T-1326-90
Canadian Human Rights Commission (Applicant)
v.
Robert W. Kerr, Elizabeth Leighton and Harish
C. Jain, as members of the Canadian Human
Rights Tribunal and Sydney Lederman, as Presi
dent of the Human Rights Tribunal Panel
(Respondents)
and
Her Majesty the Queen, Peter Cranston, Dennis
Bisson, Paul Carson, Robert Caskie, Robert
Graham, Leonard Murray, Harvey Powell,
Donald Williams, John Woodley, Donald J. Allin,
Gary Brown, Joe Czaja, William Devine, Pierre
Laliberte, Marcel Laroche, William L. MacInnis,
John Thrope, Lorne Vickers, Albert J. Chiasson,
Charles L. Empey, Robert Bisson, Jacques H.
Brule, John G. Burke, Lyman H. Gilks, David
Falardeau and John D. Squires (Mis en cause)
INDEXED AS: CANADA (HUMAN RIGHTS COMMISSION) v.
KERR (T.D.)
Trial Division, Dube J.—Ottawa, June 20 and
July 11, 1990.
Judicial review — Prerogative writs — Certiorari
Executive Flight Service transferred from Department of
Transport to D.N.D. — Pilots laid off because average age
exceeding mandatory retirement age in Queen's Regulations
and Orders — Complaining to Canadian Human Rights Com
mission of discriminatory employment practice based on age
— Chairman ruling constitutional validity of Q.R. & 0. not
properly before Tribunal as no prior notice of challenge
Chairman involved in organization providing funding for
S.C.C. Charter challenge on mandatory retirement issue
Denying reasonable apprehension of bias as matter not before
Tribunal — Commission arguing Chairman going too far in
effort to counterbalance involvement with mandatory retire
ment issue — Situation such that Chairman might be suspect
ed of "reverse bias" — Tribunal's decision vitiated where
likelihood any member — and especially Chairman — par
ticipating in decision biased.
Human rights — Pilots laid off when function transferred
from Department of Transport to D.N.D. — Issue as to
validity of Queen's Regulations and Orders stipulating man
datory retirement age raised just prior to commencement of
Canadian Human Rights Tribunal hearing into complaint of
discriminatory employment practice based on age — Chair
man, who admitted involvement in organization providing
funding for Charter challenge on mandatory retirement issue,
holding issue not properly before Tribunal as no prior notice
— Tribunal's decision set aside as reasonable apprehension of
bias — Canadian Human Rights Act, s. 53 limiting Tribunal's
jurisdiction to deciding merits "at conclusion of inquiry"
Denial of right to argue Regulations not meeting requirements
of s. 15(b) effectively dismissing complaints of eleven pilots
over age 55.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 3,
7(a), 10, 15(b), 40(4) (as am. by R.S.C., 1985 (1st
Supp.), c. 31, s. 62), 53.
CASES JUDICIALLY CONSIDERED
APPLIED:
Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68
D.L.R. (3d) 716; 9 N.R. 115; Gariepy v. Canada
(Administrator of Federal Court), [1989] 2 F.C. 353;
(1988), 24 F.T.R. 216 (T.D.).
REFERRED TO:
Weimer v. Symons et al. (1987), 57 Sask. R. 155; 25
Admin. L.R. 111 (Q.B.); International Union of Mine,
Mill & Smelter Workers, Ex parte, R. v. British
Columbia Labour Relations Board (1964), 45 D.L.R.
(2d) 27; 48 W.W.R. 15 (B.C.C.A.).
COUNSEL:
Rene Duval for applicant.
No one appearing for respondents.
Brian Evernden for mis en cause.
SOLICITORS:
Senior Legal Counsel, Canadian Human
Rights Commission, Ottawa, for applicant.
No solicitors of record for respondents.
Deputy Attorney General of Canada for mis
en cause.
The following are the reasons for order ren
dered in English by
DuBE J.: The issue to be resolved in this matter
is whether the October 11, 1989 decision of the
Canadian Human Rights Tribunal ("the Tribu
nal") constitutes reviewable error justifying the
granting of certiorari or prohibition in that it gave
rise to a reasonable apprehension of bias on the
part of the Tribunal Chairperson and, through his
influence, the other Tribunal members.
Peter Cranston, one of the complainants affect
ed by the Tribunal's decision, was a pilot for the
Executive Flight Service ("the Service") operated
by the Department of Transport, from 1966 to
June 30, 1986. All members of the Service were
laid off as of the latter date as a result of its
transfer to the Department of National Defence
("the Department"). They were informed there
was no possibility of their transfer to the Depart
ment because the average age of the pilots was
above the age acceptable to the Department.
