlhof-Aschaf-
fenburgA.G., [1975] 1 All E.R. 810, at p. 847).
Likewise, in the case of Giffels & Vallett of Can.
Ltd. v. The King ex rel. Miller, [1952] 1 D.L.R.
620 (Ont. H.C.), at page 630, Gale J. said:
While it is quite true that a word may have different
meanings in the same statute or even in the same section, it is
not to be forgotten that the first inference is that a word carries
the same connotation in all places where it is found in a
statute ....
In order to give effect to this submission, it would
be necessary to read paragraph 36(3)(a) of the
Act as though the word "substantiated" was delet
ed and the following word or words of like import
were substituted therefor: "that an inquiry into the
complaint is warranted." The courts have resisted
this practice of adding or deleting words in a
statute. The rationale for this resistance was well
stated by Lord Brougham in Crawford v. Spooner
(1846), 18 E.R. 667 (P.C.), where he said [at page
670]:
The construction of the Act must be taken from the bare words
of the Act. We cannot fish out what possibly may have been the
intention of the Legislature; we cannot aid the Legislature's
defective phrasing of the Statute; we cannot add, and mend,
and, by construction make up deficiencies ....
For these reasons, I find no basis for this submis
sion by counsel for the Commission.
I turn now to the submissions made by counsel
for the members of the Tribunal. Counsel relied on
the decision of this Court in Caccamo v. Minister
of Manpower and Immigration, [1978] 1 F.C.
366; (1977), 75 D.L.R. (3d) 720 to answer the
submissions of MacBain's counsel that the scheme
of the Act as applied to this case gave rise to a
reasonable apprehension of bias. In that case, it
was submitted that a reasonable apprehension of
bias existed in respect of a Special Inquiry Officer
designated to hold an inquiry under the Immigra
tion Act [R.S.C. 1970, c. I-2] to determine wheth
er the appellant Caccamo should be deported. The
alleged basis for deportation was that the appellant
had been adjudged by the Ontario courts and the
Supreme Court of Canada to be a member of the
Mafia and was, therefore, a member of an inad
missible class, namely, a member of a group which
engages in or advocates subversion of democratic
government, institutions or processes as they are
understood in Canada and that prior to the inqui
ry, a newspaper report quoted the Director of
Information of the Department of Manpower and
Immigration as saying that the Department must
take the position that the Mafia is a subversive
organization. The Court decided that the Special
Inquiry Officer would not be disqualified in such a
situation merely because he, along with every
other officer of the Department of Manpower and
Immigration was an officer subject to the direction
and control of the Deputy Minister of Manpower
and Immigration as was the Information Director
who made the press statements complained of. The
Court expressed the view that since the newspaper
report indicated no more than that the Department
had instituted deportation proceedings against the
appellant because of its views with respect to the
appellant's activities, there was no suggestion that
the Department was imposing its views on the
Special Inquiry Officer. The Special Inquiry Offi
cer was still under a duty to determine, on the
evidence, whether the appellant was subject to
deportation. In my opinion, the Caccamo case
supra, is easily distinguishable on its facts from
the case at bar. In Caccamo there was no sugges
tion that the Department had taken the firm posi
tion in advance of the inquiry that the allegations
against the appellant had been substantiated. The
press release simply stated the position that the
Department was going to take at the Special
Inquiry. That is quite a different situation from
the one at bar where the Commission, after decid
ing that the complaint has been substantiated,
chooses the part-time judges who will hear the
complaint, and at that hearing takes the position
that its earlier decision was correct. Such a scheme
represents after-the-fact justification for a decision
already made by it and before judges of its own
choosing.
Counsel for the Attorney General opened his
oral submissions with a frank concession that
"What we have here is an appearance of unfair
ness" which "may deserve relief". He then went on
to urge that any relief granted should not "demol-
ish the statute." He proceeded to emphasize that
in this case we are dealing with an administrative
tribunal and not a court in the traditional sense.
