A-1009-83
Rosann Cashin (Applicant)
v.
Canadian Broadcasting Corporation and Canadian
Human Rights Commission (Respondents)
Court of Appeal, Thurlow C.J., Heald and
Mahoney JJ.—Halifax, April 11; Ottawa, April
30, 1984.
Judicial review — Applications to review — Human Rights
— CBC refusing to rehire reporter after husband's appoint
ment as director of Petro-Canada — Commission accepting
necessity for public perception of objectivity as bona fide
occupational requirement preventing failure to renew contract
from being discriminatory practice — Investigator's refusal to
give applicant access to actual evidence against her and oppor
tunity to dispute it constituting denial of natural justice —
Cross-examination required because Commission's function
judicial and because onus on employer to establish motivation
— Where principles of natural justice must be met, Commis
sion to appoint Tribunal to deal with matter in accordance
with procedural requirements of s. 40(1) — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 18 — Canadian Human
Rights Act, S.C. 1976-77, c. 33, ss. 7, 10, 14(a), 32, 33,
35(1),(4), 39(1), 40(1).
Human Rights — Complaint that refusal to renew radio
announcer's contract, ostensibly because husband's appoint
ment as director of Petro-Canada might affect public percep
tion of objectivity of reporting, constituting discrimination on
basis of sex and marital status — Commission's decision that
necessity for public perception of objectivity bona fide occupa
tional requirement set aside — Natural justice denied because
applicant not given actual evidence against her nor opportunity
to controvert specific evidence.
Practice — Parties — Canadian Human Rights Commis
sion's opposition to application for judicial review for denial
of natural justice inappropriate according to Supreme Court
of Canada in Northwestern Utilities Ltd. et al. v. City of
Edmonton — Role of Tribunal being reviewed limited to
explaining record before Board and making representations as
to jurisdiction.
Application to set aside a decision of the Canadian Human
Rights Commission dismissing the applicant's complaint that
she had been discriminated against on the basis of sex and
marital status. The CBC refused to renew the applicant's
contract after her husband was appointed a director of Petro-
Canada on the ground that her objectivity as a reporter might
be suspect. The Commission accepted the public's perception of
objectivity as a bona fide occupational requirement. It also
accepted her husband's appointment as a bona fide "last straw"
as the applicant had not been on ,the air since his appointment
nor was there evidence that his conduct as a director had been
controversial as his presidency of the union had been. The
investigator met with both sides and conducted numerous tele
phone interviews but refused to give the applicant the actual
evidence against her. Also the applicant was not given the
opportunity to controvert the specific evidence against her. The
CBC did not appear although the Commission did appear and
opposed the application notwithstanding that it was grounded
in an alleged denial of natural justice.
Held, the application is allowed.
Per Mahoney J. (Heald J. concurring): The requirements of
natural justice were not met. The applicant could not be given a
fair opportunity to meet the case against her without being
given an opportunity to confront directly particular evidence
against her and to test the credibility of its proponents. She
must also be exposed to the same test.
The Commission is directed to the Supreme Court of Canada
decision in Northwestern Utilities Ltd. et al. v. City of Edmon-
ton where it was held that the role of an administrative tribunal
whose decision is at issue before the Court should be limited to
an explanatory role with reference to the record before the
Board and to the making of representations relating to
jurisdiction.
Per Thurlow C.J. (Heald J. concurring): The fact that the
function of the Commission in this instance was purely judicial,
coupled with the onus on the CBC to establish what motivated
its decision, required the adoption of a procedure allowing an
opportunity for cross-examination. Where the principles of
natural justice must be observed it is no answer to say that the
Commission is not organized to hold oral hearings. If it is not
practical for the Commission to observe the requirements of
natural justice by following its own procedure, it may have to
appoint a Tribunal which can deal with the matter in accord
ance with the procedural requirements of subsection 40(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Kane v. Board of Governors (University of British
Columbia), [1980] 1 S.C.R. 1105; 31 N.R. 214; North
western Utilities Ltd. et al. v. City of Edmonton, [1979]
1 S.C.R. 684.
REFERRED TO:
Ontario Human Rights Commission et al. v. Borough of
Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159.
