Judgments

[1994] 2 F.C. 447

A-632-93

The Canadian Human Rights Commission (Appellant)

v.

The Attorney General of Canada and Frank Bernard (Respondents)

Indexed as: Canada (Human Rights Commission) v. Canada (Attorney General) (C.A.)

Court of Appeal, Marceau, Desjardins and Décary JJ.A.—Ottawa, January 11 and 17, 1994.

Practice — Parties — Standing — Under R. 1611 Canadian Human Rights Commission having intervenor status in judicial review proceedings where own decision challenged — R. 1611 specifically applicable to tribunals — Court not having discretion under R. 1716(2)(b) to grant party status — R. 1716 not governing case covered by more specific RR. 1600 ff — RR. 1600 ff filled in gap under former Rules where no provision for “intervenor” — Part V.1 defining who is respondent, intervenor — Absent specific legislation, doubtful board could have party status.

Human rights — CHRC seeking party standing in judicial review proceeding where own decision challenged — Commission having intervenor status under R. 1611 — Court concerned with Commission’s decision concerning Canadian Human Rights Act, s. 41(e), not Commission’s unique role conferred by Parliament — Word “party” having connotation of taking sides — Commission must appear impartial as case could be returned to it and to protect public image for future cases.

This was an appeal from the dismissal of the Commission’s application to be added as a party respondent in an application for judicial review of its own decision. The respondent, Bernard, filed, out of time, a complaint with the Commission against his former employer, the Canadian Armed Forces. The Attorney General applied for judicial review of the Commission’s decision to deal with the belated complaint, naming Bernard as respondent. The Commission then applied for an order amending the style of cause pursuant to Rule 1602(3), which provides that any interested person who is adverse in interest to the applicant shall be named as a respondent. An “interested person” is defined in Rule 1600 as a person who was heard in the proceedings in respect of which the application for judicial review was made. The Attorney General argued that the new procedure prescribed by the Rules does not permit the addition of the Commission as a party respondent in the judicial review of its own decision, but requires it to seek leave to intervene. The Trial Judge dismissed the application without prejudice to the Commission’s right to bring an application under Rule 1611 to intervene. The Commission argued herein that Rules 1600 ff, while providing who shall be named as respondents, do not provide for those who may be joined as respondents. It submitted that the Court had the discretion to add the Commission as a party pursuant to Rule 1716(2)(b), relying upon Diotte v. Canada, [1991] 1 F.C. 731 (C.A.) wherein Rule 1716(2)(b) and the gap rule (Rule 5) were invoked. It submitted that the Court, in interpreting the Federal Court Rules, should consider the Commission’s special role. Unlike other tribunals, it does not simply adjudicate between two parties, but has the carriage of a complaint. If a Human Rights Tribunal is constituted, the Commission is obliged to “adopt such position as, in its opinion, is in the public interest” before such Tribunal. The Commission has the right to appeal the decision of the Human Rights Tribunal, and because of its standing before the Review Tribunal, it can seek judicial review of that decision before the Federal Court. The Commission acts as a defender of individual complainants who generally do not have the resources to defend their case. The Commission considers itself as being different from a traditional intervenor, whose participation is restricted to matters bearing on a particular interest, as distinguished from the whole issue in dispute between the parties. The issue was whether the Commission should be granted standing as a party respondent or as an intervenor.

Held, the appeal should be dismissed.

Per Desjardins J.A. (Marceau J.A. concurring): The Court was concerned only with the Commission’s decision with respect to Canadian Human Rights Act, paragraph 41(e). The new Rules 1600 ff constitute a code for bringing judicial review applications. Rule 1716(2)(b), which relates to the addition of a party in an action, would not govern a situation covered by the more specific Rules 1600 ff. Furthermore, it was doubtful that the status of party could apply to a board absent legislation to that effect. “Party” has a strong connotation of taking sides. Since the Commission must always appear as an impartial tribunal, particularly as the matters in dispute are often returned to it following a judicial review proceeding, and in view of the necessity for protecting its public image in future cases, it cannot properly be added as a party.

Per Décary J.A. (Marceau J.A. concurring): The Commission fell within Rule 1611(1) under which “any person who wishes to intervene in the hearing of an application for judicial review, including the … tribunal in respect of whose decision the application has been made, must file a notice of application for leave to intervene”. Furthermore, Rule 1604, which requires that the notice of motion be served on the other parties, the federal board, commission or other tribunal in respect of which the application is made, and all interested persons, clearly implies that the tribunal is generally neither a party nor an interested person.

