A-160-80
Canadian Human Rights Commission (Applicant)
v.
British American Bank Note Company (Respond-
ent)
Court of Appeal, Thurlow C.J. and Heald and
Ryan JJ.—Ottawa, September 11, 1980.
Judicial review — Order by Human Rights Tribunal where
by it declined jurisdiction to entertain complaints — No
inquiry into the complaints nor any determination as to wheth
er the complaints were substantiated -- Position taken by
Tribunal claimed to be a dismissal — Whether dismissal is a
"decision or order" pursuant to s. 28(1) of the Federal Court
Act — Application dismissed — There was no decision by the
Tribunal — Proper procedure should be application for man-
damus — Canadian Human Rights Act, S.C. 1976-77, c. 33,
ss. 11, 41(1),(2) — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28(1),(3).
Attorney General of Canada v. Cylien [1973] F.C. 1166,
referred to. British Columbia Packers Ltd. v. Canada
Labour Relations Board [1973] F.C. 1194, referred to. In
re Anti-dumping Act and in re Danmor Shoe Co. Ltd.
[ 1974] 1 F.C. 22, distinguished.
APPLICATION for judicial review.
COUNSEL:
F. Lemieux and P. S. Bonner for applicant.
John D. Richard, Q.C. and L. H. Harnden for
respondent.
SOLICITORS:
Herridge, Tolmie, Ottawa, for applicant.
Gowling & Henderson, Ottawa, for respond
ent.
The following are the reasons for judgment
delivered orally in English by
THURLOW C.J.: This is an application brought
under section 28 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, to review and set aside
what is referred to in the originating notice as
an Order of a Human Rights Tribunal consisting of R. Dale
Gibson, Jane Banfield Haynes and Robert Kerr, made the 26th
day of February, 1980 and communicated to the Applicant on
the 5th day of March, 1980, by which the Human Rights
Tribunal declined jurisdiction to hear and determine the com
plaints made by Shirley Cooligan and Maureen McKenny that
the Respondent, British American Bank Note Company
engaged in a discriminatory practice contrary to the provisions
of section 11 of the Canadian Human Rights Act.
At the outset of the hearing a question was raised
by the Court as to whether the action of the
Human Rights Tribunal was a "decision or order"
that was reviewable under section 28 and the
Court heard argument from counsel for both par
ties, both of whom had filed supplementary memo
randa on the point and both of whom took the
position that the action was a "decision or order"
within the meaning of section 28.
The material before the Court includes a copy of
the document appointing the Tribunal to inquire
into and determine whether the actions com
plained of constitute a discriminatory practice
under section 11 of the Canadian Human Rights
Act, S.C. 1976-77, c. 33, a record of the proceed
ings at a hearing by the Tribunal at which the
applicant and the respondent were represented by
counsel, and a copy of reasons given by the mem
bers of the Tribunal for concluding that the provi
sions of the Canadian Human Rights Act do not
apply to the operations of the respondent and that
the Tribunal lacks jurisdiction to entertain the
complaints. The material does not, however,
include any order of the Tribunal disposing of the
complaints either by dismissing them or by grant
ing relief of the kind outlined in subsection 41(2)
of the Act, and we were informed by counsel that
no formal order had been made.
The record of the proceedings before the Tri
bunal and its reasons show that what the Tribunal
did was to convene and receive information, large
ly in the form of an agreed statement of facts
relating to the business of the respondent and hear
arguments directed to the question whether it had
jurisdiction, in the circumstances disclosed, to
entertain the complaints. As I see it the Tribunal
never did inquire into the complaints or address
the question posed by section 41 of the Canadian
Human Rights Act as to whether the complaints
were substantiated. This is apparent from the first
and second last paragraphs of the reasons of the
Chairman and one of the members, paragraphs
with which the third member also agreed. They
read:
We were appointed under the Canadian Human Rights Act
(S.C. 1976-7, c.33) as a Human Rights Tribunal to enquire
into a complaint against the British American Bank Note
Company Limited by Shirley Cooligan and Maureen McKenny
(exhibit C-1). Prior to our enquiry into the merits of this
complaint, our jurisdiction as a tribunal was challenged by the
Respondent, and we accordingly find ourselves faced with a
difficult preliminary question of constitutional law. This deci
sion relates solely to that preliminary question.