He submitted that, in these circumstances, the
procedure set out in the Act should be seen
"through the eyes of an informed person examin
ing this tribunal and its functions realistically and
practically." He then proceeded to detail numer
ous features of the scheme of the Act. With
respect, it seems to me that this analysis begs the
question because it fails to consider whether the
respondent was afforded fundamental justice
under that scheme. Some of the features men
tioned by counsel relate to "utilitarian considera
tions" such as volume, expense, efficiency and
expediency. In this connection, I think the observa
tions made by Madam Justice Wilson in Singh et
al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177, are relevant. The learned
Justice was discussing the section 1 limits on sec
tion 7 of the Charter. At pages 218 and 219, she
expressed doubt that "utilitarian considerations"
can constitute a limitation on the rights set out in
the Charter. She went on to state:
Certainly the guarantees of the Charter would be illusory if
they could be ignored because it was administratively conven
ient to do so. No doubt considerable time and money can be
saved by adopting administrative procedures which ignore the
principles of fundamental justice but such an argument, in my
view, misses the point of the exercise under s. 1. The principles
of natural justice and procedural fairness which have long been
espoused by our courts, and the constitutional entrenchment of
the principles of fundamental justice in s. 7, implicitly recog
nize that a balance of administrative convenience does not
override the need to adhere to these principles.
Since the constitutional or quasi-constitutional
rights under the Charter and Bill are central to
this case, I consider these statements of the law to
be germane to the issue being discussed.
For all of the above reasons, I have concluded
that Mr. Justice Collier did not err in finding a
reasonable apprehension of bias in this case.
THE APPLICATION OF THE BILL OF RIGHTS
The relevant sections of the Canadian Bill of
Rights for the purpose of considering the issues in
these proceedings are paragraph 2(e) and subsec
tion 5(2). Those provisions read as follows:
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
5....
(2) The expression "law of Canada" in Part I means an Act
of the Parliament of Canada enacted before or after the coming
into force of this Act, any order, rule or regulation thereunder,
and any law in force in Canada or in any part of Canada at the
commencement of this Act that is subject to be repealed,
abolished or altered by the Parliament of Canada.
At the hearing before Mr. Justice Collier, counsel
for MacBain urged the application of paragraph
2(e) of the Bill to this case. This argument was
rejected. His reasons for refusing to apply the Bill
are found at page 709. I quote herewith the perti
nent portions of those reasons:
The Canadian Bill of Rights is not part of Canada's Consti
tution. It has had an unhappy, ineffective judicial history ....
For MacBain, it was said it can be brought into play here:
the Commission has, in this instance, so applied the Canadian
Human Rights Act to create a reasonable apprehension of bias;
a fair hearing cannot be had; if the Commission intends to
appoint a tribunal, it must first not substantiate the complaint.
Mr. Genest did not submit that I should hold the relevant
provisions of the legislation to be inoperative. He argued I
should merely hold the application of the statute by the Com
mission, in this case, to be contrary to the strictures found in
paragraph 2(e) of the Canadian Bill of Rights.
I have concluded, with regret, misgivings, and doubt, I
cannot utilize the Canadian Bill of Rights in that manner. Nor
can I, in the facts and circumstances here, hold the relevant
provisions of the Canadian Human Rights Act to be
inoperative.
In partial self-defence I suggest the Canadian Bill of Rights
is an awkward statute. That is all it is: a statute. It has no real
fangs. It is, as phrased, to my mind, a tool for construction of
legislation, not for destruction of impingements on rights.
With deference I agree with Mr. Justice Col
lier's appreciation of the state of the law pertain
ing to the Bill as of the date his reasons for
judgment were given in this case. However, since
that time the decision of the Supreme Court of
Canada in the Singh case supra has been deliv
ered. I think it accurate to observe that most
certainly one of the consequences of that landmark
decision has been to reinvigorate the Canadian Bill
of Rights. Accordingly, I think it necessary to
consider that decision in some depth. Madam Jus
tice Wilson speaking for herself, the Chief Justice
and Lamer J. at page 185 of her reasons made the
following comments concerning the Bill in general.
