T-4650-80
Canadian Human Rights Commission (Applicant)
v.
Jane Banfield Haynes, R. Dale Gibson, Robert W.
Kerr, and British American Bank Note Company
Limited (Respondents)
Trial Division, Cattanach J.—Ottawa, November
4 and 24, 1980.
Prerogative writs — Mandamus — Complaints respecting
discrimination lodged by two employees of respondent Com
pany with Canadian Human Rights Commission — Appoint
ment by Commission of a Human Rights Tribunal — Decision
by Tribunal that it lacked jurisdiction to entertain the com
plaints — Subsequent application for judicial review by Com
mission dismissed on the ground that proper procedure is
mandamus — Whether Tribunal has jurisdiction to entertain
the complaints or whether Parliament has legislative authority
over respondent Company's operations — Canadian Human
Rights Act, S.C. 1976-77, c. 33, ss. 11, 35, 36(1),(3), 37, 39,
40(2) — Federal Court Rules 1715(2), 1716(2).
Two female employees of the respondent, British American
Bank Note Company Limited, lodged complaints with the
Canadian Human Rights Commission alleging discrimination
under section 11 of the Canadian Human Rights Act. Upon the
filing of the complaints, the Commission appointed a Human
Rights Tribunal whose decision that the provisions of the Act
do not apply to the operations of the respondent Company and
accordingly the Tribunal lacked jurisdiction to entertain the
complaints, resulted in an application for judicial review by the
Commission. The Court of Appeal held that the Tribunal's
position was not a "decision or order" and that the proper
procedure would be an application for mandamus, the remedy
which the Commission is now seeking. The question is whether
the Tribunal has jurisdiction to entertain the complaints or
whether the Parliament of Canada has legislative authority
over the operations of the respondent Company.
Held, the application is dismissed. No disposition of the
application for mandamus can be made without the complain
ants being party thereto. The fact that they were named as
"complainants" before the Human Rights Tribunal and that
they were notified of the hearing but did not appear, does not
alter the fact that they are "essential parties" who must be
added as parties and given the opportunity to participate even if
they do not choose to do so. This is the condition precedent to a
valid order being given in accordance with the decision of the
Court of Appeal in the Eldorado case by which the Court is
bound. If the application for mandamus should fail, then the
complainants are without remedy under the Canadian Human
Rights Act. Furthermore, the initial responsibility to name the
complainants as parties is upon the applicant. If the Trial
Judge assumed that responsibility, it would make him the judge
in the course he advocates.
Canadian Human Rights Commission v. Eldorado
Nuclear Ltd. [1981] 1 F.C. 289, followed. Norris v. Beaz-
ley (1877) 2 C.P.D. 80, referred to. Canadian Human
Rights Commission v. British American Bank Note Co.
[1981] 1 F.C. 578, referred to. Ouimet v. The Queen
[1978] 1 F.C. 672, referred to.
APPLICATION.
COUNSEL:
François Lemieux and Penny Bonner for
applicant.
John D. Richard, Q.C. and L. H. Harnden for
respondent British American Bank Note
Company Limited.
SOLICITORS:
Herridge, Tolmie, Ottawa, for applicant.
Gowling & Henderson, Ottawa, for respond
ent British American Bank Note Company
Limited.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: Shirley Cooligan and Maureen
McKenny, who were (and may still be) female
employees of the respondent, British American
Bank Note Company Limited, lodged complaints
with the Canadian Human Rights Commission
that their employer engaged in a discriminatory
practice within the meaning of section 11 of the
Canadian Human Rights Act, S.C. 1976-77, c. 33,
in that it paid lesser wages to female employees
than the wages paid to male employees who per
formed the same work or work of equal value in
the same establishment.
Forthwith upon the filing of the complaints the
Commission appointed a Tribunal, comprised of
the three natural persons named as respondents in
the above style of cause, to inquire into the com
plaints so made.
