T-1820-02
2004 FC 81
Canadian Human Rights Commission (Applicant)
v.
Canada Post (Respondent)
Indexed as: Canada (Human Rights Commission) v. Canada Post Corp. (F.C.)
Federal Court, von Finckenstein J.--Ottawa, December 11, 2003 and January 21, 2004.
Human Rights -- Applicant, employee of Canada Post Corporation, off work as result of recurring back injury -- Filed first complaint with CHR Commission alleging discrimination on grounds of disability following employer's cancellation of transfer, failure to accommodate her -- When second transfer request refused, filed second complaint with Commission, which was referred to CHR Tribunal -- Tribunal dismissed, without hearing, complaint re: second transfer refusal on ground of abuse of process -- Language of Canadian Human Rights Act, s. 50 (1), (3), indicating referral of matter to Tribunal not necessarily resulting in hearing -- Tribunal not prevented from dismissing by way of preliminary motion on grounds of abuse of process matter referred to it by Commission.
Administrative Law -- Judicial Review -- Certiorari -- Application for judicial review of decision by Canadian Human Rights Tribunal -- Applicant filing two complaints with Human Rights Commission, alleging discrimination on grounds of disability -- Second complaint referred to Tribunal -- Whether abuse of Tribunal's process to consider complaint referred by Commission -- Administrative tribunals masters of own procedure -- Must be able to protect own process from abuse -- Proper for Tribunal to entertain preliminary motions at outset of inquiry.
Estoppel -- Applicant filing two complaints with Canadian Human Rights Commission based on failure to accommodate, refusal to transfer her -- Parties to dispute, issues, facts in both complaints same -- Application of doctrine of issue estoppel -- Test set out by S.C.C. in Angle v. M.N.R. met -- First complaint addressed in arbitral award accepted by parties, endorsed by Commission -- Judicial decision said to create estoppel final -- Reasonable for Tribunal to conclude doctrines of res judicata, issue estoppel applied.
This was an application for judicial review of a dismissal without a hearing by the Canadian Human Rights Tribunal of a complaint referred to it by the Commission that respondent had unfairly denied an employee's second request for a transfer to accommodate her disability. Employed by Canada Post Corporation (CP), the applicant was off work from November 1990 to February 1994 due to a recurring back injury. In July 1991, while off work, she applied for a transfer to the Cranbrook office. A job offer was made in October but was rescinded in November 1991 when the Cranbrook manager learned about the applicant's disability. She filed her first complaint with the Human Rights Commission in June 1992, alleging discrimination on the grounds of disability. In February 1994, the applicant returned to work at a CP plant in Victoria on a part-time basis in a position that accommodated her disability. But the accommodation arrangement was allegedly withdrawn, leading to a renewed aggravation of her injury. In December 1994, the applicant again applied for a transfer to Cranbrook, but to no avail. In April 1998, she was declared able to return to her full-time regular duties. In September 1999, she filed a second complaint with the Commission alleging discrimination on the basis that: (a) CP had unfairly altered the accommodation arrangements in Victoria in 1994 and (b) it had unfairly refused her second request to be transferred to Cranbrook. The Commission referred that complaint to the Tribunal. The latter considered preliminary objections by CP and ruled that: (a) the issue of accommodation should be dealt with at a hearing, and (b) the second request for transfer would be dismissed by reason of abuse of process and delay. In its application to quash the second part of the decision, two main issues were raised by the Commission: (1) whether the Tribunal had the power to dismiss without a hearing (that is on a preliminary motion) a complaint referred to it by the Commission, and (2) if so, whether it was justified in dismissing part of the complaint on the basis of abuse of process.
Held, the application should be dismissed.
The standard of review for issue (1) was correctness and for issue (2) was reasonableness simpliciter.
(1) The issue herein was whether it would be an abuse of the Tribunal's process to consider the complaint referred to it by the Commission. The Tribunal is an independent body established by statute to hold inquiries into complaints referred to it by the Commission. By virtue of subsection 48.9(2) of the Canadian Human Rights Act, it can make its own rules of procedure. Administrative tribunals are masters of their own procedure, provided that they comply with the rules of fairness and natural justice. It is proper for the Tribunal, at the outset of an inquiry, to entertain preliminary motions so as to clear the procedural underbrush. On the basis of a motion explicitly addressing the issue of abuse of process, the Tribunal concluded on that an inquiry into that part of the matter related to the transfer request would be an abuse of the Tribunal's process. This was not a review of the decision to refer by the Commission, but a de novo decision in which the Tribunal was determining how best to deal with the issues which had been referred to it. The Tribunal is not the "master in its own house" if it cannot protect its own process from abuse. The proposition advanced by the Commission that the Tribunal must hold a full hearing when a matter is referred to it was rejected. The use of the term "inquiry" in subsection 50(1) of the Act and of the term "hearing" in subsection 50(3) indicates that the referral of a matter to the Tribunal does not necessarily have to result in a hearing in every case. There is no bar either in the case law or in the statute preventing the Tribunal from dismissing, by way of preliminary motion on the ground of abuse of its process, a matter referred to it by the Commission.
