Canada (Attorney General) v. Lambie and Canadian Human Rights Commission, (1994) 88 F.T.R. 134 (TD)

• Judge: Rothstein, J.
• Court: Federal Court (Canada)
• Case Date: November 23, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 88 F.T.R. 134 (TD)

Can. (A.G.) v. Lambie (1994), 88 F.T.R. 134 (TD)

MLB headnote and full text

Attorney General of Canada (applicant) v. James Russell Lambie and Canadian Human Rights Commission (respondents)

(T-1028-94)

Indexed As: Canada (Attorney General) v. Lambie and Canadian Human Rights Commission

Federal Court of Canada

Trial Division

Rothstein, J.

December 2, 1994.

Summary:

Lambie complained to the Canadian Human Rights Commission that the Canadian Armed Forces had denied him a promotion because of his marital status. A human rights tribunal dismissed the complaint. Lambie appealed to a Human Rights Review Tribunal and sought to call new witnesses on the appeal. The Review Tribunal determined that it would allow Lambie to call two of the 11 witnesses applied for. The Attorney General of Canada, on behalf of the Canadian Armed Forces, sought judicial review of the decision to allow Lambie to call new witnesses.

The Federal Court of Canada, Trial Division, dismissed the application.

Civil Rights - Topic 7110

Federal or provincial legislation - Practice - Evidence and proof - [See both Civil Rights - Topic 7117 ].

Civil Rights - Topic 7117

Federal or provincial legislation - Practice - Appeals - A human rights tribunal dismissed a complaint - The complainant appealed and sought to call new witnesses on the appeal - The Human Rights Review Tribunal decided to allow the complainant to call two of the 11 witnesses applied for - It was argued that the Review Tribunal did not properly address the credibility requirement for allowing new evidence, because it did not require sworn statements by the potential witnesses and relied only on summary statements of what they would say - The Federal Court of Canada, Trial Division, held that there was no requirement that the tribunal base its decision regarding the credibility of the proposed evidence only on sworn affidavits or statements under oath.

Civil Rights - Topic 7117

Federal or provincial legislation - Practice - Appeals - A human rights tribunal dismissed a complaint - The complainant appealed and sought to call new witnesses on the appeal - The Human Rights Review Tribunal decided to allow two of the 11 witnesses applied for - The Federal Court of Canada, Trial Division, dismissed an application for judicial review of the decision - The Review Tribunal had determined that the proposed evidence was essential, relevant, credible on its face and, if believed, could affect the result - Any prejudice had been answered by permitting rebuttal evidence, including new witnesses - The court held that the Review Tribunal did not err in adopting a more relaxed approach to the due diligence requirement, having satisfied itself that the other principles for the admission of new evidence had been met.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - [See both Civil Rights - Topic 7117 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, appld. [para. 4].

Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165; 165 N.R. 161; 71 O.A.C. 81, refd to. [para. 11].

Goldner v. Canadian Broadcasting Corp. (1974), 1 N.R. 420 (F.C.A.), refd to. [para. 15].

Cook v. Mounce (1979), 26 O.R.(2d) 129 (Div. Ct.), refd to. [para. 18].

Statutes Noticed:

Canadian Human Rights Act - see Human Rights Act.

Criminal Code, R.S.C. 1985, c. 46, sect. 683(1) [para. 7].

Human Rights Act, R.S.C. 1985, c. H-6, sect. 56(4) [para. 4].

Counsel:

Jim Hendry, for the applicant;

Pascale-Sonia Roy, for the respondent, James Russell Lambie;

Rosemary Morgan, for the respondent, Canadian Human Rights Commission.

Solicitors of Record:

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Myers Weinberg Kussin, Winnipeg, Manitoba, for the respondent, James Russell Lambie;

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

This application was heard on November 23, 1994, at Ottawa, Ontario, before Rothstein, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on December 2, 1994.