It is significant that the style of cause in the
inquiry read as follows:
BETWEEN:
SHIRLEY COOLIGAN,
MAUREEN MCKENNY,
COMPLAINANTS,
—and—
BRITISH AMERICAN BANK NOTE COMPANY LIMITED,
RESPON DENT,
—and--
CANADIAN HUMAN RIGHTS COMMISSION,
INTERVENANT.
The Commission appeared before the Tribunal
for the purposes outlined and by virtue of the
authorization to do so in subsection 40(2) of the
Act.
The Tribunal convened on December 6, 1979, at
which time and prior to embarking upon its inqui
ry into the merits of the complaints, the respond
ent challenged the jurisdiction of the Tribunal to
inquire into these particular complaints in that it
would be contended that the respondent corpora
tion, in the conduct of the objects for which it was
incorporated, is a company not subject to the
provisions of the Canadian Human Rights Act.
The Tribunal thereupon directed its attention to
hearing and determining this preliminary question
involving constitutional law. It heard representa
tions on this question from counsel for the Com
mission and the respondent. The claimants were
afforded the opportunity of participating but did
not do so. I do not think that they even attended
though notified of the hearing.
In a document dated February 26, 1980 and
entitled "Decision of Tribunal" the Tribunal
unanimously concluded that the provisions of the
Canadian Human Rights Act do not apply to the
operations of the respondent Company and accord
ingly the Tribunal lacked jurisdiction to entertain
these complaints.
By an originating notice of motion dated March
11, 1980 in which the Commission was the appli
cant and British American Bank Note Company
Limited was named as the sole respondent (the
complainants were not included in any capacity)
application was made to the Federal Court—
Appeal Division pursuant to section 28 of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10
to review and set aside the decision of the Tribunal
as a consequence of which the Tribunal had
declined to enquire into the complaints made
against the respondent.
The matter was heard on September 11, 1980
and the application was dismissed.
In delivering the reasons of the Court from the
Bench on that day Thurlow C.J. had this to say
[[1981] 1 F.C. 578, at page 580]:
The question thus considered by the Tribunal was undoubt
edly one with which it might be concerned. It was one on which
the Tribunal could quite properly hear evidence and take a
position and if it thought that it had no jurisdiction it might
decline to make the inquiry. That seems to be what in fact
happened. But the Tribunal is not authorized by the statute to
decide the question and its opinion on the point renders nothing
res judicata and binds no one. It does not even bind the
Tribunal itself. The opinion can be reversed by the Tribunal
itself at any time either on the basis of additional material or
on the same material. If the opinion is wrong, on an application
for mandamus, the Trial Division of this Court can decide the
question and require the Tribunal to exercise its jurisdiction.
On the other hand, if the opinion is right the application for
mandamus will fail. But an application for mandamus is, in my
opinion, the course, and the only course (short of persuading
the Tribunal itself to change its view) that is open to a party
who is dissatisfied with the Tribunal's position and seeks to
require the Tribunal to proceed. On the other hand if, indeed,
the Tribunal had no jurisdiction and nevertheless had conclud
ed that it had, an application for prohibition would have been
the appropriate procedure for the respondent to pursue.
The Chief Justice concluded his reasons by
saying [at page 582]:
I am accordingly of the opinion that what the applicant seeks
to attack by this application is not a "decision or order" within
the meaning of subsection 28(1) and that the application
should be dismissed.
It is gratifying to observe that the conclusion by
the Chief Justice that the Tribunal was not
authorized by the statute to decide the question
whether the provisions of the statute applied to the
operations of the respondent so as to affect the
jurisdiction of the Tribunal to entertain the com
plaints, was anticipated in the remarks made by
myself in Ouimet v. The Queen ([1978] 1 F.C. 672
at page 676).
I said that whether regulations (and the word
"statute" might be substituted for the word "regu-
lations") were ultra vires is for the courts to
determine and not the Tribunal appointed for the
purpose of conducting a specific inquiry under the
statute.
This proposition I considered to be so self-evi
dent and generally accepted that it rarely finds
expression which explained the dearth of authori
ties.