(2) Both the 1991 and 1994 requests for a transfer by the applicant were denied because the Cranbrook facility could not accommodate her disabilities. Two complaints were filed with the Commission. The parties to the dispute and issues in both complaints as they related to the two refusals were the same; nor was there a change of facts, either in terms of the complainant's medical condition or the ability of the Cranbrook facility to accommodate her. This was a clear case of issue estoppel. In Angle v. M.N.R., the Supreme Court of Canada laid out the test for issue estoppel. This test requires that: (1) the same question has been decided; (2) the judicial decision said to create the estoppel was final; and (3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. Issue estoppel is part of the doctrine of res judicata which is one of the means by which a court can prevent abuse of its process. All of the requirements of the Angle test were met in respect of the refusal of the transfer request to Cranbrook. The first complaint regarding the transfer request was addressed in an arbitral award that was accepted by the parties and endorsed by the Commission's investigator and by the Commission itself. The second complaint dealt with the same issue of the transfer request, involved the same parties and was based upon the same unaltered facts. Based upon these similarities, it was reasonable for the Tribunal to conclude that the doctrines of res judicata and issue estoppel applied in this case.
statutes and regulations judicially
considered
| Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 41(as am. by S.C. 1995, c. 44, s. 49), 42, 43 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 63), 44 (as am. idem, s. 64; S.C. 1998, c. 9, s. 24), 45 (as am. idem, s. 25), 46, 47, 48 (as am. by S.C. 1998, c. 9, s. 26), 48.1 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27), 48.2 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27), 48.3 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27), 48.4 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27), 48.5 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27), 48.6 (as enacted by S.C. 1998, c. 9, s. 27), 48.7 (as enacted idem), 48.8 (as enacted idem), 48.9 (as enacted idem), 49 (as am. idem), 50 (as am. idem), 51 (as am. idem), 52 (as am. idem), 53 (as am. idem) . |
| Canadian Human Rights Tribunal Interim Rules of Procedure (01-08-00), ss. 3, 4, 5. |
| Employment Standards Act, R.S.O. 1980, c. 137. |
| Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27). |
cases judicially considered
applied:
Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560; (1989), 57 D.L.R. (4th) 663; [1989] 3 W.W.R. 289; 36 Admin. L.R. 72; 7 Imm. L.R. (2d) 253; 93 N.R. 81; Angle v. M.N.R., [1975] 2 S.C.R. 248; (1974), 47 D.L.R. (3d) 544; 74 DTC 6278; 2 N.R. 397; Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460; (2001), 201 D.L.R. (4th) 193; 34 Admin. L.R. (3d) 163; 10 C.C.E.L. (3d) 1; 7 C.P.C. (5th) 199; 272 N.R. 1; 149 O.A.C. 1; Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267; 112 D.L.R. (4th) 683; 1 C.C.E.L. (2d) 161; 94 CLLC 14, 024; 68 O.A.C. 284 (C.A.).
distinguished:
International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster, [2002] 2 F.C. 430; (2001), 212 F.T.R. 111 (T.D.).
considered:
Hendry v. Strike (1999), 29 C.P.C. (4th) 18 (Ont. Gen. Div.).
referred to:
Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22.
authors cited
Lange, Donald J. The Doctrine of Res Judicata in Canada. Toronto: Butterworths, 2000.
APPLICATION for judicial review of a dismissal without a hearing by the Canadian Human Rights Tribunal of a complaint referred to it by the Canadian Human Rights Commission, on the ground of abuse of process. Application dismissed.
appearances:
Monette Maillet for applicant.
Zygmunt Machelak for respondent.
solicitors of record:
Canadian Human Rights Commission, Ottawa, for applicant.
Canada Post Corporation, Vancouver, for respondent.
The following are the reasons for order and order rendered in English by
[1]von Finckenstein J.: This is an application for judicial review of a decision of the Canadian Human Rights Tribunal (Tribunal).
Facts
[2]The salient facts are as follows:
-The applicant, an employee of Canada Post Corporation (CP), was off work from November 1990 to February 1994 as a result of a recurring back injury.
-In July 1991, while off work, she applied for a transfer to the Cranbrook office. A job offer was made in October but was rescinded in November 1991 when the Cranbrook manager learned about the applicant's disability status.
-The applicant filed her first grievance in March 1992. She grieved two issues: (a) whether or not the cancellation of the transfer violated the collective agreement, and (b) whether or not CP had failed to reasonably accommodate her at its plant in Victoria.
- She filed her first complaint with the Human Rights Commission (Commission) in June 1992 with regard to both issues, alleging discrimination on the grounds of disability.
- In November 1994, Arbitrator Joliffe released his decision with regard to the first grievance. In it, he made an award for her accommodation claim. Additionally, he found that he lacked jurisdiction to address the transfer request claim as the applicant had filed her grievance outside of the time limits set out in the collective agreement. However, as part of his finding in respect of the accommodation claim, he specifically found that "Cranbrook was not a suitable modified duties placement for the griever."
- In February 1994, the applicant returned to work at a CP plant in Victoria on a part-time basis in a position that accommodated her disabilities. She alleges that in May/June of that year, the accommodation arrangement was withdrawn, leading to a renewed aggravation of her injury.
- In December 1994, the applicant again applied for a transfer to Cranbrook. It was refused later that month.
- In January 1995, applicant filed her second grievance which related only to the second refusal of her transfer request.
- In December 1997, Arbitrator McKee released his decision with regard to the second grievance. He found that he lacked the jurisdiction to consider the issue of the transfer request because the Union, which was representing the applicant, had not specifically challenged Arbitrator Joliffe's decision. In addition, he stated that the transfer refusal involved a national issue which was outside of the jurisdiction of a regular arbitrator such as himself.
- In April 1998, the applicant was declared able to return to her full-time regular duties.
- On September 7, 1999, she filed a second complaint with the Commission alleging discrimination on the basis that: (a) CP had unfairly altered the accommodation arrangements in Victoria in 1994 and (b) CP had unfairly failed to accede to her second request to be transferred to Cranbrook.
