A-796-85
In re the jurisdiction of a Human Rights Tribunal
to continue its inquiry and in re a complaint of
Local 916 of the Energy and Chemical Workers'
Union dated April 27, 1979, filed pursuant to
section 11 of the Canadian Human Rights Act
(S.C. 1976-77, c. 33 as amended) against Atomic
Energy of Canada Limited
Court of Appeal, Pratte, Marceau and MacGuigan
JJ.—Ottawa, December 5 and 23, 1985.
Human rights — Whether jurisdiction in Human Rights
Tribunal to continue inquiry into discrimination complaint in
view of recent Federal Court of Appeal decision in MacBain
declaring Canadian Human Rights Act s. 39(1) and (5) inoper
ative on ground adjudicative structure of Act raising reason
able apprehension of bias — Whether bias found in MacBain
so fundamental as to create total lack of jurisdiction —
Courts not approaching issues of bias in terms of jurisdiction
— Effect of express and implied waiver, before Tribunal, of
right to challenge jurisdiction of Tribunal by party now invok
ing such right — Canadian Human Rights Act, S.C. 1976-77,
c. 33, ss. 35, 36(3), 39(1),(5), 41(1) — Canadian Bill of Rights,
R.S.C. 1970, Appendix III, s. 2(c),(e),(f),(g) — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(4).
Jurisdiction — Human Rights Tribunal — Effect on juris
diction of Tribunal of recent Federal Court of Appeal decision
in MacBain declaring Canadian Human Rights Act s. 39(1)
and (5) inoperative on ground adjudicative structure of Act
raising reasonable apprehension of bias — Whether Tribunal
lacking jurisdiction ab initio — Whether bias found in Mac-
Bain so fundamental as to create total lack of jurisdiction —
Courts not approaching issues of bias in terms of jurisdiction
— Party who expressly and impliedly waived, before Tribunal,
right to challenge jurisdiction of Tribunal, cannot now invoke
such right — Canadian Human Rights Act, S.C. 1976-77, c.
33, ss. 35, 36(3), 39(1),(5), 41(1).
Bill of Rights — Impartial hearing in accordance with
principles of natural justice — Effect on jurisdiction of
Human Rights Tribunal of recent Federal Court of Appeal
decision in MacBain declaring Canadian Human Rights Act s.
39(1) and (5) inoperative on ground adjudicative structure of
Act raising reasonable apprehension of bias — Nature of Bill
of Rights s. 2(e) — Nature of declaration of inoperability
under Bill of Rights — Canadian Human Rights Act, S.C.
1976-77, c. 33, ss. 35, 36(3), 39(1),(5), 41(1) — Canadian Bill
of Rights, R.S.C. 1970, Appendix III, s. 2(c),(e),(f),(g).
A complaint filed before the Canadian Human Rights Com
mission ("the Commission") by Local 916 of the Energy and
Chemical Workers' Union against Atomic Energy of Canada
Limited ("AECL") for alleged discrimination was being
inquired into by a Human Rights Tribunal when this Court's
decision in MacBain was handed down. That case having
decided that subsections 39(1) and (5) of the Canadian Human
Rights Act (where an essential part of the adjudicative powers
of the Commission is provided for) were inoperative in so far as
the complaint therein was concerned, a majority of the Tri
bunal in the present case ordered a reference to this Court
under subsection 28(4) of the Federal Court Act to determine
whether the Tribunal had jurisdiction to continue its inquiry.
Unlike the appellant/applicant in MacBain who alleged bias
even before the first meeting of the Tribunal, AECL both
expressly and impliedly waived its right to challenge the juris
diction of the Tribunal here. While admitting that, at common
law, even an implied waiver of objection to an adjudicator at
the initial stages is sufficient to invalidate a later objection,
AECL argued that the bias here was so fundamental as to
create a total lack of jurisdiction.
AECL argued that in MacBain, the Court found that the
Act gave rise to a reasonable apprehension of bias both as to
the "double" substantiation it required and as to the appoint
ment of the Tribunal by the Commission which is required to
act as a prosecutor before it; that both defects rendered the
scheme of the Act inherently biased in its adjudicative struc
ture; that despite the Court's attempt to limit the inoperability
of the statute to that complaint, logic dictated that, in all cases,
Tribunals set up under the Act were lacking in jurisdiction ab
initio; and finally, that such want of jurisdiction was incapable
of being cured by waiver.
