Blencoe v. Human Rights Commission (B.C.) et al., 2000 SCC 44

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 05, 2000
• Jurisdiction: Canada (Federal)
• Citations: 2000 SCC 44;(2000), 141 B.C.A.C. 161 (SCC);141 BCAC 161;81 BCLR (3d) 1;[2000] 2 SCR 307;[2000] SCJ No 43 (QL);38 CHRR 153;190 DLR (4th) 513;[2000] ACS no 43;[2000] CarswellBC 1860;77 CRR (2d) 189;3 CCEL (3d) 165;231 WAC 161;260 NR 1;JE 2000-1872;[2000] 10 WWR 567;23 Admin LR (3d) 175

Blencoe v. HRC (2000), 141 B.C.A.C. 161 (SCC);

    231 W.A.C. 161

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: [2000] B.C.A.C. TBEd. OC.008

The British Columbia Human Rights Commission, the Commissioner of Investigation and Mediation, the British Columbia Human Rights Tribunal and Andrea Willis (appellants) v. Robin Blencoe (respondent) and Irene Schell (intervener) and The Attorney General for Ontario, the Attorney General of British Columbia, the Saskatchewan Human Rights Commission, the Ontario Human Rights Commission, the Nova Scotia Human Rights Commission, the Manitoba Human Rights Commission, the Canadian Human Rights Commission, the Commission des droits de la personne et des droits de la jeunesse, the British Columbia Human Rights Coalition and the Women's Legal Education and Action Fund (interveners)

(26789; 2000 SCC 44)

Indexed As: Blencoe v. Human Rights Commission (B.C.) et al.

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

October 5, 2000.

Summary:

In July and August of 1995, two women filed sexual harassment complaints with the Human Rights Commission against Blencoe, a former member of the legislative assembly. The alleged incidents occurred between 1993 and 1995. The matter was eventually re­ferred to a Human Rights Tribunal, with a hear­ing date set for March 1998, approxi­mately 32 months after the complaints were initially filed. Blencoe commenced judicial review proceedings, alleging that the Com­mission had lost jurisdiction due to unrea­sonable delay in processing the human rights com­plaints. He alleged that the unreasonable delay caused serious prejudice to him and his family which amounted to an abuse of process and a denial of natural justice.

The British Columbia Supreme Court, in a decision reported (1998), 49 B.C.L.R.(3d) 201, dismissed the application. Blencoe appealed, raising not only administrative law issues, but s. 7 of the Charter (i.e., he argued that his rights to liberty and security of the person were violated due to the length of the delay in resolving the complaints).

The British Columbia Court of Appeal, Lambert, J.A., dissenting, in a decision reported (1998), 107 B.C.A.C. 162; 174 W.A.C. 162, allowed the appeal and directed that the human rights proceedings against Blencoe be stayed. The Human Rights Com­mission (B.C.) et al. appealed.

The Supreme Court of Canada, LeBel, J., dissenting in part (Iacobucci, Binnie and Arbour, JJ., concurring), allowed the appeal, set aside the decision of the court of appeal and ruled that the Human Rights Tribu­nal should proceed with the hearing of the complaints on their merits. The court held that while s. 7 of the Charter applied to the actions of the Commission, Blencoe's rights to liberty and security of the person (i.e., Charter rights) were not violated in the circum­stances of this case. There was there­fore no need to determine whether the alleged viol­ation was contrary to the prin­ciples of fundamental justice, although the court opined that there was no such violation here. While the court accepted that, under admin­istrative law principles, a denial of natural justice may occur for rea­sons other than procedural unfairness, there was no denial of natural justice or abuse of process in the circum­stances of this case. The court awarded costs against the Com­mission because of its lack of diligence.

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - Blencoe alleged that a 32 month delay by the Human Rights Commission in dealing with sexual harass­ment complaints against him caused him to suffer psychological harm and constituted an abuse of process - The Supreme Court of Canada held that the delay in this case did not jeopardize Blencoe's right to a fair hearing - Although it was possible that an unacceptable delay could result in an abuse of process even where the right to a fair hearing was not jeopardized, there was no inordinate delay in this case and hence no abuse of process - There were no gaps in the process (except for one five month period) and the proceedings were in line with the time spent on similar cases - Also there was no causal connection between the delay and the prejudice suf­fered - See paragraphs 100 to 133.

