Judgments

[2001] 2 F.C. 392

T-890-99

Bell Canada (Applicant)

v.

Canadian Telephone Employees Association, Communications, Energy and Paperworkers Union of Canada, Femmes Action and Canadian Human Rights Commission (Respondents)

Indexed as: Bell Canada v. Canada (Human Rights Commission) (T.D.)

Trial Division, Tremblay-Lamer J.—Montréal, September 25, 26, 27; Ottawa, November 2, 2000.

Human Rights — Canadian Human Rights Tribunal not institutionally independent and impartial body in view of CHRC’s power to issue guidelines binding upon Tribunal and Chairperson’s power to approve Tribunal member continuing to act to conclude matter after expiry of appointment.

Administrative law — Judicial review — Institutional independence and impartiality of Canadian Human Rights Tribunal (Tribunal) — Tribunal not institutionally independent and impartial body in view of CHRC’s power to issue guidelines binding upon Tribunal and Chairperson’s power to approve Tribunal member continuing to act to conclude matter after expiry of appointment.

Bill of Rights — Principles of fundamental justice guaranteed by Bill of Rights, s. 2(e) — Apprehension of bias — Canadian Human Rights Tribunal not institutionally independent and impartial body in view of Commission’s power to issue guidelines binding upon Tribunal and Chairperson’s power to approve Tribunal member continuing to act to conclude matter after expiry of appointment.

Estoppel — Res judicata — Upon challenging Tribunal’s institutional independence and impartiality, Bell Canada estopped from raising, upon fresh application for judicial review, arguments necessarily assumed or negatived by decision in previous judicial application herein, reported at [1998] 3 F.C. 244(T.D.).

This case started with Bell Canada employees’ complaint to the Canadian Human Rights Commission on the issue of pay equity. It was during the Tribunal inquiry that McGillis J. found, in March 1998, that the Human Rights Tribunal appointed therein lacked institutional independence, thus giving rise to a reasonable apprehension of bias. The Court found that the statutory scheme failed to provide the Tribunal members with sufficient guarantees of security of tenure and financial security. The Canadian Human Rights Act was subsequently amended to permit a Tribunal member whose appointment expires to complete an inquiry if the Chairperson approves; to provide that members’ remuneration be fixed by the Governor in Council; and to allow the Commission to issue binding guidelines covering a class of cases (rather than for a particular case). Nevertheless, the issue of institutional independence was again raised before the Tribunal’s Vice-chairperson. He found that there were no problems of institutional bias or lack of institutional independence because of the institutional structure and decided that the hearings into the complaints should proceed. This was an application for judicial review of that decision, focussing only on the institutional structure required to ensure that hearings before the Tribunal are conducted in accordance with the principles of fundamental justice guaranteed by paragraph 2(e) of the Canadian Bill of Rights.

The issues were (1) whether the Tribunal was correct in deciding that the doctrine of res judicata applied to arguments made by the applicant upon the application for judicial review decided by this Court in March 1998 which the Court neither expressly rejected nor adopted; (2) whether the Tribunal was correct in holding itself to be institutionally independent and impartial considering: (a) the power of the Commission to issue binding guidelines; (b) the power of the Chairperson to approve a Tribunal member continuing to act to conclude a matter after the expiry of his appointment; (c) the remuneration of Tribunal members by Governor in Council; (d) disciplinary and remedial measures for Vice-chairperson and Tribunal members.

Held, the application should be allowed.

The Tribunal’s decision as to its institutional independence was a question of law subject to review on a standard of correctness.

In The Law of Evidence in Canada (Sopinka, Lederman, Bryant), the authors examine the doctrine of res judicata and explain that there are two principles subsumed under the heading res judicata: the first is that any action or issue which had been litigated and upon which a decision has been rendered cannot be retried in a subsequent suit between the same parties or their privies; the second makes it mandatory that a plaintiff asserting a cause of action claim all possible relief in respect thereto, and prevents any second attempt to invoke the aid of the courts in the same cause, the rule applying equally to a defendant who must put forward all defences which will defeat the plaintiff’s action, or be debarred from raising them subsequently.

Since the amendments to the Act have changed the situation with respect to remuneration and the extension of the appointment of a Tribunal member whose term has expired during a hearing, the issues are now different and there is nothing stopping the applicant from raising arguments in this respect. Concerning the other arguments raised by the applicant respecting the institutional independence and impartiality of the Tribunal, Bell is estopped from again raising the same arguments as well as the issues which, although not expressly raised in the previous application, are necessarily assumed in it or negatived by it.

The question regarding the Commission’s power to issue binding guidelines was commented upon, obiter, in the previous application, but was not decided. That being the case, there is nothing to prevent the applicant from presenting arguments thereon.

The Supreme Court of Canada has recognized that judicial independence is a constitutional right: Reference re Remuneration of Judges of the Provincial Court (P.E.I.). Institutional independence and impartiality are interdependent. The objective status of the tribunal can be as relevant for the “impartiality” requirement as it is for “independence”. If the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met. Administrative tribunals, however, do not have to provide the same objective guarantees of independence as do the courts. There needs to be more flexibility in applying the principles relating to institutional independence and impartiality to agencies which have several roles to play, including many which are administrative in nature.

However, the requisite level of independence is different for an administrative tribunal, such as the Canadian Human Rights Tribunal, which has purely an adjudicative role concerning the human rights of the land which are quasi-constitutional in nature. So, the level of independence will be at the high end of the spectrum, taking into account that the Tribunal is not a court and that as such some flexibility should be demonstrated.

Binding guidelines The recent amendments to the Act, more particularly the removal of the words “in a particular case”, have not fully resolved the issue. The guidelines are still binding on the Tribunal. That the Tribunal should be bound by guidelines issued by the Commission, a party before the Tribunal, is incompatible with guarantees of institutional independence and impartiality. The Tribunal’s decision-making power is fettered by the issuance of binding guidelines on the interpretation of the Act. It is most unusual that a party be permitted to determine the manner in which enabling legislation is to be interpreted. The guidelines put improper pressure on the Tribunal as to the outcome of a decision in a class of cases. The test established by the Supreme Court in R. v. Lippé, [1991] 2 S.C.R. 114 for the existence of a reasonable apprehension of institutional bias has been met.

The Commission and the Tribunal did not have jurisdiction to strike down a provision of the Act as being contrary to the Charter. Subsection 50(2) of the Act does not confer a general power to consider questions of law. It amounts to no more than giving the Tribunal the power to interpret and apply its enabling statute when required to resolve a complaint before it. The expertise of the Tribunal relates to fact finding and adjudication in a human right context to determine whether or not a discriminatory practice occurred, but this expertise does not extend to general questions of law. Furthermore, members of the Tribunal do not enjoy the appropriate level of independence to arrogate powers traditionally given to the judiciary to make legal determinations regarding the constitutional validity of legislation.