Held, the answer to the question should be yes, the Tribunal
has jurisdiction to continue its inquiry.
Per MacGuigan J.: It was established by the Supreme Court
of Canada in Law Society of Upper Canada v. French, where
the Bill of Rights was not invoked, that bias which would
otherwise render proceedings contrary to natural justice may be
authorized by legislation. In MacBain the statutory authority
for the Commission to act as it did was express, and, apart from
the Bill of Rights, would certainly have precluded any chal
lenge based on reasonable apprehension of bias.
While the Bill of Rights was successfully invoked in Mac-
Bain, the result here is different. The protection afforded by the
Bill of Rights from infringement by federal statute has been
held not to avail a person who does not initially invoke his
rights thereunder. The courts have not approached issues of
bias in terms of jurisdiction at all even though, in logic, it may
be said that "in principle, all ultra vires administrative actions
are void, not voidable, and there are no degrees of invalidity".
Perhaps the courts have been restrained by concern about the
practical consequences of an overly rigid application of logic. In
the final analysis, the MacBain decision can apply only where
the party affected asserted its rights from the earliest practi
cable time.
Per Marceau J.: The basic distinction between the situation
in MacBain and the present one is the moment at which the
issue of bias was raised. The argument of AECL is that the
MacBain case decided that all Tribunals set up under the Act
necessarily lack jurisdiction ab initio and that such a want of
jurisdiction is incapable of being cured by waiver.
However, the MacBain decision does not stand for that
proposition. It merely decides that where a complaint has been
substantiated after investigation, the selection by the Commis
sion itself of the Tribunal can raise a reasonable apprehension
of bias and therefore violates the right of the individual to be
judged by a Tribunal whose objectivity is above all reasonable
doubt. But a Tribunal appointed so as to give rise to an
apprehension of bias is susceptible only of being disqualified.
The individual's right to object to being judged by that Tri
bunal exists only until he expressly or impliedly submits to it.
MacBain was successful only because he raised his objections
at the outset.
A declaration of "inoperability", such as is found in Mac-
Bain, is a remedy applicable when the protection given by the
Bill of Rights is relied upon. The authority of such a declara
tion depends on whether the statute is directly and by itself in
breach of a protected right or whether it merely contributed to
a breach of such a right. In any event, a declaration of
inoperability is not a declaration that the statute is of no force
and effect.
Per Pratte J.: The MacBain case did not decide that subsec
tions 39(1) and (5) of the Act were inherently objectionable.
All it did was to declare that those provisions would not operate
so as to deprive MacBain of his right, under the Bill of Rights,
not to be tried without his consent, by a Tribunal appointed in a
manner that gave rise to a reasonable apprehension of bias.
MacBain therefore has no application in the present case where
there was an express and implied waiver of the right to
challenge the Tribunal's jurisdiction.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
MacBain v. Lederman, [1985] 1 F.C. 856; (1985), 62
N.R. 117 (C.A.).
CONSIDERED:
Law Society of Upper Canada v. French, [1975] 2 S.C.R.
767; Ringrose v. College of Physicians and Surgeons
(Alberta), [1977] 1 S.C.R. 814.
REFERRED TO:
Re Thompson and Local 1026 of International Union of
Mine, Mill and Smelter Workers et al. (1962), 35 D.L.R.
(2d) 333 (Man. C.A.); Rex v. Byles and others; Ex parte
Hollidge (1912), 108 L.T. 270 (Eng. K.B.D.); Regina v.
Nailsworth Licensing Justices. Ex parte Bird, [1953] 1
W.L.R. 1046 (Eng. Q.B.D.); Bateman v. McKay et al.,
[1976] 4 W.W.R. 129 (Sask. Q.B.); Ghirardosi v. Minis
ter of Highways for British Columbia, [1966] S.C.R.
367; Singh et al. v. Minister of Employment and Immi
gration, [1985] 1 S.C.R. 177; R. v. Burnshine, [1975] 1
S.C.R. 693; Miller et al. v. The Queen, [1977] 2 S.C.R.
680; R. v. Morin (1980), 64 C.C.C. (2d) 90 (Alta. C.A.);
Jumaga v. R., [1977] 1 S.C.R. 486; Harelkin v. Univer
sity of Regina, [1979] 2 S.C.R. 561.
