Grover v. Canada (National Research Council - NRC)
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  Grover v. Canada (National Research Council - NRC)

Between
Attorney General of Canada, Applicant, and
Chander P. Grover and Canadian Human Rights Commission,
Respondents

[1994] F.C.J. No. 1000
Action Nos. T-1945-93, T-775-94

Federal Court of Canada - Trial Division
Ottawa, Ontario
Cullen J.

Heard: June 13 and 14, 1994
Judgment: July 4, 1994
(24 pp.)

   Administrative law — Judicial review — Human rights — Discrimination.

   Applications for judicial review to quash two decisions of a human rights tribunal arising out of an inquiry into a complaint filed with the Canadian Human Rights Commission and heard together.  The complaints dealt with employment appointments and alleged discrimination based on race.  The applicants argued the tribunal was functus officio when it made its final decisions, and that it lacked jurisdiction because its earlier orders were being obeyed.

   HELD:  Applications dismissed.  The tribunal's efforts at conciliation, though unusual and susceptible in some cases to legitimate charges of bias, did not here justify quashing the decision.  Each party met and had every opportunity to refuse to proceed but did not.  There was also no breach of natural justice. There had been a full and fair examination of the legal question of functus officio despite the chair's comments. There had, moreover, been resistance to the earlier orders.

STATUTES, REGULATIONS AND RULES CITED:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss. 7, 50(2) (c), 53(2)(b), 57.
Federal Court Act, R.S.C. 1985, c. F-7, as am., ss. 18, 18.1.

   Alain Préfontaine, for the Applicant.
   Cynthis Sams, for the Respondent, C.P. Grover.
   Peter Engelman, for the Respondent, Canadian Human Rights Commission.


ขา 1      CULLEN J. (Reasons for Order):— This case involves two applications for judicial review pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7.  The applicants seek to quash two decisions of a Canadian Human Rights Tribunal (the "Tribunal") which arise out of an inquiry into a complaint filed with the Canadian Human Rights Commission by the Respondent in this application, Chander P. Grover.   By order of McGillis J., court files T-1945-93 (the "first application") and T-775-94 (the "second application") were joined and heard together.  The first application, is to review and set aside the decision of the Tribunal rendered July 7, 1993.  This application also seeks a declaration that the Tribunal is functus officio and is no longer seized with the complaint filed by Dr. Grover.   The second application is to review and set aside the decision of the Tribunal rendered March 18, 1994.  This application also seeks a declaration that the Tribunal is functus officio with respect to Dr. Grover's complaint.

BACKGROUND

ขา 2      A brief review of the facts surrounding the complaint heard by the Tribunal is necessary to set the context for the applications now brought before the Court by the Attorney General of Canada.  Dr. Grover was born in India in 1942 and came to Canada in 1978.  He has a B.Sc. in physics, chemistry and math and an M.Sc. in physics from the University of New Delhi.  In addition, he has a post-doctorate degree in physics from the Indian Institute of Technology in Delhi.  He has also attained a doctorate degree from the University of Bris in France.  In 1981, Dr. Grover accepted a position with the National Research Council ("NRC") as an Associate Research Professor in the field of optics.  Dr. Grover's optics research has earned him an international reputation as a highly respected scientist.

ขา 3      In September 1987, Dr. Grover filed a complaint with the Tribunal which alleged that from September 1986 to August 1987 his employer, the NRC, had engaged in discriminatory practices against him contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "Act") on the grounds of his race, colour and national origin.  Dr. Grover claimed that the actions of two NRC directors denied him managerial and promotional opportunities as well as research responsibilities.  A further amended complaint was filed in August 1989 alleging further incidents of discrimination.  A second amended complaint was filed during the course of the inquiry.  On August 21, 1992, after hearing 26 days of evidence and testimony, the Tribunal found that Dr. Grover's complaint of racial discrimination against the NRC was substantiated and a remedial order was issued.  The NRC was ordered to give Dr. Grover a written apology, to cease and desist its discriminatory practices, to pay damages for hurt feelings, to compensate Dr. Grover for denied salary progression and to appoint him to an appropriate position.  The main issue now before the court arises from the implementation of the Tribunal's order that Dr. Grover be appointed to an appropriate position.  At page 86 of the Tribunal's reasons dated August 21, 1992 the following finding was made:

Under the circumstances, we are of the opinion that, at a very minimum, the position of the section head or group leader be made available to Dr. Grover at the earliest possible opportunity.  We are fully appreciative of the fact that the Respondent has a new promotion policy but the discrimination of Dr.   Grover which interfered with his career opportunity commenced far earlier.  If the question of appointment to an appropriate position meets with resistance by the Respondent in its implementation, this Tribunal will retain jurisdiction to hear further evidence in this regard.


[emphasis added]

ขา 4      The relevant paragraph of the order for relief against the NRC (p. 93 of Tribunal's reasons) reads as follows:

(d)

The Complainant will be appointed at the earliest possible opportunity to a position of section head or group leader.  In the event that this Order with respect to promotion is resisted by the Respondent, the Tribunal shall retain jurisdiction to hear further evidence in this regard.


[emphasis added]

ขา 5      Pursuant to this order, the NRC appointed Dr. Grover to the position of Group Head of the Optical Components Research Group in the Herzberg Institute of Astrophysics on September 10, 1992.  Shortly after the appointment, Dr. Grover expressed dissatisfaction with the position.  Other outstanding difficulties were the calculation of Dr. Grover's years of relevant experience ("YRE") and salary readjustment and the issue of costs.  These issues were submitted to an arbitrator and have now been settled.

