T-638-84
Alistair MacBain (Plaintiff) (Applicant)
v.
Canadian Human Rights Commission and Sidney
N. Lederman, Wendy Robson and Peter Cumming
(Defendants) (Respondents)
T-701-84
Alistair MacBain (Plaintiff) (Applicant)
v.
Sidney N. Lederman, Wendy Robson and Peter
Cumming, Canadian Human Rights Commission
and Kristina Potapczyk (Defendants) (Respond-
ents)
Trial Division, Collier J.—Toronto, May 7, 8 and
9, 1984.
Human rights — Discrimination on ground of sex — Inves
tigator's report received by Commission — Passing resolution
that complaint substantiated — Commission appointing tri
bunal from panel maintained by Governor in Council —
Prohibition and declaratory relief sought on ground of reason
able apprehension of bias — Whether Tribunal fettered by
Commission's prior conclusion — Meaning of words "is sub
stantiated" — Reasonable apprehension of bias but resulting
from procedure authorized by the Act — Canadian Bill of
Rights ineffective as mere statutory construction tool —
Charter s. 7 guarantee of life, liberty and security not protect
ing reputation — Charter s. 11(d) presumption of innocence
concerning criminal offences — Provision for punitive dam
ages in s. 41(3) of Act not constituting alleged discriminator
person charged with offence — Prohibition and declaratory
relief denied — Canadian Human Rights Act, S.C. 1976-77, c.
33, ss. 33, 36(2),(3), 40(2), 41(2) (as am. by S.C. 1980-81-82-
83, c. 143, s. 20), (3) — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 11(d) —
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s. 2(e).
Judicial review — Prerogative writs — Prohibition —
Human Rights Tribunal — Prohibition and declaratory relief
sought for reasonable apprehension of bias — Such estab
lished but resulting from use of procedure authorized by the
Act — Neither Charter nor Bill of Rights affording relief —
Motion for prohibition and action for declaratory relief dis
missed — Canadian Human Rights Act, S.C. 1976-77, c. 33,
ss. 33, 36(2),(3), 40(2), 41(2) (as am. by S.C. 1980-81-82-83, c.
143, s. 20), (3) — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 11(d) — Canadian
Bill of Rights, R.S.C. 1970, Appendix III, s. 2(e).
Constitutional law — Charter of Rights — Proceedings
before Human Rights Tribunal — S. 7 guarantee of life,
liberty and security of person not extending to protection of
reputation — S. 11(d) presumption of innocence concerning
criminal and quasi-criminal offences — Person before tribunal
not charged with offence although liable to pay punitive
damages — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 7, 11(d).
The special assistant to a Member of Parliament lodged a
complaint of discrimination on the ground of sex against her
employer. The Canadian Human Rights Commission, having
received a report from its investigator, passed a resolution that
the complaint had been substantiated and that a tribunal of
inquiry be appointed. A panel of prospective tribunal members
is maintained by the Governor in Council. The Commission
selects tribunal members from this panel. In this case, the Chief
Commissioner appointed two lawyers who were in practice and
a law professor. The Member of Parliament, MacBain, com
menced an action against the Commission for declaratory relief
and sought prohibition by way of originating notice of motion.
It was argued that, in the circumstances, a right-minded person
would have a reasonable apprehension of bias. This apprehen
sion resulted from the facts that the Commission, which had
already been satisfied that the complaint was substantiated,
had selected the Tribunal and would be participating before it
as a party opposed to MacBain's interest. The defendants'
argument was that no reasonable person, looking at the human
rights legislation and the relevant procedure in their entirety,
could form a reasonable apprehension of bias. It was urged that
the Tribunal would in no way be fettered by the Commission's
prior conclusion that the complaint had been made out.
Held, the motion for prohibition and the action for declarato-
ry relief should be dismissed.