COUNSEL:
T. Gregory Kane and J. Bourinot for Human
Rights Tribunal.
R. G. Juriansz and J. Hendry for the Canadi-
an Human Rights Commission.
Eric B. Durnford and Harvey L. Morrison for
Atomic Energy of Canada Limited.
SOLICITORS:
Stikeman, Elliott, Ottawa, for Human Rights
Tribunal.
Canadian Human Rights Commission,
Ottawa, on its own behalf.
McInnes, Cooper & Robertson, Halifax, for
Atomic Energy of Canada Limited.
The following are the reasons for decision ren
dered in English by
PRATTE J.: I agree that the question that has
been referred to the Court for determination must
be answered in the manner suggested by my broth
ers MacGuigan and Marceau. However, as their
reasons for reaching the same conclusion differ
somewhat, I feel the necessity of stating briefly my
own.
At the hearing, counsel for Atomic Energy of
Canada Limited took the position that the Tri
bunal here in question had no jurisdiction to con
tinue its inquiry since it had been constituted in
the same manner and under the same statutory
provisions as the Tribunal that had been the sub
ject of the Court's decision in MacBain v. Leder-
man, [1985] 1 F.C. 856; (1985), 62 N.R. 117
(C.A.). The only argument that he put forward in
support of that contention, as I understood it, was
that the Court, in that case, had declared subsec
tions 39(1) and (5) of the Canadian Human
Rights Act [S.C. 1976-77, c. 33] to be inoperative
on the ground that these subsections provided for
the appointment of Tribunals in a manner such, in
the opinion of the Court, as to give rise to a
reasonable apprehension of bias. As the Court,
according to the argument, based its decision on
the finding that subsections 39(1) and (5) were
inherently objectionable, it logically follows that
the appointment of any Tribunal under the same
provisions is vitiated.
In my view, that argument is based on a misin
terpretation of the MacBain decision. In that case,
the Court did not declare subsections 39(1) and
(5) to be invalid but [at page 889 F.C.; 137 N.R.]
to be "inoperative in so far as the complaint filed
against the appellant/applicant Alistair MacBain
by the respondent Kristina Potapczyk is con
cerned." By that declaration, the Court merely
said that subsections 39(1) and (5) would not
operate so as to deprive MacBain of his right,
under the Canadian Bill of Rights [R.S.C. 1970,
Appendix III], not to be tried without his consent,
by a Tribunal appointed in a manner that gave rise
to a reasonable apprehension of bias. The Mac-
Bain decision, therefore, has no application in a
case like the present one where the person to be
tried by the Tribunal has, as my brother Mac-
Guigan says, expressly and impliedly waived his
right to challenge the jurisdiction of the Tribunal.
* * *
The following are the reasons for decision ren
dered in English by
MARCEAU J.: Like my brother MacGuigan J.,
whose reasons for decision I have had the advan
tage of reading, I would answer the question
referred to the Court in this proceeding in the
affirmative. The Tribunal here has jurisdiction to
continue its inquiry even if it "has been constituted
in the same manner, by the same process, and
pursuant to the same statutory scheme as that
described in the case of MacBain v. The Canadian
Human Rights Commission et al.", now reported,
sub nomine MacBain v. Lederman, [1985] 1 F.C.
856; (1985), 62 N.R. 117 (C.A.). Like him too, I
think the basic distinction between the situation in
MacBain and the present one is that Mr. MacBain
whose conduct was being investigated had right at
the outset alleged bias on the part of the Tribunal,
whereas here, the party involved, Atomic Energy
of Canada Limited ("AECL"), has acknowledged
both expressly and impliedly, its complete confi
dence in the objectivity of the Tribunal. Neverthe
less, I realize that my view of the matter differs
somewhat from the view of my colleague, especial
ly in dealing with the position taken by AECL,
and the difference is, I believe, significant enough
to require me to set out quickly my own views on
the issues raised.
The position taken by AECL is that the Tri
bunal is without jurisdiction regardless of whether
it might have waived its right to object or not. Its
contention is based on the premise that the ratio
decidendi of the MacBain decision is that defects
in the legislation were then rendering the scheme
of the Act inherently biased in its adjudicative
structure. The argument in effect is that in view of
such constitutive shortcomings, Tribunals set up
under the Act, as it then was, were necessarily
lacking in jurisdiction ab initio and a want of
jurisdiction ab initio is obviously incapable of
being cured afterwards by waiver.