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - Blencoe alleged that a 32 month delay by the Human Rights Commission in dealing with sexual harass­ment complaints against him caused him to suffer psychological harm and constituted an abuse of process - The Supreme Court of Canada held that there was no abuse of process in this case - However the court stated that it was "very concerned with the lack of efficiency of the Commission and its lack of commitment to deal more ex­peditiously with complaints. Lack of resources cannot explain every delay in giving information, appointing inquiry officers, filing reports, etc.; nor can it justify inordinate delay where it is found to exist. The fact that most human rights commissions experience serious delays will not justify breaches of the principles of natural justice in appropriate cases. In R. v. Morin [S.C.C.] ... the Court stated that in the context of s. 11(b) of the Charter, the government 'has a constitutional obli­gation to commit sufficient resources to prevent unreasonable delay'. The demands of natural justice are apposite." - See para­graph 135.

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - The Supreme Court of Canada stated that "... unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been com­promised. Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person's reputation, such that the human rights system would be brought into disre­pute, such prejudice may be sufficient to constitute an abuse of process. The doc­trine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this thresh­old. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute ..." - See paragraph 115.

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - The Supreme Court of Canada held that delay may constitute an abuse of process - To constitute a breach of the duty of fairness, the delay must have been unreasonable or inordinate - There is no abuse of process by delay per se - The person who alleges an abuse of process must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings - Stress and stigma resulting from an inordi­nate delay may contribute to an abuse of process - See paragraph 121.

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - The Supreme Court of Canada stated that whether a delay is inordinate such as to constitute an abuse of process will depend on the nature of the case and its complexity, the facts and issues, the purpose and nature of the pro­ceedings, whether the party involved con­tributed to the delay or waived the delay and other circumstances of the case - The determination of whether a delay is inordi­nate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to deter­mine whether the community's sense of fairness would be offended by the delay - See paragraph 122.

Administrative Law - Topic 2293

Natural justice - Unfairness - Abuse of power or abuse of process - The Supreme Court of Canada discussed the doctrine of abuse of process in the administrative law context - The court stated, inter alia, that for there to be an abuse of process, the proceedings must be unfair to the point that they are contrary to the interests of justice - Cases of this nature will be ex­tremely rare - See paragraphs 116 to 120 - There also must be a causal connection between the delay and the prejudice suf­fered - See paragraph 133.

Administrative Law - Topic 2293

Natural justice - Unfairness - Abuse of power or abuse of process - The Supreme Court of Canada held that a stay of pro­ceedings is not the only remedy available for abuse of process - See paragraph 117.

Administrative Law - Topic 2293

Natural justice - Unfairness - Abuse of power or abuse of process - [See all Ad­ministrative Law - Topic 2158 ].

Civil Rights - Topic 201

Life - General - The Supreme Court of Canada stated that it preferred to keep the interests protected by s. 7 of the Charter analytically distinct to the extent possible (i.e., to treat "life, liberty and security of the person" as three distinct interests) - See paragraph 48.

Civil Rights - Topic 721

Liberty - Charter of Rights and Freedoms -General - The Supreme Court of Canada stated that there are two steps in a s. 7 analysis - Firstly, to trigger s. 7 there must be a finding that there has been a depriva­tion of the right to life, liberty and security of the person - Secondly, there must be a finding that the deprivation is contrary to the principles of fundamental justice - See paragraph 47.

Civil Rights - Topic 721

Liberty - Charter of Rights and Freedoms -General - The Supreme Court of Canada discussed the liberty interest protected by s. 7 of the Charter - The court stated, inter alia, that the liberty interest protected by s. 7 is no longer restricted to mere freedom from physical restraint - "Liberty" is engaged where state compulsions or pro­hibitions affect important and fundamental life choices (e.g., fingerprinting, production of documents, loitering, etc.) - The liberty interest protected by s. 7 must be inter­preted broadly and in accordance with the principles and values underlying the Char­ter as a whole - See para­graphs 49 to 54.

Civil Rights - Topic 721

Liberty - Charter of Rights and Freedoms -General - The Supreme Court of Canada held that the rights of "liberty and security of the person" protected by s. 7 of the Charter did not include a generalized right to dignity, or to be free from stigma - "Respect for the inherent dignity of per­sons is clearly an essential value in our free and democratic society which must guide the courts in interpreting the Charter. This does not mean, however, that dignity is elevated to a free-standing constitutional right protected by s. 7 of the Charter ... the notion of 'dignity' in the decisions of this Court is better understood not as an auton­omous Charter right, but rather, as an underlying value" - The court stated that similarly, reputation was a concept under­lying Charter rights, but was not an inde­pendent Charter right in and of itself - See paragraphs 76 to 80.