ขา 6      As a result of Dr. Grover's concerns with the September 10, 1992 appointment, correspondence was exchanged between Mr. Bennett, counsel for Dr. Grover, and Mr. Saunders, counsel for the NRC.  During this correspondence, Mr. Saunders continually maintained that the appointment complied with the order of the Tribunal and consequently, the Tribunal did not have the jurisdiction to reconsider the question of Dr. Grover's appointment to an appropriate position. On October 9, 1992, Mr. Bennett requested that the Tribunal reconvene to resolve the outstanding concerns of the complainant, namely, the appointment, the calculation of YRE and salary adjustment, and costs.  All other aspects of the order had been complied with.  At that time, and in subsequent correspondence, Mr. Saunders informed the Tribunal that the NRC took the position that the Tribunal retained the jurisdiction to deal only with the issue of YRE and wage loss from lack of promotion but that the Tribunal had no jurisdiction to reopen the issue of the appointment.

ขา 7      On October 23, 1992 a telephone conference was convened to discuss the positions of the parties on Dr. Grover's motion to reopen the hearing.  Mr. Saunders at that time reiterated that the position of the NRC with respect to the jurisdiction of the Tribunal remained unchanged.  Dr. Grover's motion to reopen the hearing was scheduled to be heard on November 27, 1992.  However, instead of proceeding to deal with this motion, the Tribunal indicated that they wished to meet privately with each party without counsel present in an attempt to resolve the outstanding conflicts.  The Tribunal met separately with Dr. Grover and with Dr. Willis, a senior official from the NRC.  The Tribunal then met with both Dr. Grover and Dr. Willis together.  After this discussion, counsel for the parties were asked to join the Tribunal in the meeting room.  With counsel present, the private discussions were summarized by the Tribunal and the parties were asked to return the following day.  Further discussions were held but unfortunately these efforts to find a resolution to the appointment issue proved unsuccessful.

ขา 8      Daniel Gervais, Director of the Legal Services Unit at the NRC, wrote to the Tribunal on February 2, 1993 and again indicated that the NRC maintained its position that the Tribunal lacked jurisdiction to deal with the appointment.  Mr. Fleck, the Chairman of the Tribunal, in a letter dated February 10, 1993 set out the participation of both parties in the informal process undertaken with the assistance of the Tribunal to resolve the appointment issue.  In light of the participation of the NRC in this process, Mr. Fleck expressed surprise that the NRC was maintaining the objection to jurisdiction on the basis of functus officio.

DECISIONS OF THE TRIBUNAL SUBJECT TO REVIEW

ขา 9      The Tribunal issued a Notice of Resumption of Hearing on March 29, 1993 and the hearing was officially reopened on July 6, 1993.  At that time the NRC brought a preliminary motion challenging the jurisdiction of the Tribunal on the basis that it was functus officio.  By their oral decision delivered on July 7, 1993, the Tribunal dismissed this motion and concluded that it retained jurisdiction to deal with the appointment issue.  The Tribunal then proceeded to hear evidence regarding the appointment of Dr. Grover.   The first application, file T-1945-93, seeks to quash this July 7, 1993 decision.

ขา 10      File T-775-94 is an application to quash the decision of the Tribunal dated March 18, 1994.  This was the final decision rendered by the Tribunal considering the implementation of the Tribunal's Order for Relief rendered August 21, 1992.  The Tribunal gave written reasons for their earlier decision that they retained jurisdiction to deal with the issue of the appointment.  At page 6 of the Tribunal's reasons the following comments were made regarding the issue of jurisdiction:

       At the outset of the informal meeting on November 27th, the Chairman quite clearly pointed out to all counsel that the Tribunal was not prepared to participate in this process if any of the parties were going to challenge jurisdiction and raise the issue of functus.  All counsel present including Mr. Bennett for Dr. Grover, Mr. Saunders for NRC and Mr. Engelmann for C.H.R.C. assured the Tribunal that they were only interested in getting all of the issues resolved and completing the implementation of the order.  Further meetings were held informally in an attempt to resolve the last outstanding issue, namely the appointment of Dr. Grover to an appropriate position.  The Tribunal was impressed with the industry displayed by all parties, apparently expressing a common interest and goal to resolve the last and final issue.  At no time during this process was it ever suggested by the Respondent [NRC], or indeed any of the parties that if this informal process was not resolved to their liking that they would fall back onto a position the Tribunal was without jurisdiction to reconvene as they were functus officio.

... It appears to this Tribunal that the conduct of
the Respondent [NRC] if it is not estopped from now
asserting this position should at the very least be
considered as a question of bad faith on its part.
Certainly its conduct is questionable in view of the
following:

A.

It never sought any formal remedy to question the jurisdiction of the Tribunal nor any aspect of its decision at any time;

B.

At no time did it move through the Federal Court or any court of competent jurisdiction to stay or review the proceedings of this Tribunal following its participation in the process starting in November 1992.  Indeed, it actively participated and sought the guidance from the Tribunal in the implementation of its order.


Is it now open for the Respondent in view of its conduct as described herein to raise the issue of functus?  We think not.

ขา 11      The Tribunal went on to fully consider the NRC's submissions on the issue of functus officio and undertook a thorough legal analysis regarding the question of jurisdiction. The Tribunal made the following conclusions at page 15 of its reasons:

       The balance of provincial human rights legislature [sic] and the C.H.R.A. all provide for general remedial action to be taken but are silent with respect to the specifics of jurisdiction to either reconvene or maintain ongoing supervision.  It is our finding however that the decision in Robichaud provides that human rights legislation by its nature is to be remedial as opposed to punitive.  The general powers therefore under s. 53 require therefore in our opinion as Justice Sopinka calls for in the Chandler  case the power of a Tribunal to "carry out its task".  In other words, programmes and workplace job placements ordered through the general remedial section often by their necessity require not only implementation but ongoing supervision.  We are of the opinion that it necessarily follows by implication that a Tribunal under these circumstances will be within its power to retain jurisdiction over the subject matter.


