Judgments

T-431-97

Canadian Broadcasting Corporation (Applicant)

v.

Leila Paul (Respondent)

Indexed as: Canadian Broadcasting Corp.v. Paul (T.D.)

Trial Division, Tremblay-Lamer J."Toronto, November 4; Ottawa, December 11, 1998.

Human rights — Allegations of age, sex discrimination against CBC — Jurisdiction of CHRC due to paramountcy of CHRA, s. 41(1) over collective agreement arbitration of differences provision of Canada Labour Code — Decision to appoint Tribunal quashed as material omissions in investigator's report casting serious doubts on investigator's neutrality, insufficient evidence upon which to base decision — Disclosure of conciliator's report to CHRC, thereby revealing parties' position without parties' consent, vitiating decision to appoint Tribunal as based on material not properly before it, in breach of Act and undermining purpose of confidential negotiations, mediation scheme.

Labour relations — Collective agreement arbitration of differences provision of Canada Labour Code superseded by CHRA, s. 41(1) in case of discrimination complaint.

The respondent worked for the CBC as newsreader and reporter, mostly on late-night local television newscasts. The two collective agreements which governed her employment relations with the CBC both prohibited discrimination on any of the grounds listed in the Canadian Human Rights Act (CHRA). The respondent filed grievances in respect of two competitions (one in 1988, the other in 1989) for the position of weekday news anchor for the 6 p.m. News Centre Program, alleging that she was more qualified than the successful candidate. The grievances were later withdrawn, but before doing so, she had also filed a complaint with the Canadian Human Rights Commission (the Commission), alleging discrimination on the bases of age and sex in the 1989 competition, and on the basis of sex in the 1988 competition in which she had not even been an applicant. The investigation report (IR) prepared by a human rights officer resolved that a conciliator should be appointed. The conciliation efforts having proved unsuccessful, the Commission advised the parties that it had decided to refer the complaint to a Human Rights Tribunal. This was an application for judicial review of that decision.

Whereas subsection 41(1) of the CHRA gave the Commission jurisdiction to deal with complaints of discrimination, unless they could be more appropriately dealt with under another Act, the Canada Labour Code (section 57) provided that every collective agreement should contain an arbitration clause to settle all differences between the parties thereto. The collective agreements herein did contain that arbitration clause.

The issues were whether an arbitrator has exclusive jurisdiction over a complaint arising from an alleged violation of the CHRA when the impugned conduct is prohibited by the collective agreement which contains an arbitration clause; whether the IR, on which the Commission relied to determine whether to recommend the naming of a Tribunal, was sufficiently incomplete or biassed to render the Commission's decision unreasonable; and whether the fact that the conciliator disclosed his report to the Commission, without the consent of the CBC, vitiated the Commission's decision to recommend the naming of a Tribunal.

Held, the application should be allowed.

Subsection 41(1) of the CHRA gives jurisdiction to the Commission to deal with any complaint arising from a collective agreement, unless it decides that the grievance procedure should be exhausted. The next question is whether section 57 of the Canada Labour Code may be construed as an exception to the jurisdiction of the Commission. In St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, the Supreme Court indicated that arbitration was clearly the forum preferred by the legislature for the resolution of disputes arising under collective agreements, but, in that case, the Court was not dealing with a statute like the CHRA, where the legislator has clearly provided another forum for disputes arising from allegedly discriminatory practices. Further, section 41 of the CHRA is a subsequent enactment to the section 57 Canada Labour Code provision. The earlier enactment is repealed by implication, in so far as it confers exclusive jurisdiction upon an arbitrator in matters specifically given, by the legislator, to the CHRC. And the courts have recognized the paramountcy of the CHRA, when a conflict arises between two pieces of legislation. Only a clear legislative pronouncement (absent herein) can oust the operation of paragraph 41(1)(a) of the CHRA. Therefore, the CHRC has full jurisdiction, over the arbitrator, to deal with discriminatory practices, unless, as provided by paragraph 41(1)(a), it appears to the CHRC that the alleged victim should exhaust the grievance procedures available.

The CHRA provides that upon receipt of an investigation report, the CHRC has to determine whether there is a reasonable basis in the evidence (sufficient evidence) for proceeding to the next stage and appoint a Tribunal. In so doing, the CHRC must satisfy at least two conditions: neutrality and thoroughness. In the present case, the investigation report was biassed, as a result of the omission of relevant material information (6 material facts), and the CHRC's decision to appoint a Tribunal should be quashed. Furthermore, the evidence upon which to base the decision to appoint a Tribunal was insufficient. Under section 7 of the CHRA, in order to provide the sufficient grounds necessary to appoint a Tribunal, specific material facts must be found, which link a possible discriminatory practice to the case under investigation. The evidence herein indicated only a "general tendency" toward a discriminatory practice within the organization.

There was a breach of procedural fairness when the CHRC received information from the respondent after the completion of the investigation report and after the CHRC had received the CBC's submissions on the investigation report. The CHRC should have alerted the parties as to the impact of the new evidence, which went to the heart of the case. The CBC should have been notified and given an opportunity to address the issues raised.

Finally, the CHRC's decision was based in part upon evidence that was not lawfully before it. Subsection 47(3) of the Act provides that information provided to the conciliator in the course of conciliation will be confidential, unless the parties consent to its disclosure. In this case, the conciliator, by giving his report to the CHRC, disclosed the positions of the parties, without the consent of the CBC. This was a breach of the Act and undermined the purpose of confidential negotiations and the entire mediation scheme, and vitiated the CHRC's decision to recommend the naming of a Tribunal.