COUNSEL:
Ronald A. Pink and J. Fichaud for applicant.
R. Duval for Canadian Human Rights
Commission.
No one appearing for Canadian Broadcasting
Corporation.
SOLICITORS:
Kitz, Matheson, Green & MacIsaac, Halifax,
for applicant.
Canadian Human Rights Commission for
Canadian Human Rights Commission.
Canadian Broadcasting Corporation for
Canadian Broadcasting Corporation.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: I am in agreement with the
reasons for judgment of Mr. Justice Mahoney and
with the disposition of the application which he
proposes. I wish to add two comments.
First, while there is no general rule that in order
to observe the principles of natural justice an oral
hearing must be held and an opportunity to exam
ine every document and to cross-examine witnesses
must be afforded to a person whose rights may be
adversely affected by the decision of an adminis
trative authority, the nature of what had to be
decided in this instance, that is, whether the action
by the CBC in refusing to renew the applicant's
contract was indeed because of the bona fide
occupational requirement that the applicant be
publicly perceived to be objective in carrying out
her duties, coupled with the fact that it rested on
the CBC to establish what motivated its decision,
appear to me to present a situation which cried out
for an opportunity for the applicant to test by
cross-examination what the CBC alleged to have
been the reasons for its decision.
With respect to this issue the function of the
Commission was in my view neither administrative
nor quasi-judicial. It was a purely judicial func
tion, one that was not susceptible of being carried
out adequately without following a procedure in
which the version of one party would not be pre
ferred as the truth without affording to the adverse
party an opportunity to subject that version to
what has been referred to as the "purifying" effect
of cross-examination.
The other comment is that where the principles
of natural justice must be observed it is no answer
to say that the Commission is not organized or set
up to conduct its proceedings by way of oral
hearings of witnesses with opportunities for cross-
examination by opposing parties. That the Com
mission is the master of its own procedure is not in
issue. But its authority to prescribe a procedure for
a case such as this is itself subject to the dictates of
natural justice and what natural justice will
require in the particular instance.
The authority of the Commission to decide
whether to set up a Tribunal is also not in issue.
But if it is not convenient or practical for the
Commission to observe the requirements of natural
justice in a particular case by following its own
procedures it may in the end have little choice but
to follow the course of appointing a Tribunal
which can deal with the matter in accordance with
the procedural requirements of subsection 40(1) of
the Act.
HEALD J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The applicant seeks, pursuant to
section 28 of the Federal Court Act,' to set aside a
decision of the Canadian Human Rights Commis
sion, hereinafter "the Commission", which dis
missed her complaint that she had been dis
criminated against in her employment on the basis
of sex and marital status contrary to sections 7 and
10 of the Canadian Human Rights Act. 2 The
Commission investigated her complaint but did not
appoint a Tribunal to inquire into it, as it might
have under subsection 39(1) of the Act. The Com
mission determined that:
the refusal of CBC Radio to renew your contract as a writer/
broadcaster was based in a bona fide occupational requirement
as provided for in Section 14(a) of the [Act].
' R.S.C. 1970 (2nd Supp.), c. 10.
2 S.C. 1976-77, c. 33.
It is not disputed that the decision is subject to
section 28 review.
Paragraph 14(a)provides:
14. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation,
specification or preference in relation to any employment is
established by an employer to be based on a bona fide
occupational requirement;
The onus is on an employer to establish that what
would otherwise have been a discriminatory prac
tice was based on a bona fide occupational
requirement.'