       Important to our conclusions in this regard as its relates to having appropriate jurisdiction was the fact that this Tribunal was invited by the parties to reconvene in order to facilitate implementation and to hear further evidence in order to clarify the remedy as it relates to an appropriateness of position for Dr. Grover.   We have not been called upon to change the decision or to implement a different remedy than that which we originally provided in our decision of August 21st, 1992 nor have we proposed to do so in this decision.  It became readily apparent at the hearing of further evidence that NRC's terminology in designating management positions was and continues to be less than satisfactory in some areas of the organization.  Often the language appears confusing and misleading when interpreted in the context of the monetary authority designated for various positions.


       The Tribunal is satisfied that upon review of the various principles and authorities outlined herein that its jurisdiction does extend to clarify the appropriateness of the position to which Dr.   Grover has been and is to be appointed.

ขา 12      In considering the question of Dr. Grover's September 10, 1992 appointment, the Tribunal concluded that the position was inappropriate.  The Tribunal clarified what it meant by appropriate position as follows at page 16 of their reasons:

The Tribunal is of the opinion that Dr. Grover has not been appointed to an appropriate position.  An appropriate position in this instance is in our view characterized by three essential components:


1.

The expectations, duties and responsibilities of the position are commensurate with Dr. Grover's scientific management and research capabilities.

2.

The location of the designated position on the salary scale and NRC guideline curve is in keeping with an appropriate career progression in terms of where Dr. Grover would be in 1994 had not the discrimination taken place.

3.

That the NRC signing authority is consistent with the position title used.

The Tribunal again retained jurisdiction for the purpose of providing further clarification to facilitate the appointment of Dr. Grover to an appropriate position at the conclusion of the March 18, 1994 decision.

POSITION OF THE APPLICANT

ขา 13      The applicant advances three main lines of attack. First, the applicant submits that the Tribunal could not entertain Dr. Grover's motion for a rehearing because is was functus officio.  Secondly, in the alternative, if the Tribunal is not found to be functus officio, it is argued that the chairman of the Tribunal breached a fundamental principle of natural justice at the July 6, 1992 hearing by acting as both trier of fact and witness in the same proceedings.  It is argued that this breach vitiates the entire proceedings. Third, even if the Tribunal is found not to be functus officio, it is argued that the March 18, 1994 decision that Dr. Grover was appointed to an inappropriate position is void as it is based on an error of law and/or fact.

(a) Was the Tribunal Functus Officio?

ขา 14       The applicant takes the position that the Tribunal, after hearing 26 days of evidence, spoke its final mind regarding the issue of an appropriate appointment for Dr. Grover, an issue which was central to the proceedings, and set out all the indicia of such a position in its August 21, 1992 decision at pages 13-14:

There is little doubt that Dr. Grover aspired to a position of management with the Division of Physics, and specifically that of a Section Head.  The responsibilities of a section head within the Division of Physics would have called for added responsibility including the evaluation of the performance of staff, allocation of funds including travel funds, involvement with research planning and promotions.  It should be noted that prior to Dr.   Grover's return from NOI, he had been acting in the capacity of assistant director and acting scientific director, and in the mission statement of NOI was slated for a section head position along with other of the transferred members from the Division of Physics, namely Dr. Cowan and Dr. Powell.  The initial promotion assessments from 1981 through to 1984, coupled with the evidence of Dr. Major and Dr. Cowan, clearly lead this tribunal Board to conclude that Dr. Grover was qualified to assume the position of Section Head and was quite capable of fulfilling the responsibilities relating to such a position.

ขา 15      The applicant argues that there is no express provision in the Act which allows the Tribunal to revisit its final decisions.  It is submitted that the Tribunal changed its mind in the face of changes in the management structure of the NRC and issued a new order regarding the appointment of Dr. Grover on March 18, 1994.  According to the applicant, the only options open to Dr. Grover would have been to seek enforcement of the August 21, 1992 Order under section 57 of the Act or alternatively, to have filed a new complaint with the commission.  Accordingly, in the submission of the applicant, moving for a rehearing in the face of a final decision on the question of the appointment was not an option validly open to the complainant.

ขา 16      The applicant suggests that after the August 21, 1992 Order the Tribunal simply acted as a conciliator with the consent of the parties in order to resolve, on an informal basis, the outstanding issues between the parties. Counsel for the applicant relied on the conduct of the Tribunal between August 21, 1992 and July 6, 1993, particularly their participation in private settlement negotiations, as supporting the view that the Tribunal was functus officio.  It was contended that only a conciliator could meet privately with parties and receive ex parte information and that such conduct is incompatible with the quasi-judicial functions of the Tribunal.   The applicant also relies upon the proposition that settlement discussions are generally privileged from disclosure during the trial of an action.  It is submitted that this proposition supports the view that the participation of the Tribunal in settlement negotiations rendered the Tribunal unable to return to a quasi-judicial capacity when they reopened the hearing to hear further evidence on July 6, 1993.