This was not a case which should be sent back to the CHRC. The events in this case go back almost ten years and the Court has twice struck down, for bias or for lack of procedural fairness, the CHRC's request for a Tribunal. The parties need to have an end to this litigation.

statutes and regulations judicially considered

Canada Labour Code, R.S.C., 1985, c. L-2, s. 57.

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 41(1) (as am. by S.C. 1995, c. 44, s. 49), (a),(b), 44 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64), 47.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18(1) (as am. by S.C. 1990, c. 8, s. 4), 18.1(3) (as enacted idem, s. 5).

Public Service Staff Relations Act, R.S.C., 1985, c. P-35.

cases judicially considered

applied:

R. v. McIntosh, [1995] 1 S.C.R. 686; (1995), 36 C.R. (4th) 171; 178 N.R. 161; 79 O.A.C. 81; Insurance Corporation of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145; (1982), 137 D.L.R. (3d) 219; [1983] 1 W.W.R. 137; 39 B.C.L.R. 145; 3 C.H.R.R. D/1163; 82 CLLC 17,014; [1982] I.L.R. 1-1555; 43 N.R. 168; Winnipeg School Division No. 1 v. Craton et al., [1985] 2 S.C.R. 150; (1985), 21 D.L.R. (4th) 1; [1985] 6 W.W.R. 166; 38 Man. R. (2d) 1; 15 Admin. L.R. 177; 8 C.C.E.L. 105; 85 CLLC 17,020; 61 N.R. 241; Canada (Attorney General) v. Boutilier, [1999] 1 F.C. 459 (T.D.); Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574; (1994), 73 F.T.R. 161 (T.D.); Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; (1996), 140 D.L.R. (4th) 193; 43 Admin. L.R. (2d) 155; 26 C.C.E.L. (2d) 1; 40 C.R.R. (2d) 81; 204 N.R. 1; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; (1989), 62 D.L.R. (4th) 385; 100 N.R. 241; Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.).

distinguished:

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; (1995), 125 D.L.R. (4th) 583; 30 Admin. L.R. (2d) 1; 12 C.C.E.L. (2d) 1; 24 C.C.L.T. (2d) 217; 95 CLLC 210-027; 30 C.R.R. (2d) 1; 183 N.R. 241; 82 O.A.C. 321; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; (1986), 73 N.B.R. (2d) 236; 28 D.L.R. (4th) 1; 184 A.P.R. 236; 86 CLLC 14,037; 68 N.R. 112.

referred to:

Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354; (1995), 185 N.R. 107 (C.A.); Canadian Broadcasting Corp. v. Canadian Human Rights Commission et al. (1993), 71 F.T.R. 214 (F.C.T.D.).

authors cited

Sopinka, J. et al. The Law of Evidence in Canada. Toronto: Butterworths, 1992.

APPLICATION for judicial review of a Canadian Human Rights Commission decision to refer a complaint to a Tribunal. Application allowed. Decision quashed and matter not sent back for reconsideration by the Commission.

appearances:

Peter M. Blaikie and Thomas E. F. Brady for applicant.

Raj Anand for respondent.

René Duval for intervener, CHRC.

solicitors of record:

Heenan Blaikie, Montréal, for applicant.

Scott & Aylen, Toronto, for respondent.

Canadian Human Rights Commission Legal Services, for intervener, CHRC.

The following are the reasons for order rendered in English by

Tremblay-Lamer J.: This is an application for judicial review of a decision by the Canadian Human Rights Commission (the Commission) to refer a complaint by the respondent Leila Paul against the applicant Canadian Broadcasting Corporation (the CBC) to a Tribunal. The complaint arose out of two job competitions at the CBC's Vancouver television station in 1988 and 1989.

THE FACTS

Ms. Paul was hired by the CBC as a reporter in November 1987. She worked as a newsreader (anchor) on the CBC's late-night local television newscast, "Night Final", on weekends, and occasionally as a reporter or replacement anchor during the week.

Ms. Paul's employment relations with the CBC were governed by the collective agreement provisions between the CBC and the Canadian Wire Service Guild (CWSG), dated 17 December 1987, while she was a reporter, and by the collective agreement provisions between the CBC and Canadian Union of Public Employees, Broadcast Council (Office and Professional Unit), dated 17 December 1986, while she was an anchor.

Both of these collective agreements prohibit discrimination on any of the grounds listed in the Canadian Human Rights Act.¹

In August 1988, a permanent position of weekday news anchor for the 6:00 p.m. News Centre programme was posted. Ms. Paul did not apply for this position.

On March 8, 1989 Ms. Paul resigned from her positions as reporter and anchor, effective April 16, 1989.

On April 8, 1989, Ms. Paul withdrew her resignation, with the consent of the CBC.

During the spring of 1989, the position of weekday anchor became available. A competition was held and Ms. Paul applied, along with twelve other candidates, including Ms. Gloria Macarenko.

At the time of the competition, Ms. Paul was 44 years of age and had 17 years of experience in television news. Ms. Macarenko, the successful candidate, was 27 and had been working as a backup weather announcer on the CBC's Vancouver television newscasts. Ms. Macarenko had also appeared in television commercials.

In the selection process, a board, comprised of the Executive Producer, TV News and the Senior Producer, "Night Final", evaluated the applicants by interview, examined CVs and/or viewed audition tapes. A short list of three candidates was made. Ms. Paul was not on the short list. Second interviews were conducted between May 5, 1989 and May 15, 1989. Ms. Macarenko was subsequently chosen for the position.

Ms. Paul filed two grievances, on June 9, 1989 and July 5, 1989, alleging that she was more qualified than Ms. Macarenko. These grievances were discussed between the CBC and CUPE in accordance with the CBC/CUPE Collective Agreement. No allegations of discrimination on the basis of sex or age were made by CUPE. These grievances would later be withdrawn, as discussed below.