Extension of appointments (Security of tenure) The amendments to the Act permitting Tribunal members, with the approval of the Chairperson, to conclude hearings without executive or legislative intervention failed to cure the problem of the security of tenure afforded to the Tribunal member in those circumstances. The Supreme Court of Canada has emphasized that the essence of security of tenure requires that the tenure of a decision maker must not be subject to any form of interference that is discretionary or arbitrary: Valente v. The Queen et al., [1985] 2 S.C.R. 673. The discretion is still there: it has been transferred from the Minister to the Chairperson. It was held in Lippé that no one—not the Canadian Judicial Council, not a Bar Society, not a Chief Justice—must be in a position to interfere with judicial independence. A tribunal must be structured to ensure the independence of its members. The difficulty is not in the manner in which the discretion is exercised, but in its very existence.

Remuneration Before the Act was amended, the Tribunal members’ remuneration was fixed by the Commission, a party in all proceedings before the Tribunal. Now, the remuneration of Tribunal members is fixed by the Governor in Council. The Tribunal’s Vice-chairperson correctly found that this was acceptable. The important thing is that the Commission, a litigant, no longer has anything to do with fixing and negotiating the members’ remuneration. While it would be preferable that the salary be fixed by the legislature rather than by the executive government, it should not be regarded as essential to the financial security of Tribunal members. It may be fixed by the Governor in Council without giving rise to a reasonable apprehension of bias.

Disciplinary and remedial measures On this point, the Tribunal’s Vice-chairperson correctly found that the new disciplinary process, which parallels the process in the Judges Act, does not give rise to an apprehension of bias.

No further proceedings in this matter shall be taken until the problems identified in these reasons for order are corrected.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Bill of Rights, R.S.C., 1985, App. III, 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 II, No. 44].

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 11, 27(2) (as am. by S.C. 1998, c. 9, s. 20), (3) (as am. idem), 40(4) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 62), 48.2(2) (as enacted idem, s. 65; S.C. 1998, c. 9, s. 27), 48.6(1) (as enacted idem), 49 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 66), 50(2) (as am. by S.C. 1998, c. 9, s. 27).

Competition Tribunal Act, R.S.C., 1985 (2nd Supp.), c. 19, s. 5.

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Equal Wages Guidelines, 1986, SOR/86-1082.

Judges Act, R.S.C., 1985, c. J-1.

Statutory Instruments Act, R.S.C., 1985, c. S-22, s. 50(2).

CASES JUDICIALLY CONSIDERED

APPLIED:

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R. 1; Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; (1997), 204 A.R. 1; 121 Man. R. (2d) 1; 156 Nfld. & P.E.I.R. 1; 150 D.L.R. (4th) 577; 118 C.C.C. (3d) 193; 11 C.P.C. (4th) 1; 217 N.R. 1; R. v. Lippé, [1991] 2 S.C.R. 114; (1991), 64 C.C.C. (3d) 513; 5 C.R.R. (2d) 31; 5 M.P.L.R. (2d) 113; 128 N.R. 1; 39 Q.A.C. 241; Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; Valente v. The Queen et al. [1985] 2 S.C.R. 673; (1985), 52 O.R. (2d) 779; 24 D.L.R. (4th) 161; 23 C.C.C. (3d) 193; 49 C.R. (3d) 97; 19 C.R.R. 354; 37 M.V.R. 9; 64 N.R. 1; 14 O.A.C. 79; 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; (1996), 140 D.L.R. (4th) 577; 42 Admin. L.R. (2d) 1; 205 N.R. 1; Katz v. Vancouver Stock Exchange (1995), 128 D.L.R. (4th) 424; [1996] 2 W.W.R. 356; 82 B.C.A.C. 16; 14 B.C.L.R. (3d) 66; 34 Admin. L.R. (2d) 1; 9 C.C.L.S. 112 (B.C.C.A.); affd [1996] 3 S.C.R. 405; (1996), 139 D.L.R. (4th) 575; [1996] 10 W.W.R. 305; 82 B.C.A.C. 29; 26 B.C.L.R. (3d) 1; 41 Admin. L.R. (2d) 1; 12 C.C.L.S. 1; 207 N.R. 72; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; (1995), 122 D.L.R. (4th) 129; 26 Admin. L.R. (2d) 1; [1995] 2 C.N.L.R. 92; 177 N.R. 325; Insurance Corporation of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145; (1982), 137 D.L.R. (3d) 219; [1983] 1 W.W.R. 137; 39 B.C.L.R. 145; 3 C.H.R.R. D/1163; 82 CLLC 17,014; [1982] I.L.R. 1-1555; 43 N.R. 168; Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Limited and Air Canada (1998), 99 CLLC 145,021 (C.H.R.T.); Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; (1996), 140 D.L.R. (4th) 193; 43 Admin. L.R. (2d) 155; 26 C.C.E.L. (2d) 1; 40 C.R.R. (2d) 81; 204 N.R. 1; Canada (Procureur général) c. Alex Couture inc., [1991] R.J.Q. 2534 (Fr.); (1991), 83 D.L.R. (4th) 577 (Eng.) (Que. C.A.); leave to appeal to S.C.C. refused, (1991), 91 D.L.R. (4th) vii; MacBain v. Lederman, [1985] 1 F.C. 856 (1985), 22 D.L.R. (4th) 119; 16 Admin. L.R. 109; 6 C.H.R.R. D/3064; 85 CLLC 17,023; 18 C.R.R. 165; 62 N.R. 117 (C.A.).

CONSIDERED:

Canada (Attorney General) v. Public Service Alliance of Canada et al. (1991), 48 F.T.R. 55 (F.C.T.D.).

REFERRED TO:

Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al. (1998), 143 F.T.R. 81 (F.C.T.D.); Bell Canada v. Canadian Telephone Employees Assn., [1998] 3 F.C. 244 (1998), 143 F.T.R. 241 (T.D.); Bell Canada v. Communicatons, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (1998), 167 D.L.R. (4th) 432 (C.A.); leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 1 (QL); Bell Canada v. Canadian Telephone Employees Association et al. (1999), 246 N.R. 368 (F.C.A.).

AUTHORS CITED

Côté. P.-A. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Que.: Éditions Yvon Blais, 1991.

Sopinka, J. et al. The Law of Evidence in Canada, 2nd ed. Markham, Ont.: Butterworths, 1999.

APPLICATION for judicial review of an interim decision of the Canadian Human Rights Tribunal that there were no problems of institutional bias or lack of institutional independence because of its institutional structure, and that the hearings into the pay equity complaints should proceed. Application allowed.