ขา 17      The applicant contends that the question of whether the parties consented to the procedure undertaken by the Tribunal in its attempt to resolve the outstanding difficulties in an informal matter is entirely irrelevant to the issue of jurisdiction which is a question of law.  In the alternative, if the consent is found to be relevant, the applicant points to the record, and particularly to the correspondence between counsel for the NRC and the Tribunal, which indicates that the NRC consistently maintained its objection to the Tribunal taking jurisdiction over the issue of the appointment.  Therefore, a finding that the parties consented to its jurisdiction is a finding contrary to the material before the Tribunal. The applicant suggests that the Tribunal found as a fact that counsel for the NRC gave an undertaking not to dispute the jurisdiction of the Tribunal once they agreed to attempt to resolve the outstanding issues.

(b) Denial of Natural Justice:

ขา 18      In presenting oral argument to the Court, counsel for the applicant stated that for the purpose of making the argument that the Tribunal breached a principle of natural justice,  only the events subsequent to the reopening of the hearing on July 6, 1993 were to be relied upon by the applicant.  During the proceedings before the Tribunal on July 6, 1993, the applicant contends that the Tribunal committed a flagrant breach of natural justice by becoming judge, jury, witness and party in the proceedings before them.  At the opening of the inquiry, it is argued that the Chairman, Mr. Fleck, testified as to his version of the events which had occurred in the interim period between the two hearings and that the Tribunal made a finding of fact on the basis of this testimony that Mr. Saunders had given his undertaking not to raise the question of functus officio. The portion of the transcript of the proceedings on July 6, 1993 which counsel for the applicant says contains the "testimony" of the Chairman reads as follows at pages 5211-5216:

I thought, possibly, for the record, that I would outline where I believe we have arrived at as a result of our judgement in this case.  I will give each counsel an opportunity to make an opening statement, or outline what they intend to deal with, if that is satisfactory to everybody.

       The hearing today is a resumption of certain informal meetings that the Tribunal had with counsel for all parties and representatives of the parties following our judgment in this case, which gave to us jurisdiction to deal with certain questions that had been left for the parties to endeavour to implement. The balance of the matters that were left open dealt specifically with two paragraphs of our judgment.

The Chairman then cited the paragraphs of the judgment which dealt with the issue of the appointment and continued as follows:

       Those are the two aspects of the judgment which, as of October 1992, had not been satisfactorily resolved.

       As Chairman, I was contacted by counsel for the Complainant, the Respondent and for the Commission to ascertain if we could become involved, that is, the Tribunal, to facilitate the resolution of those remaining issues.  I requested as Chairman, that all parties represented by counsel submit a brief of the issues, as defined.  They did that.  We agreed that we would meet informally to ascertain how we could best resolve the outstanding issues.  We had a meeting in November, I believe the 27th, at the Human Rights Building, where we are seated today, and at that time it appeared that the question of costs was outstanding.  That was a part of our judgment.  We resolved the issue on that date, on the consent of all parties.  The question of the years of relevant experience, the Y.R.E., and the appointment of an arbitrator to facilitate that calculation, which was a part of our judgment, was outstanding on that day. We again, on consent of all counsel, facilitated a resolution.  I arranged to have an arbitrator available for the parties.  I am uncertain at this date how that aspect of things has gone, but at least, the facilitating of an arbitrator to deal with that part of the judgment was arranged on consent of all parties and at their encouragement, which left one and the only remaining issue, as I ascertain it from our meetings:  the question of an appropriate promotion and the placing of Dr. Grover within the work environment of the National Research Council. It is that issue that, after our November 27th meeting, remained outstanding and we again agreed with the consent of all counsel and their principals, to continue to meet to see if we could resolve that issue, informally, without the necessity of the expense of calling of witnesses and the involvement of further lengthy hearings.  We endeavoured to meet informally to see if that issue could be resolved.

       We encouraged the National Research Council and Dr. Grover to meet directly, which they did, without success.  We encouraged various solutions to resolve this issue, on consent of all parties, and actively participated in it, and that without success.

       The Tribunal advised all counsel that we were determined to ascertain if we could bring about a completion of that part of our judgment which remains outstanding, and it is for that purpose that we are convening today.

       It has been suggested by counsel for the Respondent [NRC], and at various times -- and I have endeavoured to address this issue -- that the Tribunal is in a legal position of being functus and, therefore, without jurisdiction to deal with the issues.  But I would remind the Respondent, as I have, in a lengthy letter dated February 10, 1993, that the entire sense and purpose of where we are at today resulted in the collaborative hearing, including all the parties, at the behest of the Tribunal, to see if we could endeavour to resolve this issue.  If the Respondent -- and I don't mean this as any form of admonishment, warning or otherwise -- but, if the Respondent wishes to take the position today, at these formal hearings, with a record being taken, that there is a position of this Board, as such, which may be described legally as functus, then so be it.  We intend to proceed and we will deal with that issue if it arises.

       Once we have completed our deliberations, we will give a decision that will, as far as this Tribunal is concerned, be what we consider the extent to which we can endeavour to resolve this matter.  I don't know what further we could do.  We have had some five or six meetings informally, again on consent of all parties, without a record being taken, to try to take the adversarial aspect out of the matter, to see if the hearings could be done informally so that we could resolve this as good-thinking human beings, with an effort to getting both parties on with life, in general; the Complainant back to work productively and the Respondent with their other concerns.  We haven't been successful in doing that, obviously, or we wouldn't be here today, but that does not and will not deter us from endeavouring to come up and complete, formally, a resolution of that matter by this Tribunal.

