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.

Impartiality and Independence of Tribunal

The issues of impartiality and independence of the Canadian Human Rights Tribunal were canvassed in last year's Legal Report, in particular with respect to the Federal Court (Trial Division) decision in Bell Canada v. CTEA, CEP and Femmes Action and the CHRC.²²⁶ The Trial Division had ruled that the power of the Commission to issue guidelines interpreting the principle of equal pay for work of equal value raised a reasonable apprehension of institutional bias. In addition, the Trial Division had determined that a statutory requirement conditioning the extension of a Tribunal members mandate (should it expire during the course of a hearing) on the approval of the Chairperson of the Tribunal gave rise to the perception that the Tribunal was not sufficiently independent to preside fairly over a hearing. As a result, a stay of proceedings regarding the complaint against Bell had been issued. This decision was appealed to the Federal Court of Appeal, whose judgment has now been rendered.²²⁷

Before turning to an analysis of the two issues of impartiality and independence, the Court of Appeal reviewed the procedural history of the case (referral to the Tribunal having first taken place in May of 1996) and legislative changes that had been introduced in light of other court rulings. It pointed out that the first Federal Court decision ²²⁸on this issue had determined that the authority of the federal Minister of Justice (based on the law as it then stood) to extend the mandate of a Tribunal member placed in question that Tribunal's independence and impartiality. The Court had also expressed serious reservations in the same judgement about the power of the Commission to issue binding guidelines with respect to Athe manner in which, in the opinion of the Commission, any provision of [the CHRA] applies in a particular case" ²²⁹(again based on the legislation as it then stood). Amendments to the CHRA relevant to the authority to issue guidelines came into effect in June of 1998.²³⁰ These amendments removed any reference to guidelines being potentially applicable to a particular case and declared that they would be binding only "in a class of cases"²³¹. It was the possibility that the Commission might issue guidelines applicable exclusively to a case in which it was a party that had given rise to the greatest apprehension. The legislative amendments also removed the authority of the Minister of Justice to approve the extension of the mandate of a Tribunal member and accorded full authority in this regard to the Chairperson of the Tribunal. Nevertheless, a second Federal Court decision (the subject of the current appeal) concluded that the amendments were insufficient to cure the problems associated with a perception of bias and lack of independence in the Tribunal.

The Court of Appeal noted that the power to issue guidelines was clearly necessary in light of general statutory language in the CHRA, such as that which prohibited discriminatory pay practices as between men and women²³². It referred favourably to a previous decision of the Federal Court to the effect that A...Parliament was aware that answers to many questions about the implementation of equal pay for work of equal value were not to be found in the lapidary language of section 11...[T]he correct interpretation of section 11...is that Parliament intended to confer on the agencies created to administer the Act a margin of appreciation in determining on a case-be-case basis, and with the assistance of the technical expertise available, how the statutorily endorsed principle of equal pay for work of equal value is to be given effect in any given employment setting.²³³@ While the authority to make normative rules akin to subordinate legislation is normally given to the Governor in Council, the Court of Appeal saw nothing unacceptable in derogating from this practice. It pointed out that the Commission would be precluded from acting arbitrarily given that guidelines issued under its authority would be made in the exercise of a legislative power conferred by or under an Act of Parliament and thus fall within the definition of Aregulation@ and Astatutory instrument@ in section 2 of the Statutory Instruments Act²³⁴. The enactment of guidelines would therefore be subject to the safeguards laid down in that Act, which includes compliance with the Canadian Charter of Rights and Freedoms²³⁵ and the Canadian Bill of Rights.²³⁶