The test as to reasonable apprehension of bias was that set
out by de Grandpré J. in The Committee for Justice and
Liberty, et al. v. The National Energy Board, et al., [1978] 1
S.C.R. 369 at page 394: "what would an informed person,
viewing the matter realistically and practically—and having
thought the matter through—conclude".
The meaning of the words "is substantiated" with respect to
the resolution adopted following receipt by the Commission of
the investigator's report, was crucial to MacBain's position.
The Court could not accept the interpretation suggested by the
complainant's counsel: evidence warranting submission to a
tribunal rather than proof. Standard dictionaries define "sub-
stantiate" as meaning to establish or verify by proof.
On the facts of the instant case, a reasonable apprehension of
bias on the part of the Human Rights Tribunal was well
founded. A right-minded person would say: there is something
wrong here. Regina v. Valente (No. 2) (1983), 2 C.C.C. (3d)
417 (Ont. C.A.), relied upon by the defendants, was distin
guishable. In that case, there was no assertion that the Attor
ney General came to a conclusion on an issue later to go before
a judge appointed by him.
The finding of reasonable apprehension of bias was not an
end of the matter since the Canadian Human Rights Act
expressly authorizes the procedure giving rise to the apprehen
sion of bias. The Canadian Bill of Rights, paragraph 2(e) was
of no help to MacBain. That awkward, ineffective statute was
nothing more than a tool for statutory construction. It did not
serve to destroy impingements on rights. Nor did the Charter
avail MacBain. The section 7 guarantee of life, liberty and
security of the person did not extend to a protection against
interference with one's reputation. And counsel admitted that
the paragraph 11(d) right to be presumed innocent until proven
guilty was with respect to criminal and quasi-criminal offences.
Although, under subsection 41(3) of the Canadian Human
Rights Act, punitive damages could be awarded, that did not
constitute one against whom an allegation of discrimination is
brought a "person charged with an offence".
CASES JUDICIALLY CONSIDERED
FOLLOWED:
The Committee for Justice and Liberty, et al. v. The
National Energy Board, et al., [1978] 1 S.C.R. 369.
DISTINGUISHED:
Regina v. Valente (No. 2) (1983), 2 C.C.C. (3d) 417
(Ont. C.A.).
CONSIDERED:
Board of Regents of State Colleges et al. v. Roth, 408
U.S. Reports 564 (7th Cir. 1972).
COUNSEL:
P. Genest, Q.C. and J. Page for plaintiff
(applicant).
R. Reuter for defendants (respondents) Tri
bunal members Sidney N. Lederman, Wendy
Robson and Peter Cumming.
J. J. Carthy, Q.C. and R. E. Hawkins for
Attorney General of Canada.
M. Cornish for defendant (respondent) Kris-
tina Potapczyk.
R. Juriansz and S. W. Brett for defendant
(respondent) Canadian Human Rights Com
mission.
SOLICITORS:
Cassels, Brock, Toronto, for plaintiff (appli-
cant).
Stikeman, Elliott, Toronto, for defendants
(respondents) Tribunal members Sidney N.
Lederman, Wendy Robson and Peter Cum
ming.
Weir & Foulds, Toronto, for Attorney Gener
al of Canada.
Cornish & Associates, Toronto, for defendant
(respondent) Kristina Potapczyk.
R. Juriansz, Ottawa, for defendant (respond-
ent) Canadian Human Rights Commission.
The following are the reasons for judgment
rendered in English by
COLLIER J.: There are here two proceedings.
In the first, Alistair MacBain is the plaintiff in
an action against the Canadian Human Rights
Commission ("the Commission") and the mem
bers of the Human Rights Tribunal ("the Tribu
nal"). The Attorney General of Canada is a
defendant, as well, because declaratory relief is
sought.
The second proceeding is an originating notice
of motion by MacBain for relief in the nature of
prohibition, directed to the same Human Rights
Tribunal, against continuing with an ongoing hear
ing. The Commission, the Attorney General of
Canada, and Kristina Potapczyk ("the complain
ant") are, as well, respondents.