ขา 19      Counsel for the applicant also points to certain portions of the transcript which in his view demonstrate that the Tribunal, and particularly the Chairman, became upset when the issue of functus was raised and made several derogatory comments regarding the conduct of counsel for the NRC in objecting to the jurisdiction of the Tribunal to reopen the hearing.  It is alleged that these comments gave rise to a reasonable apprehension of bias which eliminated any possibility for a fair hearing. In rendering its decision on the preliminary objection raised by the NRC on July 7, 1993, the Chairman made the followings comments at pages 5346 and 5355-5356 of the transcript:

       It appears that the conduct of the Respondent, if is not estopped from now asserting this position, should, at the very least, be examined as a question of bad faith on its part.


...

       As previously indicated herein, the Respondent elected to proceed within the framework of this Tribunal, as opposed to utilizing the judicial mechanisms of appeal or review.  Surely, it is not open to any of the parties acting in good faith to now challenge the jurisdiction of this Tribunal, 11 months later, because they are not satisfied or have concerns about the consequences of the Tribunal's decision.

       To allow any of the parties to proceed in this matter does, in our opinion, strike at the very heart of the integrity of the judicial process and all that one considers fairness in this use of judicial intervention in the resolution of disputes.

(c) March 18, 1994 Decision - Error of Law or Fact:

ขา 20      The applicant also attacks the actual decision of the Tribunal that Dr. Grover was not appointed to an appropriate position.  Counsel for the applicant points to three errors of law in this respect.  First, it is contended that the Tribunal erred in considering facts and evidence which arose subsequent to the August 21, 1992 Order in making its decision regarding the September 10, 1992 appointment.  These subsequent facts are the appointment of two of Dr. Grover's colleagues to section head positions and the revision of the organizational structure of the NRC.  Secondly, the applicant challenges the decision on the basis that it did not simply clarify the August 21, 1992 Order but substantially altered it, and by so doing, the Tribunal exceeded their jurisdiction. Finally, the applicant submits that the Tribunal's decision to again remain seized of the matter exceeded the power conferred upon the Tribunal by the Act.  It is contended that the enforcement of orders of the Tribunal are entrusted to this court and only the Commission has the power to investigate a complaint.  Essentially, it is argued that the Tribunal does not have the power to remain seized of their jurisdiction once an Order is rendered.

ขา 21      As a final argument in the alternative, the applicant submits that even if the Tribunal was not functus officio, the decision on the motion to reopen is void for want of jurisdiction as the Order was complied with and the condition precedent to the Tribunal retaining jurisdiction to revisit the issue, namely the resistance of the NRC to implement the Order, had not been met. The applicant takes the position that the September 10, 1992 appointment complied fully with the Order of the Tribunal.  The applicant maintains that the position of Group Head at the Herzberg Institute of Astrophysics is equivalent to a group leader position and is in accordance with the Order of the Tribunal rendered August 21, 1992.

POSITION OF THE RESPONDENTS - C.H.R.C. and CHANDER P. GROVER

(a) Functus Officio:

ขา 22      In the view of both Respondents, the Tribunal did not speak its final mind on August 21, 1992 with respect to the appointment of Dr. Grover because at that time it was unable to do so as a result of the substantial restructuring which was taking place at the NRC during the first hearing in 1991.  The Respondents take the view that the Tribunal set out minimal guidelines in the August 21, 1992 decision in order to help the parties work out between themselves the details of an appropriate position and retained jurisdiction in the event that the parties could not settle upon a mutually agreeable appointment.  The findings of the Tribunal highlighted by counsel for the applicant which are submitted to contain all the criteria of an appropriate position, are in the opinion of the Respondents, simply findings with respect to the career progression Dr. Grover should have experienced in 1986 when the discriminatory practice began.  In fashioning a remedy the Tribunal was charged with the task of putting Dr. Grover in the position he would have occupied had the discriminatory practices not taken place.  It is submitted that this calls for an appointment to a position appropriate for Dr. Grover in 1992 and that at the conclusion of the first hearing there was not enough information regarding the management structure of the NRC for the Tribunal to determine the details of the most appropriate position.  Given this lack of information, it is argued that the second hearing was held solely for the purpose of supplementing the original order with further details of a position which would fully compensate Dr. Grover for the damage done to his career.

ขา 23      The respondents urge the Court to consider both the purpose of the statute in section 2 and the broad remedial powers granted to the Tribunal in para. 53(2)(b) of the Act and the principle that Human Rights legislation is to be interpreted in a broad and liberal fashion to ensure that the objectives of the legislation are fulfilled. It is submitted that it would be overly formalistic to strictly apply the principle of functus officio to prevent the Tribunal from reconvening for the purpose of clarifying their original Order. It would be inconsistent with the purposes of the Act to put the onus on the complainant to seek enforcement of an ambiguous order in the Federal Court or to file a whole new complaint as suggested by the applicant.  Rather, the Tribunal must have the power to clarify its own remedial orders in order to fulfil its mandate of making victims of discrimination whole.

ขา 24      It is contended that the Tribunal did not base their decision regarding the question of functus officio on an undertaking given by counsel for the NRC not to dispute jurisdiction.  Therefore, even if the Tribunal erred in finding that such an undertaking was given, their final decision was not based on this finding and the applicant submits that this is clear on the face of the written reasons of the Tribunal rendered March 18, 1994

ขา 25      As to the participation of the Tribunal in informal discussions with the parties in the interim period, counsel for the Respondent Dr. Grover maintains that either the Tribunal was functus officio as of August 21, 1992 or it was not, and therefore, the events between August 21, 1992 and July 6, 1993 are of no relevance to this question.  Further it is submitted that, if the course of conduct undertaken by the Tribunal was a procedural irregularity, it is submitted that counsel for the NRC waived its right to now raise an objection by fully participating in the conciliation process without protest.  Counsel for the Respondent, Canadian Human Rights Commission, also points out that the Tribunal was careful to exclude any reference to the settlement discussions during the reconvened hearing.