There can be no doubt that this statute continues in full force
and effect and that the rights conferred in it are expressly
preserved by s. 26 of the Charter. However, since I believe that
the present situation falls within the constitutional protection
afforded by the Canadian Charter of Rights and Freedoms, I
prefer to base my decision upon the Charter.
On the other hand, Mr. Justice Beetz, speaking
for himself and Estey and McIntyre JJ. found that
the procedures followed for determining Conven
tion Refugee status as set out in the Immigration
Act, 1976 [S.C. 1976-77, c. 52] were in conflict
with paragraph 2(e) of the Canadian Bill of
Rights. At page 224 of his reasons, Mr. Justice
Beetz stated:
Thus, the Canadian Bill of Rights retains all its force and
effect, together with the various provincial charters of rights.
Because these constitutional or quasi-constitutional instruments
are drafted differently, they are susceptible of producing
cumulative effects for the better protection of rights and free
doms. But this beneficial result will be lost if these instruments
fall into neglect. It is particularly so where they contain provi
sions not to be found in the Canadian Charter of Rights and
Freedoms and almost tailor-made for certain factual situations
such as those in the cases at bar.
In my view, this statement puts to rest the concept
stated by Collier J. (as established in the pre-
Singh jurisprudence) that the Bill is merely an
instrument of construction or interpretation. At
page 226 of his reasons, Beetz J. appears to have
adopted the submission of the appellant's counsel
that two points must be established in order to find
a breach of paragraph 2(e): Firstly, it must be
shown that a party's "rights and obligations" fall
to be determined by a federal tribunal; and,
secondly, it must be established that the party
concerned was not afforded a "fair hearing in
accordance with the principles of fundamental jus
tice". On the first branch of the test, Beetz J.
stated at page 228:
Be that as it may, it seems clear to me that the ambit of s.
2(e) is broader than the list of rights enumerated in s. I which
are designated as "human rights and fundamental freedoms"
whereas in s. 2(e), what is protected by the right to a fair
hearing is the determination of one's "rights and obligations",
whatever they are and whenever the determination process is
one which comes under the legislative authority of the Parlia
ment of Canada. It is true that the first part of s. 2 refers to
"the rights or freedoms herein recognized and declared", but
s. 2(e) does protect a right which is fundamental, namely "the
right to a fair hearing in accordance with the principles of
fundamental justice" for the determination of one's rights and
obligations, fundamental or not. It is my view that, as was
submitted by Mr. Coveney, it is possible to apply s. 2(e)
without making reference to s. I and that the right guaranteed
by s. 2(e) is in no way qualified by the "due process" concept
mentioned ins. 1(a).
Applying that view of the matter to the instant
case, I think that this Act imposes upon MacBain
the obligation not to treat his employees in a
discriminatory way. MacBain's position is that he
has fulfilled that condition. The position of the
Commission and the complainant Potapczyk is
that he has not. Accordingly, it seems clear that
the Tribunal appointed in this case was charged
with determining MacBain's obligations under the
Act. Therefore the first branch of the test as above
stated has been met, in my view.
In so far as the second branch of the test is
concerned, if my conclusions on reasonable appre
hension of bias supra, are correct, it necessarily
follows that MacBain was not afforded a fair
hearing in accordance with the principles of funda
mental justice. While actual bias was neither
alleged or established in this case, the appearance
of injustice also constitutes bias in law. 4 The case
at bar has some similarities to the case of Re
McGavin Toastmaster Ltd. et al. and Powlowski
et al. (1973), 37 D.L.R. (3d) 100, decided by the
Manitoba Court of Appeal. Although the scheme
of the Manitoba Human Rights Act [S.M. 1970,
° Compare: Re Latimer (W.D.) Co. Ltd. et al. and Bray et al.
(1974), 6 O.R. (2d) 129 (C.A.), at p. 137 per Dubin J.A.
c. 104] therein being considered is somewhat dif
ferent, I find relevant a statement made by Hall
J.A. for the majority at page 119 where he said:
The Commission and the statute under which it functions are
concerned with human rights of both the complainant and the
person complained against, and for that reason alone justice
demanded consummate care on their part in the procedures to
be followed in disposing of the complaints.