The declaratory relief claimed in the action is
akin, in nature, to relief by way of prohibition
sought in the motion.
In the action, a motion was launched by the
plaintiff for an interlocutory injunction restraining
the Tribunal from continuing an inquiry. I shall
refer later to that inquiry. All parties concurred
that motion should be treated as a motion for
judgment for the declaratory relief sought, as
against the defendants, other than the members of
the Tribunal.
An agreed statement of facts was filed. By
further agreement, the decision of the Court, in
this case, will be predicated on those facts. The
affidavits filed in support of the motions for prohi
bition and interlocutory injunctive relief are not to
be part of this adjudicative record.
The complainant had been employed by Mac-
Bain, a Member of Parliament, as his special
assistant. She lodged a complaint with the Com
mission. She alleged MacBain had engaged in a
discriminatory practice on the basis of her sex;
that he had humiliated, insulted and intimidated
her on several occasions. Some details were set out.
She asserted MacBain demanded she resign or
quit; that she did so under duress.
After the filing of the complaint, the Commis
sion appointed an investigator. The findings of the
investigator were reported to the Commission. The
complainant and MacBain were given an opportu
nity to review the investigator's report, and to
make submissions to the Commission.
The Commission subsequently passed a resolu
tion:
... that the complaint alleging discrimination in employment
on the ground of sex has been substantiated.
The Commission resolved, at the same time,
that a tribunal be appointed to inquire into the
complaint.
The statute [Canadian Human Rights Act, S.C.
1976-77, c. 33] requires the Commission to notify
a complainant, and the person against whom the
complaint is made, of its action on the investiga
tor's report. I presume that was done here. In any
event, a press release, describing its action in this
particular matter, was issued by the Commission.
Even before that press release, there had been
media coverage of the complaint. After the Com
mission's decision that the complaint had been
substantiated, there was widespread national
media coverage.
A panel of prospective tribunal members is
established and maintained by the Governor in
Council. Approximately one hundred persons have
been appointed to this panel. During 1982, only
twenty-six of the panel members had been selected
to sit on tribunals. The reasons for this seemed to
be a desire to select certain prospective members
with legal and previous tribunal experience. Geo
graphical considerations were also a factor.
The members of a tribunal are selected and
appointed by the Commission. Members, officers,
or employees of the Commission may not be
appointed. Nor may an investigator or conciliator
who had a part in dealing with the particular
complaint under review.
The three persons on this Tribunal were selected
and appointed, from a so-called "short-list" of
prospective members, by the Chief Commissioner.
Two of the persons were practising lawyers with
previous tribunal experience. The third was a law
professor with similar experience.
The Tribunal commenced its inquiry into the
complaint.
I now quote directly from the agreed facts:
The Commission is a party to the proceedings before the
Tribunal and takes the position that the Tribunal should deter
mine the issue in favour of (the complainant) and will partici
pate in the hearing before the Tribunal as a party opposed to
MacBain's interest.
MacBain, through counsel, sought, on various
grounds, an adjournment of the hearing, pending
resolution of the matters raised in the action
brought in this Court. Reasonable apprehension of
bias, by MacBain, in respect of the Tribunal, was
also raised. The request for adjournment, dis
qualification, and other matters, were determined
adversely to MacBain. It is not necessary, as I see
it, to go into any further details. Those matters are
not really germane to the issues I have to decide.
Before dealing with those issues, I shall attempt
a short summary of the procedures under the
Canadian Human Rights Act, S.C. 1976-77, c. 33.
An individual, or group, having reasonable
grounds for believing someone is engaging, or has
engaged, in a discriminatory practice, may file a
complaint with the Commission. The Commission
itself may initiate a complaint.
The Commission is required to deal with any
complaint, unless it appears to the Commission the
alleged victim has not exhausted grievance or
review procedures otherwise available, or the com
plaint could be dealt with under some other federal
statutory procedure, or
... is trivial, frivolous, vexatious or made in bad faith ....