If the MacBain decision were to be interpreted
as contended by AECL, the validity of the argu
ment would, I believe, be practically indisputable.
A scheme "inherently biased" can only produce a
result where actual bias or at least a real likelihood
of bias will be found. Such a direct breach of the
nemo judex in causa sua maxim by a Tribunal
where actual bias or real likelihood of bias is
present cannot, I believe, be cured by the mere
silence of the aggrieved party until the hearing is
over: the breach of natural justice may be too
fundamental and its decision always open to
impeachment (see de Smith's Judicial Review of
Administrative Action (4th ed.), page 273). But I
do not think the MacBain decision can be inter
preted as suggested by AECL.
As I read the reasons for judgment of Mr.
Justice Heald, the basic conclusion of the Court in
that case was that the selection by the Commission
itself of the members of the Tribunal called upon
to inquire into the complaint laid against Mr.
MacBain, when that complaint had already been
the subject of an investigation and a "substantia-
tion" in accordance with sections 35 and 36 of the
Act, had rightly created in the mind of the
"accused" a reasonable apprehension of bias and
therefore contravened rules of natural justice. The
Court gave no indication that actual bias or a real
likelihood of bias was present; on the contrary it
took pains in discarding such an interpretation of
its views. It is true that the Court added to its
basic conclusion a declaration of "inoperability" of
the statute but such declaration has to be correctly
understood. A declaration of inoperability, as I see
it, is merely a type of remedy applicable when the
protection given by the Bill of Rights is relied
upon, which was the case here since the allegation
of apprehension of bias was of course to be coun
tered by the consideration that the legislation itself
was responsible for it. It is indeed only since the
Bill of Rights and because of the protection this
special statute assures to basic rights that Courts
are entitled to remedy a breach of natural justice
arising from the legislation itself (see: Law Society
of Upper Canada v. French, [1975] 2 S.C.R. 767
and Ringrose v. College of Physicians and Sur
geons (Alberta), [1977] 1 S.C.R. 814, where the
statutory scheme prevailed at least in part because
the Bill of Rights was not invoked and therefore
did not come into play). And when the courts do so
provide a remedy, they usually speak of "inopera-
bility" of the legislation, a term drawn from sec
tion 2 of the Bill (see: Hogg, Constitutional Law
of Canada (2nd edition), 1985, pages 640-645).
Such a declaration of inoperability, although
always formally limited to the case at bar, may be,
in practice, more or less authoritative, depending
on whether the legislation is found to be directly
and by itself in breach of a protected right or
whether it is found to have only contributed
towards causing a breach of such a right. In any
case, a declaration of inoperability is not a decla
ration that the statute is invalid or has no force
and effect (as in the case of a statute which is
found to run afoul of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] enshrined in the Constitution).
Counsel's argument that what is inoperative at the
outset cannot become operative afterwards is obvi-
ously not valid, if the term "operative" is taken in
its proper sense.
So, the MacBain decision, in my view, is simply
to the effect that when under the Act a complaint
has been substantiated after investigation, the
selection by the Commission itself of the Tribunal
which will enquire into it can raise a reasonable
apprehension of bias, and violates, as a result, the
right of the individual against whom the complaint
was made to be judged by a Tribunal whose
objectivity is above all reasonable doubt. The ques
tion, then, is what is the situation of a Tribunal set
up in such a way that a reasonable apprehension of
bias may arise: is the Tribunal without jurisdic
tion? It cannot seriously be contended that it be so.
Actual bias almost certainly affects the capacity of
the Tribunal to act and could possibly be seen as
going, for that reason, to jurisdiction, the more so
since the decision of such a biased Tribunal would
likely never be allowed to stand; but simple appre
hension of bias is another matter altogether in that
it does not strike at the very capacity of the
Tribunal to act properly. A Tribunal appointed so
as to give rise to an apprehension of bias is, as I
understand the jurisprudence, only susceptible of
being disqualified. Correlatively, the right of the
individual who apprehends bias on the part of the
Tribunal before which he is brought has always
been, again as I understand the jurisprudence, a
right to object to being judged by the Tribunal,
but a right that exists only until he expressly or
impliedly submits to it. It is only because Mr.
MacBain raised his objections at the outset that
his attack on the proceedings could be successful.