Rule 1716(2) applies to actions. The gap rule cannot be invoked where no gap exists or where the result would be to effect an amendment to those Rules. Part V.1 clearly defines who is a respondent and who can be an intervenor. Rule 1611 specifically applies to tribunals. It would not make sense to hold that a person generally intended to be at best an intervenor under the new Rules could nevertheless rely by analogy on Rule 1716(2)(b). Rule 1716(2)(b), which confers a discretionary power on the Court, should not be transformed into a Rule under which that power would no longer be discretionary and would be used solely with respect to the Commission. That is not what “by analogy” in Rule 5 means.

Provisions granting tribunals status to participate in proceedings where their decision is attacked are exceptional and should be interpreted restrictively. Had Parliament intended to grant full party status to the Commission in a case where it had not initiated the complaint itself, or where the decision attacked was its own, it would have done so expressly. Absent such specific statutory provisions, the Commission should abide by the Rules and seek under Rule 1611 the right to participate in the proceedings as intervenor.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1, s. 42(1)(a),(b),(c).

Canadian Human Rights Act, R.S.C., (1985), c. H-6, ss. 40(3), 41(e), 47, 50(1), 51, 55.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1 (as enacted by S.C. 1990, c. 8, s. 5), 28 (as am. idem, s. 8; 1992, c. 26, s. 17), 46 (as am. by S.C. 1990, c. 8, s. 14; 1992, c. 1, s. 68).

Federal Court Rules, C.R.C., c. 663, RR. 2, 5, 300(4) (as am. by SOR/79-57, s. 2], 303(1), 311 (as am. by SOR/90-846, s. 5), 319 (as am. by SOR/88-221, s. 4), 346 (as am. by SOR/87-221, s. 3), 408, 462 (as am. by SOR/90-846, s. 15), 481A (as enacted by SOR/79-57, s. 15), 482 (as am. by SOR/90-846, s. 18), 1104(1), 1201 (as am. by SOR/92-43, s. 9), 1600 (as enacted idem, s. 19), 1602(3) (as enacted idem), 1604(1) (as enacted idem), 1611 (as enacted idem), 1612 (as enacted idem), 1615 (as enacted idem), 1619 (as enacted idem), 1715, 1716(2)(b), 1726.

National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N-20 (as am. by R.S.C., 1985 (3rd Supp.), c. 28, s. 301), s. 65(4).

Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, s. 78(1)(a),(b),(c),(3).

CASES JUDICIALLY CONSIDERED

DISTINGUISHED:

Diotte v. Canada, [1991] 1 F.C. 731; (1990), 134 N.R. 71 (C.A.).

CONSIDERED:

Northwestern Utilities Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R. 684; (1978), 12 A.R. 449; 89 D.L.R. (3d) 161; 7 Alta. L.R. (2d) 370; 23 N.R. 565; Edmonton Friends of the North Environmental Society v. Canada (Minister of Western Economic Diversification), [1991] 1 F.C. 416; (1990), 73 D.L.R. (4th) 653; [1991] 2 W.W.R. 577; 78 Alta. L.R. (2d) 97; 47 Admin. L.R. 265; 114 N.R. 153 (C.A.).

REFERRED TO:

Moosehead Breweries Ltd. v. Molson Companies Ltd. and Registrar of Trade Marks (1985), 63 N.R. 140 (F.C.A.); Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; (1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 40 B.C.L.R. (2d) 1; 40 Admin. L.R. 181; 89 CLLC 14,050; Friends of the Oldman River Society v. Canada (Minister of Transport), [1990] 2 F.C. 18; (1990), 68 D.L.R. (4th) 375; [1991] 1 W.W.R. 352; 76 Alta. L.R. (2d) 289; 5 C.E.L.R. (N.S.) 1; 108 N.R. 241 (C.A.); Friends of the Oldman River Society v. Canada (Minister of the Environment), [1993] 2 F.C. 651 (C.A.); R. v. CAE Industries Ltd. et al, [1977] 2 S.C.R. 566; (1977), 72 D.L.R. (3d) 159; 31 C.P.R. (2d) 236; 13 N.R. 624; Stelco Inc. v. Canadian International Trade Tribunal, A-410-93, Décary J.A., order dated 23/11/93, F.C.A., not reported.