As in the McGavin case supra, we are also con
cerned here with human rights legislation which
by its very nature demands "consummate care" in
respect of the procedures to be followed. In this
case, the scheme of the statute and the procedure
prescribed therein for the appointment of Tri
bunals offends fundamental justice since the "con-
summate care" referred to by Hall J.A. which is
reasonably to be expected when dealing with the
human rights of individuals, cannot be taken under
this procedure.
Before leaving the Singh case, I should observe
that, in applying the Bill to an Act which post-dat
ed the enactment of the Bill, Mr. Justice Beetz
expressly rejected any suggestion that the Bill only
applied to Acts which pre-dated it. At page 239 of
the reasons he said:
I do not see any reason not to apply the principle in the
Drybones case to a provision enacted after the Canadian Bill of
Rights. Section 5(2) provides:
(2) The expression "law of Canada" in Part I means an
Act of the Parliament of Canada enacted before or after the
coming into force of this Act, any order, rule or regulation
thereunder, and any law in force in Canada or in any part of
Canada at the commencement of this Act that is subject to
be repealed, abolished or altered by the Parliament of
Canada.
THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
On the hearing of the appeal, the principal
thrust of the argument by counsel for MacBain
pertained to paragraph 2(e) of the Canadian Bill
of Rights. It was his position that if the Court
agreed with his submissions on paragraph 2(e),
there would be no need to consider whether section
7 or paragraph 11(d) of the Charter have any
application to this case. Nevertheless, in his sub
missions in chief and in his memorandum of fact
and law he did make submissions with respect to
section 7 and paragraph 11(d) of the Charter.
However, during the course of the submissions
being made to us by counsel for the Attorney
General of Canada, counsel for MacBain advised
us that he was not asking the Court to make a
finding on the applicability of any section of the
Charter. On this basis, the Court did not hear
further argument from counsel for the respondents
on this issue. Accordingly, I do not propose to deal
with the applicability of the Charter in this case.
REMEDIES
Since I have concluded that the adjudicative
structure of the Canadian Human Rights Act
contains an inherent bias, thereby offending para
graph 2(e) of the Bill, it becomes necessary to
consider the appropriate form of remedy in all the
circumstances of these proceedings. Like its
American counterpart, the Canadian Bill of
Rights does not expressly address the issue of the
consequences of failure to comply with its provi
sions. This circumstance is in marked contrast to
the Charter which deals with this matter with
clarity and unprecedented scope. I refer to subsec
tion 52(1) of the Charter which provides that any
law inconsistent with the provisions of the Charter
"is, to the extent of the inconsistency, of no force
and effect." Likewise, reference should be made to
subsection 24(1) of the Charter which empowers
"a court of competent jurisdiction" to grant such
remedy as it considers "appropriate and just in the
circumstances." However, the Bill's silence in this
regard does not, in my view, imply unenforceabili-
ty for it is trite law that there can be no right
without a remedy. Furthermore, the relevant juris
prudence supports that view of the matter. In R. v.
Drybones, [ 1970] S.C.R. 282, at page 294, Ritchie
J. writing for the majority of the Supreme Court
of Canada quoted the opening words of section 2
of the Bill which read:
Every law of Canada shall, unless it is expressly declared by
an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate ... (The foregoing italics are
those of Ritchie J.)
Thereafter, Mr. Justice Ritchie went on to state:
It seems to me that a more realistic meaning must be given
to the words in question and they afford, in my view, the
clearest indication that s. 2 is intended to mean and does mean
that if a law of Canada cannot be "sensibly construed and
applied" so that it does not abrogate, abridge or infringe one of
the rights and freedoms recognized and declared by the Bill,
then such law is inoperative "unless it is expressly declared by
an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights".
