Kodellas and Tripolis Foods Ltd. v. Human Rights Commission (Sask.), Wahn and Glute, (1989) 77 Sask.R. 94 (CA)

• Judge: Bayda, C.J.S., Vancise and Wakeling, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 07, 1989
• Jurisdiction: Saskatchewan
• Citations: (1989), 77 Sask.R. 94 (CA);1989 CanLII 284 (SK CA);1989 CanLII 284 (BS SC);60 DLR (4th) 143;[1989] 5 WWR 1;10 CHRR 6305;77 Sask R 94

Kodellas v. HRC (1989), 77 Sask.R. 94 (CA)

MLB headnote and full text

Saskatchewan Human Rights Commission (appellant) v. Gus Kodellas and Tripolis Foods Ltd. (respondents) and Barbara Wahn and Elizabeth Glute (complainants), Nicholas A. Kaufman, Q.C., acting as a Board of Inquiry (party) and Attorney General of Saskatchewan (intervenor)

(No. 9333)

Indexed As: Kodellas and Tripolis Foods Ltd. v. Human Rights Commission (Sask.), Wahn and Glute

Saskatchewan Court of Appeal

Bayda, C.J.S., Vancise and Wakeling, JJ.A.

June 7, 1989.

Summary:

Two women filed separate complaints of sexual discrimination against their employer and one of its co-owners under the Saskatchewan Human Rights Code. The complaints arose out of alleged sexual harassment and sexual assaults in 1982 and 1985. In 1986 the Human Rights Commission appointed a board of inquiry to deal with the complaints. The co-owner applied for certiorari to quash the appointment on the ground that his s. 11(b) Charter right to be tried within a reasonable time and his s. 7 right to life, liberty and security of the person were violated by the Commission's delay in proceeding with the charges. The coowner also applied to prohibit the Commission from further dealing with the complaints.

The Saskatchewan Court of Queen's Bench, in a judgment reported 52 Sask.R. 139, held that the co-owner's s. 7 Charter rights were violated and that the appropriate and just remedy under s. 24(1) of the Charter was to prohibit further proceedings against the coowner and the employer. The Commission appealed.

The Saskatchewan Court of Appeal, Bayda, C.J.S., dissenting in part, allowed the appeal in part. The court affirmed that the co-owner's s. 7 Charter rights were denied by the unreasonable delay and that the appropriate and just remedy was a stay of proceedings as against the co-owner. The court held that there was no legal basis for staying proceedings against the employer. Bayda, C.J.S., dissenting in part, stated that a stay of proceedings against the co-owner was "appropriate", but was not "just".

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - [See first Civil Rights - Topic 8546 below].

Civil Rights - Topic 1205

Security of the person - Defined - [See second Civil Rights - Topic 8546 below].

Civil Rights - Topic 3192

Trials - Due process, fundamental justice and fair hearings - Administrative proceedings - Procedure contrary to fundamental justice - [See first Civil Rights - Topic 8546 below].

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - Application - Nongovernmental or private litigation - A judge of the Saskatchewan Court of Appeal referred to the issue of whether remedial proceedings under the Human Rights Code constituted "private litigation" to which the Charter did not apply, or whether there was sufficient governmental intervention to permit reliance on the Charter - The judge stated "these questions were not raised before us and it would be inappropriate to resolve them without a full and complete argument by counsel. The questions are accordingly left open for resolution on another occasion" - See paragraph 13.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See first Civil Rights - Topic 8546 below].

Civil Rights - Topic 8475

Canadian Charter of Rights and Freedoms - Interpretation - Regard to both official versions - Section 57 of the Constitution Act made the English and French versions equally authoritative - A judge of the Saskatchewan Court of Appeal stated "in determining what purpose and interests are meant to be protected and what remedies are available, it is necessary to examine ... both versions of the language chosen to articulate the specific right or freedom or remedies. It is necessary to refer to both versions to determine if there are inconsistencies or discrepancies, to resolve those discrepancies, and determine the true meaning from both versions" - See paragraph 96.

Civil Rights - Topic 8544

Canadian Charter of Rights and Freedoms - Interpretation - Appropriate and just remedy - Section 24(1) of the Charter provided for an "appropriate and just" remedy for Charter rights denials - The Saskatchewan Court of Appeal stated that any remedy must be both "appropriate" and "just", and they were not necessarily the same - The court distinguished between what was "appropriate" and "just" - See paragraph 34.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - Two women filed complaints of sexual discrimination against their corporate employer and Kodellas (co-owner) - The date fixed for hearing before the board of inquiry appointed by the Human Rights Commission was three years and eleven months after the first complaint and three years and two months after the second - The Saskatchewan Court of Appeal affirmed that the unreasonable delay violated Kodellas' right under s. 7 of the Charter not to be deprived of security of the person except in accordance with the principles of fundamental justice - The court, Bayda, C.J.S., dissenting, held that a stay of proceedings as against Kodellas was an "appropriate" and "just" remedy under s. 24(1), but there was no legal basis to stay proceedings against the employer.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - Two women filed complaints of sexual discrimination against Kodellas under the Human Rights Code - The Saskatchewan Court of Appeal stated that given the nature of the discrimination alleged, "the prospective holding of a proceeding before a board of inquiry appointed pursuant to s. 29 of the Code ... would affect his selfrespect and dignity and impinge upon his right not to be seriously hurt in body and mind and in that sense, would, on its face, constitute, or alternatively, would have the potential to constitute, a deprivation of his right to 'life, liberty and security of the person' as contemplated by the first part of s. 7 of the Charter" - See paragraph 22.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - The Saskatchewan Court of Appeal listed three factors to be considered in determining whether an "unreasonable delay" in remedial proceedings under the Saskatchewan Human Rights Code violated the alleged discriminated against person's right to security of the person under s. 7 of the Charter - See paragraph 26.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Principles of fundamental justice - [See first Civil Rights - Topic 8546 above].