(See on this point the opinion expressed by Wade,
in his article "Unlawful Administrative Action:
Void or Voidable? Part I" (1967), 83 L.Q.R. 499
and (Part II) (1968), 84 L.Q.R. 95, at pages 108
et seq.).
These are my views of the matter on the basis of
which I see no merit in AECL's argument and
agree with Mr. Justice MacGuigan that the ques
tion referred to the Court must be answered in the
affirmative.
* * *
The following are the reasons for decision ren
dered in English by
MACGUIGAN J.: The question referred to this
Court in this proceeding arises directly from our
recent decision in MacBain v. Lederman, [1985] 1
F.C. 856; (1985), 62 N.R. 117, which involved
three proceedings (two appeals and one applica
tion) by the same party.
In the MacBain case Mr. Justice Heald held for
the Court that the appellant/applicant had a
reasonable apprehension of bias arising out of the
fact that the Canadian Human Rights Commis
sion ("the Commission") investigated and substan
tiated the complaint therein and then prosecuted
the complaint before a three-member Tribunal
which it itself selected and appointed, a procedure
which offended against paragraph 2(e) of the
Canadian Bill of Rights that "no law of Canada
shall be construed or applied so as to ... deprive a
person of the right to a fair hearing in accordance
with the principles of fundamental justice for the
determination of his rights and obligations". The
Court therefore granted a declaration that the
provisions of subsections 39(1) and 39(5)' of the
Canadian Human Rights Act ("the Act") were
inoperative in so far as the particular complaint
filed against the appellant/applicant was con
cerned. The relief granted on the appeal concern
ing declaratory relief was drawn so as to have the
least possible impact on other proceedings:
' 39. (1) The Commission may, at any stage after the filing
of a complaint, appoint a Human Rights Tribunal (hereinafter
in this Part referred to as a "Tribunal") to inquire into the
complaint.
(5) In selecting any individual or individuals to be appointed
as a Tribunal, the Commission shall make its selection from a
panel of prospective members, which shall be established and
maintained by the Governor in Council.
The appeal is allowed with costs both in this Court and in the
Trial Division. It is declared that the provisions of subsections
(1) and (5) of section 39 of the Canadian Human Rights Act
are inoperative insofar as the complaint filed herein against the
appellant Alistair MacBain by Kristina Potapczyk under date
of April 27, 1983, is concerned.
Nevertheless, when the public hearings of the
Tribunal in the present matter (which involves a
complaint laid by Local 916 of the Energy and
Chemical Workers' Union on August 27, 1979,
that Atomic Energy of Canada Limited
("AECL") engages in discrimination on the
grounds of sex under section 11 of the Act in that
the wages of members of the local, who are
primarily women, are not justly comparable to
those paid to other unionized workers, primarily
men) resumed on October 16, following argument,
a majority of the Tribunal ordered a reference to
this Court pursuant to subsection 28(4) of the
Federal Court Act 2 [R.S.C. 1970 (2nd Supp.), c.
10] of the following question:
Does this Human Rights Tribunal, having been constituted in
the same manner, by the same process, and pursuant to the
same statutory scheme as that described in the case of Mac-
Bain v. The Canadian Human Rights Commission et al.,
(Federal Court of Appeal, October 7, 1985, A-966-84), have
jurisdiction to continue its inquiry?
Unlike the appellant/applicant in the MacBain
case, who commenced proceedings alleging bias
even before the first hearing of the Tribunal on the
complaint against him and in fact withdrew from
the hearing, AECL, in the view I take of the facts,
both expressly and impliedly waived its right to
challenge the jurisdiction of the Tribunal here.
AECL was in possession of all the pertinent facts
which formed the basis of this Court's decision in
the MacBain case before the first public hearing in
this matter in December, 1984. In fact, the anoma
lous role of the Commission vis-Ã -vis the Tribunal
was very much on the mind of counsel for the
AECL on the first day of the hearing, when he
2 Subsection 28(4) of the Federal Court Act is as follows:
28....
(4) A federal board, commission or other tribunal to which
subsection (1) applies may at any stage of its proceedings refer
any question or issue of law, of jurisdiction or of practice and
procedure to the Court of Appeal for hearing and
determination.
argued that the Commission was not entitled to
take an advocate's position before a Tribunal
unless the complainant could not carry the case.
