The Commission enjoys broad discretionary powers with respect to the reception and processing of complaints under the CHRA. The cases highlighted in this section illustrate the type of issues that may result in Commission decisions being challenged before the Federal Court.

Confidential Nature of Conciliation
   
Commission decisions to refer a complaint to the Human Rights Tribunal may also be challenged before the Federal Court, as is reflected in Canadian Broadcasting Corp. v. Paul.²¹⁰ The case involved allegations of employment discrimination based on age and gender against CBC, first made in a September 1989 complaint to the Commission. Due to legal challenges regarding subsequent complaints filed by Ms. Paul the investigation and preparation of a report on the 1989 complaint was not completed until July 29, 1996. The report recommended that the Commission appoint a conciliator for the purpose of attempting to bring about a settlement of the complaint.

Although CBC took exception to the appointment of a conciliator, an attempt was made to reach a settlement. These efforts failed and the conciliator prepared a final report that set out the positions taken by the parties and detailed the terms of an offer of settlement made by CBC but rejected by the complainant. CBC renewed its allegations that the investigation report was biased and strongly objected to the disclosure of its offer of settlement to the complainant.²¹¹ By letter dated February 13, 1997, CBC was informed by the Commission that, upon reviewing the conciliation report and the complainant's submission in response, it had decided to refer the complaint to a Tribunal for adjudication. That decision was overturned on application for judicial review, the Federal Court Trial Division finding, inter alia, that there had been a breach of the rules of procedural fairness, as well as a violation of the statutory requirement of confidentiality with respect to the conciliation process. The Court further decided that it was inappropriate to send the matter back to the Commission for reconsideration.

Although four issues were considered by the Federal Court of Appeal,²¹² the question of the confidential nature of the conciliation process was central to its decision. The Court noted a long line of jurisprudence that existed regarding the principle of confidentiality, at common law, of processes designed to encourage out-of-court settlements, as well as the public policy considerations that underpin it. It then referred directly to subsection 47(3) of the CHRA, which explicitly declares that Aany information received by a conciliator in the course of attempting to reach settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information."²¹³

Although the Court of Appeal found it unnecessary to consider issues related to the alleged bias of the investigation report, it did go on to review elements of procedural fairness that seemed to be missing in the record before it. As mentioned above, the Commission in communicating to the CBC its decision to proceed to adjudication made explicit reference to having reviewed the conciliation report and the complainant's submission relevant to it. The Commission made no direct reference to any other documents it might have consulted or reviewed, referring only to having had regard Ato all the circumstances. On the face of the record, therefore, the Court of Appeal was in doubt as to whether the investigation report or the submissions of CBC had been considered by the Commission in reaching its decision to refer the matter to adjudication. It found that both the rules of procedural fairness and the statutory duty of the Commission (section 44 of the CHRA) to receive the report of the investigator obliged the Commission to consider the documents in question.

The Court of Appeal disagreed with the lower court decision regarding the appropriate remedy to award. The lower court had effectively stayed further proceedings by refusing to return the matter to the Commission for reconsideration. The Court of Appeal considered this matter to be governed by administrative law principles relevant to abuse of process. It therefore considered the recent decision of the Supreme Court of Canada in Blencoe v. British Columbia Human Rights Commission²¹⁶ that highlighted a number of factors to be considered before issuing a stay of proceedings, factors which included the nature and reasons for time delays, legal and factual complexities and various types of prejudice that may be caused the parties. The Court of Appeal found that it was not apparent on the record who was more responsible for the delays in processing the complaints, nor which party might suffer the greater prejudice because of the passage of time. Accordingly, the Court ordered the complaint returned to the Commission for reconsideration, though it made it clear that only members of the Commission who had taken no part in the previous decision to refer the matter to adjudication should participate in the reassessment, nor was the report of the conciliator or its contents to be placed before those members of the Commission called upon to reconsider the complaint.

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End Notes