Civil Rights - Topic 721

Liberty - Charter of Rights and Freedoms -General - [See Civil Rights - Topic 201 ].

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms -Denial of liberty - What constitutes - Two women filed sexual harassment com­plaints with the Human Rights Commis­sion against Blencoe, a former member of the legislative assembly - There was a 32 month delay from the time the complaints were filed until the hearing was scheduled - Blencoe alleged that because of the delay he suffered stigmatization, stress and dis­ruption of his family life which breached his rights to liberty and security of the person contrary to s. 7 of the Char­ter - The Supreme Court of Canada held that while s. 7 applied to the actions of the Commis­sion, the interests sought to be protected in this case did not fall within the "liberty" interest protected by s. 7 - See paragraphs 49 to 54.

Civil Rights - Topic 1200

Security of the person - General - The Supreme Court of Canada stated that "although there have been some decisions of this Court which may have supported the position that s. 7 of the Charter is restricted to the sphere of criminal law, there is no longer any doubt that s. 7 of the Charter is not confined to the penal context. This was most recently affirmed by this Court in New Brunswick (Minister of Health and Community Services) v. J.G. ... where Lamer, C.J., stated that the pro­tection of security of the person extends beyond the criminal law ..." - See para­graph 45.

Civil Rights - Topic 1200

Security of the person - General - The Supreme Court of Canada distinguished between security of the person in the con­text of s. 11(b) of the Charter and s. 7 of the Charter - See paragraphs 93 to 96.

Civil Rights - Topic 1200

Security of the person - General - [See Civil Rights - Topic 201 and first and third Civil Rights - Topic 721 ].

Civil Rights - Topic 1205

Security of the person - Security of the person defined - Blencoe alleged that a 32 month delay by the Human Rights Com­mission in dealing with sexual harassment complaints against him caused him to suffer psychological harm thereby breach­ing his rights to liberty and security of the person (Charter, s. 7) - The Supreme Court of Canada held that while s. 7 applied to the Commission's actions, there was no deprivation of Blencoe's right to liberty or security of the person on the facts of this case - Because of the finding that there was no deprivation of liberty or security of the person, the court found it unnecessary to proceed to the second stage of the s. 7 analysis to determine whether the alleged deprivation was in accordance with the principles of fundamental justice - How­ever, the court opined that the delay, in the circumstances of this case, would not have violated the principles of fundamental justice - See paragraphs 41 to 99.

Civil Rights - Topic 1206.5

Security of the person - Right to psycho­logical integrity (incl. dignity, reputation etc.) - The Supreme Court of Canada noted that it had previously held that state inter­ference with bodily integrity and serious state-imposed psychological stress consti­tuted a breach of an individual's security of the person (i.e., both physical and psy­chological integrity) - The court stated that not all state interference with an indi­vidu­al's psychological integrity will engage s. 7 - Where the psychological integrity of a person is at issue, security of the person is restricted to "serious state-imposed psycho­logical stress" - The words "serious state-imposed psychological stress" de­lineate two requirements that must be met in order for security of the person to be triggered - First, the psycho­logical harm must be state imposed, mean­ing that the harm must result from the actions of the state - Second, the psycho­logical prejudice must be serious - See paragraphs 55 to 73.

Civil Rights - Topic 1206.5

Security of the person - Right to psycho­logical integrity (incl. dignity, reputation, etc.) - [See third Civil Rights - Topic 721 , Civil Rights - Topic 1205 and second, third, fifth and sixth Civil Rights - Topic 3191 ].

Civil Rights - Topic 3176

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - General - [See first Civil Rights - Topic 1200 ].

Civil Rights - Topic 3191

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Delay - The Supreme Court of Canada discussed whether s. 7 of the Charter applied to human rights proceedings and in particular a case where there was a 32 month delay between filing of the complaints and the hearing date - The court stated that "if a case arises in the human rights context which, on its facts, meets the usual s. 7 threshold requirements, there is no specific bar against such a claim and s. 7 may be engaged. The question to be addressed, however, is not whether delays in human rights proceedings can engage s. 7 of the Charter but rather, whether the respon­dent's s. 7 rights were actually engaged by delays in the circumstances of this case. Various parties in this case seem to have conflated the delay issue with the threshold s. 7 issue. However, whether the respon­dent's s. 7 rights to life, liberty and secu­rity of the person are engaged is a separate issue from whether the delay itself was unreasonable" - See paragraph 46.