We are accordingly driven to the conclusion that the provi
sions of the Canadian Human Rights Act do not apply to the
operations of the Respondent, and that we therefore lack
jurisdiction to entertain this complaint.
The question thus considered by the Tribunal
was undoubtedly one with which it might be con
cerned. It was one on which the Tribunal could
quite properly hear evidence and take a position
and if it thought that it had no jurisdiction it
might decline to make the inquiry. That seems to
be what in fact happened. But the Tribunal is not
authorized by the statute to decide the question
and its opinion on the point renders nothing res
judicata and binds no one. It does not even bind
the Tribunal itself. The opinion can be reversed by
the Tribunal itself at any time either on the basis
of additional material or on the same material. If
the opinion is wrong, on an application for man-
damus, the Trial Division of this Court can decide
the question and require the Tribunal to exercise
its jurisdiction. On the other hand, if the opinion is
right the application for mandamus will fail. But
an application for mandamus is, in my opinion, the
course, and the only course (short of persuading
the Tribunal itself to change its view) that is open
to a party who is dissatisfied with the Tribunal's
position and seeks to require the Tribunal to pro
ceed. On the other hand if, indeed, the Tribunal
had no jurisdiction and nevertheless had concluded
that it had, an application for prohibition would
have been the appropriate procedure for the
respondent to pursue.
The position taken by counsel, as I understood
it, was that these procedures are ousted by subsec
tion 28(3) of the Federal Court Act in cases where
there is a "decision or order" that is subject to
review under subsection 28(1), that in effect, if not
formally, the position taken by the Tribunal was a
dismissal of the complaints and that that dismissal
was a "decision or order" within the meaning of
subsection 28(1).
I do not think that the effect of the Tribunal
taking the view that it lacked jurisdiction was to
dismiss the complaints. Under subsection 41(1)' of
the Canadian Human Rights Act the authority of
the Tribunal to dismiss a complaint arises only if,
at the conclusion of its inquiry, it finds that the
complaint is not substantiated. I do not think it is
to be lightly assumed that the Tribunal purported
to exercise or did exercise that power when it had
not even entered upon an inquiry into the merits of
the complaints. Even less is that to be assumed
when in fact no such order was made and when the
course of simply taking a position as to its lack of
jurisdiction and then doing nothing with respect to
the complaints was, as I see it, precisely correct.
Counsel were referred to and discussed the deci
sions of this Court in Attorney General of Canada
v. Cylien 2 and British Columbia Packers Ltd. v.
Canada Labour Relations Board, 3 which in my
view point to the conclusion that this application
must fail, and counsel cited several other decisions
including In re Anti-dumping Act and in re
Danmor Shoe Co. Ltd., 4 Richard v. Public Service
Staff Relations Board, 5 Canadian Air Line
Employees' Association v. Wardair Canada
(1975) Ltd. 6 and Latif v. Canadian Human Rights
Commission.' The Danmor Shoe case does not as
I read it lend support for counsel's position and
none of the remaining cases is, in my view, in point
either because there was in each of them a disposi
tion amounting to an "order or decision" within
the meaning of subsection 28 (1) or because the
statutory provisions conferring the power of deci
sion were different from those in the Canadian
Human Rights Act which apply to a Human
' 41. (1) If, at the conclusion of its inquiry, a Tribunal finds
that the complaint to which the inquiry relates is not substan
tiated, it shall dismiss the complaint.
2 [ 1973] F.C. 1166.
3 [ 1973] F.C. 1194.
4 [ 1974] 1 F.C. 22.
5 [1978] 2 F.C. 344.
6 [1979] 2 F.C. 91.
7 [1980] 1 F.C. 687.
Rights Tribunal.
One might ask what it is that, should this
application be entertained and succeed, the Court
could set aside. It does not set aside an opinion and
here, as already indicated, there is no order dispos
ing of the complaints.
I am accordingly of the opinion that what the
applicant seeks to attack by this application is not
a "decision or order" within the meaning of sub
section 28(1) and that the application should be
dismissed.
* * *
HEALD J. concurred.
* * *
RYAN J. concurred.
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.