On June 13, 1989, Ms. Paul filed a complaint with the Commission, alleging discrimination on the bases of age and sex in this competition.

On September 15, 1989, Ms. Paul signed an amended complaint which added the allegation of discrimination on the basis of sex for the CBC's failure to consider her in the August 1988 competition. This complaint was forwarded to the CBC as an amendment to the one dated July 13, 1989.

On December 15, 1993, following an application for judicial review brought by the CBC, the Commission's decision to extend the time limits, in order to add the harassment complaint, was quashed by this Court due to bias.²

Following this ruling, Ms. Paul filed two new complaints of sexual harassment, one against the CBC and one against the Executive Producer, TV News personally. In October 1994, the Commission decided to extend the time limits for these complaints as well.

The CBC sought judicial review of this decision. However, before the application could be heard, Ms. Paul withdrew her complaints of sexual harassment. The CBC then withdrew its application for judicial review.

In August 1989, Ms. Paul resigned her position with the CBC and went to work for a competitor, as a news anchor.

As a result of her resignation, Ms. Paul's legal counsel in the grievances notified CBC's counsel that "Ms. Paul has decided she does not wish to return to the CBC and accordingly the Union is withdrawing the grievance filed on her behalf."³

An investigation report (the IR) was prepared by a human rights officer and dated July 29, 1996. The IR was based, in part, on interviews with Ms. Paul and CBC employees or former employees.

The IR concluded that the evidence showed "a climate existed whereby a man, by virtue of gender, was considered more credible, particularly in a solo news anchoring format."⁴ Furthermore, the IR stated that the evidence demonstrated "the selection process used was subjective and not applied as provided for by the collective agreement and the respondent's staffing policy."⁵ In the end, the IR resolved that a conciliator should be appointed. A conciliator was appointed September 16, 1996.

During the fall of 1996 the parties met with a conciliator but were unable to agree on a settlement of the complaint.

On November 14, 1996, the Commission wrote to the parties and enclosed copies of the conciliation report, disclosing the positions of the parties and inviting them to provide written submissions.

On February 14, 1997, the Commission informed the CBC that they had decided to request the naming of a Tribunal to inquire into Ms. Paul's complaint.⁶ There were no reasons provided for this decision.

The CBC commenced the present application on March 13, 1997.

The Commission was granted intervener status on the issue of jurisdiction only.

RELEVANT LEGISLATIVE PROVISIONS

Paragraphs 41(1)(a) and (b) of the CHRA [as am. by S.C. 1995, c. 44, s. 49]:⁷

41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that

(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;

(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;

Section 47 of the CHRA:

47. (1) Subject to subsection (2), the Commission may, on the filing of a complaint, or if the complaint has not been

(a) settled in the course of investigation by an investigator,

(b) referred or dismissed under subsection 44(2) or (3) or paragraph 45(2)(a) or 46(2)(a), or

(c) settled after receipt by the parties of the notice referred to in subsection 44(4),

appoint a person, in this Part referred to as a "conciliator", for the purpose of attempting to bring about a settlement of the complaint.

(2) A person is not eligible to act as a conciliator in respect of a complaint if that person has already acted as an investigator in respect of that complaint.

(3) Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information.

Section 57 of the Canada Labour Code [R.S.C., 1985, c. L-2]:

57. (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.

(2) Where any difference arises between parties to a collective agreement that does not contain a provision for final settlement of the difference as required by subsection (1), the difference shall, notwithstanding any provision of the collective agreement, be submitted by the parties for final settlement

(a) to an arbitrator selected by the parties; or

(b) where the parties are unable to agree on the selection of an arbitrator and either party makes a written request to the Minister to appoint an arbitrator, to an arbitrator appointed by the Minister after such inquiry, if any, as the Minister considers necessary.

(3) Where any difference arises between parties to a collective agreement that contains a provision for final settlement of the difference by an arbitration board and either party fails to name its nominee to the board in accordance with the collective agreement, the difference shall, notwithstanding any provision in the collective agreement, be submitted by the parties for final settlement to an arbitrator in accordance with paragraphs (2)(a) and (b).

(4) Where a collective agreement provides for final settlement, without stoppage of work, of differences described in subsection (1) by an arbitrator or arbitration board and the parties or their nominees are unable to agree on the selection of an arbitrator or arbitration board chairman, as the case may be, either party or its nominee may, notwithstanding anything in the collective agreement, make a written request to the Minister to appoint an arbitrator or arbitration board chairman, as the case may be.

(5) On receipt of a written request under subsection (4), the Minister shall, after such inquiry, if any, as the Minister considers necessary, appoint an arbitrator or arbitration board chairman, as the case may be.

(6) Any person appointed or selected pursuant to subsection (2), (3) or (5) as an arbitrator or arbitration board chairman shall be deemed, for all purposes of this Part, to have been appointed pursuant to the collective agreement between the parties.

ISSUES

1. Does an arbitrator have exclusive jurisdiction over a complaint arising from an alleged violation of the CHRA when the impugned conduct is prohibited by the Collective Agreement (the CA)?

2. Is the IR, on which the Commission relied to determine whether or not to recommend the naming of a Tribunal, sufficiently incomplete or biassed to render the Commission's decision unreasonable?

3. Does the fact that the conciliator disclosed his or her report to the Commission, without the consent of the CBC, vitiate the Commission's decision to recommend the naming of a Tribunal?

POSITIONS OF THE PARTIES

1. Jurisdiction

The CBC submits that the arbitrator has exclusive jurisdiction at first instance over any differences arising out of the CA, subject to judicial review, to the exclusion of all other fora, including the Commission.

