Bell Canada v. Canadian Telephone Employees Association et al., (2003) 306 N.R. 34 (SCC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Citation: (2003), 306 N.R. 34 (SCC),2003 SCC 36,46 CHRR 495,[2003] SCJ No 36 (QL),[2003] 1 SCR 884,[2004] 1 WWR 1,3 Admin LR (4th) 163,227 DLR (4th) 193,109 CRR (2d) 65,[2003] CarswellNat 2427,[2003] ACS no 36,306 NR 34
• Court: Supreme Court (Canada)
• Date: 23 January 2003

Bell Can. v. CTEA (2003), 306 N.R. 34 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.R. TBEd. JN.043

Bell Canada (appellant) v. Communications, Energy and Paperworkers Union of Canada, Femmes Action and Canadian Human Rights Commission (respondents) and Attorney General of Canada, Attorney General of Ontario, Canadian Labour Congress, Public Service Alliance of Canada and Canada Post Corporation (interveners)

(28743; 2003 SCC 36; 2003 CSC 36)

Indexed As: Bell Canada v. Canadian Telephone Employees Association et al.

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

June 26, 2003.

Summary:

Human rights complaints were filed against Bell Canada alleging discrimination on the basis of sex in relation to employment (i.e., a pay equity issue). A human rights tribunal was appointed under the Canadian Human Rights Act to hear the case. At the case planning stage Bell Canada raised issues of institutional independence and impartiality. The tribunal's vice-chairperson issued an interim decision wherein he concluded, particularly in light of recent amendments to the Canadian Human Rights Act, 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. Bell Canada applied for judicial review.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 190 F.T.R. 42, allowed the application. The court held that the tribunal's vice-chairperson erred in law and was not correct in determining that the tribunal was an institutionally independent and impartial body with respect to the power of the Commission to issue interpretive 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. The court therefore quashed the decision of the tribunal's vice-chairperson and ruled that there could be no further proceedings on this matter until the problems identified in the court's reasons were corrected. The Canadian Human Rights Commission appealed.

The Federal Court of Appeal, in a decision reported 272 N.R. 50, allowed the appeal and dismissed Bell Canada's judicial review application. Bell Canada appealed.

The Supreme Court of Canada dismissed the appeal. The court stated that neither of the two powers challenged by Bell Canada (i.e., the Commission's power to issue inter­pretive guidelines binding on the tribunal and the power to extend terms of office) compromised the procedural fairness of the tribunal, nor did either power contravene any applicable quasi-constitutional principle.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Bias - Institutional or systemic bias - The Supreme Court of Canada dis­tinguished between the concepts of impar­tiality and independence as requirements of procedural fairness - See paragraphs 17 and 18.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Bias - Institutional or systemic bias - Pursuant to ss. 27(2) and 27(3) of the Canadian Human Rights Act as amended, the Canadian Human Rights Commission had authority to issue inter­pretative guidelines binding on human rights tribunals - Bell Canada, against which human rights claims were filed, argued that the Commission's power to issue binding guidelines regarding the proper interpretation of the Act under­mined the human rights tribunal's impar­tiality - Bell Canada argued further that it was problematic that the Commission, the body that directed the tribunal in its inter­pretation of the Act, also appeared before the tribunal as a party - The Supreme Court of Canada rejected Bell Canada's argument - The court noted that the Com­mission's guideline power under ss. 27(2) and 27(3) was strictly constrained - The court stated that it failed to see, then, that the guideline power under the Act would lead an informed person, viewing the matter realistically and practically and having thought the matter through, to apprehend "a real likelihood of bias" - See paragraphs 33 to 50.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Bias - Institutional or systemic bias - Section 48.2(2) of the Canadian Human Rights Act, as amended, gave the Chairperson of a Canadian Human Rights Tribunal power, where a member's ap­pointment expired during an inquiry, to allow the member to conclude the inquiry -Bell Canada, against which human rights claims were filed, argued that the power to extend appointments of tribunal members in ongoing inquiries robbed tribunal mem­bers of sufficient security of tenure and threatened the members' impartiality - The Supreme Court of Canada rejected Bell Canada's arguments - See paragraphs 51 to 54.

Administrative Law - Topic 8866

Boards and tribunals - Members - Termi­nation of office - Extension to complete matter - [See third Administrative Law - Topic 2093].

Administrative Law - Topic 8868

Boards and tribunals - Members - Inde­pendence and impartiality - [See all Ad­ministrative Law - Topic 2093].

Civil Rights - Topic 7046

Federal or provincial legislation - Commis­sions or boards - General - Duty of fair­ness - The Supreme Court of Canada discussed the requirements of procedural fairness (in particular, the requirements of independence and impartiality) applicable to a panel of the Canadian Human Rights Tribunal - See paragraphs 21 to 32 - The court stated that "the Tribunal, though not bound to the highest standard of independ­ence by the unwritten constitutional prin­ciple of adjudicative independence, must act impartially and meet a relatively high standard of independence, both at common law and under s. 2(e) of the Canadian Bill of Rights" - See paragraph 31.

Civil Rights - Topic 7083

Federal or provincial legislation - Boards of inquiry - Composition of - [See second and third Administrative Law - Topic 2093].

