Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human Rights Tribunal – Impartiality – Judicial review – Procedural requirements – Reasonable apprehension of bias
Bell Canada v. Canadian Telephone Employees Assn.,  S.C.J. No. 36, Supreme Court of Canada, June 26, 2003, McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
Between 1990 and 1994, the Canadian Telephone Employees Association (“CTEA”), Communications, Energy and Paperworks Union of Canada (“CEP”), and Femmes Action (“FA”) filed complaints with the Commission against Bell, alleging that Bell pays female employees in certain positions lower wages than male employees performing work of equal value in violation of section 11 of the Canadian Human Rights Act R.S.C. 1985 c. H-6 (the “Act”). In May of 1996, the Commission asked the President of the Tribunal to inquire into the complaints.
Bell applied for judicial review of the Commission’s decisions to refer the complaints to the Tribunal. The Federal Court Trial Division granted Bell’s application and quashed the Commission’s decision. The Commission, together with CTEA, CEP, and FA urged the Chairperson of the Tribunal to set formal hearing dates for the panel, so that the original complaints could be heard. Bell resisted and argued that the 1998 amendment did not eliminate problems of procedural fairness that had been previously identified. Bell’s position was rejected and Bell then applied for judicial review of this decision. The Federal Court Trial Division allowed the application and the court held that even the narrowed guideline power of the Commission unduly fettered the Tribunal and that the Chairperson’s discretionary power to extend appointments did not leave Tribunal members with a sufficient guarantee of tenure. The decision was appealed before the Federal Court of Appeal who rejected Bell’s view and the matter was appealed to the Supreme Court of Canada.
At the Supreme Court of Canada, Bell argued that the power of the Commission to issue guidelines binding on the Tribunal compromised the Tribunal’s independence because it placed limits on how the Tribunal can interpret the Act and undermines the Tribunal’s impartiality because the Commission is itself a party before the Tribunal. The Supreme Court of Canada noted the distinction between independence and impartiality. The court referred to Valente v. The Queen,  2 S.C.R. 673, where it was observed that:
… there is a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the Tribunal in relation to the issues and the parties in the particular case. The word “impartial” connotes absence of bias, actual or perceived. The word “independent” in section 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.
The court held that Bell’s only realistic argument was that the Tribunal was “impartial” and that Bell’s only real objection to the guideline power was that it leaves the Tribunal insufficiently impartial. The court noted that the requirements of procedural fairness vary for different tribunals. The procedural requirements that apply to a particular tribunal will depend on the nature and function of the particular tribunal. Administrative tribunals perform a variety of functions and may be seen as spanning the constitutional divide between the executive and judicial branches of government. Some administrative tribunals are closer to the executive end of the spectrum: their primary purpose is to develop, or supervise the implementation of particular government policies. Such tribunals may require little by the way of procedural protections. Other tribunals, however, are closer to the judicial end of the spectrum: their primary purpose is to adjudicate disputes through some form of hearing. Tribunals at this end of the spectrum may possess court-like powers and procedures. These powers may attract stringent requirements of procedural fairness, including a higher requirement of independence.
The main function of the Canadian Human Rights Tribunal is adjudicative. It conducts formal hearings into complaints that have been referred to it by the Commission. It has many of the powers of the court. The fact that the Tribunal functions in much the same way as a court suggests that it is appropriate for its members to have a high degree of independence from the executive branch. This requirement, however, is met in a number of ways. Members’ remuneration is fixed by the Governor in Council, and it is not subject to their performance on the Tribunal. Members hold office for a fixed term and the Chairperson is removable only for cause. These features indicate that the Tribunal is, in fact, independent from the executive branch. In respect of impartiality, whether the Tribunal is impartial depends on whether a well-informed person, viewing the matter realistically and practically, would have a reasonable apprehension of bias. In answering this question, the court not only looks at the adjudicative function of the Tribunal, but also at the larger context within which the Tribunal operates. The Tribunal is part of a legislative scheme for identifying and remedying discrimination. As such, the larger purpose behind its adjudication is to ensure that governmental policy on discrimination is implemented. It is crucial, that any ambiguities in the Act be interpreted by the Tribunal in a manner that furthers, rather than frustrates, the Act’s objectives. The Act therefore evinces a legislative intent, not simply to establish a tribunal that functions by means of a quasi-judicial process, but also to limit the interpretative powers of the Tribunal in order to ensure that the legislation is interpreted in a non-discriminatory way.
The Guideline Power
Bell alleged that the Commission’s power to issue binding guidelines regarding the proper interpretation of the Act undermines the Tribunal’s impartiality. The court held that the objection that the guideline power unduly fetters the Tribunal overlooks the fact that guidelines are a form of law. Being fettered by law does not render a tribunal partial, because impartiality does not consist in the absence of all constraints or influences. Rather, it consists in being influenced only by relevant considerations, such as the evidence before the Tribunal and the applicable laws. Hence, the fact that the Tribunal must abide by all relevant law, including guidelines formulated by the Commission, does not on its own raise a reasonable apprehension of bias.
The Chairperson’s power to extend appointments
Bell’s other major argument was that the Chairperson’s power to extend appointments robs members of the Tribunal of sufficient security of tenure. The court held that there is an obvious need for flexibility in allowing members of the Tribunal to continue beyond their expiry of tenure in light of the potential length of hearings and the difficulty of enlisting a new member of a panel in the middle of a lengthy hearing. If the discretionary power of the Chief Justice and Judicial Council of the Provincial Courts to extend the tenure of judges does not compromise their independence in a manner that contravenes the requirements of judicial independence, then neither does the discretionary power of the Tribunal Chairperson compromise the independence of Tribunal members in a manner that contravenes common law procedural fairness.
The court upheld the conclusions of the Federal Court of Appeal and dismissed the appeal with costs.
To stay current with the new case law and emerging legal issues in this area, subscribe here.