T-944-79
Attorney General of Canada (Plaintiff)
v.
Canadian Human Rights Commission (Defendant)
Trial Division, Addy J.—Ottawa, March 22, 1979.
Practice — Motion to strike pleadings — Parties —
Application for declaration that statement of claim and action
a nullity, or alternatively, striking out the statement of claim
— Act creating Canadian Human Rights Commission did not
create it a corporation and has no provisions regarding right of
Commission to sue or be sued — Whether or not the Commis
sion is a suable entity — Canadian Human Rights Act, S.C.
1976-77, c. 33, ss. 26(2), 28(1), 29(1),(2) — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 18 — Federal Court Rule
419(1).
Hollinger Bus Lines Ltd. v. Ontario Labour Relations
Board [1952] 3 D.L.R. 162, followed. Burnell v. The
International Joint Commission [1977] 1 F.C. 269, fol
lowed. "B" v. Department of Manpower & Immigration
[1975] F.C. 602, followed.
APPLICATION.
COUNSEL:
Duff Friesen and Leslie Holland for plaintiff.
Gordon F. Henderson, Q. C., E. S. Binavince
and R. Juriansz for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Gowling & Henderson, Ottawa, for defend
ant.
The following are the reasons for order ren
dered in English by
ADDY J.: Upon application by the defendant for
an order,
(a) declaring the statement of claim and this
action a nullity;
(b) or alternatively, striking out the statement
of claim and dismissing this action pursuant to
Rule 419(1) of the Rules of this Court on the
ground that:
(i) the statement of claim discloses no reason
able cause of action;
(ii) the statement of claim is scandalous, frivol
ous or vexatious;
(iii) the statement of claim is otherwise an abuse
of the process of the Court.
REASONS FOR ORDER
The Canadian Human Rights Commission
established by the Canadian Human Rights Act,
S.C. 1976-77, c. 33, is undoubtedly a "federal
board, commission or other tribunal" as defined in
section 2 of the Federal Court Act, R.S.C. 1970,
(2nd Supp.), c. 10.
One of the main questions raised, however, is
whether it is a legal entity capable of being sued in
an action.
Nowhere in its Act is the Commission created a
corporation or a legal person and nowhere in the
Act is there any provision to the effect that it may
either sue or be sued.
Counsel for the plaintiff argued that section
26(2), which gives the Commission the right to
enter into contracts to hire, for specific projects of
the Commission, persons possessing technical or
special knowledge of any matter and to determine
the remuneration of those persons as prescribed by
by-law of the Commission, implies that it is a legal
entity capable of being sued.
The fact that it may hire personnel for very
specific purposes and fix their remuneration does
not create the Commission a legal person. It is no
more capable of being sued for that reason than a
department or branch of Government. In any legal
dispute arising out of any such contracts of hire
the proper party to sue or be sued would be the
Attorney General of Canada.
It was also argued that section 28(1) and section
29 render it liable to be sued. Section 28(1) merely
states that the head office of the Commission shall
be in the National Capital Region. The expression
"head office", because it is often used to describe
the principal place of business of a corporation, is
of no help: separate branches, departments or
undertaking of a corporation are often referred to
as having their head offices at a certain place.
Head office means simply the principal place
where it carries out its undertaking. Section 29(1)
states that the Commission may make by-laws for
the conduct of its affairs including calling of meet
ings, fixing of quorums, conducting meetings, dele
gating powers to committees, prescribing salaries
to be paid to the Human Rights Tribunal and
other such administrative matters. Section 29(2),
however, states in effect that no by-law covering
expenditures shall have any effect without approv
al of the Treasury Board.
Although the method of exercising the powers of
a corporation and its administrative and financial
regulations is contained in its by-laws, the term
"by-laws" is also used to describe the permanent
rules governing non-incorporated bodies such as
non-incorporated clubs or associations, partner
ships, etc. Jowitt in its main definition of
"by-laws" describes them as:
The rules made by some authority (subordinate to the legisla
ture) for the regulation, administration or management of a
certain district property, undertaking, etc., and binding on all
persons who come within their scope. [The underlining is
mine.]
I can find nothing in the Act which either
constitutes the Canadian Human Rights Commis
sion a legal person or renders it an entity capable
of being sued. In many other statutes where public
authorities, boards or commissions are created
some specific provision is to be found effectively
making it amenable to control by the courts by
way of ordinary action. The omission of any such
provision can only lead one to conclude that Par
liament did not intend the Canadian Human
Rights Commission subject to be sued as a party in
an action. Similar results were found in the case of
Hollinger Bus Lines Ltd. v. Ontario Labour Rela
tions Board [1952] 3 D.L.R. 162 and Burnell v.
The International Joint Commission [1977] 1
F.C. 269.
The plaintiff argued finally that section 18 of
the Federal Court Act gave this Court jurisdiction
in an action against the defendant where relief was
requested by way of declaratory judgment. Section
18(a) reads as follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
He argued that that section, although it might
not make the Commission amenable to any such
action instituted by a member of the general
public, gives the Attorney General the right to sue
the Commission and request a declaratory judg
ment where, as in this case, it appears to have
exceeded its jurisdiction.
I have never heard of a case where an entity
would be liable to be sued at the instance of one
party, yet, would be incapable of being sued by
others. The question of whether a body is or is not
capable of being sued can in no way depend on the
identity of the person instituting the action against
it, unless of course there were expressed statutory
authority to that effect, which is certainly not the
case here.
I dealt in some detail with the general effect of
the exclusive jurisdiction granted to the Federal
Court pursuant to section 18 in the case of "B" v.
Department of Manpower & Immigration [1975]
F.C. 602. In that particular case I stated at pages
618-619 of the above-mentioned report:
... I cannot subscribe to the view that, in using the words "any
board, etc." in an enactment such as this which grants jurisdic
tion to a court, Parliament intended also to make such substan
tial and extensive changes to the law as to make all of the forms
of relief mentioned applicable as such, against all and every
federal board, etc., regardless of their respective functions.
Jurisdiction is given to the Court over any federal board or
tribunal and the relief mentioned may be granted by the
Federal Court against any such board, etc., in so far as the
latter is subject to control, having regard to the fundamental
nature of the relief sought and to the character and function of
the Board against whom relief is sought.
After hearing the arguments advanced by coun
sel, I see no reason to change my view in this
regard.
Finally, although the question does not fall
within the purview of Rule 419, it is trite law that,
where an action is instituted against the person
who is not amenable before a court, it may dismiss
the action as against that person without any
statutory authority to that effect. In view of the
fact that both parties draw their funds from the
same public purse, there will be no costs.
ORDER
The motion is granted and a judgment will issue
dismissing the action without costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.