Ms. Paul submits that parties are not entitled to contract out of their human rights obligations; that the existence of a grievance procedure does not oust the jurisdiction of the Commission; and that the authorities submitted by the CBC deal only with the jurisdiction of the courts, not the Commission.

The Commission submits that human rights legislation has paramountcy over other statutes; that the CHRA clearly indicates Parliament's intention to give the Commission jurisdiction over discrimination complaints notwithstanding any CA; and that one cannot contract out of human rights legislation.

2. The Investigative Report

The CBC submits that the IR was both biassed and incomplete. Furthermore, the Commission failed to disclose new facts which were submitted to it by Ms. Paul, after the IR had been prepared, which was a breach of procedural fairness.

Ms. Paul submits that amendments to the CHRA now allow the Commission to request the appointment of a Tribunal if it is satisfied that, having regard to all the circumstances, an inquiry into the complaint is warranted. The Commission considered the IR, along with the submissions of both parties on its contents, and made its decision. Furthermore, the failure to disclose new facts was not a breach of procedural fairness, since the CBC is not entitled to know every detail; the new facts did not contain any facts which were not set out in the IR; and the applicant has failed to demonstrate that the information was fundamental to the outcome of the case.

3. Disclosure of Conciliation Report

The CBC submits that the disclosure of the settlement details to the Commission, without the consent of the CBC, is a breach of the CHRA. The fact that the Commission had information before it contrary to law when it made its decision undermines the principles of mediation and taints the decision.

Ms. Paul submits that the Commission is entitled to look at all the circumstances of the case; that the reasonableness of the settlement offers are an important factor; and that the Commission had the benefit of the CBC's arguments on this point before it rendered its decision.

ANALYSIS

Preliminary Matters

Prematurity

The respondent submits that the application for judicial review of the Commission's decision to appoint a Tribunal should be dismissed as premature. Neither the Federal Court Act [R.S.C., 1985, c. F-7] nor the case law supports such an argument. This Court has jurisdiction to review decisions of the Commission to dismiss a complaint or to appoint a tribunal.⁸ This matter is well settled, as evidenced by the recent decision of the Federal Court of Appeal in Bell Canada.⁹

Delay

The respondent suggests that the CBC should have raised the jurisdictional question at the appointment of the conciliator and that now they are beyond the 30-day time limit for judicial review applications. This argument fails on two grounds. (1) The decision under review is the decision to appoint a Tribunal, not the decision to appoint a conciliator. The decision to appoint a Tribunal was communicated to the applicant in a letter dated 14 February 1998. This application was filed 13 March 1998, within the 30-day time limit. (2) Even if it had been beyond the time limit, the issue of jurisdiction can be raised at any time.¹⁰ Furthermore, the complaint stems from events which occurred in 1988-1989, whereas, the Supreme Court's decision in Weber v. Ontario Hydro,¹¹ which gives rise to this motion, was handed down in 1995. Therefore, it is appropriate for the issue to be raised at this point.

Res judicata

The respondent submits that because of the earlier decision of Noël J.,¹² the matter is res judicata.

There are three main components to the principle of res judicata:

(a) a final judicial decision,

(b) identity of the action or issue, and

(c) identity of the parties.¹³

In the case before me, although there may be a final judicial decision and the parties may be the same, there is no identity of issues. Noël J.'s decision related to the first extension of time. He quashed the Commission's decision and ordered it to reconsider the matter. The case before me deals with the second decision to extend the time. The Commission is still bound by procedural fairness when it revisits the matter. Therefore, the doctrine of res judicata does not apply.

ISSUES

1. Does an arbitrator have exclusive jurisdiction over a complaint arising from an alleged violation of the Canadian Human Rights Act (the CHRA) when the impugned conduct is prohibited by the Collective Agreement (the CA)?

In Weber,¹⁴ the Supreme Court of Canada ruled that an arbitrator has the exclusive jurisdiction, subject to judicial review, to determine all differences arising out of a collective agreement.

However, the Court was not addressing the situation where there is concurrent jurisdiction given by the legislator to another forum, as in the present case.

Subsection 41(1) of the CHRA clearly gives jurisdiction to the Human Rights Commission to deal with any complaint arising from a collective agreement, unless it decides that the grievance procedure should be exhausted.

Given the plain language of the Act, it is difficult to sustain the argument that the intention of the legislator was to limit the jurisdiction of the Commission. I note that the statute contains a number of provisions limiting the jurisdiction of the Commission and that each such limitation has been worded in express terms.

The issue of statutory interpretation was clearly outlined by the Supreme Court of Canada, in the case of R. v. McIntosh. The Supreme Court affirmed that statutes are to be interpreted in a manner consistent with their plain meaning and that legislation is deemed to express completely what the legislator wanted to say.

 . . . a statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise.

. . .

Since the judge's task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislator wanted to say . . . .

The Crown is asking this Court to read words into s. 34(2) which are simply not there. In my view, to do so would be tantamount to amending s. 34(2), which is a legislative and not a judicial function. The contextual approach provides no basis for the courts to engage in legislative amendment.¹⁵

In the present case, the legislation is clear and plain: under section 41 of the CHRA the Commission is to decide if the complainant ought to exhaust the grievance or review procedures, or if the matter would more appropriately be dealt with under another Act of Parliament.

The next question is whether or not section 57 of the Canada Labour Code may be construed as an exception to the jurisdiction of the Commission?

The applicant asks the Court to read Weber¹⁶ and St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219¹⁷ as an invitation to exclude any other forum for the resolution of disputes arising under a collective agreement. I disagree with such a proposition. In St. Anne Nackawic the Court indicates that arbitration "is an integral part of that scheme, and is clearly the forum preferred by the legislature for the resolution of disputes arising under collective agreements" [emphasis mine].¹⁸ However, in that case, the Court was not dealing with a statute like the CHRA, where the legislator has clearly provided another forum for disputes arising from allegedly discriminatory practices.