- In February 2000, investigator Chambers of the Commission issued a report regarding the first complaint. In it, she effectively concluded that it would have involved undue hardship for CP to accommodate the applicant in the Cranbrook office.
- In March 2002, the Commission adopted this report and closed the first complaint. However, at the same time, it referred the second complaint to the Tribunal. The Commission provided no reasons for either decision.
- On September 30, 2002, Tribunal member Paul Groarke considered preliminary objections by CP and ruled that:
| (a) the issue of accommodation needed to be dealt with at a hearing, and |
| (b) the issue of the second request for transfer would be dismissed by reason of abuse of process and delay. |
| The Commission is now seeking to quash that decision in so far as it relates to item (b) above, pursuant to section 18.1 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. by S.C. 2002, c. 8, s. 14)]. |
Issue
[3]The issues raised by the Commission can be boiled down as follows:
I. Does the Tribunal have the power to dismiss without a hearing (i.e on a preliminary motion), a complaint referred to it by the Commission?
II. If it does have this power, was it justified in this instance to dismiss part of the complaint on the basis of abuse of process?
Standard of Review
[4]At the hearing, both parties agreed that, employing the test set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the standard of review for issue I is correctness and for issue II is reasonableness simpliciter.
Issue I
[5]The relevant sections of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (Act) are sections 41, 42, 43, 44, 48, 49, 50 and 53. They are set out in Annex A for convenience.
[6]In essence, the position of the Commission is that, pursuant to subsection 41(1), it is obliged to deal with any issue brought before it, unless the issue is caught by one of the enumerated exceptions. Under section 43, it can then appoint an investigator (as it did in this case), whose report it must address pursuant to section 44. If the report suggests that an inquiry is warranted, the Commission can then refer the matter to the Tribunal. The Tribunal, while entitled to make its own rules under subsection 48.9(2) [as enacted by S.C. 1998, c. 9, s. 27], must, pursuant to subsection 50(1) [as am. idem], hold a hearing on the matter.
[7]In the Commission's view, its decision to refer a case to the Tribunal is only reviewable by the Federal Court. It submits that, the Tribunal, in making a preliminary ruling on whether or not the holding of an inquiry was an abuse of process, was effectively sitting in judicial review of the decision of the Commission.
[8]The Commission relies on International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster, [2002] 2 F.C. 430 (T.D.) where Gibson J. stated, at paragraphs 29-30:
If I am correct that a discretionary authority of the Commission to extend the one-year time limitation for the filing of a complaint that is conferred by paragraph 41(1)(e) of the Act is judicially reviewable by this Court under sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as enacted idem, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7], and the foregoing cited decisions would appear to support my view in that regard, and I certainly find nothing on the face of either the Canadian Human Rights Act or the Federal Court Act to contradict that view, the position adopted by Mr. Justice Muldoon in Vermette [Canada (Canadian Human Rights Commission) v. Canadian Broadcasting Corp. (re Vermette) (1996), 120 F.T.R. 81 (F.C.T.D.)] and adopted by the Tribunal in this matter could lead to what I regard as a rather anomalous result: this Court could judicially review a time extension by the Commission and affirm it and yet the same decision of the Commission would be open to substantive review by the Tribunal in the event that the Commission referred the complaint to the Tribunal. In the absence of specific statutory language demonstrating that Parliament intended such a result, I conclude that it did not so intend.
In the result, I conclude that the Tribunal erred against a standard of correctness, in assuming jurisdiction with respect to the Union's preliminary objections. The Union, having decided not to seek judicial review before this Court of the Commission's discretionary decision to extend the time limit under paragraph 41(1)(e) of the Act, was simply precluded from adopting the alternative recourse that it chose, that being to raise precisely the same issues that it could have raised on judicial review, before the Tribunal.
[9]As the last paragraph of the Oster decision cited above clearly demonstrates, the point in dispute in that case was whether the Tribunal, on a preliminary motion, could deal with issues that should have been raised by judicial review before this Court. The answer was a clear "no".
[10]The situation here is quite different. It is not a question of whether it was an abuse of process by the Commission to have referred the matter to the Tribunal. That question, following the logic of Oster, can only be decided by judicial review before this Court. The issue in this case is whether it would be an abuse of the Tribunal's process to consider the complaint referred by the Commission.
[11]The Commission, after considering the submissions of the parties, its complaints officer's report and the comments thereon by the parties, decided to refer the matter to the Tribunal. While CP strenuously protested against the Commission's investigations, only once, in a letter dated January 31, 2000, did CP raise the point of abuse of process, and then only as an alternative to its defence on the merits. Consequently the issue of abuse of process was never squarely put before the Commission.
[12]The Tribunal is an independent body established by statute to hold inquiries into complaints referred to it by the Commission. By virtue of subsection 48.9(2) of the Act, it can make its own rules of procedure. It has done so. Its Interim Rules of Procedure, dated 1-8-00, provide that an inquiry is commenced by notifying all relevant parties (subsection 4(1)) followed by sending a questionnaire to the parties (subsection 4(2)) . The Rules further provide for case conferences (Rule 5), motions and adjournments (Rule 3).
[13]Administrative tribunals are masters of their own procedure. As Sopinka, J. stated in Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560, at pages 568-569:
In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice.