However the two authorities which I did men
tion, In re Royalite Oil Company Limited and
Tannas ([1943] 2 W.W.R. 348 at page 352) and
Regina v. Unemployment Insurance Commission,
Ex parte Heggen ((1964) 41 D.L.R. (2d) 436 at
page 442) indicated that the course to be adopted
by a tribunal faced with this quandary was to
proceed on the assumption that the statute was
intra vires in this respect, conduct the inquiry and
reach a decision.
In the event that this Tribunal had followed this
course then the application to review that decision
reached would have been properly before the
Court of Appeal under section 28 of the Federal
Court Act but, no doubt, would have been brought
by a different applicant.
However the Chief Justice indicated that this
Tribunal could decline to conduct the inquiry it
was appointed to make, which it did in fact, and in
that event the Trial Division of this Court can
decide the question of jurisdiction on an applica
tion for mandamus and, if it were found that the
Tribunal had jurisdiction, require the Tribunal to
exercise it. If the contrary were to be found then
mandamus would fail.
By reason of the course followed by the Tribunal
in declining to make the inquiry the Chief Justice
expressed the opinion that the only course open to
the party dissatisfied with the Tribunal's action
would be an application for mandamus.
The Commission accepted that invitation and
applied for mandamus to the Trial Division,
The issue, as I conceive it to be, is whether the
Tribunal has jurisdiction to entertain the com
plaints lodged under the Canadian Human Rights
Act and the answer to that question, in turn, is
dependent on the further question whether the
Parliament of Canada has legislative authority,
under the distribution of powers in The British
North America Act, 1867, 30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] over the
operations of the respondent.
Before the representations of counsel for the
applicant were completed counsel for the two par
ties before me joined in bringing my attention to a
decision of the Court of Appeal in Canadian
Human Rights Commission v. Eldorado Nuclear
Limited [1981] 1 F.C. 289, decided on June 25,
1980, a matter with which 1 have considerable
familiarity.
By a motion dated November 14, 1979 brought
by Eldorado Nuclear Limited, as applicant,
against the Canadian Human Rights Commission,
as respondent, it was sought to prohibit the
respondent, on the ground of bias, from instructing
or continuing any proceeding against the applicant
pursuant to a decision made by the respondent
dated April 4, 1979 in respect of a complaint made
by a former female employee of the applicant to
the respondent alleging that the applicant had
engaged in a discriminatory practice prohibited by
the Canadian Human Rights Act, S.C. 1976-77, c.
3.3 expressly on account of sex.
On receipt of the complaint the respondent
appointed an investigator under section 35 of the
Canadian Human Rights Act. The investigator
completed her investigation and reported to the
respondent, that, in her view, the complaint had
been substantiated. She was required to report the
results of her investigation to the respondent under
subsection 36(1). The respondent adopted the
report of the investigator in accordance with sub
section 36(3). That is the order referred to as
being made under date of April 4, 1979. Having
made that order the respondent then appointed a
conciliator under section 37.
At the conclusion of a protracted hearing I gave
an order, without written reasons therefor, to the
effect that:
... the respondent, its servants, agents and employees are
prohibited from taking any further steps in respect of the
decision by the respondent dated April 4, 1979 in respect of the
complaint made to the respondent by the disgruntled employee
of the applicant.
In its reasons for judgment the Court of Appeal
remarked [at page 292]:
... the complainant, is deprived at the moment, if the Trial
Division's order stands, of any possibility of having her claim
adjudicated favourably to her.
That is not accurate. Clearly the Court of
Appeal was not made aware of the suggestion
made during the hearing of the motion that the
stench of bias which permeated the whole of the
proceedings conducted by the respondent through
its employees could be cleansed by the simple
expedient of appointing a Human Rights Tribunal
under section 39 of the Act, which the respondent
is authorized to do at any stage after the filing of
the complaint, to inquire into the complaint ab
initio and to adjudicate fairly thereon. Counsel for
the Commission indicated that it was not conven
ient to adopt this suggestion. The order dated
November 22, 1979 was framed so as to not
constitute an impediment to a resort to section 39
and does not do so except to the extent that the
settlement sought to be imposed on the respondent
by the conciliator would be the subject of reference
to the Tribunal.