Further, section 41 of the CHRA is a subsequent enactment to the section 57 Canada Labour Code provision. The rule in such a case is clear. The earlier enactment is repealed by implication, in so far as it confers exclusive jurisdiction to an arbitrator in matters specifically given, by the legislator, to the Human Rights Commission.

The paramountcy of the CHRA, when a conflict arises between two pieces of legislation, was recognized by Lamer J. (as he then was) in Heerspink:¹⁹

Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.²⁰

He further cautioned against contracting out of the protection given under the Code.

Furthermore, as it is a public fundamental law, no one, unless clearly authorized by law to do so may contractually agree to suspend its operation and thereby put oneself beyond the reach of its protection.²¹

This view was reiterated in Winnipeg School Division No. 1 v. Craton et al.²² McIntyre J. wrote:

There is no merit in the argument raised below, but not pressed in this Court, that the parties by agreeing to article 14 in the Collective Bargaining Agreement have contracted themselves out of the provisions of s. 6(1). The Human Rights Act is legislation declaring public policy and may not be avoided by private contract.²³

I agree with counsel for the Commission, that interpreting section 57 of the Canada Labour Code as giving exclusive jurisdiction to the arbitrator would in effect suspend in part the operation of section 41 of the CHRA, whenever a collective agreement incorporates the provisions of the CHRA. This is certainly not the effect envisaged in St. Anne Nackawic nor in Weber.

In St. Anne Nackawic, Estey J. was concerned with the avoidance of a duplicative forum, where the legislature has not assigned the task of dealing with certain aspects of labour relations, and not, as in the present case, where the legislator has specifically enacted a provision in the Code, which deals with discriminatory practices. The jurisprudence of the Supreme Court is consistent with respect to the paramountcy of human rights legislation over other statutes.²⁴ In light of the foregoing, only a clear legislative pronouncement can oust the operation of paragraph 41(1)(a) of the CHRA.

Nowhere in the Canada Labour Code is it expressly stated that the jurisdiction of the arbitrator supersedes the jurisdiction of the Human Rights Commission.

I therefore conclude that the Canadian Human Rights Commission has full jurisdiction, over the arbitrator, to deal with discriminatory practices, unless, as provided by paragraph 41(1)(a), it appears to the Commission that the alleged victim should exhaust the grievance procedures available.

I note that in a recent judgment, released after the hearing in the present case, McGillis J. also considered the issue of overlapping or conflicting grievance procedures. Although the case before her dealt with the jurisdiction of an adjudicator appointed under the Public Service Staff Relations Act [R.S.C., 1985, c. P-35], she determined that when faced with an overlap or conflict, paragraph 41(1)(a) of the CHRA is indicative of Parliament's intention of the primacy of the Commission. McGillis J. stated:

Paragraphs 41(1)(a) and 44(2)(a) also indicate that Parliament expressly considered that situations would arise in which a conflict or an overlap would occur between legislatively mandated grievance procedures, such as that provided for in the Public Service Staff Relations Act, and the legislative powers and procedures in the Canadian Human Rights Act for dealing with complaints of discriminatory practices. In the event of such a conflict or overlap, Parliament chose to permit the Commission, by virtue of paragraphs 41(1)(a) and 44(2)(a), to determine whether the matter should proceed as a grievance under other legislation such as the Public Service Staff Relations Act, or as a complaint under the Canadian Human Rights Act.²⁵

I agree with my colleague on this point.

2. Is the IR, on which the Commission relied to determine whether or not to recommend the naming of a Tribunal, sufficiently incomplete or biassed to render the Commission's decision unreasonable?

The CHRA provides that upon receipt of an investigative report, the Commission has to determine whether there is a reasonable basis in the evidence for proceeding to the next stage i.e. to appoint a Tribunal. This will occur if there is sufficient evidence to warrant the appointment.

Where the Commission does not provide reasons for its decision to refer a complaint to a Tribunal, its reasons will be taken to be those set out in the investigative report.²⁶

The respondent argues that the SEPQA²⁷ decision does not apply because it was based on the CHRA, prior to the 1985 amendments.²⁸ This argument does not stand. The modifications were only minor and provide clarification of the Commission's procedure. This was noted by Sopinka J.:

This aspect of the Commission's procedure has been clarified by amendments to the Act (S.C. 1985, c. 26, s. 69). The current version of s. 36(3) is contained in s. 44(3) of the R.S.C., 1985, c. H-6 (as amended by c. 31 (1st Supp.), s. 64) and now provides that, upon receipt of the report of the investigator, the Commission may request the appointment of a tribunal if it is satisfied that, having regard to all the circumstances, an inquiry into the complaint is warranted.²⁹

Consequently, if the investigative report, adopted by the CHRC in making its decision, is fundamentally flawed, then the decision itself to appoint a Tribunal will be flawed.³⁰

The Commission is bound by procedural fairness in the investigation of complaints, which means that the matter must be dealt with objectively and with an open mind; that there can be no predetermination of the issue; and that the parties are informed of the evidence put before the Commission so they can make meaningful representations.³¹ Put another way, as expressed by my colleague Nadon J. in Slattery, the Commission "must satisfy at least two conditions: neutrality and thoroughness".³²

The role of the investigator is not prosecutorial. It is not meant to be a fishing expedition.