Civil Rights - Topic 8006

Canadian Bill of Rights - Principles of operation and interpretation - Right to fair hearing in accordance with principles of fundamental justice - Pursuant to ss. 27(2) and 27(3) of the Canadian Human Rights Act as amended, the Canadian Human Rights Commission had authority to issue interpretative guidelines binding on human rights tribunals - Section 48.2(2) of the Canadian Human Rights Act, as amended, gave the Chairperson of a Canadian Human Rights Tribunal power, where a member's appointment expired during an inquiry, to allow the member to conclude the inquiry - Constitutional questions were posed as to whether these provisions were inconsistent with s. 2(e) of the Canadian Bill of Rights and the constitutional prin­ciple of adjudicative independence - The Supreme Court of Canada answered the questions in the negative - See paragraphs 21 to 55.

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - Pursuant to ss. 27(2) of the Canadian Human Rights Act as amended, the Canadian Human Rights Commission had authority to issue inter­pretative guidelines binding on human rights tribunals - The Supreme Court of Canada stated that in determining the reach of this power, both language versions of s. 27(2) had to be read harmoniously - See paragraphs 48.

Cases Noticed:

Committee for Justice and Liberty Founda­tion et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 17].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 18].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 18].

Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.), [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321, refd to. [para. 21].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271; 4 Admin. L.R.(2d) 121; 89 D.L.R.(4th) 289, refd to. [para. 21].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325; 122 D.L.R.(4th) 129, refd to. [para. 21].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 21].

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 93 B.C.L.R.(3d) 1, refd to. [para. 21].

Russell v. Norfolk (Duke), [1949] 1 All E.R. 109 (C.A.), refd to. [para. 21].

Lippé et autres v. Québec (Procureur géné­ral) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 25].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, refd to. [para. 28].

Canada (Minister of Industry, Trade and Commerce) v. Central Cartage Co. et al. (No. 1), [1990] 2 F.C. 641; 109 N.R. 357 (F.C.A.), refd to. [para. 28].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1; 150 D.L.R.(4th) 577, refd to. [para. 29].

Canada (Attorney General) v. Public Ser­vice Alliance of Canada et al., [2000] 1 F.C. 146; 176 F.T.R. 161 (T.D.), refd to. [para. 36].

Liteky v. United States (1994), 510 U.S. 540, refd to. [para. 38].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 38].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241; [1989] 3 W.W.R. 456; 57 D.L.R.(4th) 458; 65 Alta. L.R.(2d) 97; 35 Admin. L.R. 1, refd to. [para. 40].

Katz v. Vancouver Stock Exchange et al., [1996] 3 S.C.R. 405; 207 N.R. 72; 82 B.C.A.C. 29; 133 W.A.C. 29, refd to. [para. 45].

R. v. Greenbaum (M.), [1993] 1 S.C.R. 674; 149 N.R. 114; 61 O.A.C. 241, refd to. [para. 47].

Cooper v. Canadian Human Rights Com­mission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 47].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1985, App. III, sect. 2(e) [para. 13].

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 11(1), sect. 11(4), sect. 27(2), sect. 27(3), sect. 48.2(1), sect. 48.2(2), sect. 50(2) [para. 13].

Counsel:

Roy L. Heenan, John Murray, Thomas Brady and David Stratas, for the appel­lant;

Peter C. Engelmann, Jula Hughes and Fiona Campbell, for the respondent Communications, Energy and Paperwork­ers Union of Canada;

No one appeared for the respondent Femmes Action;

Ian Fine and Philippe Dufresne, for the respondent Canadian Human Rights Commission;

Donald J. Rennie and Alain Préfontaine, for the intervener the Attorney General of Canada;

Sara Blake and Karin Rasmussen, for the intervener the Attorney General of Ontario;

Andrew Raven and David Yazbeck, for the intervener Public Service Alliance of Canada;

Mary F. Cornish and Fay Faraday, for the intervener Canadian Labour Congress;

Brian A. Crane, Q.C., and David Olsen, for the intervener Canada Post Corpora­tion.

Solicitors of Record:

Heenan Blaikie, Montréal, Quebec, for the appellant;

Engelmann Gottheil, Ottawa, Ontario, for the respondent Communications, Energy and Paperworkers Union of Canada;

Canadian Human Rights Commission, Ottawa, Ontario, for the respondent Canadian Human Rights Commission;

Department of Justice, Ottawa, Ontario, for the intervener the Attorney General of Canada;

Ministry of the Attorney General of Ontario, Toronto, Ontario, for the intervener the Attorney General of Ontario;

Raven, Allen, Cameron & Ballantyne, Ottawa, Ontario, for the intervener Pub­lic Service Alliance of Canada;

Cavalluzzo Hayes Shilton McIntyre & Cornish, Toronto, Ontario, for the intervener Canadian Labour Congress;

Gowling Lafleur Henderson, Ottawa, Ontario, for the intervener Canada Post Corporation.

This appeal was heard on January 23, 2003, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour LeBel and Deschamps, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on June 26, 2003 by McLachlin, C.J.C., and Bastarache, J.