A-678-79
Canadian Human Rights Commission (Appellant)
v.
Eldorado Nuclear Limited (Respondent)
Court of Appeal, Heald and Urie JJ. and Kerr
D.J.—Ottawa, June 13 and 25, 1980.
Practice — Parties — Appeal from order of Trial Division
prohibiting appellant from taking further steps in respect of
decision of respondent regarding a complaint of discrimination
made to respondent by a former employee — The complainant
was not named as a party, served with notice of the proceed
ings, nor did she appear on the return of the motion —
Whether Trial Division erred in proceeding to make the
impugned order without notice to complainant — Appeal
allowed — Complainant is an essential party to the proceed
ings and ought to have been joined as such — Canadian
Human Rights Act, S.C. 1976-77, c. 33, s. 7.
APPEAL.
COUNSEL:
R. Juriansz for appellant.
D. Casey and D. Woods for respondent.
G. Hunter for Isabelle Cadieux.
SOLICITORS:
Canadian Human Rights Commission,
Ottawa, for appellant.
Cowling & Henderson, Ottawa, for respond
ent.
Scott & Aylen, Ottawa, for Isabelle Cadieux.
The following are the reasons for judgment of
the Court rendered in English by
URIE J.: This is an appeal from an order of the
Trial Division * prohibiting the appellant, its ser
vants, agents and employees "from taking any
further steps in respect of the decision of the
respondent (Appellant) dated April 4, 1979, in
respect of a complaint made to the respondent
(Appellant) by Isabelle Cadieux".
* [No written reasons for order distributed—Ed.]
The material facts in so far as this appeal is
concerned follow. Isabelle Cadieux, a former
employee of the respondent herein, filed a com
plaint with the appellant on October 24, 1978
alleging that the respondent had engaged in a
discriminatory practice under section 7' of the
Canadian Human Rights Act, S.C. 1976-77, c. 33,
based on sex and age. The appellant adopted an
investigator's report in respect of the complaint
and, in accordance with section 37 of the Act,
appointed a conciliator to attempt to bring about a
settlement between the complainant and respond
ent. The decision was made at a meeting at which
six of eight Commissioners were present. Rita
Cadieux, the Deputy Commissioner of the appel
lant Commission was one of the two absentees.
The complainant Isabelle Cadieux is the second
cousin of Rita Cadieux' late husband, being the
daughter of his cousin.
Following his appointment the conciliator met
with counsel for, and several officers and
employees of, the respondent. The affidavit evi
dence submitted in support of the originating
notice in the Trial Division discloses that, at the
meeting, the conciliator made certain comments
with respect to the relationship between Rita
Cadieux and Isabelle Cadieux which caused the
respondent, it is alleged, to fear bias on the part of
the members, officers and employees of the appel
lant. Apparently the conciliation efforts were
unsuccessful.
Following an exchange of correspondence be
tween the parties hereto the respondent filed and
served the originating notice seeking a writ of
prohibition which resulted in the order dated
November 22, 1979, herein appealed.
The only two parties to the proceedings initiated
by the respondent by its originating notice dated
November 14, 1979 were those named in the style
of cause herein. The complainant to the appellant
Commission, Isabelle Cadieux, was not named as a
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual,
or
(h) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
party, served with notice of the proceedings, nor,
of course, did she appear on the return of the
motion before the Trial Division. We were advised
by her counsel on the hearing of this appeal that
she did not become aware of the Trial Division's
order until some time after it was made. On
application to this Court, an order was made
granting her leave to intervene and to be heard on
the appeal. Her counsel did, in fact, appear on the
appeal and made representations on her behalf.
Since she did not appear at, or participate in, the
proceedings in the Trial Division, no affidavit evi
dence was adduced on her behalf.
An order of the nature granted by the Trial
Division herein is, of course, a discretionary one
which will not be interfered with by an appeal
court unless the motions Judge has proceeded on a
wrong principle or has otherwise erred in law or
jurisdiction. In this case, we are all of the opinion
that the Trial Division erred in proceeding to make
the impugned order without notice to the com
plainant Isabelle Cadieux or permitting her to
adduce evidence in support of her position and to
be heard on the application.
Counsel for the respondent in his memorandum
of fact and law said that:
11. The question of the propriety of serving the material in
support of the application for prohibition upon the complainant
was not ruled upon by the Trial Judge as counsel for the
Commissioner represented that he appeared for the com
plainant as well as the Commission.
12. The complainant was not present at any of the events
relied upon by the Respondent at the time of the filing of the
material in support of its application for prohibition.
13. The relief requested in the application for prohibition was
directed wholly at the Appellant and not at the complainant.
Accordingly the complainant was not a party to the proceeding
within Rules 319(3) and 321(1).
We do not agree with these submissions. In our
view the complainant is an essential party to these
proceedings and ought to have been joined as such,
served with the originating notice and, thus, have
been given the right to appear, if she wished, to file
her own affidavit material, to cross examine on the
affidavits filed by the other parties, and to have
been heard. That she is an essential party is
demonstrated by the fact that she, as the com
plainant, is deprived at the moment, if the Trial
Division's order stands, of any possibility of having
her claim adjudicated favourably to her. She is the
only person who has a personal and vital interest in
the outcome of the claim.
It is true the appellant is clearly interested in
protecting Miss Cadieux' rights, under the
Canadian Human Rights Act, but it is also true
that quite conceivably her affidavit support of the
Commission's position, her cross-examination of
the deponents of the affidavits filed by the other
parties in support of their respective positions and
the submissions of her counsel might have been
sufficient to have impelled the learned motions
Judge to have exercised his discretion with respect
to the issuance of the order in a manner different
from that in which he did. It follows, therefore, in
our view, that without Isabelle Cadieux having
been included as a party, with all rights flowing
therefrom, the Trial Division ought not to have
granted the impugned order or any other order.
In view of the judgment we propose to give it
would not be proper for us to consider or to
comment upon the merits of the appeal.
Accordingly, the appeal will be allowed, the
order of the Trial Division will be set aside and the
matter will be remitted to the Trial Division with
the direction that the respondent's originating
notice not be proceeded with until Isabelle
Cadieux shall have been served therewith and with
the supporting material in accordance with the
Rules and that she be accorded such other rights
with respect thereto as the Rules provide. Neither
party hereto shall be entitled to costs of this appeal
but Isabelle Cadieux shall be entitled to her taxed
costs of the appeal in any event of the cause.
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.