This, what might be termed "initial screening out
process", is set out, in more detail than I have
described, in section 33.
The Commission then may, not shall, designate
an investigator to investigate a complaint. While
investigators are given certain powers, this is obvi
ously not a formal process giving persons interest
ed the right to participate directly at that stage.
The investigator then submits a report to the
Commission.
On receipt of the report, the Commission can, in
certain circumstances, refer the complaint to an
appropriate federal authority (subsection 36(2)).
That subsection has no application in this case.
In the remaining circumstances, pursuant to
subsection 36(3), the Commission may
... adopt the report if it is satisfied that the complaint to which
the report relates has been substantiated ...
(I interpolate to say that is what the Commission
here did) or
... shall dismiss the complaint to which the report relates if it
is satisfied that the complaint has not been substantiated ....
The Commission is required to notify the com
plainant and the person against whom the com
plaint was made of the action it has taken.
There are provisions for conciliation in respect
of complaints. This can be done at several stages.
On the filing of a complaint, the Commission may
appoint a conciliator. If a complaint has not been
settled in the course of an investigator's investiga
tion, a conciliator then may be appointed. If the
complaint has not been referred or dismissed after
the report, again a conciliator may be appointed.
Finally, if the complaint is not settled after the
notice of the action taken by the Commission on
the report is given to the parties, (as outlined), a
conciliator can be appointed.
The purpose of appointing a conciliator is to
attempt to bring about settlement of the
complaint.
I point this out. If a conciliator is appointed
after the Commission has concluded it is satisfied
the complaint has been substantiated, and notice
to that effect given to the parties, there is, at the
very least, pressure, on the person against whom
the complaint is made, to consider settlement.
Mr. Genest and I, in the course of argument,
both used the expression "a club" to describe that
situation. It is, to my mind, an apt phrase.
Any settlement of a complaint, whether by
reason of the conciliation procedure, or otherwise,
and before a tribunal hearing, must be approved or
rejected by the Commission.
I go now to the provisions in respect of tribunals.
The Commission may, at any stage after the
filing of the complaint, appoint a tribunal "to
inquire into the complaint". That tribunal, after
due notice, including notice to the Commission,
shall inquire. A full hearing, with the presentation
of evidence on behalf of all persons involved or
interested, and of representations, is contemplated.
Subsection 40(2) of the statute provides:
40....
(2) The Commission, in appearing before a Tribunal, pre
senting evidence and making representations to it, shall adopt
such position as, in its opinion, is in the public interest having
regard to the nature of the complaint being inquired into.
I have already stated the position and stance
taken by the Commission in the proceedings before
this particular Tribunal.
If, at the conclusion of its inquiry, a tribunal
finds
... that the complaint to which the inquiry relates is not
substantiated, it shall dismiss the complaint.
If the tribunal finds
... that the complaint to which the inquiry relates is substan
tiated ...
it may make an order against the person found to
have engaged in the discriminatory practice.
Terms that may be included in the orders are set
out in the paragraphs of subsection 41(2) [as am.
by S.C. 1980-81-82-83, c. 143, s. 20].
In addition to any order, the tribunal is given
the following power (subsection 41(3)):
41....
(3) In addition to any order that the Tribunal may make
pursuant to subsection (2), if the Tribunal finds that
(a) a person is engaging or has engaged in a discriminatory
practice wilfully or recklessly, or
(b) the victim of the discriminatory practice has suffered in
respect of feelings or self-respect as a result of the practice,
the Tribunal may order the person to pay such compensation to
the victim, not exceeding five thousand dollars, as the Tribunal
may determine.
The Commission is given none of the powers
assigned to tribunals. Counsel for the Commission
placed some weight on that distinction. But that is
not to say the Commission is a toothless tiger. I
gave an illustration during argument which I shall
only briefly detail here. A complainant alleging
dismissal by reason of unsuccessful sexual harass
ment may be quite satisfied with a conclusion by
the Commission that her complaint has been sub
stantiated. There is nothing to prevent a complai
nant from having that decision publicized. She
may not desire reinstatement or compensation.
