T-2233-90
Canadian Radio-television and Telecommunica
tions Commission ("CRTC") and Brien Rodger
(Applicants)
v.
Daniel A. Soberman, Carol Joan Block, Joseph A.
Sanders, sitting as a Human Rights Tribunal,
Richard Deegan, the complainant, and Canadian
Human Rights Commission (Respondents)
INDEXED AS: CANADIAN RADIO-TELEVISION AND TELECOM
MUNICATIONS COMMISSION V. CANADA (HUMAN RIGHTS TRI
BUNAL) (T.D.)
Trial Division, MacKay J.—Ottawa, August 30
and September 17, 1990.
Human rights — Application to quash order excluding
CRTC's designated representative from Human Rights Tri
bunal hearing of complaint of discrimination until after testi
fies — Subpoenaed as witness — Application allowed as
contrary to Canadian Human Rights Act, s. 50(l) assuring
right of parties to present evidence and make representations
— Corporate or statutory body can be represented and instruct
counsel only by natural person — Choice of representative
should not be fettered by possibility may be witness
Application to quash exclusion order relating to employee
whose conduct giving rise to complaint dismissed — Tribu
nal's function not to punish, but remedial — As order directed
only to CRTC as only named respondent, natural justice
principles, duty of fairness not violated.
Constitutional law — Charter of Rights — Life, liberty and
security — Application to quash order excluding CRTC
employee whose conduct giving rise to complaint of discrimi
nation from Human Rights Tribunal hearing until after testi
fies — As CRTC only named respondent, Tribunal's order
directed to it alone — Personal trauma due to Tribunal's
proceedings not deprivation of security of person contrary to
Charter, s. 7.
Bill of Rights — Exclusion of CRTC employee whose
conduct giving rise to complaint of discrimination from
Human Rights Tribunal hearing until after testifies not depri
vation of right to fair hearing in accordance with principles of
fundamental justice contrary to Canadian Bill of Rights, s.
2(e) — Not named respondent nor yet granted interested party
status — No greater standing to respond to accusations or
alleged facts than any other witness.
Practice — Evidence — Human Rights Tribunal hearing —
CRTC employee, whose conduct provoking discrimination
complaint and CRTC officer instructing counsel excluded
until having testified — Order quashed as to latter, affirmed
as to employee Whether Tribunal's discretion to exclude
witnesses extending to persons in question — Purpose of
witness exclusion — Credibility Reference to Evidence
textbooks, rules of civil procedure and statute law in various
jurisdictions — Tribunal would carefully consider weight
given testimony of non-excluded witness — In selecting person
to instruct counsel, agency must realize testimony may be
discounted.
This was an application to quash an order excluding Joseph
Horan, Director General, Personnel of the CRTC and Brien
Rodger, the employee of the CRTC, whose conduct had given
rise to the complaint of discrimination, from the Human Rights
Tribunal's hearing until after they had testified. As his respon
sibilities included the matters in issue, and he had instructed
counsel prior to the inquiry, Horan was considered by the
CRTC as the most appropriate and knowledgeable person to
continue instructing counsel and representing it at the inquiry.
Although identified by name in the complaint, Rodger was not
a party to the inquiry before the Tribunal, and has not yet been
granted status as an interested party. Only the CRTC was
named as a respondent. Both Horan and Rodger were subpo
enaed by the Tribunal as potential witnesses. The CRTC
argued that excluding Horan contravened Canadian Human
Rights Act, subsection 50(1) and the rules of natural justice.
Subsection 50(1) identifies the parties to an inquiry who are to
be given notice of the inquiry and a full and ample opportunity
to appear, present evidence and make representations. These
-submissions were premised on CRTC's right to select who shall
represent it to advise and instruct counsel at the hearing, which
was portrayed as concomitant with its right to counsel, an
essential element of a fair hearing. With respect to Rodger, it
was argued that his character and reputation were in issue and
his career advancement in the public service would be affected
by,the findings of the Tribunal. It was submitted that the rules
of natural justice require that he be permitted to hear the
accusations against him and to respond. It was further submit
ted that the Tribunal proceedings and findings could infringe
Rodger's rights under Charter, section 7 which it was said
included the right not to be subjected to emotional hurt based
on a loss of self-respect or dignity or stigmatization. The
respondents submitted that others in the agency's administra
tion could represent it and instruct counsel. The issue was
whether the Tribunal's discretion to exclude witnesses extends
to persons in the situations of Horan and Rodger.
Held, the application should be allowed in part, quashing the
order as to Horan, but allowing it to stand as to Rodger.