At the time of the lay-offs, the mean age of the
pilots was 51. Cranston was 58; ten of the other
complainants were over 55. The military's manda
tory retirement age of 55 is stipulated in para
graphs 15.17 and 15.31 of the Queen's Regulations
and Orders.'
In November and December 1985, the pilots
filed complaints with the Canadian Human Rights
Commission ("the Commission") alleging dis
crimination in employment based on age, contrary
to subsection 3(1) and paragraph 7(a) and section
10 of the Canadian Human Rights Act 2 ("the
Act") which read:
3. (1) For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, family status,
disability and conviction for which a pardon has been granted
are prohibited grounds of discrimination.
. . .
7. It is a discriminatory practice, directly or indirectly,
' 1968 revision, issued under the authority of the National
Defence Act.
2 R.S.C., 1985, c. H-6.
(a) to refuse to employ or continue to employ any individual,
. . .
on a prohibited ground of discrimination.
. . .
10. It is a discriminatory practice for an employer, employee
organization or organization of employers
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
The hearings before the Tribunal culminating in
the decision giving rise to this motion took place in
May and October 1989. The transcript of proceed
ings shows that the arguments and objections lead
ing up to this decision by the Chairman were at
times untidy and chaotic. Although counsel for the
Commission was well aware at the outset of the
Department's intention to use as a defence the
military's mandatory retirement age of 55, it was
not until shortly prior to the commencement of the
actual hearings that he advanced his challenge to
the constitutional validity of the above-cited
Queen's Regulations and Orders. After much
debate the Chairman, the respondent Robert W.
Kerr, ruled that the validity of the mandatory
retirement age in the Canadian Forces was not
properly before the Tribunal as there had been no
prior notice, and that it was not apparent from the
complaints that the interpretation of paragraph
15(b) of the Act would have to be addressed. The
paragraph reads:
15. It is not a discriminatory practice if
. . .
(b) employment of an individual is refused or terminated
because that individual has not reached the minimum age, or
has reached the maximum age, that applies to that employment
by law or under regulations, which may be made by the
Governor in Council for the purposes of this paragraph.
Earlier, at the outset of the hearings, during the
course of a meeting in chambers, Chairman Kerr
had informed counsel of his involvement in an
organization providing major funding for a Chart
er challenge before the Supreme Court of Canada
on the issue of mandatory retirement.
Following the above ruling, counsel for the
Commission requested an adjournment to consult
with the Commission as, in his view, the Chair-
man's denial of his right to challenge the validity
of the above Regulations effectively annihilated
the cases of the eleven complainants who had been
over 55 at the time of the lay-offs.
In January 1990, prior to the filing of the
instant motion, the Tribunal reconvened in order
to consider the Commission's offer of the opportu
nity for Mr. Kerr to resign. The Tribunal was
presented with Cranston's affidavit in which he
stated his belief (paragraphs 52 to 56) that the
Tribunal's ruling was the result of the Chairper
son's "uneasiness with issues relating to age limita
tions" because of his involvement in the Charter
challenge before the Supreme Court of Canada.
The Commission's position is that Chairman
Kerr had bent over backwards in an effort to
counterbalance his involvement with the mandato
ry retirement issue: he had gone too far in the
opposite direction.
The Chairman admitted (at page 221 of the
motion record) that "if the issue of mandatory
retirement were before this Tribunal it might well
be a situation where a reasonable apprehension of
bias would arise, given the Chair's involvement
with respect to that issue in another forum". But,
the Chairman continued (at pages 221-222):
... because there was no indication in the complaints ... that
the issue of mandatory retirement was involved, it never
occurred to me as Chair that any question of possible bias
arose, until the exchange of correspondence between counsel in
the spring of 1989, when Mr. Duval for the first time made
reference to the issue ... I drew this matter to the attention of
counsel at the beginning of the May hearing ... At that time
counsel for [the Commission] raised no argument based on
possible bias ... If the Tribunal decides the issue is properly
before it, it must then, of course, decide whether to disqualify
itself ... The mandatory retirement issue did, we accept, arise
naturally out of the case ... The problem being that it arose
very late in the proceedings: too late, in our view, for fairness to
allow it to be considered, which is the basis for our preliminary
ruling.
It appears that in a 1989 case involving VIA
Rail's mandatory retirement policy, representa
tions were made to the effect that Chairman Kerr
had been personally involved with the issue of
mandatory retirement and that a reasonable
apprehension of bias arose therefrom. At that
time, Kerr resigned his appointment.