Civil Rights - Topic 3191

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Delay - Blen­coe, a former provincial Cabinet minister, alleged that a 32 month delay by the Human Rights Commission in dealing with sexual harassment complaints against him caused him psychological harm, breaching his right to security of the person contrary to s. 7 of the Charter - The Supreme Court of Canada stated that there had to be a sufficient causal connection between the state-caused delay and the prejudice suf­fered by Blencoe for s. 7 to be triggered - The court held that the psychological harm suffered by Blencoe was caused by events prior to the complaints being filed such as his removal from Cabinet, publicity and pending civil proceedings rather than by the delay - See paragraphs 58 to 73.

Civil Rights - Topic 3191

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Delay - Blen­coe alleged that a 32 month delay by the Human Rights Commission in dealing with sexual harassment complaints against him caused him to suffer psychological harm thereby breaching his rights to liberty and security of the person (Charter, s. 7) - The Supreme Court of Canada held that while s. 7 applied to the Commission's actions, there was no deprivation of Blencoe's right to liberty or security of the person on the facts of this case - The court stated that its conclusion that Blencoe was unable to cross the first threshold of the s. 7 Charter analysis should not be construed as a hold­ing that state-caused delays in human rights proceedings can never trigger an individual's s. 7 rights - See paragraphs 41 to 99.

Civil Rights - Topic 3191

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Delay - The Supreme Court of Canada stated that "it is only in exceptional cases where the state interferes in profoundly intimate and per­sonal choices of an individual that state-caused delay in human rights pro­ceedings could trigger the s. 7 security of the person interest. While these fundamen­tal personal choices would include the right to make decisions concerning one's body free from state interference or the prospect of losing guardianship of one's children, they would not easily include the type of stress, anxiety and stigma that result from admin­istrative or civil pro­ceedings." - See para­graph 83.

Civil Rights - Topic 3191

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Delay - Blencoe alleged that a 32 month delay by the Human Rights Commission in dealing with sexual harassment complaints against him caused him to suffer psychological harm thereby breaching his rights to liberty and security of the person (Charter, s. 7) - The Supreme Court of Canada stated that to accept that the prejudice suffered by Blen­coe in this case amounted to state interfer­ence with his security of the person would be to stretch the meaning of this right - The court discussed when state interfer­ence with psychological integrity would trigger the right to security of the person - See paragraphs 81 to 86.

Civil Rights - Topic 3191

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Delay - The Supreme Court of Canada noted that it was previously held that security of the person encompassed protection from the loss of privacy, stress and anxiety resulting from prolonged criminal proceedings - The court stated that this finding was made "in the context of s. 11(b) of the Charter which provides that a person charged with an offence has the right 'to be tried within a reasonable time'. The qualifier to this right is that it applies to individuals who have been 'charged with an offence'. The s. 11(b) right therefore has no application in civil or administrative proceedings. This Court has often cautioned against the direct application of criminal justice stan­dards in the administrative law area. We should not blur concepts which under our Charter are clearly distinct. The s. 11(b) guarantee of a right to an accused person to be tried within a reasonable time cannot be imported into s. 7. There is no analog­ous provision to s. 11(b) which applies to administrative proceedings, nor is there a constitutional right outside the criminal context to be 'tried' within a reasonable time." - See paragraph 88.

Civil Rights - Topic 3191

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Delay - [See Civil Rights - Topic 1205 ].

Civil Rights - Topic 3261

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - General - [See second Civil Rights - Topic 1200 and sixth Civil Rights - Topic 3191 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - What constitutes "within a reasonable time" - [See sixth Civil Rights - Topic 3191 ].

Civil Rights - Topic 3269

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Application of - [See sixth Civil Rights - Topic 3191 ].

Civil Rights - Topic 7069.01

Federal or provincial legislation - Com­missions or boards - Jurisdiction - Com­plaints - Delay - [See first and second Administrative Law - Topic 2158 , Civil Rights - Topic 1205 and Civil Rights - Topic 7108 ].