The exclusion of Horan contravened subsection 50(1) of the
Act. A party which is a corporate or statutory body can be
represented at a hearing and instruct counsel only through a
natural person. Under subsection 50(1), a statutory body is
entitled to representation and to instruct counsel at the hearing
by the person it chooses to designate. Its opportunity to partici
pate in the hearing may not be limited by excluding that
designated representative even if he or she is a potential
witness. The fact that a person is a potential witness because
the complaint falls within his normal responsibilities should not
fetter the corporation or agency's selection of a representative
for the hearings of a tribunal. This conclusion was supported by
the practical aspects of the case. As the responsibility for
dealing with the report on the investigation and conciliation
process fell to Horan, much of the evidence was known to him.
Isolating him from hearing others testify would not provide the
same assurance as in the case of other witnesses that his
testimony would be free from influence from the evidence
before the Tribunal. Where the person designated to instruct
counsel is also a potential witness and is exempted from a
general exclusion of witnesses, the Tribunal will carefully con
sider the weight to be given to his testimony. The risk that the
testimony of such a witness will be discounted may be of
concern to the agency in selecting a representative to instruct
counsel.
Rodger will not be directly affected by any order of the
Tribunal because he is not a party. His career advancement
depends on other processes of assessment and evaluation.
Because no order will be made directed to Rodger and no
punishment will be imposed upon him or any remedial action
taken against him by order of the Tribunal, there is no violation
of the principles of natural justice nor of the duty of fairness.
As a prospective witness, he has no greater standing to respond
to "accusations" or alleged facts than has any other witness.
His inability to hear evidence of any allegations against him
before he is called to testify does not deprive him of his right to
a fair hearing in accordance with the principles of fundamental
justice contrary to paragraph 2(e) of the Canadian Bill of
Rights. Nor is Charter, section 7 engaged by the facts. Any
trauma Rodger may experience due to the proceedings is a risk
of life and not a deprivation of security of his person.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Alberta Rules of Court, Alta. Reg. 390/68, R. 247.
Canadian Bill of Rights, S.C. 1960, c. 44, Part I [R.S.C.,
1985, Appendix Ill], s. 2(e).
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 I1,
No. 441. ss. 7, 24(1).
Canadian Human Rights Act, R.S.C., 1985, c. H-6,
ss. 49 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 66),
50, 52, 53, 54.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Rules of Civil Procedure, O. Reg. 560/84, R. 52.06.
The Saskatchewan Human Rights Code, S.S. 1979,
c. S-24.1.
CASES JUDICIALLY CONSIDERED
APPLIED:
Fishing Vessel Owners' Assn. of B.C. v. A.G. Can.
(1985), 1 C.P.C. (2d) 312; 57 N.R. 376 (F.C.A.); Ameri-
can Airlines, Inc. v. Canada (Competition Tribunal),
[1989] 2 F.C. 88; (1988), 54 D.L.R. (4th) 741; 33
Admin. L.R. 229; 23 C.P.R. (3d) 178; 89 N.R. 241
(C.A.).
DISTINGUISHED:
Kodellas v. Sask. Human Rights Comm., [1989] 5
W.W.R. 1; (1989), 77 Sask. R. 94 (C.A.).
CONSIDERED:
R. v. Morgentaler, [1988] 1 S.C.R. 30; (1988), 63 O.R.
(2d) 281; 44 D.L.R. (4th) 385; 37 C.C.C. (3d) 449; 62
C.R. (3d) 1; 31 C.R.R. 1; 82 N.R. 1; 26 O.A.C. l;
Homelite, a division of Textron Can. Ltd. v. Cdn. Import
Tribunal (1987), 26 Admin. L.R. 126; 15 F.T.R. 10
(F.C.T.D.).
REFERRED TO:
R. v. Rahey, [1987] 1 S.C.R. 588; (1987), 78 N.S.R.
(2d) 183; 39 D.L.R. (4th) 481; 193 A.P.R. 183; 33
C.C.C. (3d) 289; 57 C.R. (3d) 289; 75 N.R. 81; Re
Alberta Liquor Control Board and A.U.P.E., Loc. 50
(1989), 6 L.A.C. (4th) 252 (Alta.); Re Inland Natural
Gas Co. Ltd. and Intl Brotherhood of Electrical Work
ers, Local 213 (1985), 22 L.A.C. (3d) 104 (B.C.); Cham
berlain v. Aetna Life & Cas. Ins. Co., Tenn., 593 S.W. 2d
661 (S.C., 1980); Lenoir Car Co. v. Smith, 100 Tenn.
