2016 QCCA 700, 2016 QCCA 700

Norsah c. Commission des droits de la personne et des droits de la jeunesse 2016 QCCA 700 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025855-164 (500-17-085303-140) DATE: April 25, 2016 PRESIDING: THE HONOURABLE MARIE-FRANCE BICH, J.A. KOFI NORSAH APPLICANT – Plaintiff v.

COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE RESPONDENT – Defendant and SAINT COLUMBA HOUSE PATRICIA LISSON IMPLEADED PARTIES – Impleaded parties JUDGMENT [ 1 ] In March 2011, the applicant filed a complaint with the respondent Commission des droits de la personne et des droits de la jeunesse against the impleaded parties Saint Colomba House and Patricia Lisson, alleging intersectional discrimination based on race and sexual orientation. [ 2 ] On August 7, 2014, after a two-year investigation and multiple exchanges with the applicant, the respondent, pursuant to s. 78, paragraph 2, of the Charter of Human Rights and Freedoms (“ Charter ”), chose not to pursue the matter further.

It adopted a resolution to this end, expounding its reasons and concluding as follows: CONSEQUENTLY, the Commission ceases to act pursuant to the second paragraph of

section 78 of the Charter of Human Rights and Freedoms . [ 3 ] Citing

article 846 of the former Code of Civil Procedure (CQRL, c. C-25) [or “f .C.C.P. ”], the applicant sought judicial review of the respondent's decision, alleging 1° lack of procedural fairness in the process leading to said decision, and 2° reliance on a narrow, rigid and outdated view of the concept of discrimination, based on intent rather than effect, and ignorance of the reality of intersectional discrimination, an error which was compounded by various flaws in the evaluation of the evidence gathered during the course of the investigation.

One infers from this second grievance that the applicant is of the view that the respondent's decision to cease acting was unreasonable or abusive in law and in fact. [ 4 ] On June 17, 2015, the Superior Court (the Honourable Madam Justice Christiane Alary) ordered the filing of a “ Déclaration commune pour fixation d'une audience de plus de deux heures ” that defined in the following terms the issues to be debated on the merits of the case: 1- Le délai pour intenter le recours en révision judiciaire a-t-il été respecté? 2- La Commission a-t-elle respecté son obligation d'agir équitablement en enquête? [ 5 ] This interlocutory judgment was rendered in the unexplained absence of the applicant's then lawyer (the applicant was not present either).

Had she been present, she would most likely have opposed this restrictive definition of the issues and would have insisted on including that of the reasonableness of the respondent's resolution. For their part, the respondent and impleaded parties considered this particular issue to be outside the framework applicable to the judicial review of such a resolution. Since the applicant's lawyer was not present before Justice Alary, however, the issues to be recorded on the Déclaration commune were left to the respondent and impleaded parties' lawyers.

And once the applicant's lawyer was informed of what had happened before Justice Alary, she did not appeal the latter's judgment nor seek its revocation or modification; neither did her client. [ 6 ] On the merits of the case, the Superior Court (the Honourable Madam Justice Danielle Mayrand) answered the two questions stated in the Déclaration commune affirmatively and consequently dismissed the applicant's “ Motion to institute proceedings for judicial review pursuant to s. 846 C.C.P. ”, with costs.

It is to be noted that, according to the Superior Court docket ( plumitif ), the judgment, although it bears the date of December 21, 2015, was deposited in the office of the court and registered on January 11, 2016 only. Notice thereof was sent to the parties on the same day, according to art. 336 of the new Code of Civil Procedure (CQRL, c. C-25.01) [or

“n .C.C.P. ”]. [ 7 ] On January 22, 2016, the applicant filed both a notice of appeal and a motion for leave to appeal from this judgment. * * [ 8 ] Three preliminary questions must be answered before addressing the issues raised by the motion for leave to appeal: 1. Were the notice of appeal and motion for leave to appeal filed in a timely manner, considering the date of the judgment and the date on which the petitioner took cognizance thereof, and are the rules established by the Court in that respect under the former Code of Civil Procedure [1] applicable to the new Code of Civil Procedure ? [2] 2.

What is the true nature of the proceedings instituted by the petitioner in the Superior Court: was his action governed by art. 846 f .C.C.P. (i.e. an action seeking the judicial review of the decision rendered by a public body exercising an adjudicative function ) or by art. 33 f .C.C.P. ( i.e. an action seeking the nullity of the decision of a public body exercising a non-adjudicative function)? 3.

Considering that the judgment itself bears the date of December 21, 2015, but was registered in the office of the Superior Court on January 11, 2016 only, [3] which of these dates should be considered as that of the judgment for the purposes of determining the petitioner's right of appeal? [ 9 ] These questions are closely intertwined, given that the rules for the initiation of the appeal depend on both the date of the judgment and the essence of the action. [4] For instance, and without exploring all possible combinations, if one considers that the judgment is dated January 11, 2016 ( i.e. the date of its filing in the Superior Court's registry), then the appeal proceedings were filed in due time, the right of appeal is governed by the new Code of Civil Procedure and it might be conditional upon leave being granted.

If, however, the date of the judgment is considered to be that which appears on the judgment itself ( i.e the document signed by the judge), then, depending on the actual nature of the petitioner's action, there may exist a right to appeal as of right, [5] which may (or not) have been exercised after the expiry of the time limit in the present case. [ 10 ] These questions are important, as they define the applicant's right of appeal and the conditions of its exercise.

After having heard the parties and weighed their well-considered arguments, I believe that the matter is one of general interest and should be referred to the Court, for a decision that will clarify the principles applicable to such matters. [ 11 ] As to the merits of the case, the notice of appeal and motion for leave to appeal raise questions of interest, one of which deserves to be answered by the Court (should it grant leave or decide that there was an appeal as of right), and which relates to the determinative effect of the “ Déclaration commune pour fixation d'une audience de plus de deux heures ” on the issues to be discussed at trial and decided by the judge.

The extent of the judicial review of a decision rendered under s. 78 , paragraph 2 , of the Charter is also at stake, and, as well, the actual reasonableness of the respondent's August 2014 decision, albeit in a subsidiary manner in both cases. Answers to these questions may also go beyond the personal interests of the parties. [ 12 ] Consequently, I am of the view that the case should be referred to the Court, for an examination of the above-mentioned procedural questions, but also on the merits of the file. [6] [ 13 ] Pursuant to art. 366 n.

C.C.P. , I shall convene the parties' counsel to a management conference in order to set the date for the appeal, the duration of the hearing, the

schedule applicable to the filing of the briefs or memorandums and other practical matters. This conference shall take place by telephone, at the date set out below (art. 367, paragraph 3, n. C.C.P. ). FOR THE FOREGOING REASONS, THE UNDERSIGNED: [ 14 ] REFERS the motion for leave to appeal to a bench of this Court, to be heard with the merits of the case; [ 15 ] CONVENES the parties' counsel to a telephone conference to be held on Wednesday, April 27, 2016 at 4:00 PM (the required instructions will be communicated to counsel by the Office of the Court); [ 16 ] Legal costs to follow suit. MARIE-FRANCE BICH, J.A.

Mtre May Sau Mei Chiu OUELLET NADON et ASSOCIÉES For the applicant Mtre Athanassia Bitzakidis COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE For the respondent Mtre Pierre St-Onge DUNTON, RAINVILLE For the impleaded parties Date of hearing: March 21, 2016