While she has no control, she may not wish further
proceedings by way of a tribunal hearing.
That concludes my summary of the relevant
portions of the statute germane to the matters
before me.
I turn now to the submissions put forward on
behalf of MacBain.
It is said, a reasonable and right-minded person,
in the circumstances here, would have a reasonable
apprehension of bias on the part of the Tribunal.
Actual bias is not suggested.
The grounds for the assertion of reasonable
apprehension of bias are these: the Commission
investigated the complaint; it adopted the inves
tigator's report; it was satisfied the complaint had
been substantiated; the Commission, the body
having come to that conclusion, then selected and
appointed the Tribunal to inquire into the com
plaint; the Commission is a party to the proceed
ings before the Tribunal it appointed; it there takes
the position the complaint should be supported,
and will participate as a party opposed to Mac-
Bain's interest; the Tribunal it appointed can
either dismiss the complaint, or find, as the Com
mission has already done, the complaint is
substantiated.
There was no dispute, among counsel, as to the
legal test in respect of reasonable apprehension of
bias. It is that set out by Mr. Justice de Grandpré
in The Committee for Justice and Liberty, et al. v.
The National Energy Board, et al., [1978] 1
S.C.R. 369 at page 394 (commonly cited as the
Marshall Crowe case):
The proper test to be applied in a matter of this type was
correctly expressed by the Court of Appeal. As already seen by
the quotation above, the apprehension of bias must be a reason
able one, held by reasonable and right minded [sic] persons,
applying themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that
test is "what would an informed person, viewing the matter
realistically and practically—and having thought the matter
through—conclude. Would he think that it is more likely than
not that Mr. Crowe, whether consciously or unconsciously,
would not decide fairly."
and continuing with the quotation [at pages
394-3951:
I can see no real difference between the expressions found in
the decided cases, be they `reasonable apprehension of bias',
`reasonable suspicion of bias', or 'real likelihood of bias'. The
grounds for this apprehension must, however, be substantial
and I entirely agree with the Federal Court of Appeal which
refused to accept the suggestion that the test be related to the
"very sensitive or scrupulous conscience".
This is the proper approach which, of course, must be
adjusted to the facts of the case. The question of bias in a
member of a court of justice cannot be examined in the same
light as that in a member of an administrative tribunal en
trusted by statute with an administrative discretion exercised in
the light of its experience and of that of its technical advisers.
And I go on to quote further [from page 395],
but I do not want to take the time to recite the
quote here, but it will appear once these reasons
are transcribed.
The basic principle is of course the same, namely that
natural justice be rendered. But its application must take into
consideration the special circumstances of the tribunal. As
stated by Reid, Administrative Law and Practice, 1971, at p.
220:
... `tribunals' is a basket word embracing many kinds and
sorts. It is quickly obvious that a standard appropriate to one
may be inappropriate to another. Hence, facts which may
constitute bias in one, may not amount to bias in another.
To the same effect, the words of Tucker L.J., in Russell v.
Duke of Norfolk and others, at p. 118:
There are, in my view, no words which are of universal
application to every kind of inquiry and every kind of domes
tic tribunal. The requirements of natural justice must depend
on the circumstances of the case, the nature of the inquiry,
the rules under which the tribunal is acting, the subject-
matter that is being dealt with, and so forth.
That test was actually set out in a judgment
dissenting on the facts. It has since been invariably
adopted.
Before dealing further with the question of bias,
I shall comment on the words "is substantiated".
They are key to MacBain's position. They are a
source of considerable difficulty in trying to put a
reasonable interpretation on the structure and
operation of the procedures set out in the statute.
Counsel for the complainant, and to some
extent, counsel for the Commission, suggested the
words, as used in respect of the investigator's
report at the stage of proceedings before the Com
mission, should be interpreted in the sense of, say,
sufficient reason to believe, or evidence warranting
submission to a tribunal, rather than in the sense
of proof.