The classic test for determining the apprehen
sion of bias is the one enunciated by Mr. Justice de
Grandpre in his dissenting judgment in Committee
for Justice and Liberty et al. v. National Energy
Board et al. 3 (at page 394):
The proper test to be applied in a matter of this type was
correctly expressed by the Court of Appeal. As already seen by
the quotation above, the apprehension of bias must be a reason
able one, held by reasonable and right minded persons, apply
ing themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that
test is "what would an informed person, viewing the matter
realistically and practically — and having thought the matter
through — conclude. Would he think that it is more likely than
not that Mr. Crowe, whether consciously or unconsciously,
would not decide fairly."
More recently, in Gariepy v. Canada (Adminis-
trator of Federal Court), 4 I had to apply that test
to the presence on a selection board of a chairman
who had discussed the substance of a pending
court action between the two parties. I found there
was a reasonable apprehension of bias on the part
of the chairman against the plaintiff. I said (at
page 361):
The plaintiff does have valid grounds for harbouring a
reasonable apprehension of bias. A realistic view of the situa
tion by any reasonable person must be that the Chairman of the
Selection Board is more likely than not, consciously or uncon
sciously, to be biased vis-a-vis the candidacy of the plaintiff.
In the present case, I also find that there are
valid grounds to sustain a reasonable apprehension
of bias in the minds of the complainants. It is
apparent that a situation had been created in
which the Chairman might be suspected of what I
would call a "reverse bias". As mentioned earlier,
3 [1978] 1 S.C.R. 369.
[1989] 2 F.C. 353 (T.D.).
in a somewhat similar situation involving VIA Rail
complainants, Chairman Kerr resigned without
hesitation. In this instance, he admits himself that
"if the issue of mandatory retirement were before
this Tribunal it might well be a situation where a
reasonable apprehension of bias would arise".
The Chairman seemed to think that he could not
be suspected of bias in the instant proceedings
merely because the issue of mandatory retirement
was not raised at the proper time. Obviously, that
cannot be the applicable criterion. Again, the test
is whether or not the complainants, who are
informed persons — they know about mandatory
retirement, they claim they are victims of that
requirement and they know that the Chairman was
involved, albeit on their side, in similar matters
before the Supreme Court of Canada — could
realistically and practically conclude that Mr.
Kerr, consciously or unconsciously, was bending
over backwards, to their detriment, so as to show
his impartiality in the matter.
A reading of the transcript shows that in the
course of the proceedings the Chairman elected a
very legalistic approach to extricate himself from
the corner into which he had boxed himself. It is
very likely that if the issue of mandatory retire
ment had been raised by the Commission at the
outset, the Chairman would have acted in this case
exactly as he did in the VIA Rail case. The mere
fact that the issue arose later on in the hearing is
not a valid defence against an application for
judicial review on the basis of reasonable appre
hension of bias.
No reasonable apprehension of bias has been
raised directly against the other members of the
Tribunal, but the jurisprudence is clearly to the
effect that the decision of a Tribunal consisting of
more than one member will be vitiated if the
circumstances establish a likelihood that any
member, and more particularly the Chairman,
participating in the decision is biased in favour of
or against one of the parties. 5
5 See Weimer v. Symons et al. (1987), 57 Sask. R. 155
(Q.B.), at p. 160 and International Union of Mine, Mill &
Smelter Workers, Ex parte, R. v. British Columbia Labour
Relations Board (1964), 45 D.L.R. (2d) 27 (B.C.C.A.).
Moreover, pursuant to section 53 of the Canadi-
an Human Rights Act, the Tribunal's jurisdiction
is limited to deciding the merits of the complaint
"at the conclusion of its inquiry". The Tribunal's
decision of October 11, 1989 denying counsel for
the Commission the right to argue that the
Department's regulations do not meet the require
ments of paragraph 15(b) of the Act, did in fact
settle the fate of the eleven complainants over the
age of 55. Again, had that argument been made by
the Commission at the complaint stage, rather
than much later in the proceedings, the present
situation might have been avoided. A new hearing
will afford all parties concerned the opportunity
for a clean start.
Counsel for the respondents, who forcefully
denied any bias on the part of the Chairman,
suggested that if I should find in favour of the
applicant and the complainants, I might sever the
proceedings under subsection 40(4) [as am. by
R.S.C., 1985 (1st Supp.), c. 31, s. 62] of the Act
and allow the proceedings to continue with refer
ence to the complainants who are under the age of
55. I have seriously considered that proposal, but
find it impractical and possibly unfair to some of
the complainants who are not yet 55 but will be in
the near future: the difficulty is to draw a line
without creating any injustice.
Consequently, I will allow the motion and quash
the decision rendered by the Canadian Human
Rights Tribunal on October 11, 1989. I also order
the respondent Sydney Lederman to appoint a new
Tribunal to hear the complaints. The notice of
motion seeks no costs and none will be awarded.
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