However, in the course of his extensive submission
on this point, counsel for the AECL said to the
Commission (Appeal Book, page 35):
[W]e do not dispute ... your independence—we are not chal
lenging your independence .... We are not saying that you are
going to be biased or in any way tainted by the fact that you
get your life from my opponent ....
However, even apart from this express waiver,
AECL's whole course of conduct before the Tri
bunal constituted an implied waiver of any asser
tion of a reasonable apprehension of bias on the
part of the Tribunal. The only reasonable course of
conduct for a party reasonably apprehensive of
bias would be to allege a violation of natural
justice at the earliest practicable opportunity.
Here, AECL called witnesses, cross-examined the
witnesses called by the Commission, made many
submissions to the Tribunal, and took proceedings
before both the Trial Division and this Court, all
without challenge to the independence of the Com
mission. In short, it participated fully in the hear
ing, and must therefore be taken impliedly to have
waived its right to object.
At common law, even an implied waiver of
objection to an adjudicator at the initial stages is
sufficient to invalidate a later objection: Re
Thompson and Local 1026 of International Union
of Mine, Mill and Smelter Workers et al. (1962),
35 D.L.R. (2d) 333 (Man. C.A.); Rex v. Byles and
others; Ex parte Hollidge (1912), 108 L.T. 270
(Eng. K.B.D.); Regina v. Nailsworth Licensing
Justices. Ex parte Bird, [1953] 1 W.L.R. 1046
(Eng. Q.B.D.); Bateman v. McKay et al., [1976] 4
W.W.R. 129 (Sask. Q.B.). The principle is stated
as follows in Halsbury's, Laws of England (4th
ed.), volume 1, paragraph 71, page 87:
The right to impugn proceedings tainted by the participation
of an adjudicator disqualified by interest or likelihood of bias
may be lost by express or implied waiver of the right to object.
There is no waiver or acquiescence unless the party entitled to
object to an adjudicator's participation was made fully aware of
the nature of the disqualification and had an adequate opportu
nity of objecting. Once these conditions are present, a party will
be deemed to have acquiesced in the participation of a disquali
fied adjudicator unless he has objected at the earliest practi
cable opportunity.
Cartwright J. put the rule as follows, by way of
dicta, in delivering the judgment of the Supreme
Court in Ghirardosi v. Minister of Highways for
British Columbia, [ 1966] S.C.R. 367, at page 372:
There is no doubt that, generally speaking, an award will not be
set aside if the circumstances alleged to disqualify an arbitrator
were known to both parties before the arbitration commenced
and they proceeded without objection.
Counsel for AECL did not dispute this view of
the law but argued that the bias here was so
fundamental as to create a total lack of jurisdic
tion. Halsbury, supra, paragraph 72, page 88, adds
to the former statement that "if the decision were
absolutely null and void in relation to the person
aggrieved, he would not be precluded from
impugning it because of waiver or acquiescence".
Professor de Smith, Judicial Review of Adminis
trative Action, 4th ed., pages 153-154, declares:
(1) Consent, waiver and acquiescence. The general rule is
that want of jurisdiction cannot be cured by such conduct on
the part of the person over whom the purported jurisdiction is
exercised, whereas voidable acts may become unimpeachable as
a result of such conduct. But the distinction is in fact blurred.
In the first place, the courts have sometimes distinguished
between total want of jurisdiction, which cannot be waived, and
contingent (less serious) jurisdictional defects which can be
waived.
In support of its allegation of a total want of
jurisdiction in the Commission, AECL urges this
interpretation of the MacBain decision: that this
Court there found that the Act gives rise to a
suspicion of influence or dependency in two ways,
the initial substantiation of the complaint under
subsection 36(3) amounting to the same determi
nation required of the Tribunal under subsection
41(1), 3 and the direct connection between the
Commission as prosecutor and the Tribunal as the
3 36....
(3) On receipt of a report mentioned in subsection (1), the
Commission
(a) may adopt the report if it is satisfied that the complaint
to which the report relates has been substantiated and should
not be referred pursuant to subsection (2) or dismissed on
any ground mentioned in subparagraphs 33(b)(ii) to (iv); or
(Continued on next page)
decision-maker; that both defects preceded the
commencement of the inquiry and so rendered the
scheme of the Act inherently biased in its
adjudicative structure; that, despite this Court's
attempt to limit the inoperability of the statute to
the complaint filed by the complainant, the logic
of its reasoning as to the constitutive shortcomings
of the Act compels the conclusion that, in all cases,
tribunals set up under the Act are lacking in
jurisdiction ab initio; and finally, that such a want
of jurisdiction is incapable of being cured by
waiver. To evaluate the merits of such an interpre
tation of the MacBain decision, I must locate it in
the larger context of the law.