I do not agree with that contention.'
The Shorter Oxford English Dictionary (3rd
ed.), gives the following, as one of several, defini
tions of "substantiate":
To demonstrate or verify by proof or evidence; to make good
The Living Webster Encyclopedic Dictionary
(1st ed., 1971), defines "substantiate" as follows:
To establish by proof or competent evidence; to verify; to prove;
to give form or substance to; to make real or actual.
The meaning to be assigned to the phrase "if .. .
the complaint . .. has been substantiated" (subsec-
tion 36(3)), or "If ... the complaint ... is substan
tiated" (subsection 41(2)), is, to my mind, simply
"proved".
The contention of the defendants in the present
action, and the respondents on the motion for
II note that counsel for the Attorney General expressly did
not adopt that contention or approach.
prohibition, is that no reasonable and right-minded
person, looking at the whole procedural structure
of the human rights legislation, could form a
reasonable apprehension of bias on the part of the
Tribunal. It is said any reasonable person would
recognize that the Commission's conclusion it was
satisfied the complaint had been proved, was
purely a first step in the process; the tribunal
hearing is the formal procedure where the ultimate
decision is made; the tribunal decision would be
unfettered, and unaffected by the Commission's
conclusion; the selection and appointment of tri
bunal members by the Commission is logical and
fair, and provides no grounds for apprehended
bias.
Keeping in mind the test propounded in the
Marshall Crowe case, opinions may well differ, in
this case, as to whether, on all the facts here, a
reasonable apprehension of bias on the part of the
Human Rights Tribunal is well founded.
But I have concluded, after anxious consider
ation, the answer is "yes".
The provisions of subsection 36(3) are, I am
told, somewhat unique in human rights legislation.
It is quite apparent the scheme, hinged to some
extent on subsection 36(3), creates difficulty.
In my view, the reaction of a reasonable and
right-minded person, viewing the whole procedure
as set out in the statute and as adopted in respect
of this particular complaint, would be to say: there
is something wrong here; the complaint against me
has been ruled proved; now that complaint is going
to be heard by a tribunal appointed by the body
who said the complaint has been proved; that same
body is going to appear against me in that hearing
and urge the complaint to be found to be proved.
No feeling of disquietude could arise, nor indeed
any complaint be made, if the provisions regarding
substantiation of the complaint by the Commission
were absent. Or, if the procedural provision there
merely required the Commission to be satisfied
there was enough material or evidence warranting
a hearing and decision by a tribunal.
I repeat once more, that the appointment of a
tribunal is not mandatory. It is purely discretion
ary on the part of "the Commission".
Reliance was placed on Regina v. Valente (No.
2) (1983), 2 C.C.C. (3d) 417 (Ont. C.A.), to
counter MacBain's point that the protagonist
Commission here selected and appointed the
Tribunal.
In Valente, it was contended Provincial Court
judges, appointed by the Province through the
Attorney General, were not independent because
of certain powers exercised over them by the
Attorney General. The Ontario Court of Appeal
rejected that argument. Valente is, in my view,
quite distinguishable on its facts. There, it was not
asserted the Attorney General came to an earlier
conclusion on the very issue later to go before a
judge who had been appointed by him, and over
whom he had certain administrative powers. The
element of prior finding and conclusion was
absent.
My decision on the issue of reasonable appre
hension of bias does not, however, resolve the
questions before me.
Mr. Genest, counsel for MacBain, conceded the
Canadian Human Rights Act expressly authorizes
the procedure giving rise to the apprehension of
bias; if the matter stopped there, the weight of
authority is that Parliament, having so enacted
and authorized, the Court cannot interfere. Mr.
Genest went on, however, to rely on paragraph
2(e) of the Canadian Bill of Rights [R.S.C. 1970,
Appendix III]:
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
Counsel contended the Tribunal in this case,
appointed pursuant to a law of Canada, in circum
stances giving rise to a reasonable apprehension of
bias, could not provide MacBain with a fair hear-
ing in accordance with the principles of fundamen
tal justice.