127; 42 S.W. 879 (Tenn. S.C., 1897); Robichaud v.
Canada (Treasury Board), [1987] 2 S.C.R. 84;
(1987), 40 D.L.R. (4th) 577; 87 C.L.L.C. 17,025; 75
N.R. 303.
AUTHORS CITED
Schiff, Stanley Evidence in the Litigation Process, Vol. 1,
3rd ed. Toronto: Carswell Co. Ltd., 1988.
Sopinka, John & Lederman, Sidney N. The Law of
Evidence in Civil Cases, Toronto: Butterworths, 1974.
Wigmore, John Henry Evidence in Trials at Common
Law, Vol. 6, rev. by James H. Chadbourn. Boston:
Little, Brown & Co., 1976.
COUNSEL:
Russell G. Juriansz and Avrum Cohen for
applicants.
Stephen B. Acker and Mundy McLaughlin
for respondent Canadian Human Rights
Commission.
Michael W. Swinwood for complainant Rich-
ard Deegan.
No one appearing for Human Rights Tri
bunal.
SOLICITORS:
Blake, Cassels & Graydon, Toronto for
applicants.
Johnston & Buchan, Ottawa, for respondent
Canadian Human Rights Commission.
Lang, Michener, Lawrence & Shaw, Ottawa,
for complainant.
The following are the reasons for order ren
dered in English by
MACKAY J.: This is an application pursuant to
section 18 of the Federal Court Act, R.S.C., 1985,
c. F-7, for orders in the nature of certiorari,
prohibition and mandamus in relation to a deci
sion of the respondent Human Rights Tribunal
which excluded certain persons subpoenaed as wit
nesses from being present in the hearing room
during an inquiry by the Tribunal into an allega
tion of discrimination. The persons excluded from
the hearing, whose attendance the orders sought
would permit, were Joseph Horan, the Director
General, Personnel, of the applicant Canadian
Radio-television and Telecommunications Com
mission ("CRTC") who had been designated by
the agency to instruct counsel on its behalf, and
Brien Rodger, an employee of the CRTC, whose
conduct had given rise to a complaint. The com
plaint, alleging discrimination on the basis of a
disability, was made to the Canadian Human
Rights Commission under the Canadian Human
Rights Act, R.S.C., 1985, c. H-6, by the respond
ent Richard Deegan.
At the hearing of this matter the applicants
CRTC and Rodger were both represented by
counsel, the respondents Deegan and the Canadian
Human Rights Commission were separately repre
sented by counsel and the respondents named as a
Human Rights Tribunal were not represented.
The application seeks an order in the nature of
certiorari and prohibition quashing the decision of
the Tribunal made June 18, 1990, excluding the
CRTC's representative and Rodger from the hear
ing room, and prohibiting the Tribunal from con
tinuing with the inquiry until those persons are
permitted to be present. The application also seeks
an order in the nature of mandamus directing the
Tribunal to permit the CRTC's representative and
Brien Rodger to be present during the inquiry.
Also sought are orders directing the Tribunal to
conduct the inquiry in accordance with the rules of
natural justice and the requirements of fundamen
tal justice as guaranteed by paragraph 2(e) of the
Canadian Bill of Rights, S.C. 1960, c. 44, Part I,
as amended (R.S.C., 1985, Appendix III) and
finally, in relation to Rodger, an order pursuant to
subsection 24(1) of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44] ] directing that the Tribunal conduct the
inquiry in accordance with his right to fundamen
tal justice as guaranteed by section 7 of the
Charter.
Grounds for the motion are that the Tribunal
erred in law, breached the rules of natural justice,
infringed the applicants' rights to fundamental
justice as guaranteed by paragraph 2(e) of the
Canadian Bill of Rights, and infringed the right of
Brien Rodger to fundamental justice as guaran
teed by section 7 of the Charter, and exceeded its
jurisdiction by ordering the exclusion of CRTC's
representative and Brien Rodger from the hearing.
Background
The Tribunal was appointed to inquire into a
complaint by Deegan, an employee of CRTC,
alleging that he was discriminated against on the
basis of a disability. The complaint relates specifi
cally to the conduct of his supervisor, Brien
Rodger, whose name appears in the body of the
complaint, although the complaint names only the
agency, CRTC, as respondent.
Horan is the Senior Manager responsible for
Personnel Management and Policy within the
CRTC. His responsibilities include the matters in
issue before the Tribunal and he had instructed
counsel for the CRTC prior to the inquiry. He was
considered by the CRTC as the most appropriate
and knowledgeable person to continue instructing
counsel and representing the CRTC at the inquiry.