(b) Denial of Natural Justice:

ขา 26      The respondents take issue with the applicant's perception that the Chairman was testifying from the bench at the beginning of the proceedings on July 7, 1993.  Rather, it is submitted that the comments were made solely to set the context for the discussion regarding functus officio.  As such, these comments did not give rise to the denial of a fair hearing.  The Respondents contend that even if the Chairman's comments regarding the alleged undertaking were inaccurate, this finding in no way forms the basis of the conclusion that the Tribunal was not functus officio.  As to the allegedly derogatory comments made by the Chairman regarding the conduct of counsel in raising the functus officio question at the opening of the second hearing on July 6, 1992, the Respondent argues that the Chairman was simply making findings on the facts.  The respondents characterize the applicant's natural justice argument as one of bias and rely upon the proposition that a party waives a claim of bias where it has failed to make a timely objection at the initial stages of the proceedings.

(c) March 18, 1994 Decision - Error of Law or Fact:

ขา 27      The respondents both maintain that the reasons of the Tribunal should not be read as requiring the condition precedent that the NRC resist the order of reinstatement in order to revisit the issue of the appointment of Dr. Grover to an appropriate position.  The evidence before the Tribunal was that they were aware that the NRC was undergoing significant management restructuring and reorganization.  Therefore, it is argued that the reservation of jurisdiction must be read in this context of uncertainty.  In the alternative, if it is found that the Tribunal did intend that the exercise of their jurisdiction to hear further evidence be subject to a condition precedent, the respondents maintain that this condition was met. They argue that the NRC resisted the implementation of the order by appointing Dr. Grover to an inappropriate position and that any other reading of the condition would require a microscopic reading of the Tribunal's reasons.

ขา 28      In response to the applicant's submission that the Tribunal erred in considering facts which arose after the August 21, 1992 Order, the respondents once again submit that the Human Rights Tribunal has a broad mandate under section 53 of the Act to make the complainant whole and to properly fulfil this mandate, the Tribunal must have the power to consider evidence of events subsequent to its decision in order to ensure that the complainant is given an adequate remedy. Accordingly, for the same reasons, the respondents submit that the decision of the Tribunal on March 18, 1994 to again retain jurisdiction regarding the implementation of its remedial order must, for the same reasons, be seen as a valid exercise of the Tribunal's powers.

ANALYSIS

(a) Jurisdiction of the Tribunal - Functus Officio:

ขา 29      A preliminary issue to be decided is whether the Human Rights Tribunal has the power to retain jurisdiction at the conclusion of an inquiry to reconvene in order to hear further evidence as to difficulties in the implementation of the Tribunal's remedial order.  There is no express provision in the Act which empowers a Tribunal to revisit its decisions. The Federal Court has not yet considered whether a Tribunal under the Canadian Human Rights Act possesses the power to supervise the implementation of its awards.

ขา 30      In arguing the issue of functus officio, both parties rely upon the reasons of Sopinka J. in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848.  That decision clearly sets out the circumstances in which an administrative tribunal will be considered functus officio at 861:

Apart from the English practice which is based on a reluctance to amend or reopen formal judgements, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals.  As a general rule, once such a tribunal has reached a final decision  in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances.  It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., supra.

Justice Sopinka, however, goes on to caution that the principle of functus officio should not be strictly applied to an administrative tribunal where injustice would result.  He states at page 862:

       To this extent, the principle of functus officio applies.  It is based, however, on the policy ground which favours the finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal.  For this reason I am of the opinion that its application must be more flexible and less formalistic with respect to the decisions of administrative tribunals which are subject to appeal only on a point of law.  Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

       Accordingly, the principle should not be strictly applied where there are indications in the enabling legislation that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.

ขา 31      While there is no express provision in the Act which allows for reopening of an inquiry, subsection 53(2) of the Act gives wide remedial powers to the Tribunal. The portion of the Tribunal's order at issue in this application was made pursuant to para. 53(2)(b) which reads as follows:

53.

(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:


(b)

that the person make available to the victim of the discriminatory practice, on the first reasonable occasion such rights, opportunities or privileges as, in the opinion of the Tribunal, are being or were denied the victim as a result of the practice;

The Supreme Court of Canada has mandated that Human Rights legislation should be liberally interpreted in a manner which accords full recognition and effect to the rights protected by such legislation:  Action Travail des Femmes v. Canadian National Railway, [1987] 1 S.C.R. 1114 at 1134; Robichaud v. The Queen, [1987] 2 S.C.R. 84 at 89-90.  The words of La Forest J. in Robichaud are particularly helpful in underscoring the importance of the rights protected by the Act.  He states at pages 89-90:

       The purpose of the Act is set forth in s. 2 as being to extend the laws of Canada to give effect to the principle that every individual should have an equal opportunity with other individuals to live his or her own life without being hindered by discriminatory practices based on certain prohibited grounds of discrimination, including discrimination based on sex.  As McIntyre J. speaking for this Court, recently explained in Ontario Human Rights Commission and O'Malley v. Simpson Sears., [1985] 2 S.C.R. 536, the Act must be interpreted so as to advance the broad policy considerations underlying it.  That task should not be approached in a niggardly fashion but in a manner befitting the special nature of the legislation, which is described as "not quite constitutional"; see also Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, per Lamer J., at pp. 157-58.  By this expression, it is not suggested, of course, that the Act is somehow entrenched but rather that it incorporates certain basic goals of our society. More recently still, Dickson C.J. in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) (the Action Travail des Femmes case), [1987] 1 S.C.R. 1114, emphasized that the rights enunciated in the Act must be given full recognition and effect consistent with the dictates of the Interpretation Act that statutes must be given such fair, large and liberal interpretation as will best ensure the attainment of their objects.