[14]Consequently, it would seem to be perfectly proper for the Tribunal, at the outset of an inquiry, to entertain preliminary motions so as to clear the procedural underbrush. That is precisely what the Tribunal did in this case. It considered the preliminary motion by CP which argued that it would be an abuse of the Tribunal's process to hold an inquiry into a matter over eight years old, that had been subject to two arbitrations and a separate complaint to the Commission. Tribunal member Groarke, on the basis of a motion explicitly addressing the issue of abuse of process, came to the conclusion that an inquiry into that part of the matter related to the transfer request would indeed be an abuse of the Tribunal's process. This was not a review of the decision to refer by the Commission. Rather, it was a de novo decision in which the member was determining how best to deal with the issues which had been referred to the Tribunal.
[15]It strikes me as evident that one cannot maintain that the Tribunal to is the "master in its own house" if it cannot protect its own process from abuse.
[16]I also cannot accept the proposition advanced by the Commission that the Tribunal must hold a full hearing when a matter is referred to it. The Commission, in support of its position, has referred me to subsections 50(1) [as am. by S.C. 1998, c. 9, s. 27] and 50(3) [as am. idem] of the Act, which provide:
50. (1) After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations.
. . .
(3) In relation to a hearing of the inquiry, the member or panel 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 any documents and things that the member or panel considers necessary for the full hearing and consideration of the complaint;
(b) administer oaths;
(c) subject to subsections (4) and (5), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law;
(d) lengthen or shorten any time limit established by the rules of procedure; and
(e) decide any procedural or evidentiary question arising during the hearing. [Underlining added.]
[17]If Parliament had intended that there be a "hearing" every time that a complaint was referred to the Tribunal it would have used this term instead of the term "inquiry" which is employed in subsection 50(1) of the Act. The use of the term "inquiry" in subsection 50(1) and the term "hearing" subsection 50(3) clearly indicates that the referral of a matter to the Tribunal does not necessarily have to result in a hearing in every case.
[18]Finally, it is hard to fathom a reason why it would be in anyone's interest to have the Tribunal hold a hearing in cases in where it considers that such a hearing would amount to an abuse of its process.
[19]Accordingly, I find that there is no bar in either the case law or in the statute preventing the Tribunal from dismissing by way of preliminary motion on the ground of abuse of its process a matter referred to it by the Commission, always assuming there are valid grounds to do so.
[20]In its decision, the Tribunal also advanced as an alternate ground for dismissal the issue of delay. I am not sure that this issue is as clear-cut as that of abuse of process. After all, the Commission expressly considers that issue before referring a matter to the Tribunal. However, I do not need to decide this issue, given my findings in respect of abuse of process.
Issue II
[21]This brings us to the second issue, namely, were there valid grounds, in this case, for dismissing that part of the complaint relating to the transfer by reason of abuse of process?
[22]The facts are not in dispute. Both the 1991 and 1994 requests for a transfer by the applicant were denied because the Cranbrook facility could not accommodate her disabilities.
[23]The 1991 refusal was considered by Arbitrator Joliffe who, on November 24, 1994, found the grievance to be time-barred but also remarked in the context of his remarks on CP's failure to accommodate:
I accept Superintendent Siegenthaler's view that for the reasons he considered at the time and addressed at some length in his testimony, Cranbrook was not a suitable modified duties placement for the griever. He had not nearly the kind of flexibility in his operation for accommodation as potentially available in Victoria. [Respondent's record, at p. 116.]
[24]With regard to this complaint, the investigator for the Commission quite directly stated in her report:
It is recommended, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act that the Commission dismiss the complaint because, on the evidence, the allegation that is founded [allegation regarding failure to accommodate] has been remedied, and the other allegations [allegations regarding the refusal to transfer to Cranbrook] are unfounded. [Respondent's record, at p. 182.]
[25]Finally, with respect to the 1991 refusal, the Commission found on March 21, 2002:
With respect to Mrs. Cremasco's other complaint ( W08473) the Commission decided pursuant to paragraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint, because, having regard to all the circumstances, an inquiry by a Tribunal is not warranted. Accordingly, the file on this matter is now closed.
[26]With regard to the 1994 refusal, Arbitrator McKee found that the decision of Arbitrator Joliffe has not been challenged by the union and therefore stood.
[27]The parties to the dispute and issues in both complaints as they related to the two refusals were the same; nor, was there a change of facts, either in terms of the complainant's medical condition or the ability of the Cranbrook facility to accommodate her. The Commission's submission to the Tribunal of July 3, 2002 makes this abundantly clear when it states:
The Complainant has filed two complaints Under the Canadian Human Rights Act against the respondent: the first complaint (No. W08473), which was eventually dismissed by the Commission, and the second complaint (No. P49588), which is in essence an amendment to the first complaint and constitutes the matter now before the Tribunal. [Underlining added; applicant's affidavit and documentary evidence, Tab 3.]
[28]In dismissing that part of the complaint which related to the 1994 transfer request as an abuse of process, the Tribunal stated:
It seems to me that any distinction between Canada Post's rejection of the request for a transfer in 1992 and 1994 is highly artificial. The nexus between the two arbitrations and the two complaints is more than enough to bring in the doctrine of abuse of process and the more informal principle of res judicata. The Concern is that the second complaint served primarily as a means of re-litigating the first complaint. They share the same gravamen and must stand or fall together.
This explains the significance of the investigators report on the first complaint. I was impressed by Ms. Chambers' brief assessment of the case, which is thoroughly and resolutely neutral. When she investigated the complaint, she formed the opinion that the Respondent could not accommodate the Complainant in Cranbrook without undue hardship. This is not the place for equivocation: the reality is that the Commission agreed with that assessment when the complaint was dismissed.
