TRIBUNAL INTERIM ORDERS Impact of Bell Decision (Trial Level)
The Federal Court decision (November 2, 2000) in Bell Canada v. CTEA et al.164 , regarding the impartiality and independence of the Tribunal, was relied on subsequently to challenge the legality of hearings being conducted on a number of separate and unrelated complaints.165 In each case, the Tribunal came to the conclusion that the reasoning of the Federal Court in Bell was not confined to the adjudication of complaints regarding which actual guidelines had been issued. It found that "...the problem relating to the guidelines stems from the provisions of the Canadian Human Rights Act giving the Commission the power to make guidelines, and not from the existence of the guidelines themselves."166 Consequently, the issue of a perceived lack of impartiality arose even in cases that had no connection to pay equity guidelines.
The Tribunal also concluded that any impairment of Tribunal independence associated with the Chairperson's power to extend the mandate of a member, should it expire during the course of a hearing, did not hinge on the manner in which that power was exercised in any given case. It therefore followed that the specific duration of a member's mandate was irrelevant to the institutional problem identified by the Federal Court.167
In light of the scope of the Federal Court decision, and its binding nature, the Tribunal felt constrained to adjourn proceedings sine die in the various cases cited here. Nevertheless, it did so with reluctance, pointing out that "[i]t is well established that there is a public interest in having complaints of discrimination dealt with expeditiously. The effect of my decision to adjourn this matter sine die does not serve this public interest...However, the public interest extends beyond speedy justice: Canadians involved in the human rights process are entitled to hearings before a fair and impartial Tribunal. According to the Federal Court, the Canadian Human Rights Tribunal is not such a Tribunal."168
The procedural facts of a given case may give rise to a finding that a party has waived its right to object to hearings on the grounds of perceived institutional bias or lack of independence. In effect, a party is obliged to raise these issues at the first reasonable opportunity in the process. The Tribunal has identified the reasons that justify imposing this obligation on the parties to a hearing: "There are several reasons favouring such a policy: a timely objection allows for the early determination of the issue. Parties are not put to the unnecessary expense of preparing for a hearing that may not proceed at the last minute. Early determination of the objection also allows the Tribunal to manage its process, the scheduling of its members, and the allocation of tax-payer funded resources in the most efficient manner possible."169 In two cases, the Tribunal concluded that the respondents who raised the issue of impartiality had not done so at the earliest practicable opportunity, thus waiving their rights in this regard.170 There was therefore no further impediment to the continuation of hearings into the substance of the underlying complaints.171
Finally, three Tribunal rulings were issued after the Federal Court of Appeal overturned the Trial Division regarding the issues of impartiality and independence.172 In all three instances, the reasoning of the Court of Appeal was applied and challenges to the Tribunal's jurisdiction were dismissed. Furthermore, the fact that a respondent might appeal the Court of Appeal decision to a higher court was considered irrelevant to determining if a hearing before the Tribunal should be adjourned.
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End Notes