Civil Rights - Topic 7108

Federal or provincial legislation - Practice - Costs - Blencoe alleged that a 32 month delay by the Human Rights Commission in dealing with sexual harassment complaints against him caused him to suffer psycho­logical harm contrary to his rights to lib­erty and security of the person under s. 7 of the Charter and constituted an abuse of process under administrative law principles - The Supreme Court of Canada held that there was no violation of the Charter or violation of natural justice, but awarded costs against the Commission because of its lack of due diligence - See paragraph 136.

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - Application - Administrative law (incl. boards and tribunals) - Two women filed sexual harassment complaints with the Human Rights Commission against Blen­coe, a former member of the legislative assembly - There was a 32 month delay from the time the complaints were filed until the hearing was scheduled - Blencoe alleged a breach of his rights to liberty and security of the person (Charter, s. 7) - The Supreme Court of Canada held that the Charter applied to the actions of the Com­mission - The Commission was created by statute and all of its actions were taken pursuant to statutory authority - The Commission was both implementing a specific government program and exercis­ing powers of statutory compulsion - See paragraphs 32 to 40.

Civil Rights - Topic 8319

Canadian Charter of Rights and Freedoms - Application - Human rights legislation - [See Civil Rights - Topic 8317 ].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - [See Civil Rights - Topic 201 , all Civil Rights - Topic 721 , first Civil Rights - Topic 1200 , Civil Rights - Topic 1205 and first Civil Rights - Topic 3191 ].

Practice - Topic 7029.3

Costs - Party and party costs - Entitle­ment - Successful party - Exceptions - Delay or prolonging proceedings - [See Civil Rights - Topic 7108 ].

Cases Noticed:

Eldridge et al. v. British Columbia (Attor­ney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 35].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 38].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 39].

Kodellas and Tripolis Foods Ltd. v. Human Rights Commission (Sask.) (1989), 77 Sask.R. 94; 60 D.L.R.(4th) 143 (C.A.), refd to. [paras. 41, 160].

Nisbett v. Human Rights Commission (Man.) (1993), 85 Man.R.(2d) 101; 41 W.A.C. 101; 101 D.L.R.(4th) 744 (C.A.), not folld. [paras. 41, 143].

Canadian Airlines International Ltd. v. Canadian Human Rights Commission and Belloni, [1996] 1 F.C. 638; 192 N.R. 74 (F.C.A.), not folld. [para. 41].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 42].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [paras. 42, 146].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 45].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 47].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 48].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 48].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 49].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 49].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 49].

R.B. v. Children's Aid Society of Metro­politan Toronto - see Sheena B., Re.

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 50].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 51].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V. (1997), 187 N.B.R.(2d) 81; 478 A.P.R. 81 (C.A.), refd to. [para. 52].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 55].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 55].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 60].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [paras. 71, 180].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 76].

Law v. Minister of Employment and Im­migration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 77].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 79].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 85].

Taylor and Western Guard Party v. Cana­dian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 94].

R. v. W.K.L., [1991] 1 S.C.R. 1091; 124 N.R. 146, refd to. [para. 101].

Akthar v. Minister of Employment and Immigration, [1991] 3 F.C. 32; 129 N.R. 71 (F.C.A.), refd to. [para. 101].

Ford Motor Co. of Canada Ltd. et al. v. Human Rights Commission (Ont.) et al. (1995), 24 C.H.R.R. D/464 (Div. Ct.), refd to. [paras. 102, 143].

Freedman v. College of Physicians and Surgeons (N.B.) (1996), 173 N.B.R.(2d) 315; 441 A.P.R. 315; 41 Admin. L.R.(2d) 196 (T.D.), refd to. [para. 102].

Martineau v. Matsqui Institution Discipli­nary Board, [1980] 1 S.C.R. 602; 30 N.R. 119, refd to. [paras. 105, 144].

Misra v. College of Physicians and Sur­geons (Sask.) (1988), 70 Sask.R. 116; 52 D.L.R.(4th) 477 (C.A.), refd to. [paras. 106, 152].

Stefani v. College of Dental Surgeons (B.C.) (1996), 44 Admin. L.R.(2d) 122 (B.C.S.C.), refd to. [paras. 109, 152].

Brown v. Association of Professional Engi­neers and Geoscientists (B.C.), [1994] B.C.J. No. 2037 (S.C.), refd to. [paras. 110, 152].