Statutes - Topic 1803

Interpretation - Bilingual statutes - Interpretation of both versions - [See Civil Rights - Topic 8475 above].

Cases Noticed:

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481; 2 C.R.R. 76, consd. [para. 12].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, consd. [para. 12].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 13].

Davidson v. Slaight Communications Inc. (1989), 93 N.R. 183 (S.C.C.), refd to. [para. 13].

R. v. Beare; R. v. Higgins, [1987] 4 W.W.R. 309; 56 Sask.R. 173 (C.A.), refd to. [para. 16].

Pasqua Hospital et al. v. Harmatiuk, [1987] 5 W.W.R. 98; 56 Sask.R. 241 (C.A.), refd to. [para. 16].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 17].

R. v. Misra (1986), 39 Sask.R. 7; 32 C.C.C.(3d) 97 (C.A.), refd to. [para. 24].

R. v. Sayer (1987), 54 Sask.R. 106; 34 C.C.C.(3d) 176 (C.A.), refd to. [para. 24].

Ontario Human Rights Commission and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161, refd to. [para. 40].

Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303, refd to. [para. 40].

Janzen and Govereau v. Pharos Restaurant and Grammas et al. (1989), 95 N.R. 81 (S.C.C.), refd to. [para. 40].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 42].

Saskatchewan Wheat Pool v. Canada, Government of, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 42].

Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159, refd to. [para. 47].

Carey v. Twohig (1973), 37 D.L.R.(3d) 718 (Sask. Q.B.), refd to. [para. 57].

Humboldt Flour Mills Co. Ltd. v. Ewen (1984), 36 Sask.R. 81 (C.A.), refd to. [para. 57].

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 A.R. 161, refd to. [para. 58].

R. v. Ford (1989), 31 O.A.C. 377 (C.A.), refd to. [para. 58].

Janzen and Govereau v. Pharos Restaurant and Grammas et al. (1986), 43 Man.R.(2d) 293; 33 D.L.R.(4th) 32(C.A.), refd to. [para. 66].

Sollars v. Canadian Union of Public Employees, Local 1832, and Saskatchewan Labour Relations Board, [1984] 4 W.W.R. 44; 32 Sask.R. 188 (C.A.), refd to. [para. 69].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289, refd to. [para. 74].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 74].

Wemhoff v. Federal Republic of Germany (1986), 1 E.H.R.R. 55, refd to. [para. 96].

Canadian Odeon Theatres Ltd. v. Human Rights Commission (Sask.) and Huck, [1985] 3 W.W.R. 717; 39 Sask.R. 81 (C.A.), refd to. [para. 115].

Canadian National Railway Co. v. Bhinder and Canadian (Human Rights Commission), [1987] 1 S.C.R. 1114; 63 N.R. 185, refd to. [para. 115].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 11, 73]; sect. 11(b) [paras. 9, 76]; sect. 24(1) [paras. 34, 95]; sect. 32 [para. 61].

Constitution Act, 1982, sect. 57 [para. 96].

Limitation of Actions Act, R.S.S. 1978, c. L-15, sect. 3(1)(d) [para. 135].

Official Languages Act, R.S.C. 1970, c. O-2, sect. 8(2)(d) [para. 96].

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, sect. 3 [paras. 46, 114]; sect. 16(1) [para. 68]; sect. 27 [para. 104]; sect. 28(1) [para. 38]; sect. 28(3) [para. 15]; sect. 29 [para. 104]; sect. 30 [para. 10]; sect. 31(7), sect. 31(8) [paras. 38, 104]; sect. 34 [para. 43]; sect. 35(2), sect. 35(3) [para. 37].

Authors and Works Noticed:

Beaupré, Michael, Interpreting Bilingual Legislation (2nd Ed. 1986) [para. 97].

Cooper-Stephenson, K., Tort Theory for the Charter Damages Remedy (1988), 52 Sask. Law Rev. 1, generally [para. 36].

Lexis [para. 100].

McEvoy, J.P., The Charter as a Bilingual Instrument (1986), 64 Can. Bar Rev. 155, pp. 156, 157, 169, 170 [para. 96].

New Webster Encyclopedic Dictionary of the English Language [para. 98].

Petit Robert 1 (1989) [para. 100].

Random House Dictionary of the English Language (1966) [para. 98].

Robert, Dictionnaire alphabétique et analogique de la langue française (1969) [para. 100].

Robert, Dictionnaire de la langue française (1986) [para. 100].

Shorter Oxford English Dictionary on Historical Principles (3rd Ed.) [para. 98].

Trésor de la langue française (1978) [para. 100].

United Nations, Reports of the International Law Commission Draft Articles on the Law of Treaties and Commentaries (1967), 61 A.J.I.L. 248, p. 361 [para. 96].

Webster's Collegiate Thesaurus (1976) [para. 98].

Counsel:

M.C. Woodard, for the Saskatchewan Human Rights Commission;

G. Welsh, for the Attorney General for Saskatchewan;

E.F.A. Merchant and D.K. Hallson, for the respondents.

This appeal was heard before Bayda, C.J.S., Vancise and Wakeling, JJ.A., of the Saskatchewan Court of Appeal.

On June 7, 1989, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Bayda, C.J.S., dissenting in part - see paragraphs 1 to 70;

Vancise, J.A. - see paragraphs 71 to 125;

Wakeling, J.A. - see paragraphs 126 to 148.