AUTHORS CITED

Black’s Law Dictionary. 5th ed., St. Paul, Minn.: West Publishing Co., 1979, “intervenor”, “intervention”, “party”.

APPEAL from the trial judgment (Canada (Attorney General) v. Bernard, T-1927-93, McGillis J., order dated 28/10/93, F.C.T.D., not yet reported) dismissing the CHRC’s application to amend the style of cause by adding it as a respondent in judicial review proceedings where its own decision is challenged. Appeal dismissed.

COUNSEL:

William F. Pentney for appellant.

Barbara A. McIsaac for respondent, the Attorney General of Canada.

No one appearing for respondent, Frank Bernard.

SOLICITORS:

General Counsel, Canadian Human Rights Commission, Ottawa, for appellant.

Deputy Attorney General of Canada for respondent, the Attorney General of Canada.

respondent on his own behalf:

Frank Bernard, Sardis, British Columbia.

The following are the reasons for judgment rendered in English by

Marceau J.A.: I agree with both my colleagues that this appeal cannot succeed and make mine, in substance, the reasons they give for that conclusion.

* * *

The following are the reasons for judgment rendered in English by

Desjardins J.A.: I fully agree with the reasons for judgment given by my colleague Décary J.A. to which I would add my own comments.

The decision of the Commission, which is challenged by the respondent Attorney General in a section 18.1 [Federal Court Act, R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] judicial review proceeding, relates to the application by the Commission of paragraph 41(e) of the Canadian Human Rights Act[1] (CHRA) whereas the Commission decided to deal with the complaint of Frank Bernard, a former member of the Canadian Forces, in spite of the fact that the act alleged to have caused discrimination by reason of age occurred more than one year prior to the filing of the complaint. The respondent Attorney General invokes two grounds for intervention by the Federal Court; it argues that the Commission erred in law by failing to exercise its discretion in a lawful manner and by ignoring the statutory limitation and secondly, that it breached the rules of procedural fairness causing prejudice to the Canadian Forces.

In its argument before us on this appeal from the Trial Division [T-1927-93, McGillis J., order dated 28/10/93, not yet reported], the Commission puts great emphasis on the fact that it is not asserting that it is an “interested person” within the meaning of Rule 1600 of the Federal Court Rules [C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)].[2]

Rather, it submits that the Court has the discretion to add it as a party to the judicial review proceedings under Rules 303(1), 1104(1) and 1716(2)(b). Diotte v. Canada[3] is relied upon.

The Commission argues that the current Rules 1600 ff, while providing who “shall be named as a respondent” (Rule 1602(3)) do not provide for those who “may” be joined as respondents. While it wishes to maintain its appearance of impartiality, which is the cornerstone of the ruling in Northwestern Utilities Ltd. et al. v. City of Edmonton,[4] the Commission maintains that it is mandated by Parliament with a special role which ought to be considered by this Court in interpreting the Federal Court Rules. Unlike other tribunals, boards and commissions, the Commission says it does not simply adjudicate between two parties. It has under the CHRA the carriage of a complaint. Through its staff, it investigates a complaint and if the complaint progresses, it can conciliate it.[5] If a Human Rights Tribunal is constituted to hear a complaint, the Commission, when appearing before such tribunal, is under an obligation to “adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint being inquired into.”[6] The Commission has moreover the right to appeal the decision of the Human Rights Tribunal before a Review Tribunal.[7] And because of its standing before the Review Tribunal, it can then seek judicial review of that decision before the Federal Court. On account of this unique statutory role, the Commission acts as a defender of individual complainants who generally do not have the resources, financial or otherwise, to defend their case. An affidavit signed by Frank Bernard, as part of the record, indicates that the complainant indeed understood the Commission’s role to mean “that they would handle everything.” Bernard did not plan to defend the motion as he did not understand what it was about and he could not afford a lawyer. From this evidence, the Commission argues that unlike cases such as Moosehead Breweries Ltd. v. Molson Companies Ltd. and Registrar of Trade Marks,[8] it, and not the Attorney General, represents the public interest. It considers itself as being in a different situation than a traditional intervenor whose participation is restricted to matters bearing on a particular interest as distinguished from the whole issue at dispute between the parties. Its status as a party should be granted as a matter of discretion so as to enable the Court to have before it all the relevant information as well as the necessary explanations.

This argument, in my view, is untenable.