Generally in common law and chancery matters
a plaintiff who conceives that he has a cause of
action against a defendant is entitled to pursue his
remedy against that defendant alone. He cannot
be compelled to proceed against other persons
whom he has no desire to sue.
However Rule 1716(2)(b) provides:
Rule 1716... .
(2) At any stage of an action the Court may, on such terms
as it thinks just and either of its own motion or on application,
(b) order any person who ought to have been joined as a
party or whose presence before the Court is necessary to
ensure that all matters in dispute in the action may be
effectually and completely determined and adjudicated upon,
to be added as a party,
Under Rule 1716 a person who is not a party
may be added as a defendant against the wishes of
the plaintiff either on the application of the
defendant or on the person's own intervention or in
extremely rare cases by the Court of its own
motion.
Looking at Rule 1716 it must be found, in order
to say that a person who is not a party should be
added:
(I) that the person "ought to have been joined as a party", or
(2) that the person's "presence before the Court is necessary to
ensure that all matters in dispute in the action may be effectu
ally and completely determined and adjudicated upon".
I fail to follow how under the second limb of the
findings essential to saying that a person who is
not a party should be added as such because the
relief sought by the applicant was directed wholly
at the respondent and the dispute in the applica
tion was whether the respondent was biased in the
conduct of its investigation. That was the sole
dispute at this stage and it was between the Com
mission and Eldorado only. The complainant was a
stranger to that dispute. She had no participation
in it nor had she any knowledge of the circum
stances constituting the bias alleged.
It follows therefore that the decision by the
Appeal Division that the order given by the Trial
Division ought not to have been given or any other
order must have been predicated upon the first
essential finding of fact contemplated by Rule
1716 that is that the complainant is a person who
"ought to have been joined as a party".
It is idle to conjecture what disposition would
have been made if a motion to that end had been
made by the respondent or the claimant because
no such motion was made by either such person
nor was any suggestion made that the Court
should do so of its own motion.
The jurisdiction of the Court under Rule 1716 is
clearly discretionary. This the Court of Appeal
acknowledged. It said in its reasons for judgment
[at page 291]:
An order of the nature granted by the Trial Division herein
is, of course, a discretionary one which will not be interfered
with by an appeal court unless the motions Judge has proceed
ed on a wrong principle or has otherwise erred in law or
jurisdiction. In this case, we are all of the opinion that the Trial
Division erred in proceeding to make the impugned order
without notice to the complainant Isabelle Cadieux or permit
ting her to adduce evidence in support of her position and to be
heard on the application.
Denman J. in Norris v. Beazley ((1877) 2
C.P.D. 80) put the considerations for the Court of
its own motion adding a person as a party who has
not been named as such when he said at page 85:
I am quite clear, however, that the Court ought not to bring in
any person as defendant against whom the plaintiff does not
desire to proceed, unless a very strong case is made out,
shewing that in the particular case justice cannot be done
without his being brought in.
The Appeal Division must have concluded that
this was one of the extremely rare cases in which a
person who is not a party should be added as such
against the wishes of the applicant by the Court on
its own motion even though no application was
made by the respondent to that end nor was any
suggestion or request made by the respondent that
the Court should do so on its own initiative. On the
contrary counsel for the respondent, while indicat
ing that he was not acting on behalf of the claim
ant, did state that the interest of the respondent
and the complainant were coincident with the
implication that the claimant's interest would be
necessarily protected by the respondent.
The Court of Appeal must have concluded that
such a very strong case as contemplated by
Denman J. that the complainant was a person who
ought to have been joined as a party must have
existed, even though not raised, and this circum
stance dictated that the Court ought to have done
so on its own initiative.
The submissions were made to the Court of
Appeal that:
(1) the question that the application should be served on the
claimant was not raised before the Trial Judge and accordingly
was not an issue before him;
(2) that the complainant's interests were identical with those of
the respondent and fully protected by the respondent's position;
(3) that the dispute in the action for prohibition was directed
wholly at the respondent, and
(4) that the complainant was a stranger to all events upon
which the application for prohibition was based and conse
quently could add nothing to the resolution of the dispute
exclusively between the two parties to the application.