I think a declaration by the courts that a section or portion of
a section of a statute is inoperative is to be distinguished from
the repeal of such a section and is to be confined to the
particular circumstances of the case in which the declaration is
made. The situation appears to me to be somewhat analogous
to a case where valid provincial legislation in an otherwise
unoccupied field ceases to be operative by reason of conflicting
federal legislation.
While the Supreme Court of Canada did not, to
my knowledge, after Drybones supra, declare any
other laws inoperative pursuant to the Bill until
the Singh case supra, the Court nevertheless con
sistently affirmed the principle of Drybones in so
far as the remedy for failure to comply with the
provisions of the Bill is concerned. 5 The following
quotation from the decision of Laskin J. [as he
then was] in Curr v. The Queen, [1972] S.C.R.
889, at page 899, is yet another example of the
perspective of the Supreme Court of Canada on
the effect of non-compliance with the Bill:
... compelling reasons ought to be advanced to justify the
Court in this case to employ a statutory (as contrasted with a
constitutional) jurisdiction to deny operative effect to a sub
stantive measure duly enacted by a Parliament constitutionally
competent to do so.... (Emphasis added.)
In addition to the Singh case supra, there is at
least one other recent decision in Canadian courts
rendering inoperative federal legislation which
abrogated rights protected by the Bill. I refer to
the Manitoba Court of Appeal decision in R. v.
Hayden (1983), 3 D.L.R. (4th) 361, where Hall
J.A. speaking for the Court, found a section of the
Indian Act [R.S.C. 1970, c. I-6] concerning intoxi
cation on a reserve to be inoperative because it
offended paragraph 1(b) of the Bill. In the Singh
case the relief proposed by Beetz J. was stated at
pages 239 to 240 as follows:
5 See for example: Hogan v. The Queen, [1975] 2 S.C.R.
574; Attorney General of Canada et al. v. Canard, [1976] 1
S.C.R. 170; R. v. Burnshine, [1975] 1 S.C.R. 693; Attorney
General of Canada v. Lavell, [1974] S.C.R. 1349.
For the purposes of these seven cases, I would declare
inoperative all of the words of s. 71(1) of the Immigration Act,
/976, following the words:
"Where ... [application]". (Emphasis added.)
It is to be noted that notwithstanding the above
statement by Mr. Justice Beetz, the word "inoper-
ative" did not appear in the judgment as distinct
from the reasons for judgment pronounced by the
Supreme Court of Canada. This matter will be
discussed later herein.
As stated by Ritchie J. in Drybones supra,
another characteristic of the relief to be granted
under the Bill is that there must be a degree of
particularity introduced into a finding that statu
tory provisions are inoperative. In the second
revised edition of Tarnopolsky's The Canadian Bill
of Rights, (1975), section 2 and the Drybones case
are referred to as follows (pages 140 and 141):
It would seem, then, that by the opening paragraph of s. 2
Parliament intended what the majority of the Supreme Court
said it intended, and that is that courts are to declare "inopera-
tive" any laws which contravene the Canadian Bill of Rights.
The specific choice of the term "inoperative" as an alterna
tive, to "void", or "invalid", must have been intended to restrict
the effect of these decisions to the particular fact circum
stances.
This view of the matter was adhered to by Mr.
Justice Beetz in Singh, because his declaration was
specifically restricted to the "seven cases at bar
where Convention refugee claims have been
adjudicated upon on the merits without the hold
ing of an oral hearing at any stage." (Reasons of
Beetz J. at page 237).
The strictures of the remedies for violations of
the Bill as outlined supra, require comparison with
the emerging trends respecting remedies under the
Charter. In Hunter et al. v. Southam Inc.,
[1984] 2 S.C.R. 145, at page 170, the Supreme
Court of Canada held that certain subsections of
the Combines Investigation Act [R.S.C. 1970, c.