While recognizing the statutory role played by the Commission in the application of its embodying statute, the only matter this Court is concerned with in this appeal relates to the decision of the Commission with regard to paragraph 41(e) of the CHRA. We are not concerned with the other multiple roles of the Commission. It is this decision which it is permitted to explain within the parameters defined in a line of Supreme Court of Canada decisions, the more recent one being the Paccar case, where La Forest J. stated:[9]

In my view, the Industrial Relations Council has standing before this Court to make submissions not only explaining the record before the Court, but also to show that it had jurisdiction to embark upon the inquiry and that it has not lost that jurisdiction through a patently unreasonable interpretation of its powers.

The Federal Court Rules are meant to regulate “practice and procedure”.[10] The new Rules 1600 ff constitute a code for bringing judicial review applications in an orderly and informative fashion before the Court and are well within the lines defined by the Supreme Court of Canada with regard to tribunals. Rule 1716(2)(b) which comes under the heading of “rules re special cases and particular problems” and which relates to the addition of a party in an action has therefore been discarded by the more specific Rules 1600 ff. Besides, the Diotte case, where Rule 1716(2)(b) and the “gap rule” (Rule 5) were invoked, has no similarity to the case at bar. Diotte dealt with the addition, as a party respondent in a certiorari proceeding, of an officer of the Canadian Forces who had been the decision-maker in the case of the release of the applicant. Such person was therefore closer to the respondent itself, the Attorney General, and had none of the features of an administrative board.

Furthermore, I am not convinced that the status of party can be said to apply to a board absent legislation to that effect. While Estey J. in Northwestern Utilities Ltd.,[11] noted that the Public Utilities Board was precluded by implication in its governing statute from bringing an appeal and stated at page 708 that the Board could not “be considered as a party, in the full sense of that term” [underlining added], he was not called upon to decide in a technical sense the precise status of the Board to which he granted locus standi.

The Federal Court Rules do not define the words “party” and “parties”,[12] although they refer to them constantly.[13] The attributes that flow from the status of party are, however, better known. In a unanimous decision by this Court in Edmonton Friends of the North Environmental Society v. Canada (Minister of Western Economic Diversification),[14] Mr. Justice Stone, while discussing Rule 1716(2)(b), set out the distinction between being a “party” and “intervenor” in the following manner:

Rule 1716(2)(b) is not peculiar to practice and procedure in the Federal Court. It, or a variation of it, has been a feature of the rules governing practice and procedure in the Supreme Court of Ontario since at least 1913. It was apparently inherited from England. It is not a rule for joining an intervenor but for joining a party. There is, of course, a significant difference between the position of an intervenor in proceedings and that of a party. The intervenor, for example, must as a rule take the record as he finds it. He has no status to pursue an appeal (Corporation of the City of Toronto v. Morencie, [1989] 1 S.C.R. vii). On the other hand, a party joined by order of a court will normally enjoy the same rights as those of other parties including the right to adduce evidence and to make submissions. It has been said, indeed, that he holds an absolute right to cross-examine witnesses adverse in interest (see Halton Community Credit Union Ltd. v. ICL Computers Can. Ltd. (1985), 3 C.P.C. (2d) 252 (Ont. C.A.), at page 253).

I find in Black’s Law Dictionary[15] the following definition of the word “party”:

“Party” is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal suit is brought, whether in law or in equity, the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons; all others who may be affected by the suit, indirectly or consequently, are persons interested but not parties. Golatte v. Mathews, D.C.Ala., 394 F.Supp. 1203, 1207. [Emphasis added.]

The words “intervenor” and “intervention” are thus defined in the same dictionary:[16]

Intervenor. An intervenor is a person who voluntarily interposes in an action or other proceeding with the leave of the court. See Intervention.

Intervention. The procedure by which a third person, not originally a party to the suit, but claiming an interest in the subject matter, comes into the case, in order to protect his right or interpose his claim. The grounds and procedure are usually defined by various state statutes or Rules of Civil Procedure; e.g., Fed.R. Civil P. 24. Intervention may exist either as a matter of right (Rule 24(a)) or at the discretion of the court (Rule 24(b)).

In English ecclesiastical law, the proceeding of a third person, who, not being originally a party to the suit or proceeding, but claiming an interest in the subject-matter in dispute, in order the better to protect such interest, interposes his claim. Stillwell Hotel Co. v. Anderson, 16 Cal.App.2d 636, 61 P.2d 71, 72. [Emphasis added.]