First, the law should be looked at apart from the
Canadian Bill of Rights, and, second in the light
of the Bill of Rights as applied in MacBain. 4
In the first case, without reference to the Bill of
Rights, it was established by a divided Supreme
Court in Law Society of Upper Canada v. French,
[1975] 2 S.C.R. 767 that bias which would other
wise render proceedings contrary to natural justice
may be authorized by legislation. In that case two
benchers who were members of a Law Society's
discipline committee which had found a solicitor
guilty of seven complaints with a recommendation
of a three-month suspension participated in the
convocation of all the benchers at which the report
was adopted. In upholding the procedure in ques
tion Spence J. said for the majority of the Court
(at pages 783-784):
(Continued from previous page)
(b) shall dismiss the complaint to which the report relates if
it is satisfied that the complaint has not been substantiated or
should be dismissed on any ground mentioned in subpara-
graphs 33(b)(ii) to (iv).
41. (1) If, at the conclusion of its inquiry, a Tribunal finds
that the complaint to which the inquiry relates is not substan
tiated, it shall dismiss the complaint.
4 I the present case as in the MacBain decision counsel
made no argument based on the Canadian Charter of Rights
and Freedoms.
A consideration of the provisions of The Law Society Act,
however, moves me to the conclusion that the duplication of
members of the tribunal between the court of first instance and
the appellate court in this particular case has been, at any rate,
implicitly accepted by the legislature.
However, although the minority of the Court took
issue with the majority over what might rightly be
implied from the statute, it accepted the power of
the legislature to vary the normal application of
the rules of natural justice. Laskin C.J. acknowl
edged for the minority (at page 775):
Equally unthinkable, in the absence of express authorization, is
that Convocation should include members who had already
fixed the solicitor with guilt as members of the Discipline
Committee. An adjudicator may not properly sit in further
proceedings based upon his adjudication any more than can an
accuser sit as a member of the tribunal hearing his accusation,
unless authorized by statute. [Emphasis added.]
This conclusion that procedures prescribed by
legislation are by definition free from bias was
reinforced by the Supreme Court in Ringrose v.
College of Physicians and Surgeons (Alberta),
[ 1977] 1 S.C.R. 814, where a member of the
executive committee which suspended a medical
practitioner pending investigation by the discipline
committee was also a member of that committee.
It was sufficient for the result that this member of
the executive committee was not privy to its deci
sion to suspend the practitioner. Nevertheless, the
majority (per de Grandpré J. at pages 824-825)
saw fit to add a second reason:
But there is an additional reason to dismiss this appeal. As
decided by this Court in The Law Society of Upper Canada v.
French, no reasonable apprehension of bias is to be entertained
when the statute itself prescribes overlapping of functions. Such
is exactly the situation under The Medical Profession Act... .
Thus, the same council, the members of which are by law
entitled to take part in all its decisions, is by statute authorized
at the same time to suspend during investigation and to appoint
a discipline committee staffed by at least three of its midst.
Thus, it is clear that the legislator has created the conditions
forcing upon members of the council overlapping capacities.
The Court of Appeal, quite rightly so, found that the conduct
of Dr. McCutcheon, even if he had sat, had been implicitly
authorized by legislation.
In the MacBain case the statutory authority for
the Commission to act as it did was express, and,
apart from the Bill of Rights (which does not
appear to have been argued in either the French or
the Ringrose cases), would certainly have preclud
ed any challenge based on reasonable apprehen
sion of bias.
However, in the aftermath of the recent
Supreme Court decision in Singh et al. v. Minister
of Employment and Immigration, [1985] 1 S.C.R.
177, of which Heald J. (MacBain, supra, at page
877 F.C.; 129430 N.R.) remarked that "one of
the consequences of that landmark decision has
been to reinvigorate the Canadian Bill of Rights",
this Court felt justified in MacBain in applying
paragraph 2(e) of the Bill, which protects a person
from being deprived of the right to a fair hearing
in accordance with the principles of fundamental
justice.
