JUDICIAL REVIEW OF TRIBUNAL DECISIONS

Stay of Proceedings
  

The case just reviewed (involving a pay equity dispute with the NWT government) also gave rise to an application for a stay of proceedings pending disposition of the government's appeal.²⁴⁸ The application before the Federal Court was brought following a Tribunal decision to allow the Commission and the complainant to complete their evidence (which at that point was drawing to a close) before adjourning the hearing to await the outcome of the Court of Appeal's decision regarding the issues of impartiality and independence. The Tribunal took the view that this would allow the NWT to be fully cognisant of the outcome of its appeal before presenting its own evidence on the merits of the complaint.

Before the Federal Court of Appeal, the NWT argued that its application satisfied the three-pronged test for determining if a stay of proceedings should be accorded. First, the legal questions raised in its appeal (tribunal impartiality and independence) were serious ones that merited attention. Second, the NWT would suffer irreparable harm if a stay was not granted and its appeal was ultimately successful. Finally, the potential harm suffered by the government of the NWT was greater than the possible harm that might be incurred by the other parties. While the Court accepted that the questions raised on appeal were serious, it was unable to accept that the NWT would suffer irreparable harm if a stay of proceedings were not granted. In so deciding, the Court emphasized that the Tribunal had limited the continuation of the hearing to the completion of evidence already begun: AI am unable to accept [the applicant's argument], particularly in light of the decision of the Tribunal to adjourn the proceedings to await the outcome of this appeal after the evidence of the Commission and the PSAC is completed and before their case is closed...The Government has suggested no basis on which I can conclude that merely permitting the Commission and the PSAC to adduce the remainder of their evidence will cause irreparable harm to the Government.²⁴⁹@ The Court also underscored that the government of the NWT had not argued that its cross-examination of remaining witnesses for the Commission and PSAC would be affected by the outcome of its appeal regarding tribunal impartiality and independence. The Court therefore rejected the application for a stay, though it also indicated that, should the Tribunal decide to continue proceedings beyond the completion of evidence by the Commission and PSAC, the government of the NWT could rightfully make a new application to the Court.

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End Notes