The complainant Deegan is said not to agree
that the allegations of discrimination are based
entirely on the actions of the applicant Rodger.
Apparently some concern on the part of Deegan,
and perhaps also the respondent Commission,
arises about conduct of Horan from the course of
investigation conducted by the Commission into
the allegation of discrimination.
The statutory process for investigation of a com
plaint and for efforts to settle it were followed in
relation to Deegan's complaint but were not suc
cessful in resolving the matter. Ultimately the
Tribunal was constituted pursuant to section 49
[as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 66]
of the Canadian Human Rights Act to consider
the complaint. When counsel for the CRTC
declined to indicate whether or not he would call
Messrs. Horan and Rodger as witnesses at the
inquiry, each of them was subpoenaed by the Tri
bunal at the request of the respondent Commis
sion. Then counsel for the Commission declined in
advance of the hearing to undertake that either
would be called as a witness. At the outset of the
inquiry on June 18, 1990, counsel for the respond
ent Commission asked for an order excluding wit
nesses, a request supported by counsel for the
complainant. Counsel for the CRTC agreed with
the request but proposed that Messrs. Horan and
Rodger and the complainant Deegan be exempted
from the order. Exemption of Messrs. Horan and
Rodger was then opposed by counsel for the Com
mission and counsel for Deegan.
After hearing argument on the matter the Tri
bunal decided that witnesses, including Messrs.
Horan and, Rodger, are to be excluded from the
hearing until after they have given testimony, if
they should be called to do so. Much of the
argument before the Tribunal related to the
application of the proposed order to Horan who, as
senior personnel officer of the CRTC, had advised
management in the matter and had instructed
counsel in preparation for the hearing. Argument
was also made for the attendance of Rodger on the
ground that fundamental justice requires a person
to hear what is said against him and be given an
opportunity to defend himself. The essential issue
and the decision was stated by the Chairman of
the Tribunal in the following terms:
So we have a collision here between the right to be present
and hear what's going on and the ability to have a Hearing that
gets as close to the truth as possible by the general Rules of
Evidence. (Transcript, Tribunal hearing, p. 15.)
Later, the Chairman said:
... we are in agreement that the ability to get at the truth, the
facts, without the risks of the persons being here takes priority
from our point of view, and so we would exclude both Mr.
Horan and Mr. Rodger until they give testimony .... we do
feel it is important that they be excluded and we would exclude
everyone except Mr. Deegan himself before they give evidence.
(Transcript, Tribunal hearing, p. 17.)
The CRTC then moved for an adjournment to
challenge that decision of the Tribunal in this
Court, an adjournment granted by the Tribunal
when counsel for the CRTC indicated he objected
to further proceeding until this preliminary issue is
resolved.
The Tribunal and the Exclusion of Witnesses
Under the Canadian Human Rights Act a tri
bunal, when constituted, has certain powers and
responsibilities. These include, in relation to its
inquiry into the complaint, the responsibility to
provide notice to parties who shall then have op
portunity to appear before the tribunal, present
evidence and make representations to it; the power
to summon and enforce the attendance of wit
nesses and to compel oral or written evidence on
oath in the same manner as a superior court of
record, and to receive and accept evidence and
information as the tribunal sees fit (subsections
50(1) and (2)). The tribunal shall conduct a public
hearing but may exclude members of the public if
that is in the public interest (section 52). At the
conclusion of its inquiry the tribunal may dismiss
the complaint, or if it finds the complaint is sub
stantiated it may make an order for redress within
the terms set by statute (sections 53 and 54).
In the hearing on this application there was no
argument about the general authority of the Tri
bunal to establish its own procedures so far as
those are not specified by the Act. The general
principle that tribunals are masters of their own
procedures is now well settled, in accord with the
principle stated by Mr. Justice Addy in Fishing
Vessel Owners' Assn. of B.C. v. A.G. Can. (1985),
1 C.P.C. (2d) 312 (F.C.A.) at page 319 and
reaffirmed in American Airlines, Inc. v. Canada
(Competition Tribunal), [1989] 2 F.C. 88 (C.A.),
at page 95:
Every tribunal has the fundamental power to control its own
procedure in order to ensure that justice is done. This, however,
is subject to any limitations or provisions imposed on it by the
law generally, by statute or by the rules of the Court. [Empha-
sis added by lacobucci C.J.]
In the hearing of this application there was also
no argument about the discretion of the Human
Rights Tribunal to exclude witnesses generally
from its hearing prior to them being called to
testify. The only issue is whether that discretion
extends to the exclusion of the persons whose
attendance this application would seek to permit.