As to the alleged perception of institutional bias arising from the binding force of general pay equity guidelines on the Tribunal, the Court of Appeal ruled that the Motions judge had given insufficient consideration to the statutory amendments which removed reference to particular cases. It felt that the intent of these changes was to ensure that guidelines created general rules applicable to all cases falling within a given class. In its own words: A...[T]he opportunity formerly possessed by the Commission to inject itself into the determination of a particular case has been largely eliminated. This represents a significant change. Under the earlier version of subsection 27(2), the Commission could, pursuant to its guideline-making power, influence the outcome of a particular complaint, theoretically even to the extent of adopting a tailor made guideline. This is no longer possible. It seems to me that guidelines governing a Aclass of cases@, with general and impersonal application, are considerably less likely to give rise to a reasonable apprehension of institutional bias.²³⁷" The Court also felt that the fact the Commission played both an enforcement role and exercised guideline-making functions under the CHRA did not in and of itself give rise to a reasonable apprehension of bias. It emphasized that the test to be applied (as set out in a number of judicial decisions) was whether or not "a fully informed person viewing the matter realistically and practically - having thought the matter through - would have a reasonable apprehension of bias in a substantial number of cases.²³⁸" Applying this test to the case before it, the Court of Appeal could find no such apprehension of bias.

The Court of Appeal also overturned the decision of the Motions judge on the issue of institutional independence. This issue had been raised in light of the authority of the Chairperson of the Tribunal to approve the extension of the mandate of a Tribunal member should it expire during the course of a hearing.²³⁹ A review of the role and authority of the Chairperson, and the fact that he or she cannot be removed from office during their seven year term except for cause, guarantees the administrative independence of the office vis à vis the executive arm of government. Moreover, judicial review is available should the Chairperson abuse his or her authority when performing administrative functions under the CHRA. Given that there was no reasonable apprehension that the Chairperson would abuse his or her administrative discretion by failing to act in good faith and in the best interest of the Tribunal, the Court of Appeal could find no reason to place in question the independence of the Tribunal. Leave to appeal the decision of the Federal Court of Appeal to the Supreme Court of Canada was granted (without reasons) on December 13, 2001.²⁴⁰

Another case raising similar issues of bias and institutional independence relevant to the guideline-making authority of the Commission, as well as the manner in which members of the Tribunal would be remunerated, was recently reviewed by the Federal Court of Appeal and a judgment issued on the same day as the Bell decision. ²⁴¹While the procedural history of this pay equity dispute is as complex as that which occurred in the Bell case reviewed above, the focus of the Court of Appeal in this instance was narrowed to a number of procedural questions, one of which concerned the legal standing of the government of the NWT to challenge the validity of parts of the Canadian Human Rights Act allegedly creating a scheme that derogated from the requirements of natural justice. The Commission had argued strongly that the government of the NWT, not having legally acquired the constitutional status of a province, constituted a part of the Crown in right of Canada and that, as such, could not purport to challenge the validity of federal statutes. It was on this basis that the Trial Division of the Federal Court had denied the NWT government legal standing to argue that the CHRA violated standards of impartiality and independence.

The Court of Appeal disagreed with this conclusion. It found that the nature of the arguments brought forward by the government of the NWT had been misconstrued. In essence, reasoned the Court of Appeal, the latter had not attempted to challenge the validity of the CHRA: AIt actually relies upon the Act itself as enacted to contend and establish that subsections 27(3) and 48.2(2) produce a result which deprives it of its common law right to an independent and impartial tribunal. At the most, what the appellant did in the judicial review proceedings for which it was denied standing was to give these two subsections an interpretation which both respondents disagree with. In other words, the position taken by the appellant with respect to the impugned subsections is one which involves the interpretation and effect of the Act, rather than an attack on its validity. ²⁴² While the Court found that the government of the NWT is a creation of federal law, it nonetheless had standing to seek recognition and enforcement of the powers it enjoys under federal legislation. Furthermore, concluded the Court: AThis standing of the appellant extends to its right, as a requirement of natural justice, to seek an independent and impartial Tribunal who will apply and interpret an act whose validity the appellant does not contest. In my view, the motions judge erred when he denied the appellant standing Ato argue that provisions of the Canadian Human Rights Act or a statutory instrument issued thereunder create a scheme which is contrary to the requirements of natural justice.²⁴³

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End Notes