APPEARANCES:

Roy L. Heenan and Alexandre Buswell for applicant.

Bernard S. Fishbein for respondent (Canadian Telephone Employees Association).

Peter C. Engelmann for respondent (Communications, Energy and Paperworkers Union of Canada).

No appearance for respondent (Femmes Action).

René Duval and Philippe Dufresne for intervener (Canadian Human Rights Commission).

SOLICITORS OF RECORD:

Heenan Blaikie, Montréal, for applicant.

Koskie Minsky, Toronto, for respondent (Canadian Telephone Employees Association).

Caroline Engelmann Gottheil, Ottawa, for respondent (Communications, Energy and Paperworkers Union of Canada).

Boivin Payette, Montréal, for respondent (Femmes Action).

Canadian Human Rights Commission, Ottawa, for intervener (Canadian Human Rights Commission).

The following are the reasons for order rendered in English by

[1]        Tremblay-Lamer J.: This is an application for judicial review against an interim decision of the Canadian Human Rights Tribunal (Tribunal) rendered April 26, 1999,[1] on the issue of its institutional independence and impartiality, in the complaints against Bell Canada brought by the Canadian Telephone Employees Association (CTEA), the Communications, Energy and Paperworkers Union of Canada (CEP) and Femmes Action under the Canadian Human Rights Act.[2]

PRELIMINARY REMARKS

[2]        I am well aware and find it unfortunate that the end result of this decision may cause considerable delays in the proceedings before the Tribunal but I am of the view that it would not be appropriate for the Court to be guided by this factor.

[3]        This decision is not about the employees’ entitlement to pay equity. It focuses only on the institutional structure required to ensure that hearings before the Tribunal are conducted in accordance with the principles of fundamental justice guaranteed by paragraph 2(e) of the Canadian Bill of Rights.[3]

FACTS

[4]        The present matter stems from seven human rights complaints filed against Bell Canada between 1990 and 1994 alleging discriminatory practice on the ground of sex in relation to employment. Bell Canada is allegedly paying its female employees lower wages than its male employees who are performing work of equal value, contrary to section 11 of the Act.

[5]        The Canadian Human Rights Commission (Commission) subsequently conducted an investigation into the various complaints and attempted, without success, to resolve the matter by mediation and other informal discussions. The Commission released in 1995 its investigation report.

[6]        The Commission requested on May 15, 1996, pursuant to section 49 of the Act[4] that the President of the Human Rights Tribunal Panel appoint a tribunal to inquire into the pay equity complaints against Bell Canada and, pursuant to subsection 40(4) of the Act[5] that the complaints be dealt together.

[7]        Bell Canada filed an application for judicial review on June 14, 1996 challenging the decision of the Commission to request the President of the Human Rights Tribunal Panel to appoint a Tribunal to inquire into the complaints.[6]

[8]        The President of the Human Rights Tribunal Panel appointed on August 14, 1996 a Tribunal composed of three members (Leighton Tribunal) to inquire into the pay equity complaints against Bell Canada.

[9]        Bell Canada filed an application for judicial review on September 6, 1996 challenging the decision of the President of the Human Rights Tribunal Panel to appoint a Tribunal to inquire into the complaints.[7]

[10]      The Leighton Tribunal commenced its proceedings in October 1996. Bell Canada brought a number of preliminary motions before the Leighton Tribunal between November 1996 and June 1997.

[11]      Bell Canada filed applications for judicial review of these interim decisions, including one dated April 10, 1997, in which the Tribunal dismissed a motion seeking the recusal of one of its members[8] and one dated June 4, 1997 in which the Tribunal concluded that it was “an independent quasi-judicial body, institutionally capable of providing a fair hearing in accordance with the principles of natural justice and fundamental freedom”.[9]

[12]      On March 17, 1998, Muldoon J. granted Bell Canada’s application for judicial review of the decision of the Commission to request the President of the Human Rights Tribunal Panel to appoint a Tribunal to inquire into the complaints and quashed the decision of the Commission.[10]

[13]      On March 23, 1998, McGillis J. granted Bell Canada’s application for judicial review of the Leighton Tribunal’s decision respecting its institutional independence and impartiality.[11]

[14]      McGillis J. found that the Leighton Tribunal lacked institutional independence, thus giving rise to a reasonable apprehension of bias. McGillis J. quashed all the proceedings before the Leighton Tribunal and ordered that no further proceedings take place until legislative changes cured the problems identified in the decision.

[15]      Certain amendments to the Act introduced by S.C. 1998, c. 9 came into force on June 30, 1998. Three of these amendments are of particular importance in the present matter.

[16]      Subsection 48.2(2) [as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27] of the amended Act permits a Tribunal member whose appointment expires to conclude any inquiry that he or she has begun with the approval of the Chairperson.

[17]      Subsection 48.6(1) [as enacted idem] of the amended Act provides that the remuneration of a Tribunal member is fixed by Governor in Council.

[18]      Subsection 27(2) [as am. idem, s. 20] of the amended Act permits the Commission to issue guidelines binding upon the Tribunal in a class of cases (no longer in a particular case).

[19]      On November 17, 1998, the Federal Court of Appeal allowed the appeal of the respondents CTEA and CEP respecting the decision of Muldoon J. quashing the decision of the Commission to request the President of the Human Rights Tribunal Panel to appoint a Tribunal to inquire into the complaints.[12]

[20]      The Court restored the decision of the Commission to request the President of the Human Rights Tribunal Panel to appoint a tribunal to inquire into the pay equity complaints. Bell Canada subsequently filed leave to appeal to the Supreme Court, but such leave was denied on July 8, 1999.[13]

[21]      Following the decision of the Federal Court of Appeal, the Commission and the respondents CTEA and CEP requested the Tribunal to reschedule hearings into the pay equity complaints as soon as possible. This request led to an exchange of correspondence between the parties and the Tribunal as to whether or not to appoint a tribunal and resume the hearings in light of the recent amendments to the Act.

[22]      The parties were subsequently informed by the Tribunal’s Registrar that the Tribunal’s Vice- chairperson would hold a case planning meeting on January 27, 1999 concerning the pay equity complaints.

[23]      The case planning meeting was eventually held on January 27 and March 11 and 12, 1999 to determine whether or not a Tribunal should reconvene into the complaints against Bell Canada filed by the respondents CTEA and CEP.