The role of the Commission, when deciding whether a complaint should be processed further, was established in Cooper.³³ La Forest J. writing for the majority:

The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it.³⁴

In SEPQA,³⁵ the Supreme Court of Canada established the test to be applied when reviewing the decision of the Commission to appoint a Tribunal pursuant to section 44 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64] of the Canadian Human Rights Act. Although the threshold is very low, as pointed out in the recent Bell Canada decision of the Federal Court of Appeal,³⁶ Sopinka J. stated that the intention of paragraph 36(3)(b) (now section 44) is that the Commission should dismiss a complaint "where there is insufficient evidence to warrant appointment of a tribunal."³⁷ Although he acknowledged that this is not a judicial proceeding, he stated that the Commission must determine if there is "a reasonable basis in the evidence for proceeding to the next stage."³⁸

In essence, the investigator must collect the information which will provide an adequate and fair basis for a particular case, and which will in turn allow the Commission to balance all the interests at stake and decide on the next step. No relevant fact should be left out. Omissions, particularly when the information is damaging to the complainant's position, only result in casting serious doubts on the neutrality of the investigator. I realize that this is a difficult task, but it is only in achieving this high standard of fairness that the investigator will help the Commission retain its credibility.

i)  Omission of Material Facts

In the present case, after a careful review of the evidence, I am of the opinion that the investigative report is biassed, as a result of the omission of relevant material information. The following is a list of significant omissions.

1. The investigative report³⁹ does not mention that Ms. Paul previously filed and withdrew two grievances under the CBC/CUPE collective agreement in relation to Ms. Macarenko's appointment. In these two grievances there are no allegations of any discrimination based on sex or age.

2. The report does not state that Ms. Paul did not apply for the first job competition.

3. The report fails to mention that out of the 13 candidates that applied for the second job competition, Ms. Paul did not make it on the short list.

4. The report fails to indicate the poor performance rating given to Ms. Paul by the producer that hired her.

5. The report does not correct patent mistakes in the interpretation of the collective agreement, although the Commission had received many submissions to this effect by the applicant.

6. Finally, the report fails to mention that none of the persons interviewed, with the exception of Ms. Paul, considered that sex or age played a role in the decision not to hire her.

As a result, the IR does not meet the standard of neutrality and thoroughness. Therefore, the Commission's decision to appoint a Tribunal is quashed.

ii) Sufficiency of Evidence to Appoint a Tribunal

Furthermore, following the test in SEPQA, I am doubtful as to whether there was sufficient evidence upon which to base the decision to appoint a Tribunal.

In the investigative report, general comments are made about the treatment of male and female news anchors in the broadcasting industry but, as I noted above, none were made on the specific selection of Ms. Macarenko over Ms. Paul.

I have included the relevant passages of the interviews on the subject of the hiring of Ms. Macarenko:

Mr. Marc Rymal, feature reporter at the time (no longer with the CBC):⁴⁰

He says he does not think gender enters into it and he can't say whether or not age was an issue since he has no direct knowledge of the reasons Macarenko was hired. However, it is likely that it was a factor as reporters frequently refer to anchors as pretty faces and there is a general feeling that, left to their own devices the people who run the place would stock the place with nice hair and teeth. [My emphasis.]

Mr. Ted Chernecki, reporter and weekend anchor at the time (no longer with the CBC):⁴¹

Did age or sex have anything to do with the appointment of Gloria?

He says he does not know, but does not think so. The producer liked her better.

Gloria was only marginally better than Paul on camera, warmer. But Paul was definitely a better interviewer, particularly in live situations and had, on paper at least, the better journalistic qualifications. She was a competent but not a great reporter. [My emphasis.]

Mr. Graham McMullen, CBC lineup edition at the time, retired:⁴²

Do you think age had anything to do with the hiring of Macarenko over Paul?

He says he hopes he did not plant the idea in her head (Paul). He explains that one night he said that if he were making the selection, he would take the long term view. What kind of anchor would he hire for the next five or ten years? Age would be a factor. He says it is a world of television, merchandising advertising. Looks, appearance would always be a factor in the selection process, otherwise why would the CBC have a makeup department and spend so much time and money on the anchor's appearance. Therefore if you are hiring an anchor who is going to be there for the next ten years, you have to consider age. It would certainly be a consideration if he were the hiring supervisor. [My emphasis.]

Ms. Helen Slinger, previous executive producer (no longer with the CBC):⁴³

Was there an evaluation?

. . .

She mentions that right after Leila Paul launched her complaint she met her in the building housing CBC Vancouver and they had a conversation about it. She told her she did not think it was ageism or sexism that was behind her not being hired. That she had a tendency to see herself as God gift's [sic] to the business and that sparkle would only take her so far. She remembers really trying to get through to her on that.

How much of a factor was age?

Television is a mirror of the times. Women on the air are judged as they are in society. There is an overall climate favouring younger better looking candidates and women, unlike men are not seen to gain credibility as they age.

Both Macarenko and Paul were smart ladies.

She says she did not think Macarenko was the right choice but she believes Ritchie may have thought he had discovered a talent.

Paul did not look like she was aging so she does not think her age would have prevented her hiring. She believes it was the other factors that prevented her selection (performance problems).

She felt Paul's ego overrode other concerns. She is the classic not my fault person: always blaming an outside factor when her performance was not up to scratch. [My emphasis.]

Mr. Ron Harris, manager of administration and finance for television"CBC Vancouver, retired:⁴⁴

Would you say they were looking for a male anchor?

No. He says he does not know.

At that point in time, CBC was attempting to be politically correct it would be the last thing they would say or admit, even if it were true.

He adds that he does not think sex or race entered into it.

What about age?

He does not think there was. At that point in time, anyone coming along looking superb, had a good chance.

Wayne Skene never said anything to him at any time [to] infer prejudice relating to sex or age. He had very little control of his temper and he probably would have said something at some time.