The Court of Appeal said in these respects [at
pages 291-292]:
We do not agree with these submissions. In our view the
complainant is an essential party to these proceedings and
ought to have been joined as such, served with the originating
notice and, thus, have been given the right to appear, if she
wished, to file her own affidavit material, to cross examine on
the affidavits filed by the other parties, and to have been heard.
That she is an essential party is demonstrated by the fact that
she, as the complainant, is deprived at the moment, if the Trial
Division's order stands, of any possibility of having her claim
adjudicated favourably to her. She is the only person who has a
personal and vital interest in the outcome of the claim.
It is clear from this passage that the Court of
Appeal has held that the complainant ought to
have been added as a party to the motion. How
ever the conclusion that the complainant is an
"essential party" and is demonstrated to be so is
predicated upon a false premise for the reasons
previously expressed.
As I conceive the true ratio decidendi of the
Court of Appeal to be it is expressed in the con
cluding sentence of the quoted passage reading:
She is the only person who has a personal and vital interest in
the outcome of the claim.
The respondent, as the Commission, has a vital
and academic interest but the applicant also has a
very personal and vital interest in the outcome of
the claim but the thought of the sentence might be
expressed in the colloquialism "It is also the com
plainant's ox that might be gored" if not the
applicant's.
On that premise the Appeal Division concluded
that [at page 292]:
... without [the complainant] having been included as a party,
with all rights flowing therefrom, the Trial Division ought not
to have granted the impugned order or any other order.
In the present application the interest of the
complainants far exceeds the interest of the com
plainant in Canadian Human Rights Commission
v. Eldorado Nuclear Limited (supra). In that
matter the complainant's remedies under the
Canadian Human Rights Act were not exhausted
and were safeguarded in the order granted but if
the application for mandamus should fail then the
complainants in the present matter are without
remedy under that statute.
In my view on the principles laid down by the
Court of Appeal, by which I am bound, the com
plainants herein ought to have been named as
parties and without the complainants being added
as parties no order ought to be granted.
Accordingly I dismissed the application with
costs to the respondent, British American Bank
Note Company Limited and undertook to give
written reasons for so doing.
I adopted that course because, in my view, the
initial responsibility to name the complainants as
parties was upon the applicant.
Furthermore I am convinced that it is more
appropriate for the Canadian Human Rights Com
mission to apply to add the complainants as parties
and to make out the very strong case for so doing
rather than that the Trial Judge should assume
that responsibility which would make him the
judge in the course he advocates.
In the Eldorado matter (supra) the Court of
Appeal must have, sub silentio, directed that the
complainant should be added as a party.
The order reads:
The appeal is allowed. The order of the Trial Division is set
aside and the matter is remitted to the Trial Division with the
direction that the respondent's originating notice not be pro
ceeded with until Isabelle Cadieux [the complainant] has been
served therewith and with the supporting material in accord
ance with the Rules and that she be accorded such other rights
with respect thereto as the Rules provide. Neither party hereto
is entitled to costs of this appeal but Isabelle Cadieux [the
complainant] is entitled to her taxed costs of the appeal in any
event in the cause.
The notice of motion and the supporting ma
terial are not required to be served on a person
who is not a party nor am I aware of any rights
which the Rules provide a person in a cause to
which that person is not a party.
Incidentally during the hearing of the matter
before the Trial Division the tentative suggestion
was made that the notice of motion and the sup
porting material should be made available to the
complainant. I refused to accept that mere sugges
tion because the complainant was not a party and
therefore not entitled to be so served that being the
only method I know by which the material is
obliged to be made available. That did not elicit a
motion to add the complainant as a party.
In the reasons for judgment reference was made
to an order being made by the Trial Division
"without notice to the complainant Isabelle
Cadieux or permitting her to adduce evidence in
support of her position and to be heard on the
application", all of which are rights to be accorded
a party which the claimant was not, and in several
instances that the complainant was an "essential
party" who ought "to have been joined as such" or
"included as a party" participating in the appeal.