[24]      Following this case planning meeting, the Tribunal’s Vice-chairperson issued a decision on April 26, 1999 in which he concluded that there were no problems of institutional bias or lack of institutional independence because of the institutional structure and decided that the hearings into the complaints should proceed.[14]

[25]      In the meantime, the Commission and the respondents CTEA and CEP appealed the decision of McGillis J. The Federal Court of Appeal adjourned the matter sine die on June 1, 1999, because “[a]n immediate consideration of the appeal as it now stands would have to be confined to a consideration of the Act as it was prior to June 1998 and its outcome could very well leave the broader controversy unresolved”.[15]

ISSUES

1. Was the Tribunal correct in deciding that the doctrine of res judicata applies to arguments made by the applicant in Bell Canada v. Canadian Telephone Employees Assn. which were neither rejected expressly by the Court not expressly relied upon by it?

2. Was the Tribunal correct in holding itself to be institutionally independent and institutionally impartial with respect to:

(a) the power of the Commission to issue guidelines binding upon the Tribunal;

(b) the power of the Chairperson to approve the acting of a Tribunal member after the expiry of his/her appointment to conclude a matter;

(c) the remuneration of Tribunal members provided by Governor in Council;

(d) disciplinary and remedial measures for the Vice-chairperson and Tribunal members?

ANALYSIS

1.         Standard of Review

[26]      The Tribunal does not enjoy the protection of a privative clause. The Tribunal is chosen on an ad hoc basis with no institutional guarantees that its members will have any expertise in human rights law or in any other area of law. The expertise of the Tribunal relates to fact finding and adjudication in a human right context but does not extend to general questions of law.[16] The decision of the Tribunal respecting its institutional independence and impartiality is a question of law and is therefore subject to review on a standard of correctness.

2.         The Res Judicata Issue

[27]      At the outset, I would like to clarify this issue which will have an impact on the questions to be determined by this Court. The following is a summary of the relevant facts.

[28]      On April 10, 1997, the Leighton Tribunal dismissed a motion filed by the applicant seeking the recusal of one of its members.[17] The Tribunal concluded, among other things, that the fact that the member had been retained as an expert witness by the Commission, twice prior to his appointment, did not give rise to a reasonable apprehension of bias.

[29]      On May 9, 1997, the applicant filed an application for judicial review of this decision to the Federal Court of Canada.[18]

[30]      On June 4, 1997, the Leighton Tribunal rendered an interim decision involving a number of issues respecting its institutional independence: the per diem or the part-time status of Tribunal members; the assignment of Tribunal members to cases on an ad hoc basis; the requirement for special arrangements between the Tribunal and Treasury Board for hearings scheduled for more than 40 days; and the power of the Commission to issue guidelines which are binding on the Tribunal.[19]

[31]      The Leighton Tribunal concluded that it was an independent quasi-judicial body, institutionally capable of providing a fair hearing in accordance with the principles of natural justice and fundamental freedom.

[32]      On June 10, 1997, the applicant filed an application for judicial review of this decision to the Federal Court of Canada.[20]

[33]      On March 23, 1998, McGillis J. rendered a decision in which she granted the application for judicial review challenging the independence of the Tribunal but dismissed the one respecting the recusal of a Tribunal member.[21]

[34]      McGillis J. concluded that there existed a reasonable apprehension of bias arising in relation to the two core characteristics, the security of tenure and the financial security of Tribunal members appointed under the Act.

[35]      McGillis J. found that the nature of the security of tenure afforded to a Tribunal member whose appointment expired during the course of a hearing was tenuous because the ability of that member to continue a matter depended solely and exclusively on the discretionary decision of the Minister to recommend reappointment of that member. McGillis J. concluded that the Act contained no objective guarantee that the prospect of reappointment of that member to complete a matter would not be adversely affected by any decisions, past or present, made by that member.

[36]      In her opinion, the Act did not respect the essence of the condition of financial security because the remuneration of a Tribunal member was fixed by the Commission, an interested party in all proceedings. Considering that any increase in the remuneration prescribed by the Commission’s by-law would be subject to negotiations between the Tribunal Panel and the Commission, McGillis J. further concluded that such negotiations would create a conflict of interest having a negative impact on the appearance of independence.

[37]      She felt however that it was not necessary for her to consider the question of institutional impartiality but she indicated that she had serious reservations in this respect, more particularly with the power of the Commission, an interested party appearing before the Tribunal, to issue binding guidelines on the Tribunal pursuant to subsection 27(2) of the Act.

[38]      McGillis J. quashed the proceedings before the Tribunal and ordered that there shall be no further proceedings in the matter, until the problems identified in relation to security of tenure and financial security were corrected by legislative amendments to the Act.

[39]      Following the coming into force of amendments to the Act on June 30, 1998 and the decision of the Federal Court of Appeal to restore the decision of the Commission to request the President of the Human Rights Tribunal Panel to appoint a Tribunal to inquire into the pay equity complaints,[22] the Tribunal’s Registrar informed the parties that the Tribunal’s Vice-chairperson would hold a case planning meeting to determine whether or not a Tribunal should reconvene into the complaints against Bell filed by the respondents CTEA and CEP.

[40]      On April 26, 1999, the Tribunal’s Vice- chairperson issued a decision in which he found that the problems identified by McGillis J. had been corrected by the amendments to the Act.[23] He therefore concluded that there were no problems of institutional bias or lack of institutional independence because of the institutional structure, and that the hearing by the Tribunal into the complaints should proceed.

[41]      With respect to the security of tenure, the Tribunal’s Vice-chairperson found that the power of the Chairperson to approve the acting of a member after the expiration of his/her appointment to conclude a matter does not give rise to a reasonable apprehension of bias because such power is not an absolute or unfettered discretion.

[42]      The Tribunal’s Vice-chairperson rejected the argument of Bell Canada that the disciplinary and remedial measures for Tribunal members as provided by the recent amendments to the Act give rise to a reasonable apprehension of bias because Tribunal members can only be removed for cause and only after a full judicial inquiry.

[43]      Regarding the remuneration of a Tribunal member, the Tribunal’s Vice-chairperson pointed out that the amendments to the Act now provide that the remuneration is fixed by Governor in Council, and therefore, it is no longer an issue.

[44]      The Tribunal’s Vice-chairperson noted that the guidelines adopted by the Commission are subordinate legislation and are binding on the Tribunal; they must be interpreted and applied by the Tribunal as any other law. He concluded that there exists sufficient distance between the issuance of a guideline by the Commission and the guideline becoming law not to create a reasonable apprehension of bias.

[45]      The Tribunal’s Vice-chairperson rejected the other arguments respecting the independence of the Tribunal raised by the applicant, because he felt that these arguments were before the Leighton Tribunal and McGillis J.

[46]      The applicant takes the position before this Court that McGillis J. either agreed with the other arguments or did not rule on them (with the exception of the Tribunal staff being Commission employees); therefore, the issues not considered by McGillis should not be res judicata.

