Canada ( Attorney General ) v. Grover
T-1945-93 / T-775-94
Cullen J.
4/7/94
24 pp.
Application to quash CHRT decisions, declaration Tribunal functus officio -- Respondent, Grover, scientist from India -- Associate Research Professor in optics at NRC -- Having international reputation -- Complained of discrimination, contrary to Canadian Human Rights Act, s. 7 on grounds of race, colour, national origin -- Says denied managerial, promotional opportunities, research responsibilities -- Tribunal finding in Grover's favour, issuing remedial order -- NRC ordered, inter alia, to appoint Grover to appropriate position -- Issue before Court arising from implementation of above-mentioned part of order -- Board having ordered if appointment resisted, Board retaining jurisdiction to hear further evidence -- NRC appointed Grover to position as Group Head but respondent not content -- NRC maintaining order complied with and Board lacking jurisdiction to reconsider -- Tribunal meeting privately with each party without counsel in attempt to resolve conflicts -- Tribunal then meeting with parties, counsel -- Differences not resolved -- Tribunal issuing Notice of Resumption of Hearing -- NRC challenging jurisdiction on basis Tribunal functus officio -- Motion denied -- Tribunal ruling NRC either estopped or acting in bad faith since neither side having previously taken position would raise functus officio if informal process not resolving issues to their liking -- Tribunal fully considering NRC's arguments as to jurisdiction, functus officio -- Relying on power for general remedial action given by CHRA -- Concluding Grover's appointment inappropriate -- Clarifying what it meant by an appropriate position -- AG arguing (1) Tribunal functus officio; (2) breached natural justice by acting as trier of fact, witness; (3) decision Grover was appointed to inappropriate position void for error of law and or fact -- Argued only conciliator could meet privately with parties, receive ex parte information and such conduct incompatible with role of quasi-judicial Tribunal -- Argued that whether parties consented irrelevant to jurisdiction issue -- Argued that Tribunal Chairman got upset when functus issue raised, made derogatory remarks regarding lawyer for NRC -- Reasonable apprehension of bias eliminated chance of fair hearing -- Argued that Tribunal lacks power to remain seized once order made, enforcement being entrusted to Federal Court -- Tribunal arguing original order not its final mind as NRC then undergoing restructuring -- Argued that Tribunal must have power to clarify own remedial orders to discharge mandate of making discrimination victims whole -- Respondents argue Chairman not testifying from bench, fair hearing not denied -- Act not expressly providing for reopening of inquiry but Act, s. 53(2) giving Tribunal wide remedial powers -- Human Rights legislation to be liberally interpreted: Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 -- Monetary compensation but one of remedial options -- Integration into workplace inherently difficult to implement -- Necessity for supervision -- Desirable that Tribunal provide guidelines -- As Act compels award of effective remedies, Tribunal requiring ability to ensure orders effectively implemented -- S. 53(2) to be interpreted as including power to reserve jurisdiction as denial would defeat legislation's remedial purpose -- Mandate frustrated had complainant to seek enforcement by Federal Court -- Murphy v. Canada (Adjudicator, Labour Code), [1994] 1 F.C. 710 (C.A.), holding adjudicator under Canada Labour Code may retain jurisdiction over remedial issues -- Only test for functus officio whether Adjudicator having finally determined complaint -- Tribunal herein not having finally disposed of complaint, anticipating NRC might resist implementation of order -- Lack of detail in order although Grover's research highly technical, suggesting Tribunal intending parties would work out particulars of position -- Even if Tribunal erred in relying on consent of parties, that was but one consideration in Tribunal's review of law on functus officio -- Tribunal's private meetings with parties unusual and could lead to bias allegation but conciliation efforts herein do not justify quashing decision -- Tribunal subject to less rigorous procedure standards than Court -- Fairness of proceedings not compromised by Tribunal's conciliation efforts -- No error of law by Tribunal in concluding functus officio principle inapplicable -- Chairman's comments regarding counsel's conduct not resulting in denial of fair hearing -- Applications dismissed -- Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 53(2) -- Canada Labour Code, R.S.C., 1985, c. L-2.