It is to be assumed that the formal order is to
reflect the reasons on which it is based. If it does
not it should have been amended to do so. Because
it was not the assumption stands.
The Court of Appeal was also silent as to the
category of party in which a claimant should be
added.
By virtue of Rules 1715(2) and 1716(2) no
person shall be added as a plaintiff who does not
consent to being joined. If consent is not forthcom
ing and the person is a necessary party then, on
application, that person may be joined as a
defendant.
The Chief Justice upon application on behalf of
the applicant, with his usual care and precision,
ordered "that the applicant, Isabelle Cadieux, be
at liberty to participate in this appeal" by fulfilling
certain prerequisites that he outlined and that
"subject to any order or direction that the Court
hearing the appeal may make, she be at liberty to
appear and be heard by her counsel on hearing the
appeal". How the claimant should so appear and
participate was left to the discretion of the Court
to hear the appeal.
Apparently the Court hearing the appeal made
no "order or direction" by which I mean that no
order appears to have been made joining the com
plainant in the appeal in any recognized capacity
nor does the style of cause utilized indicate that
this was done. It seems that she appeared at the
appeal and was heard thereat (perhaps through
counsel) in accordance with the order of the Chief
Justice without further formality.
In the reasons for judgment the order by the
Chief Justice was referred to as follows [at page
2911:
On application to this Court, an order was made granting her
leave to intervene and to be heard on the appeal.
The choice of the word "intervene" was an
unhappy one because the Chief Justice in his order
scrupulously avoided that word and chose instead
the word "participate", no doubt to give no direc
tion of the capacity in which the claimant could
"participate" but left that to the discretion of the
Court hearing the appeal.
The concluding sentence of the reasons for judg
ment [at page 292] and the pronouncement dated
June 25, 1980 are identical and read:
Neither party hereto is entitled to costs of this appeal but
Isabelle Cadieux is entitled to her taxed costs of the appeal in
any event in the cause.
The parties to the appeal were the Canadian
Human Rights Commission as appellant and
Eldorado Nuclear Limited as respondent but Isa-
belle Cadieux is not identified in any capacity
other than by her personal name.
The long, well-established and consistent prac
tice is that costs are never awarded for or against
an intervenant and I am certain that the Court of
Appeal would not depart from that practice.
Thus since Isabelle Cadieux was awarded "costs
of the appeal in any event in the cause" she is
precluded from being added to the cause as an
"intervenor" and the most likely category in which
she might be added to the cause to entitle her to
the taxable costs of appeal is as a respondent in the
cause if application is made to add her as a party
which seems to be necessary and proper.
The consequence of the decision of the Court of
Appeal in the Canadian Human Rights Commis
sion v. Eldorado Nuclear Limited (supra) is that
no disposition of the application for mandamus
can be made without the complainants being party
thereto.
I suspect that to add the claimants as parties
might be an exercise in futility because they were
named as "complainants" before the Human
Rights Tribunal, which before that Tribunal
appears to be the appropriate designation as par
ties, and they were notified of the hearing but did
not appear either personally or by counsel. Perhaps
they were content to let the Commission carry the
ball.
However that does not alter the fact that they
are "essential parties" and must be joined as par
ties otherwise, as the Court of Appeal has decided,
no valid order can be made without this having
been done. They must be added as parties and
given the opportunity to participate even if they do
not choose to do so and this is the condition
precedent to a valid order being given in accord
ance with the decision of the Court of Appeal by
which I am bound.
As I indicated upon Canadian Human Rights
Commission v. Eldorado Nuclear Limited (supra)
being introduced by counsel for the parties I orally
announced that the application was dismissed with
costs to the respondent, British American Bank
Note Company Limited, and I undertook to give
written reasons therefor.
These are the written reasons in confirmation of
the oral dismissal of the application for mandamus
and in discharge of my undertaking but this order
is not to be construed in any way as an impediment
to the applicant moving to join the complainants as
parties in this matter in the category it considers to
be appropriate and renewing its application. It is
also possible that the complainants may join as
applicants of their own volition in a renewed
application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.