[47]      The Commission submit that the arguments raised by Bell Canada which were not identified by McGillis J. as problematic were implicitly dismissed by her and are now res judicata. The same applies, according to the Commission, to arguments not raised but ought to have been raised by Bell Canada.

[48]      The respondents CTEA and CEP take the same position. They further argue that once the problems identified by McGillis J. in regard to security of tenure and financial security were corrected by amendments to the Act, the Tribunal would meet the requirements for institutional independence and the proceedings before the Tribunal could resume. According to counsel, McGillis J. has implicitly rejected the additional arguments raised by Bell Canada regarding the Tribunal’s institutional independence and impartiality.

[49]      According to the authors Sopinka, Lederman and Bryant, there exists two principles respecting the doctrine of res judicata:

There are two principles subsumed under the heading res judicata. The first is that any action or issue which has been litigated and upon which a decision has been rendered cannot be retried in a subsequent suit between the same parties or their privies. This principle prevents the contradiction of that which was determined in the previous litigation, by prohibiting the relitigation of issues already actually addressed.

The second principle makes it mandatory that a plaintiff asserting a cause of action must claim all possible relief in respect thereto, and prevents any second attempt to invoke the aid of the courts in the same cause. It is sometimes called “merger” because the plaintiff’s cause of action becomes “merged” in the judgment. The judgment actually operates as a comprehensive declaration of the rights of all parties in respect of the matters in issue. As a result, the rule applies equally to a defendant who must put forward all defences which will defeat the plaintiff’s action; the defendant who does not will be debarred from raising them subsequently. This principle prevents the fragmentation of litigation by prohibiting the litigation of matters that were never actually addressed in the previous litigation, but which properly belonged to it.[24]

[50]      With respect to the institutional independence of the Tribunal, it is no longer necessary to make an application to the Minister to extend the appointment of a Tribunal member whose term has expired during a hearing; the Chairperson now has the power to approve the acting of a member after the expiration of his/her appointment to conclude the matter, pursuant to subsection 48.2(2) of the amended Act.

[51]      Regarding the remuneration of a Tribunal member, the remuneration is provided by Governor in Council, and no longer by the Commission, pursuant to subsection 48.6(1) of the amended Act.

[52]      Obviously, these amendments were not analysed by McGillis J. as they came into force after her decision. The issues are now different and there is nothing stopping the applicant from raising arguments in this respect.

[53]      Concerning the other arguments raised by the applicant respecting the institutional independence and impartiality of the Tribunal, the order of McGillis J. clearly contemplated that once the specific problems identified were corrected, the Tribunal would meet the requirements for institutional independence and the proceedings before the Tribunal could resume. She did not identify any other problematic issues or errors made by the Leighton Tribunal.

[54]      The applicant is therefore estopped from raising the same arguments before this Court. According to the authors Sopinka, Lederman and Bryant, the principles of issue estoppel are described as follows:

Issue estoppel usually results from the application of the first of the principles described above [res judicata]: that parties cannot call into question issues which have already been decided between them….

…

Issue estoppel applies equally to issues which, although not expressly raised in the previous case, are necessarily assumed in it or negatived by it.[25]

[55]      The arguments raised by the applicant were necessarily assumed or negatived by the decision of McGillis J.

[56]      Regarding the institutional impartiality, it is clear from the decision that McGillis J. expressed concerns in obiter dictum about the power of the Commission to issue guidelines binding upon the Tribunal but she did not decide on this point. These concerns are not part of the ratio decidendi and cannot proscribe the applicant from arguing them in the present matter.

[57]      Therefore, the only issues left for this Court to decide are whether or not an informed person would have a reasonable apprehension of bias, both in terms of institutional independence and impartiality, with regards to:

(a) the power of the Commission to issue guidelines binding upon the Tribunal;

(b) the power of the Chairperson to approve the acting of a Tribunal member after the expiry of his/ her appointment to conclude a matter;

(c) the remuneration of Tribunal members provided by Governor in Council;

(d) disciplinary and remedial measures for the Vice-chairperson and Tribunal members.

3.         The Principles on Institutional Independence and Impartiality

[58]      The Supreme Court of Canada has recognized in Reference re Remuneration of Judges of the Provincial Court (P.E.I.) that judicial independence is a constitutional right:

Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located.[26]

[59]      In her decision, McGillis J. has very aptly analysed the jurisprudence of the Supreme Court of Canada pertaining to judicial independence. Thus, there is no need in the present case to repeat the same exercise. I will, therefore, only refer to her summary:

… judicial independence is part of the rules of natural justice, and as such applies to proceedings before administrative tribunals performing an adjudicative role. In determining the judicial independence of a tribunal, both its institutional independence and its institutional impartiality may be challenged. With respect to institutional independence, the classic test in Committee for Justice and Liberty et al. v. National Energy Board et al., supra, as approved in Valente v. The Queen et al., supra and virtually all of the other applicable Supreme Court of Canada cases, must be applied to an analysis of the three core characteristics of judicial independence: security of tenure, financial security and administrative independence. The test should be applied flexibly, having regard to the functions exercised by the tribunal. The level of institutional independence required will depend on the nature of the tribunal, the interests at stake and other indices of independence.[27]

[60]      However, it may be useful to add a few comments on the interdependence between the concept of institutional independence and impartiality.

[61]      In Lippé,[28] the Court recognized that notwithstanding judicial independence there may also exist a reasonable apprehension of bias on an institutional or structural level: “[t]he objective status of the tribunal can be as relevant for the “impartiality” requirement as it is for “independence”.[29] The Court acknowledges that if the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met. In other words, one is the cornerstone of the other.

[62]      Thus, the test to apply to institutional impartiality is the same as the test applicable to the issue of independence. As indicated by McGillis J. it was set out in Committee for Justice and Liberty et al. v. National Energy Board et al.:[30]

… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude”.[31]

[63]      It is also important to underline that the Supreme Court of Canada has recognized that there should be some flexibility in applying these principles regarding judicial independence to administrative tribunals and that these tribunals do not necessarily have to provide the same objective guarantees of independence as courts.[32]

[64]      It is necessary to look at the functions being performed by the Tribunal, its nature, the interests at stake and other indices of independence.[33] The practice of the Tribunal may also be relevant in this regard.[34]

[65]      Thus, when dealing with administrative agencies which have several roles to play, including many which are administrative in nature, such as the Matsqui Indian Band,[35] the Vancouver Stock Exchange,[36] or the Régie des permis d’alcool du Québec,[37] there needs to be more flexibility in applying the principles relating to institutional independence and impartiality.