He says that Kevin Evans (NewsCentre) was the Winnipeg news anchor and his ratings were the best there. Skene hired him to do the same in Vancouver. He was perfect white male RCMP officer type and while that went over very well in Winnipeg, it does not necessarily do so in other locations. Skene was elated to get him. [My emphasis.]

Ms. Cecilia Walters, previous co-anchor:⁴⁵

Do you think your age had anything to do with it?

No, when management changes (in this case, Helen Slinger had left), there are often a lot of changes: change in the format of shows, change of anchors, change of set etc. She says it is as if the new management wants to put their handprint on things and the idea is to boost the ratings. She adds that New Managers want their own people, they want to change or make the world their own.

Ms. Jan Tennant, anchor at the time:⁴⁶

She says that yes, they discriminate against men and women on the basis of age, but that was not her complaint when she was there, hers had more to do with the management of the place. And she adds that she does not know anything about CBC Vancouver or Leila Paul, although she does recall what was in the press at the time. [My emphasis.]

Based on these interviews, the investigator concluded the following:⁴⁷

. . . that customer preference (viewers and advertisers) favoured the selection of younger and better looking anchors and that this preference was accentuated in relation to female anchors.

When dealing with a specific complaint of discrimination, can evidence which may indicate a "general tendency" toward a discriminatory practice within an organization provide sufficient grounds for the Commission to appoint a Tribunal?

It is important to note that this is an investigation under section 7 and not section 10 of the CHRA. In my view, in order to provide the sufficient grounds necessary to appoint a Tribunal, specific material facts must be found, which link a possible discriminatory practice to the case under investigation.

This is not a section 10 inquiry where the discriminatory policy or practice of an organization is under scrutiny. Indications that a problem may exist in a particular industry, at best, only provide corroborating evidence.

In my view this approach acts as a double-edged sword. The investigator may develop a predetermined view of the complaint, based on this general knowledge. Then, in order to help the alleged victim, the investigator may tend to filter the information, whether consciously or unconsciously, to "fit" the pattern. The result will undoubtedly be a distorted version of the events. Facts are facts . There must be some evidence, which relates the "general tendency" to the specific complaint. I do not find sufficient links in the present case.

In summary:

(1) With respect to the appointment of a man for the permanent position as weekday anchor of "Night Final" in September 1988, the investigative report concluded:⁴⁸

The evidence confirms that the Female Co-anchor was removed from her position hosting News Centre but it also shows that a change in management had occurred which usually led to actions affecting the format of the show and its anchors. However, it also shows that a climate existed whereby a man, by virtue of gender, was considered more credible, particularly in a solo news anchoring format.

However, the report does not mention that Ms. Paul never applied for the job. I fail to understand how a reasonable person could conclude that there is sufficient evidence to appoint a Tribunal with respect to a competition, when the complainant did not even apply.

(2) With respect to the 1989 job competition, as stated above, there is no evidence, other than Ms. Paul's own allegations, to support her claim that she was discriminated against because of her age or sex.

iii) Breach of Procedural Fairness

The CBC submits that the Commission received information from Ms. Paul after the completion of the investigative report and after the Commission had received the CBC's submissions on the investigative report. In particular, Ms. Paul submitted letters from four former employers attesting to her skills and abilities.⁴⁹

Ms. Paul submits that a party is not entitled to know every detail of the case, but is only entitled to be informed of the broad grounds; that a party is entitled to disclosure only when the comments contain facts which differ from those set out in the investigative report; and, finally, that in order to constitute a reviewable error, the applicant must demonstrate that the information was wrongly withheld and that such information is fundamental to the outcome of the case. I agree with the respondent that fairness only requires a party be informed of the substance of the report, and that he or she need not be given every detail.⁵⁰ However, the Commission must alert the parties as to the impact of any new evidence, which goes to the heart of the case.

In Bell Canada, Décary J.A. states that an investigator, and by extension the Commission, has a duty to alert the parties as to the impact of any new evidence which comes before him or her.

Where, therefore, an investigator in the course of investigating a complaint is provided with some evidence, not of her making, that there is a possible ground for discrimination which the complaint, as formulated, might not have encompassed, it becomes her duty to examine that evidence, to alert the parties as to the impact of that evidence on the investigation and even to suggest that the complaint be amended.⁵¹

Of the four letters, the first three simply attest to Ms. Paul's abilities as a reporter. This information would have added nothing new to the investigation, which the CBC had not already been given the opportunity to address. However, the fourth letter, from Ken Coach of Damn Good Productions Limited,⁵² contains information relating directly to the notion of the atmosphere at the CBC. Specifically, it makes reference to favouritism and criticizes the management of the newsroom. The final two paragraphs of the letter read as follows:

I observed that the newsroom had been operating on the basis of favouritism and personality as cultivated by quirky and inconsistent newsroom management. CBC in Vancouver lacked the degree of professionalism I had worked with in three other regional CBC newsrooms, as well as the CBC National newsroom and the CTV National newsroom . . . .

She often displayed a feistiness consistent with a good investigative reporter but stopped short of the petulance displayed by some of her colleagues.

This information was not disclosed to the respondent, despite the fact that accusations of favouritism and improper management are extremely relevant to Ms. Paul's complaint.

As discussed above, the Commission has a duty to alert the parties to the impact of any new evidence. The Commission accepted this evidence without notifying the CBC and without allowing them an opportunity to address the issues raised. This omission amounts to a breach of procedural fairness.

3. Does the fact that the conciliator disclosed his or her report to the Commission, without the consent of the CBC vitiate the Commission's decision to recommend the naming of a Tribunal?