The procedure followed by the Commission was
one of the alternatives open to it under Part III of
the Act. Not finding any ground upon which it was
precluded from dealing with the complaint (sec-
tion 32) or for refusing to deal with it (section 33),
the Commission was required to deal with it. It did
so by designating a person to investigate the com
plaint under subsection 35(1). Subsection 35(4)
empowers the Governor in Council to make regu
lations prescribing procedures to be followed by
investigators and authorizing the manner in which
complaints are to be investigated but no such
regulations have yet been made. There is no doubt
that the Commission based its decision entirely on
the report of the investigator. In the scheme of the
Act, having chosen to deal with the complaint by
the investigative procedure, the Commission and
its decision cannot be divorced from any error on
the part of the investigator which gives rise to
relief under section 28.
The applicant had been employed by the
Canadian Broadcasting Corporation, hereinafter
"the CBC", at St. John's, Newfoundland, in vari
ous capacities since August, 1976, and on the air
by CBC Radio since at least November, 1979. Her
husband was, and is, President of the Newfound-
land and Labrador Fishermen, Food and Allied
Workers Union. On May 24, 1981, the applicant
signed a 13-week contract with the CBC. In July,
1981, her husband was appointed a director of
Petro-Canada. It appears that the applicant did
not, in fact, appear on the air after his appoint
ment as there was a strike by CBC employees, of
3 Ontario Human Rights Commission et al. v. Borough of
Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159.
whose union she was not a member, whose picket
line she refused to cross. When her contract
expired at the end of August, 1981, the CBC
refused to renew it. Its reason, put shortly, was
that her identification with her husband could
reasonably give rise to at least a suspicion on the
part of the public that she was not entirely objec
tive in her reporting.
The necessity for public perception of her objec
tivity was the bona fide occupational requirement
accepted by the Commission in its decision. It also
clearly accepted her husband's Petro-Canada
appointment, per se, as a bona fide "last straw", as
the applicant had not been on the air since his
appointment nor was there evidence that his con
duct, as a director, had been in any way controver
sial or newsworthy, as his ongoing presidency of
the union had occasionally been.
The investigator, correctly in my view, saw the
issue to be principally whether the refusal to renew
had been bona fide and not simply whether the
occupational requirement was itself bona fide. He
met with the applicant once. He met with CBC
officials twice. He conducted numerous telephone
interviews. While the applicant had the opportu
nity to tell her own story and clearly has a general
notion of the points made against her, she was
refused the actual evidence and had no opportu
nity to controvert specific evidence against her.
The decision of the Supreme Court of Canada in
Kane v. Board of Governors (University of British
Columbia) 4 is apposite. Following are some
extracts from the judgment of Dickson J., (as he
then was), for the majority; many are quotations
with approval from other authorities.
4 [1980] 1 S.C.R. 1105, at pp. 1113 ff.; 31 N.R. 214, at pp.
221 ff.
3. A high standard of justice is required when the right to
continue in one's profession or employment is at stake ....
4. The tribunal must listen fairly to both sides, giving the
parties to the controversy a fair opportunity "for correcting or
contradicting any relevant statement prejudicial to their views"
... [a party must] "... know the case which is made against
him. He must know what evidence has been given and what
statements have been made affecting him: and then he must be
given a fair opportunity to correct or contradict them....
Whoever is to adjudicate must not hear evidence or receive
representations from one side behind the back of the other."
While the Board is authorized by statute to obtain informa
tion otherwise than under sanction of an oath or affirmation
... this does not authorize it to depart from the rules of
natural justice ....
6. The court will not inquire whether the evidence did work
to the prejudice of one of the parties; it is sufficient if it might
have done so.
He also said [at page 1113 S.C.R.; page 221
N.R.]:
In any particular case, the requirements of natural justice will
depend on "the circumstances of the case, the nature of the
inquiry, the rules under which the tribunal is acting, the
subject-matter which is being dealt with, and so forth" ....
In the circumstances of this case, the require
ments of natural justice were not met. I do not see
how the applicant could be given a fair opportunity
to meet the case against her without being given
an opportunity to confront directly particular evi
dence against her and to test the credibility of its
proponents. She must, of course, be exposed to the
same test. Perhaps the Commission can devise a
way of achieving what must be done in the proc
essing of this complaint within the limitations of
its investigative process. If not, it does have
another procedure available which would appear
designed for such a case.
