Digests

Canadian Broadcasting Corp. v. Paul

A-132-99

2001 FCA 93, Sexton, Strayer JJ.A.

2/4/01

35 pp.

Appeal from Motions Judge's decision ([1999] 2 F.C. 3) allowing CBC's application for judicial review of CHRC's decision to request appointment of tribunal to inquire into appellant's complaint--Appellant signed complaint to CHRC alleging discrimination on grounds of age, sex in 1989 competition for position with CBC and on ground of sex in 1988 competition--Investigation Report recommended CHRC appoint conciliator pursuant to Canadian Human Rights Act, s. 47 to attempt to settle complaint--Despite CBC's objection to appointment of conciliator on basis of perceived flaws in Investigation Report, Commission appointing conciliator--Conciliator prepared report detailing offer of settlement which was rejected by appellant--CBC informed by letter dated November 14, 1996 complaint being referred to Commission--Letter indicating Commission would review conciliation report in making decision--CBC lodged strong objection to disclosure of conciliation report to Commission by letter dated November 29, 1996--Commission informing CBC of decision to request appointment of tribunal to inquire into complaint by letter dated February 13, 1997--Indicating Commission reviewed conciliation report, complainant's submission, but no indication Commission reviewed investigation report, CBC's submissions--Motions Judge holding: (1) application filed within appropriate time limit; (2) disclosure of conciliator's report to Commission in absence of consent from CBC violated s. 47(3), vitiated decision since based upon information not properly before Commission; (3) Commission not providing CBC with requisite level of procedural fairness by relying on biassed, incomplete investigation report, making decision with materials before it not disclosed to CBC; (4) matter would not be remitted for reconsideration by Commission--Appeal allowed in part--Per Sexton J.A. (Rothstein J.A. concurring): (1) Respondent challenging Commission's decision to request appointment of tribunal, not investigator's decision to issue report--Under Federal Court Act, s. 18.1 application must be brought within 30 days of decision to which relates--Application within appropriate time limit--(2) In absence of consent, s. 47(3) placed absolute prohibition on conciliator from disclosing information revealed by CBC, including settlement offer, in course of conciliation--Judicial recognition of importance of legal protection of confidentiality during settlement efforts reviewed--Importance Parliament attaching to confidentiality expressed in s. 47(3) i.e. absolute prohibition against disclosure of any information by conciliator without consent of party who gave it--Consistent with authority granted to Commission by s. 47 to order conciliation of complaint without parties' consent--Without protection of confidentiality, parties likely to be inhibited from participating fully in process--Argument s. 48, requiring Commission to approve any proposed settlement, and s. 49, requiring Commission to have regard to all circumstances in requesting appointment of tribunal, indicating limits to protection of confidentiality, rejected--Nothing in s. 47(3) admitting of any exception in favour of Commission--No compelling argument for disclosure--Parties who settle during conciliation do so in knowledge settlement must be approved--Not inconsistent with requirement information revealed during conciliation not be revealed without consent--Request for approval consent for disclosure of terms of settlement--Courts have long been called upon to approve settlements involving infants, persons of unsound mind, trustee-related matters--In none of these cases has supervisory role derogated from privilege attached to negotiations leading to settlement--Also no indication circumstances contemplated by s. 49 include information flowing from conciliation--Strong, explicit language required to extinguish privilege existing for over 200 years--Commission acted improperly in considering conciliation report in face of CBC's objections--(3) S. 44 imposing duty on Commission to receive investigation report prior to acting--Necessarily implies Commission must also consider it in making decision--Intent of s. 44 that Commission need not examine complete record of investigation, but rely on report alone: Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (C.A.)--Courts imposing additional requirements upon Commission prior to acting under s. 44(3) recognizing requirement Commission consider investigation report--Commission not meeting procedural fairness obligations toward CBC as not clear considered CBC's submissions (November 28, 1996 letter) or even investigation report--Canada Post Corp. v. Barrette, [2000] 4 F.C. 145 applied--Explicit reference to Commission's consideration of particular pieces of information, combined with failure to refer to other materials under duty to consider, giving rise to inference not considering those other materials--Unlike Motions Judge, C.A. hesitant to assume Commission considered investigation report--Likely Commission considered summary rather than full investigation report--While nothing wrong with Commission having summary of report, not relieving it of duty to consider actual report itself--Even if Commission considered investigation report in deciding to appoint conciliator, not relieving Commission of duty to consider it anew prior to deciding to refer complaint to tribunal--Matter must be remitted to Commission for reconsideration on ground of improper consideration of conciliation report--(4) Motions Judge holding inappropriate to remit case to Commission for reconsideration as second finding of bias or failure to provide procedural fairness against Commission in dealing with same circumstances, and as events occurred nearly 10 years earlier--Applying factors to be weighed in ordering stay of proceeding under administrative law principle of abuse of process set out in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, not readily apparent who was responsible for delays, and prejudicial impact applying to both parties--Balancing of interests required--Only those Commission members who took no part in decision to request appointment of tribunal to participate in reconsideration--Neither conciliation report, nor contents to be placed before members--Materials to be considered include complaint, investigation report, parties' submissions, any other material underlying investigation report--In conjunction with application for judicial review based on bias, incompleteness of investigation report, respondent requesting material in possession of CHRC, relying upon Federal Court Rules, R. 1612--Pathak supporting production thereof as evidence relevant to allegation report biassed, incomplete--Where alleging report biassed, incomplete, parties must have opportunity to provide, comment upon evidence relevant to that question--Therefore in making submissions, parties to be permitted to refer to summaries of witness interviews written by investigator--Per Strayer J.A. (concurring except as to relevance, admissibility in future proceedings of materials underlying investigation report): Commission not obliged to weigh potential evidence itself--Entitled to rely on investigation report, submissions made in respect thereto by parties, to see if providing rational basis for referral to tribunal--Defects in potential evidence of witnesses adequately tested when matter comes before tribunal--Where judicial review sought of decision to refer, judicial review judge obliged to look only at record before Commission, barring special allegations going to procedure, jurisdiction of that decision-maker--Harmful to informal, efficient, timely disposition of complaint if preliminary investigation on which Commission basing its process subjected to detailed judicial scrutiny before parties have "day in court" before tribunal--Recent case law not requiring such scrutiny of investigation stage--If matter does go to tribunal then full judicial review of proceedings available--Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 44 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64; S.C. 1998, c. 9, s. 24), 47, 48 (as am. by S.C. 1998, c. 9, s. 26), 49 (as am. idem, s. 27)--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5)--Federal Court Rules, C.R.C., c. 663, R. 1612 (as enacted by SOR/92-43, s. 19).