The protection afforded by the Bill of Rights is,
nevertheless, a limited one, particularly where, as
in paragraphs 2(c) and 2(e) to (g), it is formulated
in the terms "no law of Canada shall ... deprive a
person ...", because it does not purport to confer
rights but merely to inhibit their deprival. In R. v.
Burnshine, [ 1975] 1 S.C.R. 693, at page 702,
affirmed by Miller et al. v. The Queen, [1977] 2
S.C.R. 680, at pages 703-704, Martland J. put it
this way [at page 702 Burnshine]:
The Bill did not purport to define new rights and freedoms.
What it did was to declare their existence in a statute, and,
further, by s. 2, to protect them from infringement by any
federal statute.
The protection from infringement by federal stat
ute has been held not to avail a person who does
not initially invoke his rights under these subsec
tions. In R. v. Morin (1980), 64 C.C.C. (2d) 90
(Alta C.A.), at page 94, Clement J.A. said of the
right to counsel:
A right of this kind attaches to an individual but does not
achieve judicial significance until circumstances arise which in
fact are within its ambit. In the absence of such circumstances,
the right remains suspended, its operation not called upon. In
short, it does not work in a vacuum, and must be invoked in
some appreciable way to show that its operation is
sought.... "To deprive", connotes some interference with, or
some prevention of the exercise of the right. If the right,
although known, is not asserted or put forward, or claimed in
some comprehensible way, I am unable to see how he has been
deprived of it. He has, rather, chosen to waive the right.
Pigeon J., speaking for a majority in the Supreme
Court in Jumaga v. R., [1977] 1 S.C.R. 486, at
page 497, said simply:
I cannot see how the appellant can say he was "deprived" of
that which he did not ask for.
Unfortunately, therefore, for AECL's conten
tion that the error in the MacBain case goes to the
inherent jurisdiction of the Commission and so
cannot be waived, the Courts have not approached
issues of bias in terms of jurisdiction at all, even
when as in the French and Ringrose cases, they
could easily have done so.
From the point of view of logic there may well
be a certain ambiguity in this approach. The most
recent Canadian text, Jones and de Villars, Princi
ples of Administrative Law, Carswell, 1985, page
97, asserts that "In principle, all ultra vires
administrative actions are void, not voidable, and
there are no degrees of invalidity", but acknowl
edges, at page 98, that the view of the Supreme
Court majority in Harelkin v. University of
Regina, [1979] 2 S.C.R. 561 is to the contrary.
The same ambiguity runs through Halsbury,
supra, and de Smith, supra, as well as through the
Supreme Court of Canada cases themselves in that
most of those on point have issued from a divided
Court. Perhaps the Courts have been restrained by
a concern about the practical consequences of an
overly rigid application of logic. One of the wisest
common lawyers, Mr. Justice Holmes, wrote a
century ago in his book, The Common Law, page
1, that "The life of the law has not been logic: it
has been experience."
In any event, counsel for the AECL, when chal
lenged by the Court, was unable to cite any case
which supported his legal contention. He was
forced rather to rely solely on his interpretation of
the logical necessity inherent in the Court's hold
ing in the MacBain case. Such an interpretation
cannot stand in the face of either the express
holding in MacBain or the general law.
Taken against the background of the law as a
whole, the MacBain decision can therefore be put
in context in three simple propositions: (1) had it
not been for the Bill of Rights, the legislative
scheme alone would have been a complete answer
to the allegation of reasonable apprehension of
bias; (2) the Bill of Rights applies to nullify such a
legislative infringement of rights to the extent that
the rights have been invoked in time; and, (3)
because the Bill of Rights here acts only negative
ly, by preventing deprival of rights, it affords no
protection to those who even impliedly waive their
rights. In the result, the reasoning of the MacBain
decision, based as it is on the effect of the Canadi-
an Bill of Rights, cannot apply to AECL, which
until now has never claimed its fundamental right
to be free from a reasonable apprehension of bias.
Thus the MacBain decision will, in its own words
(supra, at page 888 F.C.; 136 N.R.), "affect only
the appellant/applicant in this case and possibly
several other cases where the fact situation is
identical to this case." Those other identical fact
situations can be only those where the party affect
ed asserted its rights from the earliest practicable
time.
I would, therefore, answer the question posed as
follows: yes, in the light of both the express and
the implied waiver by AECL of any challenge to
the Tribunal on the basis of reasonable apprehen
sion of bias.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.