Ratzlaff v. Medical Services Commission (B.C.) et al. (1996), 69 B.C.A.C. 217; 113 W.A.C. 217; 17 B.C.L.R.(3d) 336 (C.A.), refd to. [paras. 113, 153].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [paras. 117, 146].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 118].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 118].

R. v. Young (1984), 3 O.A.C. 254; 40 C.R.(3d) 289 (C.A.), refd to. [para. 118].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81, refd to. [para. 118].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 118].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [paras. 119, 156].

Allen v. McAlpine (Sir Alfred) & Sons Ltd., [1968] 1 All E.R. 543 (C.A.), refd to. [para. 132].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [paras. 135, 160].

Bagg's Case (1616), 11 Co. Rep. 93; 77 E.R. 1271, refd to. [para. 148].

Andover Case (1701), 1 Holt K.B. 441; 90 E.R. 1143 (K.B.), refd to. [para. 148].

R. v. Barker (1762), 3 Burr. 1265; 97 E.R. 823, refd to. [para. 148].

R. (ex rel. Lee) v. Workmen's Compensa­tion Board (B.C.), [1942] 2 D.L.R. 665 (B.C.C.A.), refd to. [para. 149].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 149].

R. v. Bradley, [1941] S.C.R. 270, refd to. [para. 149].

R. v. Rourke, [1978] 1 S.C.R. 1021; 16 N.R. 181, refd to. [para. 149].

Muia v. Canada (Minister of Citizenship and Immigration) (1996), 113 F.T.R. 234 (T.D.), refd to. [para. 149].

Dass v. Minister of Employment and Im­migration, [1996] 2 F.C. 410; 193 N.R. 309 (F.C.A.), refd to. [para. 149].

Dee v. Canada (Minister of Citizenship and Immigration) (1998), 46 Imm. L.R.(2d) 278 (F.C.T.D.), refd to. [para. 149].

Kiani v. Canada (Minister of Citizenship and Immigration) (1999), 50 Imm. L.R.(2d) 81 (F.C.T.D.), refd to. [para. 149].

Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315 (T.D.), refd to. [para. 149].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Phansopkar, [1976] 1 Q.B. 606 (C.A.), refd to. [para. 151].

R. v. Inland Revenue Commissioners; Ex parte Preston, [1985] A.C. 835 (H.L.), refd to. [para. 151].

R. v. Chief Constable of the Merseyside Police; Ex parte Calveley, [1986] 1 Q.B. 424 (C.A.), refd to. [para. 151].

Canada (Minister of Citizenship and Immi­gration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 181].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 186].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(b), sect. 24(1), sect. 32 [para. 30].

Human Rights Code, R.S.B.C. 1996, c. 210, sect. 24 [para. 36].

Magna Carta, 1215, generally [para. 146].

Supreme Court of Canada Act, R.S.C. 1985, c. S-26, sect. 47 [para. 136].

Authors and Works Noticed:

Blackstone, W., Commentaries on the Law of England, Book III, p. 110 [para. 148].

Brookings Task Force on Civil Justice Reform, Justice for All: Reducing Costs and Delay in Civil Litigation (1989), p. 3 [para. 161].

Brown, D.J.M., and Evans, J.M., Judicial Review of Administrative Action in Canada (Looseleaf), pp. 9-67 [para. 102]; 9-68 [paras. 120, 121]; 9-71, 9-72 [para. 116].

Bryden, Philip, Blencoe v. British Colum­bia (Human Rights Commission): A Case Comment (1999), 33 U.B.C.L. Rev. 153, p. 158 [para. 93].

Evans, J.M., Janish, H.N., and Mullan, D.J., Administrative Law: Cases, Text and Materials (4th Ed. 1995), p. 256 [para. 102].

Globe & Mail, The (October 1, 1998), A18 [para. 129].

Hawkins, R.E., Reputational Review III: Delay, Disrepute and Human Rights Commissions (2000), 25 Queen's L.J. 599, p. 600 [para. 129].

Hogg, Peter W., Constitutional Law of Canada (Looseleaf Ed.), vol. 2, pp. 34-12 [para. 36]; 44-9, 44-12 [para. 53].

Holdsworth, W., A History of English Law (7th Ed. 1956), vol. 1, p. 229 [para. 148]; app. XV, p. 659 [para. 148].