Is it not my role to review the Commission's decisions. But how can it be fair to proceed in these circumstances? The reality is that the request for a transfer has been visited four or five times: Twice at arbitration, at least once by an investigator, and twice by the Commission. The Commission actually went with the arbitrators, only to open the matter up for further inquiry when it decided to refer the present complaint to the Tribunal. It strikes me as an abuse of process to take the matter any further.
[29]This would appear to be a clear case of issue estoppel. In Angle v. M.N.R., [1975] 2 S.C.R. 248, at page 254, Dickson J. laid out the test for issue estoppel as follows:
Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 at p. 935, defined the requirements of issue estoppel as:
| . . . (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. . . . |
[30]It is well established that issue estoppel is one of the two legs of the doctrine of res judicata (Donald J. Lange. The Doctrine of Res Judicata in Canada. Butterworths, 2000, at page 1):
The doctrine of res judicata is a fundamental doctrine of the justice system of Canada. It has two distinct forms: issue estoppel and cause of action estoppel.
[31]Res judicata, of course, is one of the means by which the court can prevent abuse of its process. As stated in Hendry v. Strike (1999), 29 C.P.C. (4th) 18 (Ont. Gen. Div.), at paragraph 13:
The doctrine of res judicata reflects the interests of the state in the finality of litigation and prevents an individual from being sued more than once for the same cause. It is one of the weapons in the common law arsenal to prevent abuse of the process, and should be applied in circumstances where the parties have had the opportunity to have the issues between them litigated and adjudicated. Litigation by instalments is not tolerated.
[32]Do the facts here meet the test set out in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.) otherwise known as the Angle test?
[33]The first leg of the test asks the question: has the same issue already been decided? Arbitrator Joliffe considered the issue of the refusal of the applicant's request for a transfer to Cranbrook. He also looked at the whole issue of whether or not CP had failed to accommodate the complainant. An unwillingness to transfer her to Cranbrook, if such a possibility were feasible, would have been a failure to accommodate.
[34]Arbitrator Joliffe found that the grievance claim relating to the transfer refusal was time-barred. However, he also clearly found, as part of his overall consideration of the failure to accommodate, that the transfer to Cranbrook was not feasible. As noted above, he stated at paragraph 22 of this reasons:
I accept Superintendent Siegenthaler's view that for the reasons he considered at the time and addressed at some length in his testimony, Cranbrook was not a suitable modified duties placement for the griever. He had not nearly the kind of flexibility in his operation for accommodation as potentially available in Victoria.
This was not an obiter remark but a central finding in his assessment of whether or not CP had accommodated the complainant.
[35]The most recent pronouncement on the question of issue estoppel is the Supreme Court of Canada's judgment in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460. It supports the conclusion reached above. At paragraph 54 of that judgment, Binnie J. states:
A cause of action has traditionally been defined as comprising every fact which it would be necessary for the plaintiff to prove, if disputed, in order to support his or her right to the judgment of the court: Poucher v. Wilkins (1915), 33 O.L.R. 125 (C.A.). Establishing each such fact (sometimes referred to as material facts) constitutes a precondition to success. It is apparent that different causes of action may have one or more material facts in common. In this case, for example, the existence of an employment contract is a material fact common to both the ESA proceeding and to the appellant's wrongful dismissal claim in court. Issue estoppel simply means that once a material fact such as a valid employment contract is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be relitigated in subsequent proceedings between the same parties. The estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that "issue" in the prior proceeding.
[36]In light of the above, I find that Arbitrator Joliffe clearly considered the same material facts and decided the same issue that the Tribunal later considered in CP's preliminary motion.
[37]The second leg of the Angle test requires that the judicial decision which is said to create the estoppel was final. Danyluk, supra, establishes that arbitral decisions can qualify as final judicial decisions pursuant to the Angle test. At paragraph 36 of the Danyluk judgment, Binnie J. cites the following passage with approval:
. . . I note the recent ex curia statement of Handley J. (the current editor of The Doctrine of Res Judicata) that:
| The prior decision judicial, arbitral, or administrative, must have been made within jurisdiction before it can give rise to res judicata estoppels. |
("Res judicata: General Principles and Recent Developments" (1999), 18 Aust. Bar Rev. 214, at p. 215)
[38]In Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267 (C.A.), Abella J. found that a proceeding before a referee appointed pursuant to the Employment Standards Act, R.S.O. 1980, c. 137, met the second leg of the Angle test for the following reasons:
. . . the hearing by the referee, if not technically "judicial", is designed to be an independent, fair, impartial and binding adjudicative process, and therefore satisfies the spirit of the requirement. It was a decision made in a hearing in which the appellant knew the case he had to meet, had a chance to meet it, and lost. Had he won, the decision would have been no less binding.
The same reasoning may be applied to the arbitral proceedings in this case.
[39]The third leg of the Angle test requires that the parties be the same. Clearly in this case they were. Not only were the parties the same but so were the facts, both in terms of the complainant's medical condition and the ability of the Cranbrook facility to accommodate her. As noted above, the Commission made this abundantly clear in its July 2002 submissions to the Tribunal when it stated that the second complaint was "in essence an amendment to the first complaint."
[40]I thus find that all of the requirements of the Angle test were met in respect of the refusal of the transfer request to Cranbrook. In this case, the first complaint regarding the transfer request was launched in 1992. It was addressed in an arbitral award that was accepted by the parties and which was endorsed by the Commission's investigator and by the Commission itself. The second complaint dealt with the same issue of the transfer request, involved the same parties and was based upon the same unaltered facts. Based upon these similarities, it was reasonable for the Tribunal to conclude that the doctrines of res judicata and issue estoppel applied in this case.