The CBC did not appear at this hearing. The
Commission did. It opposed the application not
withstanding that it was clearly grounded in an
alleged denial of natural justice. I would respect
fully draw to its attention the following passage
from a judgment of the Supreme Court of
Canada 5 , which not only states the pertinent law
but its policy basis as well.
5 Northwestern Utilities Ltd. et al. v. City of Edmonton,
[1979] 1 S.C.R. 684, at pp. 709 ff.
It has been the policy in this Court to limit the role of an
administrative tribunal whose decision is at issue before the
Court, even where the right to appear is given by statute, to an
explanatory role with reference to the record before the Board
and to the making of representations relating to jurisdiction.
(Vide The Labour Relations Board of the Province of New
Brunswick v. Eastern Bakeries Limited et al. ([1961] S.C.R.
72); The Labour Relations Board of Saskatchewan v. Domin
ion Fire Brick and Clay Products Limited at al. ([1947]
S.C.R. 336).) Where the right to appear and present arguments
is granted, an administrative tribunal would be well advised to
adhere to the principles enunciated by Aylesworth J.A. in
International Association of Machinists v. Genaire Ltd. and
Ontario Labour Relations Board [(1958), 18 D.L.R. (2d) 588),
at pp. 589, 590:
Clearly upon an appeal from the Board, counsel may
appear on behalf of the Board and may present argument to
the appellate tribunal. We think in all propriety, however,
such argument should be addressed not to the merits of the
case as between the parties appearing before the Board, but
rather to the jurisdiction or lack of jurisdiction of the Board.
If argument by counsel for the Board is directed to such
matters as we have indicated, the impartiality of the Board
will be the better emphasized and its dignity and authority
the better preserved, while at the same time the appellate
tribunal will have the advantage of any submissions as to
jurisdiction which counsel for the Board may see fit to
advance.
Where the parent or authorizing statute is silent as to the role
or status of the tribunal in appeal or review proceedings, this
Court has confined the tribunal strictly to the issue of its
jurisdiction to make the order in question. (Vide Central
Broadcasting Company Ltd. v. Canada Labour Relations
Board and International Brotherhood of Electrical Workers,
Local Union No. 529 ([1977] 2 S.C.R. 112).)
In the sense the term has been employed by me here,
"jurisdiction" does not include the transgression of the author
ity of a tribunal by its failure to adhere to the rules of natural
justice. In such an issue, when it is joined by a party to
proceedings before that tribunal in a review process, it is the
tribunal which finds itself under examination. To allow an
administrative board the opportunity to justify its action and
indeed to vindicate itself would produce a spectacle not ordinar
ily contemplated in our judicial traditions. In Canada Labour
Relations Board v. Transair Ltd. et al. ([1977] 1 S.C.R. 722),
Spence J. speaking on this point, stated at pp. 746-7:
It is true that the finding that an administrative tribunal has
not acted in accord with the principles of natural justice has
been used frequently to determine that the Board has
declined to exercise its jurisdiction and therefore has had no
jurisdiction to make the decision which it has purported to
make. I am of the opinion, however, that this is a mere
matter of technique in determining the jurisdiction of the
Court to exercise the remedy of certiorari and is not a matter
of the tribunal's defence of its jurisdiction. The issue of
whether or not a board has acted in accordance with the
principles of natural justice is surely not a matter upon which
the Board, whose exercise of its functions is under attack,
should debate, in appeal, as a protagonist and that issue
should be fought out before the appellate or reviewing Court
by the parties and not by the tribunal whose actions are
under review.
I would set aside the Commission's decision and
remit the applicant's complaint for reconsidera
tion. Should the Commission decide to designate
an investigator, I would direct that it be a different
person.
HEALD J.: I concur.
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.