The applicants here submit that under the provi
sions of the enabling statute or the general law the
discretion of the Tribunal to exclude witnesses
does not extend to the exclusion of Messrs. Horan
and Rodger. Each of their situations and the argu
ments addressed concerning them will be con
sidered in turn.
The discretion to exclude witnesses has long
been recognized in the courts either under the
common law, by statute or by rules of the courts
themselves. The procedure is designed to ensure
that the hearing body has the best opportunity for
hearing the evidence of individual witnesses with
out influence upon their testimony which the hear
ing of others' testimony might introduce, either by
suggestion as to the shaping of testimony to most
effectively counter opposing witnesses, or of shap
ing testimony to correspond with that of earlier
witnesses on the same side of a case. The practice
is particularly relied upon where credibility is an
issue.'
In some jurisdictions rules of court or statute
permit discretion in civil cases to exclude parties
who are prospective witnesses (see, e.g. Alberta
Rules of Court [Alta. Reg. 390/68] Rule 247). In
other jurisdictions parties may not be excluded
even if they are to be witnesses (see e.g. Rules of
Civil Procedure, [O. Reg. 560/84], of Ontario,
Rule 52.06). In the case of other jurisdictions and
many administrative tribunals, the matter is
simply left for discretion, subject to applicable
general law. Where a witness, even one who is a
party, is exempt from a ruling excluding witnesses
generally or is in attendance by inadvertence
despite such a ruling, and is only called to testify
after hearing the testimony of others, the court or
tribunal will carefully consider what weight to give
to his or her evidence. Moreover, the hearing body
may be interested to have such a witness called
first among those to testify on behalf of a party.
In this case, it is apparent that the Tribunal
concluded that all prospective witnesses, other
than the complainant, should be excluded, among
them Messrs. Horan and Rodger, even though the
former was present to advise and instruct counsel
on behalf of the CRTC. Its decision was based
upon its concern to have the best opportunity to
determine facts from the testimony of individual
witnesses unaffected by that offered by others.
Exclusion of the representative of CRTC, Mr.
Horan
On behalf of CRTC it is submitted that the
discretion of the Tribunal to exclude witnesses
generally does not extend to exclude Mr. Horan,
even though he is a potential witness, since he was
designated by the agency as its representative to
' See generally, Wigmore, Evidence in Trials at Common
Law, Vol. 6 (Chadbourn ed. rev., 1976) c. 63; Sopinka &
Lederman, The Law of Evidence in Civil Cases (1974), at
p. 461; Schiff, Evidence in the Litigation Process (1988, 3rd
ed.), at p. 55.
advise and instruct counsel in preparation for and
at the hearing by the Tribunal. It is urged that
excluding him would contravene subsection 50(1)
of the Canadian Human Rights Act, and that
aside from statutory limitations it would be con
trary to the rules of natural justice.
These submissions are premised on CRTC's
right to select who shall represent it to advise and
instruct counsel at the hearing. That right is por
trayed as concomitant with its right to counsel, an
element essential to a fair hearing.
The respondents do not concede the identifica
tion of Horan with the CRTC as one and the same
for purposes of the hearing. They submit that
others in the agency's administration, including
"house counsel", who was present at the hearing as
co-counsel for CRTC, could represent the agency
and instruct counsel. They do not agree that exclu
sion of Horan as a prospective witness constitutes
exclusion of CRTC as a party. They submit that
the discretion of the Tribunal does extend to the
exclusion of Horan despite his presence to instruct
counsel. They rely on the decision of my colleague
Mr. Justice Strayer in Homelite, a division of
Textron Can. Ltd. v. Cdn. Import Tribunal
(1987), 26 Admin. L.R. 126 (F.C.T.D.) where he
declined to intervene to upset a decision not to
exclude witnesses made by another tribunal and
submit that this Court should not here intervene in
relation to the discretion exercised by the Human
Rights Tribunal.
The exclusion as a potential witness of the
person designated by a corporation or an agency to
represent it and instruct counsel at a hearing
where the corporation or agency is a party may
well be unusual. The applicants suggest that such
a person is exempt from a general exclusion order
as a matter of general practice, referring to what
appears as general practice in labour arbitration
proceedings,' to the Ontario Rules of Civil Proce
dure, Rule 52.06(2) which now precludes exclu
sion of such a person, and by reference to jurispru
dence of Tennessee though I note that in these
cases statutory provisions specifically precluded
the exclusion of the person designated to instruct
counsel.' On the other hand, one would assume
that in jurisdictions where the rules of court or
statutes provide for discretion to exclude witnesses,
including parties who are potential witnesses, it is
implicit that one designated by a corporate or
other body to instruct counsel may also be exclud
ed as the party's representative if he or she also is
a potential witness. From this I simply conclude
that there is no generally recognized rule one can
readily turn to as a limitation on the discretion of a
tribunal.