[41]Even if I had not found that the doctrines of issue estoppel and res judicata applied in this case, there were other grounds which would have sustained a more general finding of abuse of process. These include (1) the fact that the issue was fully canvassed by many bodies, including the Commission and its investigator with regard to the first complaint, (2) the lengthy time that had elapsed since the events giving rise to the second complaint, and (3) the very definitive comments made by the first arbitrator.
[42]Accordingly the application is hereby dismissed.
ORDER
| IT IS HEREBY ORDERED that: |
| 1. The application for judicial review is dismissed. |
Annex "A"
Canadian Human Rights Act [ss. 41 (as am. by S.C. 1995, c. 44, s. 49), 42, 43 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 63), 44 (as am. idem, s. 64; S.C. 1998, c. 9, s. 24), 45 (as am. idem, s. 25), 46, 47, 48 (as am. by S.C. 1998, c. 9, s. 26), 48.1-48.5 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27), 48.6-48.9 (as enacted idem), 49 (as am. idem), 50 (as am. idem), 51 (as am. idem), 52 (as am. idem), 53 (as am. idem)]
41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
(c) the complaint is beyond the jurisdiction of the Commission;
(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.
(2) The Commission may decline to deal with a complaint referred to in paragraph 10(a) in respect of an employer where it is of the opinion that the matter has been adequately dealt with in the employer's employment equity plan prepared pursuant to section 10 of the Employment Equity Act.
(3) In this section, "employer" means a person who or organization that discharges the obligations of an employer under the Employment Equity Act.
42. (1) Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision.
(2) Before deciding that a complaint will not be dealt with because a procedure referred to in paragraph 41(a) has not been exhausted, the Commission shall satisfy itself that the failure to exhaust the procedure was attributable to the complainant and not to another.
Investigation
43. (1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint.
(2) An investigator shall investigate a complaint in a manner authorized by regulations made pursuant to subsection (4).
(2.1) Subject to such limitations as the Governor in Council may prescribe in the interests of national defence or security, an investigator with a warrant issued under subsection (2.2) may, at any reasonable time, enter and search any premises in order to carry out such inquiries as are reasonably necessary for the investigation of a complaint.
(2.2) Where on ex parte application a judge of the Federal Court is satisfied by information on oath that there are reasonable grounds to believe that there is in any premises any evidence relevant to the investigation of a complaint, the judge may issue a warrant under the judge's hand authorizing the investigator named therein to enter and search those premises for any such evidence subject to such conditions as may be specified in the warrant.
(2.3) In executing a warrant issued under subsection (2.2), the investigator named therein shall not use force unless the investigator is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
(2.4) An investigator may require any individual found in any premises entered pursuant to this section to produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom any books or other documents containing any matter relevant to the investigation being conducted by the investigator.
(3) No person shall obstruct an investigator in the investigation of a complaint.
(4) The Governor in Council may make regulations
(a) prescribing procedures to be followed by investigators;
(b) authorizing the manner in which complaints are to be investigated pursuant to this Part; and
(c) prescribing limitations for the purpose of subsection (2.1).
44. (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 referred to 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 means of 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 referred to in subsection (1), the Commission
(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and
(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
(4) After receipt of a report referred to 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).
45. (1) In this section and section 46, "Review Committee" has the meaning assigned to that expression by the Canadian Security Intelligence Service Act.
(2) When, at any stage after the filing of a complaint and before the commencement of a hearing before a member or panel in respect of the complaint, the Commission receives written notice from a minister of the Crown that the practice to which the complaint relates was based on considerations relating to the security of Canada, the Commission may
(a) dismiss the complaint; or
(b) refer the matter to the Review Committee.
(3) After receipt of a notice mentioned in subsection (2), the Commission
(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under paragraph (2)(a) or (b); and
(b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under paragraph 2(a) or (b).
(4) Where the Commission has referred the matter to the Review Committee pursuant to paragraph (2)(b), it shall not deal with the complaint until the Review Committee has, pursuant to subsection 46(1), provided it with a report in relation to the matter.
(5) Where a matter is referred to the Review Committee pursuant to paragraph (2)(b), subsections 39(2) and (3) and sections 43, 44 and 47 to 51 of the Canadian Security Intelligence Service Act apply, with such modifications as the circumstances require, to the matter as if the referral were a complaint made pursuant to section 42 of that Act except that a reference in any of those provisions to "deputy head" shall be read as a reference to the minister referred to in subsection (2).
(6) The Review Committee shall, as soon as practicable after a matter in relation to a complaint is referred to it pursuant to paragraph (2)(b), send to the complainant a statement summarizing such information available to it as will enable the complainant to be as fully informed as possible of the circumstances giving rise to the referral.
46. (1) On completion of its investigation under section 45, the Review Committee shall, not later than forty-five days after the matter is referred to it pursuant to paragraph 45(2)(b), provide the Commission, the minister referred to in subsection 45(2) and the complainant with a report containing the findings of the Committee.
(2) After considering a report provided pursuant to subsection (1), the Commission
(a) may dismiss the complaint or, where it does not do so, shall proceed to deal with the complaint pursuant to this Part; and
(b) shall notify, in writing, the complainant and the person against whom the complaint was made of its action under paragraph (a) and may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of that action.