Jones, D.P., and de Villars, A.S., Prin­ciples of Administrative Law (3rd Ed. 1999), p. 6 [para. 147].

McMurtrie, S.N., The Waiting Game - The Parliamentary Commissioner's Response to Delay in Administrative Procedures, [1997] Public Law 159, generally [paras. 157, 160].

Ontario, Human Rights Commission Annual Report (1998), p. 24 [para. 129].

Simpson, J., Human Rights Commission Mill Grinds Slowly, in The Globe & Mail (October 1, 1998), generally [para. 129].

Skiffington, L.S., Federal Administrative Delay: Judicial Remedies and Applica­tion in the Natural Resource Context (1982), 28 Rocky Mtn. Min. L. Inst. 671, generally [paras. 157, 160].

Wade, W., and Forsyth, C., Administrative Law (7th Ed. 1994), pp. 435, 436 [para. 102]; 649 [para. 151].

Counsel:

John J.L. Hunter, Q.C., Thomas F. Beas­ley, K. Michael Stephens and Stephanie L. McHugh, for the appellants, the Brit­ish Columbia Human Rights Commission and the Commissioner of Investigation and Mediation;

Robert B. Farvolden, for the appellant, Andrea Willis;

Joseph J. Arvay, Q.C., for the respondent, Robin Blencoe;

Mark C. Stacey and Rosy M. Mondin, for the intervener, Irene Schell;

Hart Schwartz, for the intervener, the Attorney General for Ontario;

Harvey M. Groberman, Q.C., for the intervener, the Attorney General of Brit­ish Columbia;

Milton Woodard, Q.C., for the intervener, the Saskatchewan Human Rights Com­mission;

Cathryn Pike and Jennifer Scott, for the intervener, the Ontario Human Rights Commission;

Lara J. Morris and Maureen E. Shebib, for the intervener, the Nova Scotia Human Rights Commission;

Aaron L. Berg and Denis Guénette, for the intervener, the Manitoba Human Rights Commission;

Fiona Keith, for the intervener, the Cana­dian Human Rights Commission;

Hélène Tessier, for the intervener, the Commission des droits de la personne et des droits de la jeunesse;

Frances Kelly and James Pozer, for the intervener, the British Columbia Human Rights Coalition;

Jennifer L. Conkie and Dianne Pothier, for the intervener, the Women's Legal Edu­cation and Action Fund.

Solicitors of Record:

Davis & Company, Vancouver, British Columbia, for the appellants, the British Columbia Human Rights Commission and the Commissioner of Investigation and Mediation;

Robert B. Farvolden, Victoria, British Columbia, for the appellant, Andrea Willis;

Morley & Ross, Victoria, British Colum­bia, for the appellant, the British Colum­bia Human Rights Tribunal;

Arvay Finlay, Victoria, British Columbia, for the respondent;

Allard & Company, Vancouver, British Columbia, for the intervener, Irene Schell;

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

Ministry of the Attorney General, Victoria, British Columbia, for the intervener, the Attorney General of British Columbia;

Manitoba Justice, Winnipeg, Manitoba, for the intervener, the Manitoba Human Rights Commission;

Lara J. Morris, Halifax, Nova Scotia, for the intervener, the Nova Scotia Human Rights Commission;

Hélène Tessier, Montreal, Quebec, for the intervener, the Commission des droits de la personne et des droits de la jeunesse;

Fiona Keith, Ottawa, Ontario, for the intervener, the Canadian Human Rights Commission;

Milton Woodard, Q.C., Saskatoon, Saskatchewan, for the intervener, the Saskatchewan Human Rights Commis­sion;

Cathryn Pike and Jennifer Scott, Toronto, Ontario, for the intervener, the Ontario Human Rights Commission;

Jennifer L. Conkie and Dianne Pothier, Vancouver, British Columbia, for the intervener, the Women's Legal Education and Action Fund;

Community Legal Assistance Society, Vancouver, British Columbia, for the intervener, the B.C. Human Rights Coali­tion.

This action was heard on January 24, 2000, by McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

The decision of the court was delivered on October 5, 2000, and the following opinions were filed:

Bastarache, J. (McLachlin, C.J.C., L'Heureux-Dubé, Gonthier and Major, JJ., concurring) - see paragraphs 1 to 136;

LeBel, J., dissenting in part (Iacobucci, Binnie and Arbour, JJ., concurring) - see paragraphs 137 to 190.