While these definitions are simply illustrative, they are rather revealing in that they indicate to me that the word party in a strict sense has a strong connotation of “taking sides”. Since the appearance of the Commission as an impartial tribunal can never be discredited considering that the matters in dispute are often returned to it in a judicial review proceeding and, also, in view of the necessity of protecting its public image in future cases, I do not think it can properly be added as a party. Thus the wisdom of the new Rules.

I would dispose of this appeal as suggested by Décary J.A.

* * *

The following are the reasons for judgment rendered in English by

Décary J.A.: This appeal relates to the standing to be granted to the Canadian Human Rights Commission (the Commission) in judicial review proceedings where its own decisions are challenged. This issue is to be examined in the context of amendments made in 1992 to the Federal Court Act and the Federal Court Rules (the Rules).

Respondent Bernard has filed with the Commission a complaint against his former employer, the Canadian Armed Forces (represented throughout these proceedings by the Attorney General of Canada (the Attorney General)). The complaint was filed out of time. The Commission decided “to exercise its discretionary power to extend the time limit” and “pursuant to paragraph 41(e) of the Canadian Human Rights Act, to deal with the complaint even though the act complained of occurred more than one year before the receipt of the complaint by the Commission”.[17]

The Attorney General challenged that decision under section 18.1 of the Federal Court Act. In his originating notice of motion, the Attorney General named Bernard as the sole respondent, contrary to the practice he had been following until then of also naming the Commission as party respondent.

The Commission then applied for an order “amending the style of cause to reflect that the Canadian Human Rights Commission is a respondent in this case pursuant to Rule 1602(3).”[18] The Attorney General opposed the application on the basis that the new procedure prescribed by the Rules does not permit the addition of the Commission as a party respondent in the judicial review of its own decision, but rather requires it to seek leave to intervene in the proceedings. The Attorney General did not object to the participation of the Commission in the proceedings as an intervenor.

Madam Justice McGillis dismissed the application without prejudice to the right of the Commission to bring an application under Rule 1611 [as enacted by SOR/92-43, s. 19] to intervene in the judicial review proceedings.

The issue is not, properly speaking, whether standing can be granted. No one quarrels with the Commission’s submissions to the effect that administrative tribunals may be granted standing for certain purposes, for example to explain the record or to make representations with respect to jurisdiction.[19] Counsel for the Commission conceded that had the Commission sought leave, instead, to intervene on the terms agreeable to the Attorney General, it would have been in a position to participate in the proceedings as fully, and within the confines determined by the case law, as if it had been a party respondent except, possibly, as regards the right to appeal. The Attorney General was ready to accept that the terms of intervention include the right to appeal, but as that right has been generally associated with the status of party rather than with that of intervenor,[20] counsel for the Commission declined the offer of the Attorney General and pursued his quest for full party status. The issue therefore becomes simply whether the Commission should be granted standing as a party respondent or as an intervenor.

There is no doubt that based solely as it then was on Rule 1602(3), the application could not succeed.

Under Rule 1602(3), “[a]ny interested person who is adverse in interest to the applicant in the proceedings before the … tribunal shall be named as a respondent in the notice of motion.” An “interested person” is defined in Rule 1600 as being “a person who was heard in the proceeding before the … tribunal in respect of which the application for judicial review is made.” Clearly, the Commission is not, in this case, an “interested person”.[21]

And as clearly the Commission falls precisely within the ambit of Rule 1611(1) under which “[a]ny person who wishes to intervene in the hearing of an application for judicial review, including the … tribunal in respect of whose decision the application has been made, must file a notice of application for leave to intervene.” Pursuant to Rule 1611(3), the Court may grant leave to intervene “upon such terms and conditions as it considers just.”

Furthermore, Rule 1604, which requires that the notice of motion “be served on (a) the other parties; (b) the federal board, commission or other tribunal in respect of which the application is made; and (c) all interested persons”, clearly implies that the tribunal is generally neither a party nor an interested person.

In its factum, the Commission modified its approach. It no longer asserted that the Commission was an “interested person” within the meaning of Rule 1600. It asserted, rather, that the Court had the discretion to add the Commission as a party pursuant to Rule 1716(2)(b) which reads as follows:

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,

but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as the Court may find to be adequate in the circumstances.

Counsel argued, on the basis of the decision of this Court in Diotte v. Canada,[22] that Rule 1716(2)(b) could be applied to motions. In Diotte, the Court had held as follows:

While Rule 1716(2)(b) pertains to an “action” which, by definition, does not include “an application or an originating motion” (Rule 2(1)), Rule 5(a) does empower the Court to determine a matter of practice and procedure not otherwise provided for “by analogy … to the other provisions of these Rules”.