Conciliator
47. (1) Subject to subsection (2), the Commission may, on the filing of a complaint, or if the complaint has not been
(a) settled in the course of investigation by an investigator,
(b) referred or dismissed under subsection 44(2) or (3) or paragraph 45(2)(a) or 46(2)(a), or
(c) settled after receipt by the parties of the notice referred to in subsection 44(4),
appoint a person, in this Part referred to as a "conciliator", for the purpose of attempting to bring about a settlement of the complaint.
(2) A person is not eligible to act as a conciliator in respect of a complaint if that person has already acted as an investigator in respect of that complaint.
(3) Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information.
Settlement
48. (1) When, at any stage after the filing of a complaint and before the commencement of a hearing before a Human Rights Tribunal in respect thereof, a settlement is agreed on by the parties, the terms of the settlement shall be referred to the Commission for approval or rejection.
(2) If the Commission approves or rejects the terms of a settlement referred to in subsection (1), it shall so certify and notify the parties.
(3) A settlement approved under this section may, for the purpose of enforcement, be made an order of the Federal Court on application to that Court by the Commission or a party to the settlement.
Canadian Human Rights Tribunal
48.1 (1) There is hereby established a tribunal to be known as the Canadian Human Rights Tribunal consisting, subject to subsection (6), of a maximum of fifteen members, including a Chairperson and a Vice-chairperson, as may be appointed by the Governor in Council.
(2) Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.
(3) The Chairperson and Vice-chairperson must be members in good standing of the bar of a province or the Chambre des notaires du Québec for at least ten years and at least two of the other members of the Tribunal must be members in good standing of the bar of a province or the Chambre des notaires du Québec.
(4) Appointments are to be made having regard to the need for regional representation in the membership of the Tribunal.
(5) If a member is absent or incapacitated, the Governor in Council may, despite subsection (1), appoint a temporary substitute member to act during the absence or incapacity.
(6) The Governor in Council may appoint temporary members to the Tribunal for a term of not more than three years whenever, in the opinion of the Governor in Council, the workload of the Tribunal so requires.
48.2 (1) The Chairperson and Vice-chairperson are to be appointed to hold office during good behaviour for terms of not more than seven years, and the other members are to be appointed to hold office during good behaviour for terms of not more than five years, but the Chairperson may be removed from office by the Governor in Council for cause and the Vice-chairperson and the other members may be subject to remedial or disciplinary measures in accordance with section 48.3.
(2) A member whose appointment expires may, with the approval of the Chairperson, conclude any inquiry that the member has begun, and a person performing duties under this subsection is deemed to be a part-time member for the purposes of sections 48.3, 48.6, 50 and 52 to 58.
(3) The Chairperson, Vice-chairperson or any other member whose term has expired is eligible for reappointment in the same or any other capacity.
48.3 (1) The Chairperson of the Tribunal may request the Minister of Justice to decide whether a member should be subject to remedial or disciplinary measures for any reason set out in paragraphs (13)(a) to (d).
(2) On receipt of the request, the Minister may take one or more of the following measures:
(a) obtain, in an informal and expeditious manner, any information that the Minister considers necessary;
(b) refer the matter for mediation, if the Minister is satisfied that the issues in relation to the request may be appropriately resolved by mediation;
(c) request of the Governor in Council that an inquiry be held under subsection (3); or
(d) advise the Chairperson that the Minister considers that it is not necessary to take further measures under this Act.
(3) On receipt of a request referred to in paragraph (2)(c), the Governor in Council may, on the recommendation of the Minister, appoint a judge of a superior court to conduct the inquiry.
(4) The judge has all the powers, rights and privileges that are vested in a superior court, including the power to
(a) issue a summons requiring any person to appear at the time and place specified in the summons in order to testify about all matters within the person's knowledge relative to the inquiry and to produce any document or thing relative to the inquiry that the person has or controls; and
(b) administer oaths and examine any person on oath.
(5) The judge may engage the services of counsel and other persons having technical or specialized knowledge to assist the judge in conducting the inquiry, and may establish the terms and conditions of their engagement and, with the approval of the Treasury Board, fix and pay their remuneration and expenses.
(6) Subject to subsections (7) and (8), an inquiry shall be conducted in public.
(7) The judge may, on application, take any appropriate measures and make any order that the judge considers necessary to ensure the confidentiality of the inquiry if, after having considered all available alternative measures, the judge is satisfied that
(a) there is a real and substantial risk that matters involving public security will be disclosed;
(b) there is a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or
(c) there is a serious possibility that the life, liberty or security of a person will be endangered.
(8) If the judge considers it appropriate, the judge may take any measures and make any order that the judge considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (7).
(9) In conducting an inquiry, the judge is not bound by any legal or technical rules of evidence and may receive, and base a decision on, evidence presented in the proceedings that the judge considers credible or trustworthy in the circumstances of the case.
(10) An interested party may, with leave of the judge, intervene in an inquiry on any terms and conditions that the judge considers appropriate.
(11) The member who is the subject of the inquiry shall be given reasonable notice of the subject-matter of the inquiry and of the time and place of any hearing and shall be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to present evidence.
(12) After an inquiry has been completed, the judge shall submit a report containing the judge's findings and recommendations, if any, to the Minister.
(13) The judge may, in the report, recommend that the member be suspended without pay or removed from office or that any other disciplinary measure or any remedial measure be taken if, in the judge's opinion, the member
(a) has become incapacitated from the proper execution of that office by reason of infirmity;
(b) has been guilty of misconduct;
(c) has failed in the proper execution of that office; or
(d) has been placed, by conduct or otherwise, in a position that is incompatible with the due execution of that office.