When one turns to the statute creating the
tribunal in this case, a key provision is subsection
50(1) of the Canadian Human Rights Act, which
provides:
50. (1) A Tribunal shall, after due notice to the Commis
sion, the complainant, the person against whom the complaint
was made and, at the discretion of the Tribunal, any other
interested 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, to appear before the Tribunal, present evidence and
make representations to it.
This provision identifies the parties to an inquiry
as the Canadian Human Rights Commission, the
complainant, the person against whom the com
plaint was made, in this case the CRTC, and "at
the discretion of the Tribunal, any other interested
party". Each of these parties is to be given due
notice of the inquiry and "a full and ample oppor
tunity, in person or through counsel, to appear
before the Tribunal, present evidence and make
representations to it." How is this opportunity to
be provided in the circumstances of this case and
with reference to Mr. Horan? The decision of
Chief Justice Iacobucci in American Airlines, Inc.
2 See, e.g., Re Alberta Liquor Control Board and A.U.P.E.,
Loc. 50 (1989), 6 L.A.C. (4th) 252 (Alta.); Re Inland Natural
Gas Co. Ltd. and Intl Brotherhood of Electrical Workers,
Local 213 (1985), 22 L.A.C. (3d) 104 (B.C.).
3 See, Chamberlain v. Aetna Life & Cas. Ins. Co., Tenn., 593
S.W. 2d 661 (S.C., 1980); and Lenoir Car Co. v. Smith, WO
Tenn. 127; 42 S.W. 879 (Tenn. S.C., 1897).
v. Canada (Competition Tribunal), supra, at pages
96-97 is instructive. There, dealing with subsection
9(3) of the Competition Tribunal Act [S.C. 1986,
c. 26] which allowed persons to intervene with
leave of the Competition Tribunal "to make
representations relevant to [the] proceedings in
respect of any matter that affects that person", the
Chief Justice said:
To ascertain the meaning of the words in the section one should
look not only at the dictionary definition and the context but
also at the nature of the matters being dealt with in the action
as well as the overall objectives of the underlying legislation.
In The Shorter Oxford English Dictionary, "representation"
is stated to mean, among other things, the following, which I
find applicable to subsection 9(3):
A formal and serious statement of facts, reasons or argu
ments, made with a view to effecting some change, prevent
ing some action, etc. ...[Emphasis added by C.J.]
The function of the Tribunal in this case is to
conduct an inquiry into a complaint of discrimina
tion through a hearing which is generally open and
public, to find facts, to draw its conclusions and if
it finds the complaint is substantiated to order
action that will end the discriminatory practice
and provide redress to the complainant. Its func
tion is not to impose punishment, rather it is, in
the context of a remedial statute, in the broadest
sense to educate and to lead to change in conduct,
if not in attitudes, and to provide a remedy where
a complaint is substantiated. 4
In this context the Act provides that parties as
designated by statute, or recognized as interested
parties by the Tribunal, are to have "full and
ample opportunity, in person or through counsel,
to appear before the Tribunal, present evidence
and make representations to it." The opportunity
to present evidence and make representations
implies, as I see it, the necessity to know the
evidence and representations of others in order to
respond with relevancy in the context of the hear
ing conducted by the Tribunal. That means the
parties to a complaint should be free to attend and
See comments of Mr. Justice La Forest in Robichaud v.
Canada (Treasury Board), [1987] 2 S.C.R. 84, at pp. 94-95.
hear the evidence presented and without their
consent should not be excluded under a general
order excluding witnesses whether they represent
themselves or are represented by counsel whose
effectiveness should not be limited by the exclusion
as a potential witness of a party who alone can
instruct counsel. I am satisfied that if the person
against whom a complaint is made under the Act
is an individual, that person could not be excluded
from the hearing on grounds that he or she is a
potential witness. Excluding that person would, in
my view, be contrary to subsection 50(1) of the
Act. It would also, in my view, conflict with the
duty of fairness of the Tribunal in conducting its
inquiry.
Yet it is argued that CRTC, not a natural
person, may have the person it has selected to
represent it and to instruct counsel excluded where
that representative is a potential witness. I am not
persuaded that this is the case by argument that
others might have been selected by CRTC to
represent it, or might now be selected to replace
Mr. Horan. This surely is a question for CRTC,
not for the Tribunal or for this Court.