As it is well established that Rule 5—the gap rule—cannot be resorted to where no gap exists in the Federal Court Rules or where the result would be to effect an amendment to those Rules,[23] one must examine whether the new Rules have filled the gap which was found to exist under the former Rules in Diotte or whether the new Rules are irreconcilable with Rule 1716(2)(b).

Diotte, in my view, is easily distinguishable. It was decided at a time where the concept of “intervenor” was not formerly known in judicial review proceedings in this Court, where there was often confusion in the terms used, “respondent” being more often than not used in the sense of “intervenor” and where the Court tolerated that parties that were in reality intervenors be named as respondents. It is indeed remarkable that Rule 1716 itself contemplates the addition of a “party” without distinguishing between a “true” party and an intervenor and has been used to add “parties” which were nothing but “intervenors”.

It is precisely this kind of confusion between “party” and “intervenor” that Part V.1 of the Rules[24] attempts to dispel, thereby making earlier jurisprudence of the Court, as noted by McGillis J., of limited, if any, assistance in determining the question raised on this appeal. The procedure set out in the new Rules for permitting an intervention by a tribunal which is not a proper party in the circumstances, is fairly simple. Since the notice of motion identifies the tribunal in respect of which the application is made and sets out the grounds intended to be argued (Rule 1602(2)(d) and (e)) and since the applicant serves on the tribunal the notice of motion as well as his affidavits (Rule 1604(1)(b)), the tribunal is given ample and early opportunity to determine whether it will want to participate in the proceedings. Should it so determine, it will seek status as intervenor under Rule 1611.[25] Where a tribunal has been erroneously named as respondent, it will have no status as respondent and will not be allowed to participate in the proceedings unless it obtains leave under Rule 1611 to participate as intervenor.[26] It may be useful to note that Rule 1619(1) [as enacted by SOR/92-43, s. 19] allows the Court, at any time, to waive compliance with all or part of Rule 1611.

Part V.I of the Rules defines in clear terms who is a respondent and who can be an intervenor. The drafters made sure that Rule 1611 would apply to tribunals by adding specific words to that effect. It would make no sense to hold that a person generally intended to be at best an intervenor under the new Rules could nevertheless rely by analogy on Rule 1716(2)(b) and claim the status of a respondent.

Before us, counsel for the Commission again modified his approach. Trying desperately to stay clear from any form of discretion that would allow the Court to deny the Commission the status of party respondent, counsel argued that the Court had no discretion and should, under the gap rule, read the Rules as requiring the Court in the exercise of its discretion to grant the Commission the status of a party respondent whenever the Commission would seek such status.

This argument, however put, is simply without merit. The gap rule is there to complete the Rules, not to amend them. The Commission would have us transform a rule, Rule 1716(2)(b), which at its very face confers a discretionary power on the Court, into a rule under which that power would no longer be discretionary and would be used solely with respect to the Commission. This is evidently not what adopting “by analogy” in Rule 5 means. To retain counsel’s suggestion would be also for this Court to amend the Canadian Human Rights Act. The Commission, as I have already indicated in note 21, has been granted by its enabling statute a very special status in some circumstances, none of which are present here. Provisions granting tribunals status to participate in proceedings where their decision is attacked are exceptional and should be interpreted restrictively.[27] Courts should not go further than Parliament has. Parliament, had it intended to grant full party status to the Commission in a case where it had not initiated the complaint itself or in a case where the decision attacked was its own rather than one of a Human Rights Tribunal, would have been expected to do so in express terms.

I appreciate that in human rights legislation proceedings courts have been remarkably disposed to open the door to an active participation by the human rights commission concerned, particularly where, as here, the complainant could not afford to mount a proper attack against the author of the alleged discriminatory practice. But absent specific statutory provisions granting the Canadian Human Rights Commission the right in this case to participate as a party in the full sense of that term, the Commission should abide by the Rules as all other tribunals and seek under Rule 1611 the right to participate in the proceedings as intervenor under such wide terms as may be justified in the circumstances of this case and as are compatible with the status of intervenor in the Trial Division. The Commission must presuppose that the Motions Judge hearing the application for leave to intervene will be sensitive to the concerns and needs of the complainant as well as to those of the Court and will exercise his or her discretion judicially.

The appeal should be dismissed.

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