[66]      However, the requisite level of independence is different for an administrative Tribunal, such as the Canadian Human Rights Tribunal, which has purely an adjudicative role and which law it adjudicates concerns the human rights of the land recognized by the Supreme Court of Canada in Heerspink[38] to be, save the constitutional laws, more important than all other laws. Suffice to note that courts have consistently held that, by its very nature, human rights legislation requires utmost care in respect of the procedures it follows.

[67]      In this respect, I fully agree with my colleague, McGillis J., in the decision referred above, as to the nature of the Tribunal and its requisite level of independence:

… given the purely adjudicative role and the functions performed by a Tribunal in relation to rights and interests which are quasi-constitutional in nature, I am satisfied that a high level of independence is required, and that a relatively strict application of the principles in Valente v. The Queen et al., supra, is warranted.[39]

[68]      In other words, in my opinion, the level of independence will be at the high end of the spectrum taking into account that it is not a court and as such some flexibility should be demonstrated.

4.         Application to the present case

A.   The Power of the Commission to Issue Guidelines Binding Upon the Tribunal

[69]      The Commission has delegated legislative authority to issue guidelines, which are binding upon the Tribunal members’ application and interpretation of the Act, pursuant to section 27 of the Act:

27. …

(2) The Commission may, on application or on its own initiative, by order, issue a guideline setting out the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act applies in a class of cases described in the guideline.

(3) A guideline issued under subsection (2) is, until it is revoked or modified, binding on the Commission and any member or panel assigned under subsection 49(2) with respect to the resolution of a complaint under Part III regarding a case falling within the description contained in the guideline.

[70]      The matter before the Tribunal involves the application and the interpretation of section 11 of the Act:

11. (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.

…

(4) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be a reasonable factor that justifies the difference.

[71]      The Commission has issued guidelines respecting the interpretation of this section, titled the Equal Wages Guidelines, 1986 [SOR/86-1082].

[72]      Counsel for the respondents submit that the recent amendments to subsection 27(2) of the Act, more particularly the removal of the words “in a particular case”, have fully addressed and resolved the issue.

[73]      I disagree. In my opinion, the power of the Commission to issue binding guidelines in “a class of cases” doesn’t change the crux of the problem because the Tribunal will still be bound to apply the guidelines in these cases. McGillis J.’s serious reservations arose from the binding nature of the guidelines. In fact, she concluded that the problem would be eliminated by making the guidelines non-binding regardless of the presence (or absence) of the words “in a particular case”.

[74]      Counsel for the applicant argues that the institutional structure of the Tribunal is such that it is precluded from making an independent judgment in any class of cases in which binding guidelines are issued by the Commission, a party in interest before the Tribunal. This leads to the inevitable perception of bias and lack of institutional independence.

[75]      I agree with the applicant that the guidelines issued by the Commission, a party before the Tribunal, is incompatible with the guarantees of institutional independence and impartiality.

[76]      It gives the Commission a special status that no other party appearing before the Tribunal could enjoy. It can influence the Tribunal in telling it how to interpret the law. This is true whether or not the

[77]      Further, in my opinion, the Tribunal’s decision-making power is unquestionably fettered by the issuance of binding guidelines on the interpretation of the Act. It restricts the Tribunal to adjudicate cases in a direction imposed by the Commission.

[78]      This power is quite unique. No regulation-making power in any legislation allows a party to determine the extent and manner to which its enabling legislation is to be interpreted.

[79]      The nature of the binding guidelines is different from the nature of subordinate legislation. Subordinate legislation, such as regulations, is normative in nature, and general and impersonal in scope. Subordinate legislation creates legal norms of conduct which are designed to all.[40]

[80]      To the contrary, the guidelines focus on giving specific directions to the Tribunal. The guidelines provide specific criteria to be applied by the Tribunal in a class of cases. The guidelines adopted by the Commission, which is a party in interest in the proceedings, put improper pressure on the Tribunal as to the outcome of a decision in a class of cases.

[81]      There is no doubt in my mind that the test established by the Supreme Court of Canada in Lippé[41] for the existence of a reasonable apprehension of institutional bias and institutional independence is met.

[82]      An informed person viewing the matter realistically and practically and having thought the matter through would come to this conclusion.

[83]      Successive Tribunal presidents have expressed their concerns in this regard. They represent, in my opinion, strong evidence of the informed person viewing the matter realistically.

[84]      Furthermore, with the exception of its conclusion that the guidelines are non-binding on the Tribunal, I fully agree with the Tribunal in Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Limited and Air Canada[42] on the effect of binding guidelines:

… then two fundamental principles of our constitutional order and democratic system would be undermined. The first principle to be undermined would be the fundamental right of all persons to a fair hearing in accordance with the principles of fundamental justice….

Second, fundamental norms of our democratic system would also be compromised. In particular, the issuance of guidelines from an executive agency of government putting binding fetters on the decision-making power of a quasi-judicial body would logically undermine principles of judicial independence and the separation of powers …. If the guidelines issued pursuant to subsections 27(2) and (3) are binding on the Tribunal, it would not make sense for such guidelines not to be also binding in some sense on the courts supervising the Tribunal. It would be illogical to interpret the CHRA in a manner which leads to the conclusion that Parliament intended that a Human Rights Tribunal would have its quasi-judicial decision-making powers fettered by guidelines issued under subsections 27(2) and (3) of the Act, but these same guidelines could be totally ignored or ruled invalid by the reviewing Courts.[43]

[85]      In the present case the Tribunal’s Vice-chairperson erred in finding that there was no problem of institutional independence or bias because it had been issued in accordance with the Statutory Instruments Act.[44]

[86]      If it was the case, no court could ever strike down statutory provisions lacking the guarantees of institutional independence. The problem stems from the provisions of the Act itself giving this power to the Commission not from the manner and procedure which the guidelines are passed.

[87]      In such a case does the Tribunal have the power to declare subsections 27(2) and 27(3) [as am. by S.C. 1998, c. 9, s. 20] of the Act or the guideline issued inoperative or not binding?

[88]      The respondents argue that the guidelines are nothing more than subordinate or delegated legislation, akin to regulations. They rely on Canada (Attorney General) v. Public Service Alliance of Canada et al.[45] for the proposition that “although the Tribunal is said to be bound by the Commission’s Guideline, this is no more than stating that the Tribunal, together with all other statutory tribunals, is bound by law to the extent that any particular provision of such law is valid and binding”.

[89]      In my opinion, the decision in PSAC has to be seen in light of the subsequent decision of the Supreme Court of Canada in Cooper v. Canada (Human Rights Commission).[46]

[90]      In Cooper, La Forest J. for the majority decided that given the limited jurisdiction of the Commission it follows that a Tribunal appointed under the Act must also lack the jurisdiction to declare invalid a limited provision of the Act.