The Canadian Bill of Rights is not part of
Canada's Constitution. It has had an unhappy,
ineffective judicial history. I do not propose to
review the cases cited to me.
For MacBain, it was said it can be brought into
play here: the Commission has, in this instance, so
applied the Canadian Human Rights Act to create
a reasonable apprehension of bias; a fair hearing
cannot be had; if the Commission intends to
appoint a tribunal, it must first not substantiate
the complaint. Mr. Genest did not submit that I
should hold the relevant provisions of the legisla
tion to be inoperative. He argued I should merely
hold the application of the statute by the Commis
sion, in this case, to be contrary to the strictures
found in paragraph 2(e) of the Canadian Bill of
Rights.
I have concluded, with regret, misgivings, and
doubt, I cannot utilize the Canadian Bill of Rights
in that manner. Nor can I, in the facts and circum
stances here, hold the relevant provisions of the
Canadian Human Rights Act to be inoperative.
I confess I have, with that conclusion, probably
contributed further to the Bill's lamentable histo
ry. I may well deserve Lord Denning's magnificent
epithet of "timorous soul". Or even, the sobriquet
"craven". So be it.
In partial self-defence I suggest the Canadian
Bill of Rights is an awkward statute. That is all it
is: a statute. It has no real fangs. It is, as phrased,
to my mind, a tool for construction of legislation,
not for destruction of impingements on rights.
Failing application of the Canadian Bill of
Rights, Mr. Genest put forward section 7 and
paragraph 11(d) of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)].
Section 7 is as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
For MacBain, it was said he could be deprived
of his right to liberty by the Tribunal, if it should
find the complaint substantiated; the hearing by
the Tribunal, tainted by a reasonable apprehension
of bias on its part, would not be in accordance with
the principles of fundamental justice. Counsel sub
mitted "the right to ... liberty" should be given a
benevolent and broad meaning as illustrated in
Board of Regents of State Colleges et al. v. Roth,
408 U.S. Reports 564 (7th Cir. 1972), at page
573: loss of good name, reputation, honour or
integrity may fall within the constitutional protec
tion of liberty. But if one examines the Roth case
closely, it does not go quite that far.
In any event, I am not persuaded the right "to
life, liberty and security of the person" includes
interference with one's good name, reputation, or
integrity.
I go now to paragraph 11(d), which reads:
11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to
law ... by an independent and impartial tribunal;
Mr. Genest candidly conceded the weight of
authority to date, in consideration of this provision
of the Charter, has confined its application to
criminal offences, so-called provincial offences, or
quasi-criminal offences. I do not propose to swim
against the judicial mainstream.
Mr. Genest submitted that paragraph 41(3)(a),
earlier set out, of the Canadian Human Rights
Act, permits a tribunal to impose punitive damages
where a person has engaged in a discriminatory
practice, wilfully or recklessly; the monetary
amounts which may be assessed are in the nature
of exemplary damages against the transgressor,
not compensatory damages to the victim.
I agree with that interpretation of subsection
41(3).
But I do not think the result is penal in nature,
so as to bring the person against whom a com
plaint is made and substantiated, into the category
of a "person charged with an offence".
In the result, both the motion for prohibition,
and the action for declaratory relief are dismissed.
Both with costs, but in the circumstances, only one
set of costs.
These reasons will apply in both proceedings.
I add these comments. I realize my ultimate
decision is, having regard to my finding as to bias,
somewhat unsatisfactory.
I have come to my conclusions with some doubt.
The submissions put forward on behalf of Mac-
Bain were compelling and powerful. I would like to
have spent much more time considering and
reflecting on them, before giving this immediate
oral judgment. The Tribunal hearing is, however,
still ongoing, and will resume very shortly. For
that reason I felt a decision should be issued today.
I am indebted to all counsel for their careful,
instructive submissions, and for their assistance.
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.