C-23] were inconsistent with the provisions of
section 8 of the Charter and "therefore of no force
and effect." In Singh supra, Madam Justice
Wilson, in considering the application of the
Charter found that subsection 52(1) thereof
required "a declaration that s. 71(1) of the Immi
gration Act, 1976 is of no force and effect to the
extent it is inconsistent with s. 7." (Reasons, page
221). Additionally and pursuant to the broader
provisions of section 24 of the Charter, she ordered
that the decision of this Court and the Immigra
tion Appeal Board be set aside and remanded all
seven cases "for a hearing on the merits by the
Board in accordance with the principles of funda
mental justice articulated above." (Reasons page
It is interesting in the light of the above discus
sion to consider the formal pronouncement of the
Supreme Court of Canada in the Singh case
supra. After allowing the appeals, setting aside the
decisions of the Court and the Immigration
Appeal Board, and remanding the refugee claims
to the Board for a hearing on the merits in accord
ance with the principles of natural justice, the
Court further ordered, inter alia [at page 184]:
The appellants are entitled to a declaration that s. 71(1) of
the Immigration Act, 1976 in its present form has no applica
tion to them. (Emphasis added.)
It would be presumptuous of me to attempt to
explain or to account for the differences in the
terms used ("inoperative"; "of no force and
effect"; and "has no application") and, in any
event, quite unnecessary in the view I take of the
matter. Since it has been consistently stated, as
observed supra, that non-compliance with the Bill
requires a declaration that the impugned provi
sions in legislation are inoperative, I propose to
follow that approach in prescribing the appropriate
remedy in the case at bar.
THE APPROPRIATE REMEDY IN THE INSTANT CASE
In my view, the appropriate remedy here is a
declaration in favour of MacBain that the provi
sions of subsections (1) and (5) of section 39 of the
Act are inoperative in so far as the complaint filed
against him by the complainant Kristina
Potapczyk is concerned. In his action for declara-
tory relief, MacBain also asked for a declaration
that all of Part III of the Act is inoperative. Part
III contains sections 31 to 48 inclusive. I am not
persuaded that it is necessary or proper to frame
this declaration so broadly, having regard to the
view expressed by Beetz J. in Singh, supra, at
pages 235 and 236 that:
There is probably more than one way to remedy the constitu
tional shortcomings of the Immigration Act, /976. But it is not
the function of this Court to re-write the Act. Nor is it within
its power. If the Constitution requires it, this and other courts
can do some relatively crude surgery on deficient legislative
provisions, but not plastic or re-constructive surgery.
For the reasons given supra, my conclusion is
that the offensive portion of the statutory scheme
on these facts is the appointment of the Tribunal
by the Commission since the Commission is also
the prosecutor. This undesirable situation is
exacerbated by the additional circumstance in this
case that the Commission made the appointment
of the Tribunal after it had concluded, pursuant to
subsection 36(3), that the complaint in issue had
been substantiated. As noted earlier, the Commis
sion's original finding that Potapczyk's complaint
against MacBain was substantiated is not properly
in question in these proceedings and therefore
remains unimpeached. A declaration that subsec
tions (1) and (5) of section 39 are inoperative in so
far as the complaint at bar is concerned will, in my
view, remedy the constitutional shortcomings of
the statute in the circumstances of this case.
It was submitted by counsel for the complainant
that a finding of breach of the provisions of para
graph 2(e) of the Bill may result in the complai
nant being deprived of any remedy whatsoever,
thereby jeopardizing her right to have the com
plaint adjudicated upon. The remedy which I pro
pose does not produce such a result. It leaves the
complainant with a finding of "substantiation" by
the Commission pursuant to subsection 36(3) of
the Act. The matter of remedying the shortcom
ings in subsections (1) and (5) of section 39 are
matters which should be addressed to Parliament.
In fashioning this remedy, I have attempted to
restrict the necessary "surgery" to a bare mini
mum, bearing in mind that it is the function of
Parliament, and not the Courts to legislate (except
in a case such as this where the provisions of a
quasi-constitutional instrument are infringed). On
the other side of the ledger, MacBain might com
plain that while the effect of this decision is to
nullify the order made against him by the Tri
bunal, he is left, nevertheless, with a finding by the
Commission that the complaint against him has
been substantiated. In answer to such a posssible
complaint, I would repeat that a section 28
application could have been made attacking that
finding by the Commission but no such proceed
ings were instituted. Furthermore, I think it un
necessary to declare subsection (3) of section 36
inoperative in order to impeach that portion of the
scheme which offends paragraph 2(e) of the Bill
on these facts.