[91]      The Court had to determine whether or not the Commission and the Tribunal had jurisdiction to strike down a provision of the Act as being contrary to the Charter [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 II, No. 44]].

[92]      With respect to the constitutional competence of the Tribunal, La Forest J. pointed out that the essential question was to determine if Parliament has granted the administrative tribunal through its enabling statute, either explicitly or implicitly, the power to determine questions of law. If it does have a general power to consider questions of law, then it follows by the operation of subsection 52(1) of the Constitution Act, 1982[47] that it must be able to address constitutional issues including the constitutional validity of its enabling statute.

[93]      The respondents submit that since subsection 50(2) [as am. by S.C. 1998, c. 9, s. 27] of the Act was amended to clarify the Tribunal’s power to decide all questions of law or fact necessary to determine the matter under inquiry and that it can now do so.

[94]      I am unable to view the power conferred by subsection 50(2) as a general power to consider questions of law. Subsection 50(2) reads as follows:

50. …

(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.

[95]      It amounts to no more than giving the Tribunal the power to interpret and apply its enabling statute when required to resolve a complaint before it.

[96]      The expertise of the Tribunal relates to fact finding and adjudication in a human right context to determine whether or not a discriminatory practice occurred, but this expertise does not extend to general questions of law.[48] There exists no pragmatic and policy concerns in the present matter that favours the Tribunal having constitutional competence.

[97]      It is important to note that La Forest J. cautioned that in determining whether or not the Tribunal has jurisdiction to consider Charter arguments, various practical matters should be examined, such as the expertise of the Tribunal, the ability to accept evidence well suited for a human rights complaint determination but inappropriate when addressing the constitutionality of a legislation provision, the added complexity and other pragmatic and policy concerns that may argue for or against the Tribunal having constitutional jurisdiction.

[98]      He stated:

… a tribunal does not have any special expertise except in the area of factual determinations in the human rights context. Second, any efficiencies that are prima facie gained by avoiding the court system will be lost when the inevitable judicial review proceeding is brought in the Federal Court. Third, the unfettered ability of a tribunal to accept any evidence it sees fit is well suited to a human rights complaint determination but is inappropriate when addressing the constitutionality of a legislative provision. Finally, and perhaps most decisively, the added complexity, cost, and time that would be involved when a tribunal is to hear a constitutional question would erode to a large degree the primary goal sought in creating the tribunals, i.e., the efficient and timely adjudication of human rights complaints.[49]

[99]      These factors are all present and have not been displaced by the recent amendment conferring the power to determine questions of law.

[100]   Furthermore, I do not believe that the members of the Tribunal enjoy the appropriate level of independence to arrogate powers traditionally given to the judiciary to make legal determinations regarding the constitutional validity of legislation.

[101]   Only two members are permanent, others are part-time members chosen on an ad hoc basis who receive per diem remuneration for their work on cases which they are assigned. They are appointed for a relatively short-term of three years renewable at the discretion of the Minister. Many are lay persons with no training in the law. I am unable to find that these features provide sufficient safeguards to conclude that the Tribunal is well suited for the task.

[102]   Logic dictates that if Parliament is not ready to bestow upon the Tribunal the same guarantees as those given to Courts, it should not enjoy the same powers.

B.   The Power of the Chairperson to Approve the Acting of a Tribunal Member After the Expiry of His/Her Appointment to Conclude a Matter

[103]   The Tribunal’s Vice-chairperson decision found that the recent amendments to the Act permit Tribunal members to conclude hearings without executive or legislative intervention and that this addresses the problem identified in the reasons of McGillis J. regarding security of tenure.

[104]   The Tribunal’s Vice-chairperson held that the requirement for the approval of the Chairperson under subsection 48.2(2) of the Act does not lead a right-minded, fully informed person to have an apprehension of bias as to the Chairperson’s discretion. It can be assumed, according to the Tribunal’s Vice-chairperson, that the Chairperson will not act arbitrarily or in bad faith and will allow a Tribunal member to complete the case: “[t]he exercise of this discretion implies good faith and the discretion must be exercised within the perspective of the legislation”.[50]

[105]   Counsel for the applicant does not accept that this is a sufficient guarantee of security of tenure.

[106]   The Supreme Court of Canada emphasized that the essence of security of tenure requires that the tenure of a decision-maker must not be subject to any form of interference that is discretionary or arbitrary:

Security of tenure, because of the importance traditionally attached to it, is the first of the essential conditions of judicial independence for purposes of s. 11(d) of the Charter. The essentials of such security are that a judge be removable only for cause, and that cause be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard. The essence of security of tenure for purposes of s. 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner.[51]

[107]   I agree with the applicant. The recent amendments to the Act addressed, but did not cure, the problem identified by McGillis J. respecting the tenuous nature of the security of tenure afforded to the Tribunal member where appointment expires during the course of a hearing. The Minister no longer has discretion to extend the appointment of the Tribunal member; it is now the Chairperson who has the power to approve the acting of the Tribunal member after expiry of his/her appointment to conclude a matter. This does not represent, in my view, an objective guarantee of security of tenure.

[108]   In Lippé, for the purpose of defining judicial independence, the concept of “government” has not been limited to the executive or legislative branches but extends to any person that can exert pressure over other judges. Lamer C.J. said:

By “government”, in this context, I am referring to any person or body, which can exert pressure on the judiciary through authority under the state. This expansive definition encompasses, for example, the Canadian Judicial Council or any Bar Society. I would also include any person or body within the judiciary which has been granted some authority over other judges; for example, members of the Court must enjoy judicial independence and be able to exercise their judgment free from pressure or influence from the Chief Justice. [My emphasis.][52]

[109]   The principle of institutional independence requires that a tribunal is structured to ensure that the members are independent. In the case at bar, the ability of a member to continue a case will depend on the discretion of the Chairperson. The difficulty is not necessarily in the manner in which the discretion is exercised but rather in the existence of the discretion itself. As stated by Lamer C.J., “[i]nstitutional independence and the discretion to provide for institutional independence (or not to so provide) are very different things. Independence premised on discretion is illusory”.[53]

[110]   In my opinion, given the high level of independence required, only an objective guarantee of security of tenure will give the necessary protection and afford the member the quietude needed to render a decision free of constraint.

[111]   There exists no objective guarantee that the prospect of continuance of a Tribunal member’s duties after expiry of his or her appointment would not be adversely affected by any decisions, past or present, made by that member.

[112]   An example of an objective guarantee of security of tenure is the one provided for members of the Competition Tribunal:[54]

5. (1) Each judicial member shall be appointed for a term not exceeding seven years and holds office so long as he remains a judge of the Federal Court.

(2) Each lay member shall be appointed for a term not exceeding seven years and holds office during good behaviour but may be removed by the Governor in Council for cause.