Where a party is a corporate or statutory body it
can only be represented at the hearing and can
only instruct counsel by a natural person who for
all intents and purposes at the inquiry is deemed to
represent the corporate or statutory body. If that
body is not free to select its representative as it
sees fit, then the person who stands in at the
hearing and whose presence is primarily to instruct
counsel may not have the full confidence of those
responsible for the corporate or statutory body.
That surely is the basis on which a body selects its
representative and is the key to accepting the
representative named as the person with the re
sponsibility assigned by the corporation, or in this
case CRTC, to instruct counsel on its behalf. In
my view, under subsection 50(1) of the Act, a
statutory body, here CRTC, is entitled to represen
tation and to instruct counsel at the hearing of the
Tribunal by the person designated by that statu
tory body, CRTC, and its opportunity to partici
pate in the hearing as assured by subsection 50(1)
may not be limited by excluding that designated
representative even though he or she may be a
potential witness.
I find some support for this conclusion in practi
cal aspects of the issue as presented here. It seems
to me that in many cases of tribunals concerned
with complaints or grievances arising in an
employment relationship, the senior personnel
administrator of a corporate or statutory body may
well be the logical person to represent and instruct
counsel on behalf of that body, and at the same
time he or she is likely to be a potential witness if
the complaint or grievance falls within his or her
overall everyday responsibilities. The latter cir
cumstance should not fetter the selection by the
corporation or the agency of its representative for
the hearings of a tribunal under the Canadian
Human Rights Act. In this particular case, on the
basis of representations of counsel for Mr. Deegan,
it is my understanding that the investigation and
conciliation process provided by the Act was com
pleted before appointment of the Tribunal. A full
report of the investigation was provided by the
respondent Commission to CRTC and the latter
responded in full to that report. I assume that
responsibility for dealing with that report within
CRTC fell largely to Mr. Horan as Director Gen
eral, Personnel, and that he is already familiar
with general and specific aspects of the complaint
that is the subject of the inquiry, if not with how
those may be presented to the Tribunal. It would
be very unusual if much of the evidence to be
presented would be a surprise to him. Isolating
him from hearing others by exclusion before his
own testimony is called, if it is to be, would not at
this stage provide the same assurance as for other
witnesses, that his testimony is free from influence
from the evidence before the Tribunal, which is
the purpose of the exclusion of potential witnesses.
There is one consideration to be emphasized.
Where, as in this case, the person designated by
the agency, CRTC, to instruct counsel is also a
potential witness and is exempted from a general
ruling to exclude witnesses, his or her presence
during testimony of others necessarily results in a
careful weighing by the Tribunal of the weight to
be given to testimony of the representative when
called. It may be of concern or interest to the
agency, CRTC, in considering the choice of its
representative to instruct counsel that if its repre
sentative is a potential witness there is a risk that
weight of any testimony he or she gives will be
discounted by the Tribunal unless by consent the
representative agrees to be excluded with other
potential witnesses under a general exclusion
order.
I conclude, on the construction of subsection
50(1) of the Act that the discretion of the Tribunal
to exclude witnesses from its hearing before they
are called to testify does not extend to include the
person designated by CRTC to represent it and to
instruct counsel at the hearing, in this case Mr.
Horan.
Exclusion of Mr. Rodger
The applicant Rodger is not a party to the
inquiry before the Tribunal. Counsel indicated
that application may be made to the Tribunal on
behalf of Rodger for standing as an interested
party within the terms of subsection 50(1). It is
submitted that while not a named respondent,
Rodger is the individual against whose actions the
complaint is directed and the person who will be
affected by any adverse finding. His character and
reputation are said to be in issue and "his career
advancement in the public service would be affect
ed by the findings of the Tribunal". It is submitted
that a person identified by name in a human rights
complaint is "an interested party" within the
meaning of section 50 of the Canadian Human
Rights Act.
The latter submission and a decision on an
application for standing are matters entirely within
the discretion of the Tribunal under subsection
50(1) as I interpret that provision, subject to the
limitation that any person who may be directly
affected by any potential order made, if the com
plaint is substantiated, should be deemed an inter
ested party. Then, as any other interested party
within that subsection, a person with that standing
should have opportunity to appear, present evi
dence and make representations to the Tribunal.
Those circumstances do not apply to Mr. Rodger.
He will not be directly affected if the complaint is
found to be substantiated and an order for remedy
made. That order will be directed only to the
CRTC, the named respondent to the complaint,
which is the agency responsible for the conduct of
all of its staff in relation to employer-employee
relations, the general field in which the complaint
here arises.