Likewise, I am cognizant of the fact that this
decision may possibly have some effect on other
complaints before the Commission where Tri
bunals have been appointed or are about to be
appointed under the present scheme. This con
sideration fortifies my view that declarations under
the Bill should be strictly confined to those por
tions of otherwise valid legislation which must
necessarily be declared inoperative in order to
dispose of the issues in a particular case.
THE DOCTRINE OF NECESSITY
As a final matter, I think it necessary to consid
er whether or not the doctrine of necessity applies
so as to prevent the application of the Bill to the
situation in this case. This principle is succinctly
stated in the memorandum filed by counsel for the
complainant as follows (Memorandum of
Respondent Kristina Potapczyk, paragraph 35,
pages 7 and 8):
... where every eligible member of the tribunal is subject to the
same disqualification for bias (that is, the very act of selection),
the law must be carried out notwithstanding that potential
disqualification. if the Appellant's position were accepted,
there would be no person on the panel of prospective tribunal
members who could escape disqualification for reasonable
apprehension of bias.
In support of this submission the decision of this
Court in the case of Caccamo v. Minister of
Manpower and Immigration, [1978] 1 F.C. 366;
(1977), 75 D.L.R. (3d) 720, at pages 725 and 726,
is cited. The Caccamo case was decided on two
grounds; firstly, on the doctrine of necessity, and
secondly, on the basis that a reasonable apprehen
sion of bias did not exist on the facts of that case.
Earlier in these reasons, I distinguished Caccamo
from the present case on the issue of reasonable
apprehension of bias. I now propose to discuss that
case from the perspective of the doctrine of neces
sity. My initial comment is to the effect that I
have considerable doubt that the Caccamo case is
persuasive or determinative in light of the decision
in Singh supra. I so conclude because of the
characterization of the Bill as a quasi-constitution
al instrument by Mr. Justice Beetz in his reasons
in Singh at page 224, quoted supra and because of
his further view expressed at page 239 of his
reasons in Singh that the Drybones principle is still
valid. In Drybones the majority of the Court held
that the opening words of section 2 of the Bill
afford the clearest indication that the section is
intended to mean and does mean that if a law of
Canada cannot be "sensibly construed and
applied" so that it does not abrogate, abridge or
infringe one of the rights and freedoms recognized
and declared by the Bill, then such law is inopera
tive "unless it is expressly declared by an Act of
the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights". 6
Given this clear and unambiguous statement as
to the paramountcy of rights conferred by the Bill,
I doubt the applicability of the Caccamo case in
view of the evolution of our jurisprudence since
that case was decided.
In any event, the Supreme Court of Canada has
recently considered the question of necessity in Re
Manitoba Language Rights, [1985] 1 S.C.R. 721;
59 N.R. 321. Section 23 of The Manitoba Act,
1870 [33 Vict., c. 3 (Can.) [R.S.C. 1970, Appen
dix II, No. 8], as am. by Canada Act 1982, 1982,
c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 2] provided that Acts of the Legisla
ture were to be printed and published in both
English and French. After Manitoba entered Con
federation the statutes of Manitoba were not print
ed or published in French. In 1890, the Official
6 This summary of the ratio in Drybones is taken from the
headnote of the report. The full text is to be found in the
reasons of Ritchie J. at page 294 which have been reproduced
earlier in these reasons.