(3) A member of the Tribunal, on the expiration of a first or any subsequent term of office, is eligible to be re-appointed for a further term.

(4) A person may continue to act as a member of the Tribunal after the expiration of his term of appointment in respect of any matter in which he became engaged during the term of his appointment.

[113]   It is important to remember that the requisite level of independence of the Tribunal is at the higher end of the spectrum, given its purely adjudicative role and its functions in relation to rights and interests which are quasi-constitutional in nature. It is therefore necessary for a Tribunal member to have an objective guarantee of security of tenure.

[114]   Very few administrative tribunals require the same level of independence as the Canadian Human Rights Tribunal. It is doubtful that these tribunals would require a similar objective guarantee of security of tenure.

C.   The Remuneration of Tribunal Members Provided by Governor in Council

[115]   McGillis J. identified the financial security of Tribunal members as a problem that needed to be cured by legislative amendment. She found the Tribunal not to be institutionally independent because the Commission, a party in all proceedings before the Tribunal, had the power under the Act to fix the rate of pay of Tribunal members and would be involved in any negotiations regarding increases in the rate of pay.

[116]   The Tribunal’s Vice-chairperson found that the remuneration of Tribunal members which is now fixed by the Governor in Council, pursuant to subsection 48.6(1) of the amended Act, is acceptable.

[117]   Counsel for the applicant argues that the members of the Tribunal are remunerated on a per diem basis. They have no statutory guarantee of any particular level of remuneration. They will be required in practice to negotiate any increased remuneration in just the purely political manner found unacceptable by the Supreme Court in Re Provincial Court Judges[55] and in Bell Canada v. Canadian Telephone Employees Assn.[56] The Act provides no guarantees against the ability of the Governor in Council, the very essence of the federal executive, to make use of his or her power to fix the Tribunal’s members’ remuneration in a manner which would impair the institutional independence of the Tribunal.

[118]   Counsel for the respondents argues that the financial security of Tribunal members is no longer an issue since the rate of pay is now set by the Governor in Council pursuant to section 48.6 of the Act. The Commission no longer has the power to pass by-laws prescribing the rate of remuneration, travel and living expenses for Tribunal members. Counsel rely on Valente[57] for the proposition that the essence of financial security is the right to salary, not the level of remuneration.

[119]   With respect to the concerns respecting negotiations between the Tribunal and the Governor in Council, Counsel for the respondents CTEA and CEP argues that the principles set out in Re Provincial Court Judges[58] are not applicable to administrative tribunals. Even if the decision of Re Provincial Court Judges was applicable, Counsel submits that the possibility that the Tribunal expresses its concerns to the Governor in Council about the level of remuneration would not constitute negotiations as that word was contemplated in Re Provincial Court Judges.

[120]   I am of the opinion that the problem identified by McGillis J. related to the fact that the rate was fixed and negotiated with a litigant.

[121]   The essence of financial security is that the right to salary of a decision-maker must be established by law and there must be no way in which the Executive could interfere with that right.[59]

[122]   In Alex Couture Inc., the Québec Court of Appeal had to determine, amongst others, whether or not the setting of the remuneration of a lay member of the Competition Tribunal by the Governor in Council and the appraisal mechanism (administrative policy setting salary ranges and remuneration rates) constituted obstacles to the perception of independence and impartiality of the Tribunal. The Court concluded that it did not:

The second condition of judicial independence for the purposes of s. 11(d) of the Charter is financial security. The essence of this security, according to Le Dain J. in Valente, “is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence” (at p. 184).

Le Dain J. added that although it may be theoretically preferable that judicial salaries should be fixed by the legislature rather than by the executive government and should be made a charge on the Consolidated Revenue Fund rather than requiring annual appropriation, he did not think that either of these features should be regarded as essential to the financial security that may be reasonably perceived as sufficient for independence under s. 11(d) of the Charter (at p. 185).

The Competition Tribunal Act provides that the lay members shall be paid such remuneration as may be fixed by the Governor in Council. They are entitled to be paid the travel allowances that a judge is entitled to be paid under the Judges Act and are deemed to be employed in the federal public service for the purposes of the Government Employees Compensation Act and regulations made under s. 9 of the Aeronautics Act (s. 6).

…

Unlike the trial judge who found that the fact that the setting of the lay members’ remuneration by the Governor in Council and the appraisal mechanism for the lay members constituted obstacles to the perception of independence and impartiality of the tribunal, it appears to me that a reasonably well-informed person could not seriously fear that the lay members of the tribunal did not enjoy, during their appointment, the guarantee of financial security required for the purposes of s. 11(d) of the Charter.[60]

[123]   It is preferable that salary be fixed by the legislature rather than by the executive government but it should not be regarded as essential to the financial security. It may be fixed by Governor in Council without giving rise to a reasonable apprehension of bias.

[124]   The Tribunal’s Vice-Chairperson was correct in deciding that the current method of remuneration of Tribunal members is acceptable. As I stated earlier, although the level of independence required is at the high end of the spectrum, some flexibility in applying the principles of institutional independence and impartiality to the Tribunal should be demonstrated.[61]

[125]   I am satisfied that a reasonably well-informed person could not seriously fear that the Tribunal not enjoy that guarantee of financial security.

D.   Disciplinary and Remedial Measures for the Vice-chairperson and Tribunal Members

[126]   With respect to the disciplinary measures introduced by the amendments, the applicant submits that members will decide in a way not to displease the Chairperson.

[127]   The Tribunal’s Vice-chairperson was satisfied that the new disciplinary process which parallels the process in the Judges Act[62] does not give use to an apprehension of bias. I am satisfied that the decision of the Tribunal’s Vice-chairperson on this issue is correct.

DECISION

[128]   I conclude that the Tribunal’s Vice-chairperson erred in law and was not correct in determining that it was an institutionally independent and impartial body with respect to the power of the Commission to issue guidelines binding upon the Tribunal and the power of the Chairperson to approve the acting of a Tribunal member after the expiry of his/her appointment to conclude a matter.

[129]   The remedies sought by the applicant are pursuant to the common law and paragraph 2(e) of the Canadian Bill of Rights.

[130]   In MacBain v. Lederman,[63] the Federal Court of Appeal determined that, although the Canadian Bill of Rights does not expressly address the issue of remedies for failure to comply with its provisions, there can be no right without a remedy. In MacBain the Court declared the offending provisions to be inoperative with regard to the complaint against the appellant.

[131]   The application for judicial review is allowed. The decision of the Tribunal’s Vice-chairperson dated April 26, 1999 is quashed. There shall be no further proceedings on this matter until the problems identified in these reasons are corrected. Each party will bear its own costs.

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