ขา 32      The aim of the Act is remedial and it is not intended to punish those responsible for the discriminatory treatment.  Rather, the primary focus of the legislation is the eradication of discriminatory practices.  In light of this, subsection 53(2) should be interpreted in a manner which best facilitates the compensation of those subject to discrimination.  The redress of discrimination, however, is not always fully achievable simply by the payment of monetary awards.  This is reflected by the wide variety of remedial options open to a Tribunal in subsection 53(2), of which compensation for monetary losses is only one.  The integration into the workplace of an employee who has been subjected to discrimination at the hands of his or her employer to a position which he or she would have occupied had the discriminatory practice not taken place is a remedy which is inherently difficult to implement and therefore, may require some supervision.  The implementation of the remedy in this case is further complicated by the long-standing nature of the complaint, the ongoing changes in the management structure of the NRC and the highly complex work of Dr. Grover.   Often it may be more desirable for the Tribunal to provide guidelines in order to allow the parties to work out between themselves the details of the reintegration into the workplace, rather than to have an unworkable order forced upon them by the Tribunal.

ขา 33      It is clear that the Act compels the award of effective remedies and therefore, in certain circumstances the Tribunal must be given the ability to ensure that their remedial orders are effectively implemented.  Therefore, the remedial powers in subsection 53(2) should be interpreted as including the power to reserve jurisdiction on certain matters in order to ensure that the remedies ordered by the Tribunal are forthcoming to complainants.  The denial of such a power would be overly formalistic and would defeat the remedial purpose of the legislation.   In the context of a rather complex remedial order, it makes sense for the Tribunal to remained seized of jurisdiction with respect to remedial issues in order to facilitate the implementation of the remedy.  This is consistent with the overall purpose of the legislation and with the flexible approach advocated by Sopinka J. in Chandler, supra.  It would frustrate the mandate of the legislation to require the complainant to seek the enforcement of an unambiguous order in the Federal Court or to file a new complaint in order to obtain the full remedy awarded by the Tribunal.

ขา 34      The Federal Court of Appeal has recently held in Murphy v. Teplitsky F.C.A. no. A-33-93, order dated November 23, 1993, not reported, that an adjudicator under the Canada Labour Code has the power to retain jurisdiction regarding remedial issues.  MacGuigan, J.A., writing for the Court held at page 12 that the only test for applying the principle of functus officio is "whether the Adjudicator could be said to have finally determined the complaint before him."  Having found that the Act contemplates the reopening of a decision, in my view, the test in Murphy is consistent with the criteria laid down in Chandler, supra and is the proper test to determine whether the Tribunal was functus with respect to the issue of the appointment when it reopened the hearing on July 6, 1993.

ขา 35      In my view, it is clear that the Tribunal did not finally dispose of the appointment issue as they explicitly anticipated that the NRC might resist the implementation of the Order and specifically retained jurisdiction in this regard. The reasons of March 18, 1994 indicate that the Tribunal was aware at the time they issued the August 21, 1992 Order that the NRC was undergoing organizational changes which could possibly impact on the appointment of Dr. Grover.   The Tribunal states at page 2:

       It is vital for an understanding of this matter to appreciate that the substantial portion of the first hearing related to the discriminatory treatment of the Complainant, particularly in the area of peer promotion to the upper management level of N.R.C.. As set out on p. 86 of a decision of August 21st, 1992, this Tribunal was fully aware that the Respondent N.R.C. was undergoing a substantial restructuring including promotional policy.  The Tribunal accordingly retained jurisdiction to hear further evidence to assist with the implementation in the event that difficulties arose with this aspect of the decision.

ขา 36      Given that Dr. Grover is a highly qualified scientist engaged in highly technical research, the August 21, 1992 order regarding the appointment is conspicuously lacking in detail.  This suggests that the Tribunal intended that the particulars of the position would be worked out by the parties who, in light of the organizational changes taking place at the NRC, would be best equipped to specify the exact position and responsibilities which would be commensurate with Dr. Grover's expertise.

ขา 37      I am not persuaded that the Tribunal came to a final decision on August 21, 1992 and then changed its mind in the face of new circumstances when rendering its second decision on March 18, 1994.   In the August 21, 1992 decision, the Tribunal found at page 10 that in 1986 Dr. Grover was "an outstanding scientist with high peer recognition internationally who was conducting on behalf of the NRC important work in several fields of optics."  Further, at pages 13 and 14, it was concluded that a position of group leader or section head in the Division of Physics would have been a reasonable career expectation for Dr. Grover in 1986.  The Tribunal went on to find that Dr. Grover had been restricted in his research activities by the systematic denial of budget and resources for his work and by his assignment to insignificant roles in projects which were under the control of other scientists.  All of these findings provide the basis for the three essential components of an appropriate position which the Tribunal included in their decision dated March 18, 1994 which simply supplement and clarify  the original order.