Language Act [An Act to Provide that the English
Language shall be the Official Language of the
Province of Manitoba, S.M. 1890, c. 14] was
enacted by the Manitoba Legislature. It made
English the official language of Manitoba and
provided that Manitoba statutes need only be
printed and published in English. In 1979 that
statute was declared unconstitutional by the
Supreme Court of Canada. The Manitoba Legisla
ture then passed An Act respecting the operation
of section 23 of the Manitoba Act In Regard to
Statutes [S.M. 1980, c. 3 (S207)]. That Act was
an attempt to circumvent the effect of the 1979
ruling of the Supreme Court of Canada. It left
English as the dominant language. The question of
whether section 23 of the Manitoba Act, 1870 was
mandatory and, if so, the effect on the validity of
the statutes of Manitoba, was referred to the
Supreme Court of Canada. The Court held that
said section 23 was mandatory and that all of the
statutes of Manitoba since Manitoba entered Con
federation, which were not enacted, printed and
published in both English and French were invalid.
To avoid the resulting disastrous legal vacuum in
that Province the Court deemed the statutes tem
porarily valid for the minimum period of time
necessary for their translation, re-enactment,
printing and publication. To achieve this result,
the Court invoked the "State Necessity Doctrine".
After reviewing a number of analogous situations
in different countries, the Court, at page 763
S.C.R.; 368 N.R., stated the doctrine in the con
text of the Manitoba language situation as follows:
... a Court may temporarily treat as valid and effective laws
which are constitutionally flawed in order to preserve the rule
of law .... under conditions of emergency, when it is impos
sible to comply with the Constitution, the Court may allow the
government a temporary reprieve from such compliance in
order to preserve society and maintain, as nearly as possible,
normal conditions. The overriding concern is the protection of
the rule of law.
Addressing the question as to whether the deci
sion in Re Manitoba Language Rights has any
application to the situation in the case at bar, I
would observe that the situation here is dramati
cally different from that in the Manitoba case. As
stated by the Court at pages 766-767 S.C.R.; 372
N.R. of that case:
... the Province of Manitoba is in a state of emergency: all of
the Acts of the Legislature of Manitoba, purportedly repealed,
spent and current (with the exception of those recent laws
which have been enacted, printed and published in both lan
guages), are and always have been invalid and of no force or
effect, and the Legislature is unable to immediately re-enact
these unilingual laws in both languages.
In the case at bar, there will be simply a declara
tion that a portion of the scheme of this particular
Act is inoperative in so far as its application to this
appellant/applicant is concerned. This is a far cry
from the "legal chaos" referred to by the Supreme
Court of Canada in the Manitoba case. The pro
posed declaration at bar will effect only a portion
of one statute. It will affect only the appellant/
applicant in this case and possibly several other
cases where the fact situation is identical to this
case. It will not, in my view, affect the validity of
the decisions already made by Tribunals appointed
under the present scheme. I say this because of the
comments at pages 767-768 S.C.R.; 373 N.R. in
Re Manitoba Language Rights where it was said:
Rights, obligations and any other effects which have arisen
under purportedly repealed or spent law% by virtue of reliance
on acts of public officials, or on the assumed legal validity of
public or private bodies corporate are enforceable and forever
beyond challenge under the de facto doctrine. The same is true
of those rights, obligations and other effects which have arisen
under purportedly repealed or spent laws and are saved by
doctrines such as res judicata and mistake of law.
For these reasons I conclude that the doctrine of
necessity as employed in the Caccamo case cannot
be applied to the factual situation here so as to
deprive this appellant/applicant of the relief to
which he is otherwise entitled under the Bill of
Rights.
CONCLUSION
For all of the foregoing reasons, I conclude that
the three proceedings in issue should be disposed
of as follows:
(a) File A-703-84 - Since the subject-matter of
this proceeding has become academic, the appeal
should be dismissed. I would make no order as to
costs in this appeal.
(b) File A-996-84 - I would allow the section 28
application and set aside the decision made by the
respondents Lederman, Robson and Cumming,
acting as a Human Rights Tribunal appointed
under section 39 of the Act.
(c) File A-704-84 - I would allow the appeal
with costs both here and in the Trial Division and
make a declaration that the provisions of subsec
tions (1) and (5) of section 39 of the Canadian
Human Rights Act are inoperative in so far as the
complaint filed against the appellant/applicant
Alistair MacBain by the respondent Kristina
Potapczyk is concerned.
MAHONEY J.: I agree.
STONE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.