(14) When the Minister receives the report, the Minister shall send it to the Governor in Council who may, if the Governor in Council considers it appropriate, suspend the member without pay, remove the member from office or impose any other disciplinary measure or any remedial measure.
48.4 (1) The Chairperson and Vice-chairperson are to be appointed as full-time members of the Tribunal, and the other members are to be appointed as either full-time or part-time members.
(2) The Chairperson is the chief executive officer of the Tribunal and has supervision over and direction of its work, including the allocation of work among the members and the management of the Tribunal's internal affairs.
(3) The Vice-chairperson shall assist the Chairperson and shall perform the functions of the Chairperson if the Chairperson is absent or unable to act or the office of Chairperson is vacant.
(4) The Governor in Council may authorize a member of the Tribunal to perform the functions of the Chairperson on a temporary basis if the Chairperson and Vice-chairperson are absent or unable to act or if both of those offices are vacant.
48.5 The full-time members of the Tribunal shall reside in the National Capital Region, as described in the schedule to the National Capital Act, or within forty kilometres of that Region.
48.6 (1) The members of the Tribunal shall be paid such remuneration as may be fixed by the Governor in Council.
(2) Members are entitled to be paid travel and living expenses incurred in carrying out duties as members of the Tribunal while absent from their place of residence, but the expenses must not exceed the maximum limits authorized by the Treasury Board directives for employees of the Government of Canada.
(3) Members are deemed to be employed in the public service of Canada for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.
48.7 The head office of the Tribunal shall be in the National Capital Region, as described in the schedule to the National Capital Act.
48.8 (1) The registrar and the other officers and employees necessary for the proper conduct of the work of the Tribunal shall be appointed in accordance with the Public Service Employment Act.
(2) The Chairperson may engage persons having technical or special knowledge to assist or advise members of the Tribunal in any matter and may, with the approval of the Treasury Board, fix their remuneration and reimburse their expenses in the same manner as the expenses of members of the Tribunal are reimbursed.
48.9 (1) Proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow.
(2) The Chairperson may make rules of procedure governing the practice and procedure before the Tribunal, including, but not limited to, rules governing
(a) the giving of notices to parties;
(b) the addition of parties and interested persons to the proceedings;
(c) the summoning of witnesses;
(d) the production and service of documents;
(e) discovery proceedings;
(f) pre-hearing conferences;
(g) the introduction of evidence;
(h) time limits within which hearings must be held and decisions must be made; and
(i) awards of interest.
(3) Subject to subsection (4), a copy of each rule that the Tribunal proposes to make shall be published in the Canada Gazette and a reasonable opportunity shall be given to interested persons to make representations with respect to it.
(4) A proposed rule need not be published more than once, whether or not it has been amended as a result of any representations.
Inquiries into Complaints
49. (1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted.
(2) On receipt of a request, the Chairperson shall institute an inquiry by assigning a member of the Tribunal to inquire into the complaint, but the Chairperson may assign a panel of three members if he or she considers that the complexity of the complaint requires the inquiry to be conducted by three members.
(3) If a panel of three members has been assigned to inquire into the complaint, the Chairperson shall designate one of them to chair the inquiry, but the Chairperson shall chair the inquiry if he or she is a member of the panel.
(4) The Chairperson shall make a copy of the rules of procedure available to each party to the complaint.
(5) If the complaint involves a question about whether another Act or a regulation made under another Act is inconsistent with this Act or a regulation made under it, the member assigned to inquire into the complaint or, if three members have been assigned, the member chairing the inquiry, must be a member of the bar of a province or the Chambre des notaires du Québec.
(6) If a question as described in subsection (5) arises after a member or panel has been assigned and the requirements of that subsection are not met, the inquiry shall nevertheless proceed with the member or panel as designated.
50. (1) After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations.
(2) In the course of hearing and determining any matter under inquiry, the member or panel may decide all questions of law or fact necessary to determining the matter.
(3) In relation to a hearing of the inquiry, the member or panel 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 any documents and things that the member or panel considers necessary for the full hearing and consideration of the complaint;
(b) administer oaths;
(c) subject to subsections (4) and (5), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law;
(d) lengthen or shorten any time limit established by the rules of procedure; and
(e) decide any procedural or evidentiary question arising during the hearing.
(4) The member or panel may not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.
(5) A conciliator appointed to settle the complaint is not a competent or compellable witness at the hearing.
(6) Any person summoned to attend the hearing is entitled in the discretion of the member or panel to receive the same fees and allowances as those paid to persons summoned to attend before the Federal Court.
51. In appearing at a hearing, presenting evidence and making representations, the Commission shall adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint.
52. (1) An inquiry shall be conducted in public, but the member or panel conducting the inquiry may, on application, take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of the inquiry if the member or panel is satisfied, during the inquiry or as a result of the inquiry being conducted in public, that
(a) there is a real and substantial risk that matters involving public security will be disclosed;
(b) there is a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public;
(c) there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or
(d) there is a serious possibility that the life, liberty or security of a person will be endangered.
(2) If the member or panel considers it appropriate, the member or panel may take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (1).
53. (1) At the conclusion of an inquiry, the member or panel conducting the inquiry shall dismiss the complaint if the member or panel finds that the complaint is not substantiated.
(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;
(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.
(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.
(4) Subject to the rules made under section 48.9, an order to pay compensation under this section may include an award of interest at a rate and for a period that the member or panel considers appropriate.