ขา 38      Given that the Tribunal did not finally dispose of the matters in issue, the continued objections of the NRC to the jurisdiction of the Tribunal to deal with the appointment after the August 21, 1992 order also are of little consequence in coming to the conclusion that the Tribunal was not functus officio.  It is not the consent of the parties which confers jurisdiction on the Tribunal.  While the Tribunal comments on the actions of the NRC in dealing with their objections and states that all counsel involved agreed not to raise the issue of functus and may have erred in so doing, this is not the basis for their conclusion that they had validly retained jurisdiction.  Erroneous findings of fact must be the basis for the impugned decision in order to be considered a sufficient basis to set aside the decision; Rohm & Hass Canada Ltd. v. Anti-Dumping Tribunal (1978), 22 N.R. 175 (F.C.A.).  An examination of the record reveals that the Tribunal thoroughly canvased the law regarding the application of functus officio and concluded that the principle did not apply primarily on the basis of this legal analysis.  The alleged undertaking by counsel for the NRC was only one factor in dealing with this issue.

ขา 39      I do not see the participation of the Tribunal as a conciliator in the interim period between August 21, 1992 and July 6, 1993 as supporting the view that the Tribunal was functus upon rendering the August 21, 1992 order.  The events during this period are of no relevance to the question of functus officio as once it is determined that the enabling legislation contemplates the power to retain jurisdiction, the only test to be applied is that articulated by MacGuigan J.A. in Murphy v. Teplitsky, supra, that being whether the Tribunal had spoken its final mind.  However, the impact of the Tribunal's participation in private settlement negotiations upon their ability to return to a quasi-judicial capacity deserves consideration.

ขา 40      The Tribunal met privately with both parties in an effort to bring a resolution to the outstanding appointment issue.  While such a procedure would be highly unorthodox and would likely invalidate a judicial proceeding before this Court, it is inappropriate to apply the same standard to proceedings before the Tribunal under the Act.  The nature of a Human Rights Tribunal is that of a quasi-judicial body charged with the difficult statutory task of resolving often complex and emotional disputes between parties in a manner which emphasizes the compensation of victims of discrimination.  Such a task demands innovation and flexibility on the part of the Tribunal in fashioning effective remedies and the Act is structured so as to encourage this flexibility.  That the Tribunal is subject to a less rigorous standard of procedure is illustrated by the less formal rules of evidence applicable to hearings before the Tribunal as mandated in para. 50(2)(c) of the Act.

ขา 41      While the procedure chosen by the Tribunal is certainly unusual and could in some cases be susceptible to legitimate charges of bias, I am not satisfied that the Tribunal's efforts at conciliation in this case justify quashing the decision of the Tribunal.  Each party met with the Tribunal and each party had every opportunity to refuse to proceed in this manner.  However, no objection was voiced by either party at that time.

ขา 42      After the NRC's preliminary objection to the jurisdiction of the Tribunal on July 7, 1993 was dismissed, the Tribunal heard five more days of evidence regarding the suitability of the September 10, 1992 appointment to Dr. Grover's area and level of expertise and the management structure of the NRC.  Both parties called witnesses and were given every opportunity to present their positions. Therefore, looking at the matter practically, I am not persuaded that the fairness of the proceedings were unduly compromised by the participation of the Tribunal as a conciliator.  Some flexibility must be granted to the Tribunal as they have a difficult statutory mandate to fulfil.  They should not be held to the same strict procedural standards as a court of law where to do so would result in a grave injustice.

ขา 43      Likewise, I am not persuaded that the Tribunal committed a breach of natural justice as contended by the applicant in offering an explanation of the events between August 21, 1992 and the reopening of the hearing on July 6, 1993.  The applicant seems to take issue with the comments of the Chairman that an undertaking not to challenge the jurisdiction of the Tribunal was given by counsel for the NRC. He refers to these comments as testimony as to converted facts. As stated above, the alleged undertaking was only one minor factor in the Tribunal's conclusion that is was not functus officio.  While, the Tribunal may not have been pleased that questions regarding its jurisdiction were being raised, counsel for the NRC was given every opportunity to present its position on this issue.  After hearing the parties, the Tribunal set out in great detail an analysis of the law regarding functus and in my opinion, committed no error of law in concluding that the principle had no application.  Therefore, any inaccuracy as to the undertaking is not a sufficient basis to quash the decision.

ขา 44      As to the comments of the Chairman regarding the conduct of counsel for the NRC, it is understandable that after having heard over 28 days of evidence and making an order which had not been implemented, the Tribunal would be feeling some frustration at the failure of the parties to resolve the outstanding matters. The objection of the NRC to the Tribunal's jurisdiction was simply one further obstacle to the completion of their remedial mandate.  Regard should be had to the test for bias set out by Grandpre J. in Committee for Justice and Liberty v. National Energy Board,  [1987] 1 S.C.R. 369.  Would a reasonable and informed person viewing the matter practically and realistically conclude that there was a reasonable apprehension of bias on the part of the Tribunal?  I cannot conclude that the Chairman's comments were such to interfere with a full and fair examination of the legal question of functus officio. In my view, the comments did not result in the denial of the applicant's right to a fair hearing.

ขา 45      The applicant also attacked the March 18, 1994 decision on its merits.  Even if the Tribunal did not speak its final mind and validly retained jurisdiction, it was argued that this decision was made without jurisdiction as the NRC complied with the order by appointing Dr. Grover to an appropriate position on September 10, 1992. To accept that this appointment on its face complies with the order without an examination of the quality of the position and its suitability to Dr. Grover, requires an overly narrow reading of the Tribunal's reasons and would divest the order of any meaningful remedial value.   In my opinion, the appointment of Dr. Grover to an inappropriate position constitutes a resistance to the implementation of the remedial order and the Tribunal validly reconvened to hear further evidence.   Given the problems encountered in the implementation of Dr. Grover's appointment, the Tribunal validly exercised its power in again reserving jurisdiction in the event that further clarification was required after March 18, 1994.

ขา 46      For all the above reasons, the applications are dismissed.

CULLEN J.

DRS/DRS/DRS

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