Subsection 47(3) of the Act provides for conciliation and states that any information provided to the conciliator will be confidential, unless the parties consent to its disclosure.

47. . . .

(3) Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information.

It is clear from the evidence that the positions of the parties were disclosed to the Commission, since the Commission included the information in its letter to the parties. This constitutes a breach of the Act and undermines the purpose of confidential negotiations. If the Commission has access to the parties' positions, without their consent, the entire mediation scheme is undermined.

The respondent submits that the reasonableness of the terms of an offer of settlement is a factor the Commission can legitimately take into account. This is true only where the parties involved have consented to the release of the information, which is not the case here. The Commission is not above the law. There is no exception to the rule provided in subsection 47(3).

As a result of the release of confidential information, in violation of section 47 of the Act, the Commission's decision is based in part upon evidence that was not lawfully before it. It is impossible to know to what extent the Commission relied on it.

CONCLUSIONS

The judicial review is allowed. The Commission's decision of February 14, 1997 to request the President of the Canadian Human Rights Tribunal Panel to name a Tribunal to inquire into Ms. Paul's complaint against the CBC is quashed.

Under the circumstances, I do not believe that this is an appropriate case to send back for the Commission to revisit its decision. The events occurred almost ten years ago and the Commission is still at the investigative stage. Twice it has requested a Tribunal be appointed and twice the decision has been struck down for reasons of bias or lack of procedural fairness. The parties need to have an end to this litigation. Therefore, the matter shall not be sent back for reconsideration by the Commission.

¹ R.S.C., 1985, c. H-6 as am. (hereinafter CHRA).

² Canadian Broadcasting Corp. v. Canadian Human Rights Commission et al. (1993), 71 F.T.R. 214 (F.C.T.D.) (hereinafter CBC v. CHRC).

³ Bourassa affidavit, para. 8 and Exhibit 8 thereto, Applicant's Application Record, Vol. 1, at pp. 10 and 47.

⁴ Investigation Report, Applicant's Application Record, Vol. 1, at p. 89.

⁵ Ibid.

⁶ Letter of L. Veillette, secretary to the HRC, to E. Bourassa, Mgr. Planning and Development, CBC (14 February 1998), Applicant's Application Record, Vol. 1, at p. 133.

⁷ Supra, note 1.

⁸ Federal Court Act, R.S.C., 1985, c. F-7, ss. 18(1) [as am. by S.C. 1990, c. 8, s. 4] and 18.1(3) [as enacted idem, s. 5]; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 (hereinafter SEPQA).

⁹ ;Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) (hereinafter Bell Canada).

¹⁰ ;Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354 (C.A.); Canada (Attorney General) v. Boutilier, [1999] 1 F.C. 459 (T.D.).

¹¹ [1995] 2 S.C.R. 929 (per McLachlin J.) (hereinafter Weber).

¹² CBC v. CHRC, supra, note 2.

¹³ J. Sopinka, S. Lederman & A. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992), at pp. 990-991.

¹⁴ Weber, supra, note 11.

¹⁵ ;R. v. McIntosh, [1995] 1 S.C.R. 686, at paras. 18 and 26, pp. 697 and 701.

¹⁶ Weber, supra, note 11.

¹⁷ [1986] 1 S.C.R. 704 (hereinafter St. Anne Nackawic).

¹⁸ Ibid., at p. 721.

¹⁹ ;Insurance Corporation of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145 (hereinafter Heerspink).

²⁰ Ibid., at p. 158.

²¹ Ibid.

²² [1985] 2 S.C.R. 150 (hereinafter Craton).

²³ Ibid., at p. 154.

²⁴ Heerspink, supra, note 19; Craton, supra, note 22.

²⁵ Boutilier, supra, note 10, at p. 475.

²⁶ Bell Canada, supra, note 9, at para. 30, p. 134 (C.A.); Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), at p. 598.

²⁷ SEPQA, supra, note 8.

²⁸ S.C. 1985, c. 26, s. 69 [now R.S.C., 1985 (1st Supp.), c. 31].

²⁹ Supra, note 8, at p. 899.

³⁰ Slattery, supra, note 26, at p. 599; CBC v. CHRC, supra, note 2, at p. 226.

³¹ CBC v. CHRC, supra, note 2.

³² Slattery, supra, note 26, at p. 598.

³³ Cooper, supra, note 8.

³⁴ Ibid., at p. 891.

³⁵ SEPQA, supra, note 8.

³⁶ Bell Canada, supra, note 9, at para. 35, p. 136.

³⁷ SEPQA, supra, note 8, at p. 899.

³⁸ Ibid.

³⁹ Applicant's Application Record, Vol. 1, at p. 89.

⁴⁰ Applicant's Application Record, Vol. 2, at p. 299.

⁴¹ Applicant's Application Record, Vol. 2, at p. 305.

⁴² Applicant's Application Record, Vol. 2, at p. 308.

⁴³ Applicant's Application Record, Vol. 2, at pp. 311-313.

⁴⁴ Applicant's Application Record, Vol. 2, at p. 317.

⁴⁵ Applicant's Application Record, Vol. 2, at pp. 323-324.

⁴⁶ Applicant's Application Record, Vol. 2, at p. 325.

⁴⁷ Applicant's Application Record, Vol. 1, at p. 100.

⁴⁸ Applicant's Application Record, Vol. 1, at p. 100.

⁴⁹ Bourassa affidavit, para. 15 and Exhibits 19, 20, 21 and 22 thereto, Applicant's Application Record, Vol. 1, at pp. 12, 118, 119, 120 and 121.

⁵⁰ SEPQA, supra, note 8.

⁵¹ Bell Canada, supra, note 9, at para. 45, p. 140.

⁵² Applicant's Application Record, Vol. 1, at p. 121.