It is said that Rodger's character and reputation
are in issue and his career advancement in the
public service would be affected by the findings of
the Tribunal. No order of the Tribunal can direct
ly affect Rodger nor can it directly affect his
career advancement in the public service; that
advancement depends on other processes of assess
ment and evaluation with opportunity for record
ing dissent, questioning, grieving or appealing
decisions. Because no order will be made directed
to Rodger and no punishment will be imposed
upon him or any remedial action taken against him
by order of the Tribunal, I am not persuaded that
other grounds urged on his behalf warrant any
limitation of discretion on the part of the Tribunal
to exclude him as a witness prior to his giving
testimony.
It is submitted that the rules of natural justice
here dictate that he ought to be permitted to hear
the accusations against him and to properly
respond to them if necessary and where appropri
ate, to advise his counsel as to possible cross-
examination of the complainant and his witnesses.
I assume that only if granted status as an interest
ed party will he have opportunity to be represented
by counsel. Otherwise he will continue status
simply as a prospective witness. While I can
appreciate sensitivity to complaints about one's
actions where discrimination is alleged, those com
plaints if substantiated lead to remedial action
rather than punishment, and in this case such
action would be required of CRTC. Rodger's
status as a potential witness before the Tribunal
gives him no greater standing to respond to "accu-
sations" or alleged facts than any other witness.
His exclusion from the hearing until called to
testify does not violate principles of natural justice,
or any duty of fairness owed to him by the Tri
bunal. For essentially the same reasons I am not
persuaded that Rodger's inability to hear evidence
of any allegations against him before he is called
to testify does deprive him, as counsel submitted,
of his right to a fair hearing in accordance with the
principles of fundamental justice contrary to para
graph 2(e) of the Canadian Bill of Rights.'
It is further submitted that the Tribunal pro
ceedings and findings are capable of creating an
infringement upon the rights of Mr. Rodger under
section 7 of the Charter' which it is said includes
the right not to be subjected to emotional hurt
based on a loss of self-respect or dignity or stig-
matization. I am not persuaded that section 7 of
the Charter is engaged by the facts of this case.
Counsel relies upon Kodellas v. Sask. Human
Rights Comm., [1989] 5 W.W.R. 1 (Sask. C.A.),
at pages 40-41 and R. v. Morgentaler, [1988] 1
S.C.R. 30, at page 173. In Kodellas reference is
made by Vancise J.A. to section 7 of the Charter,
and the opinion of Mr. Chief Justice Lamer, as he
now is, in R. v. Rahey, [1987] 1 S.C.R. 588, at
page 605, to find that anxiety, damage to dignity
5 This provision of the Canadian Bill of Rights is 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
accordance with the principles of fundamental justice for
the determination of his rights and obligations;
6 This provision of the Charter is as follows:
7. Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
and self-esteem could be a deprivation of the secu
rity of the person as contemplated by section 7 of
the Charter. However, that was a case arising
under The Saskatchewan Human Rights Code
[S.S. 1979, c. S-24.1] where the respondent was a
named individual and the issue was whether delay
in proceeding with a complaint before a tribunal
violated rights under section 7 of the Charter. In
this case, no complaint is laid against Mr. Rodger
in the sense that he is not the respondent to the
complaint and is not subject to any order the
Tribunal may ultimately make. In R. v. Morgen-
taler Madame Justice Wilson at page 173 refers to
section 7 of the Charter as including both physical
and psychological integrity of the individual.
While proceedings before the Tribunal may
present great difficulty for Mr. Rodger personally,
the outcome of those proceedings has no possibility
of any punishment or remedial order being made
against him. Any personal trauma he may experi
ence from the proceedings is simply one of the
risks of life and does not constitute a deprivation of
security to his person assured by section 7 of the
Charter.
Conclusion
For these reasons I conclude that the application
is allowed in part, quashing the order of the Tri
bunal in so far as it applies to the named repre
sentative of CRTC, Mr. Horan, to exclude him
from the hearing prior to his being called to give
testimony, if he should be called, and an order
directing the Tribunal to permit CRTC's repre
sentative, if it continues to be Horan, to be present
throughout the inquiry hearing. The application so
far as it concerns the decision of the Tribunal in
relation to Mr. Rodger is dismissed. No order of
prohibition seems appropriate since the Tribunal
has adjourned pending this decision. Nor are
orders appropriate that would direct the Tribunal
to conduct its inquiry in accord with the Act, with
the rules of natural justice and the requirements of
fundamental justice as guaranteed by paragraph
2(e) of the Canadian Bill of Rights.
An order will go to this effect.
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.