ATTORNEY GENERAL OF CANADA Applicant v. NORM MURRAY AND CANADIAN HUMAN, 2019 FC 757

Date: 20190529 Docket: T-101-19 Citation: 2019 FC 757 St. John’s, Newfoundland and Labrador, May 29, 2019 PRESENT: Madam Justice Heneghan BETWEEN:ATTORNEY GENERAL OF CANADAApplicantandNORM MURRAY AND CANADIAN HUMAN RIGHTS COMMISSIONRespondents ORDER AND REASONS [1] By a Notice of Application dated January 11, 2019, the Attorney General of Canada (the "“Attorney General”") seeks judicialreview of the decision of Mr. Ronald Sydney Williams, sitting as a Tribunal (the "“Tribunal”"), pursuant to the Canadian Human RightsAct (R.S.C., 1985, c. H-6) (the "“Act”"). In that decision, made on November 29, 2018, the Tribunal decided that references to

section 7of the Act shall be struck from paragraphs 1 and 28 of Mr. Norm Murray’s (the "“Respondent”") Statement of Particulars.

It also deniedthe Immigration and Refugee Board’s request for particulars on the basis that the request is premature. [2] By notice of motion in writing dated March 11, 2019, the Respondent seeks an Order to strike out the application for judicial reviewon the grounds that review of an interlocutory decision is premature and has no chance of success. [3] The Canadian Human Rights Commission (the "“Commission”"), the second Respondent, consents to the relief sought by theRespondent, as set out in its letter dated March 19, 2019. [4] By a second notice in motion in writing, dated March 28, 2019, the Attorney General seeks an order extending the time for filing hisapplication for judicial review.

This notice of motion is supported by the affidavit of Mr. George Vuicic, the lawyer with carriage of thismatter on behalf of the Attorney General. [5] In his affidavit, Mr. Vuicic deposed that he had miscalculated the time for bringing the application for judicial review, that he hadmistakenly thought the Christmas recess, as defined in the Federal Courts Rules (SOR/98-106) (the "“Rules”"), was excluded from thecalculation of the thirty day period, set out in the Federal Courts Act (R.S.C., 1985, c.

F-7), subsection 18.1 (2), for commencing anapplication for judicial review. [6] The Respondent, by letter dated April 4, 2019, takes the positon with respect to the second notice of motion, that a decision upon thismotion is dispositive of his motion to strike. [7] I will first address the motion for an extension of time. [8] The test for granting an extension of time is set out in Canada (Attorney General) v. Larkman (2012), 2012 FCA 204 , 433N. R. 184 (F.C.A.) as follows: […] the following questions are relevant to this Court’s exercise of discretion to allow an extension of time: (

a) Did the moving party have a continuing intention to pursue the application? (

b) Is there some potential merit to the application? (

c) Has the Crown been prejudiced by the delay? (

d) Does the moving party have a reasonable explanation for the delay? [9] I am satisfied that the Attorney General has met the test.

I note that the Registry accepted the application for filing on January 11,2019, without pointing out any irregularities. [10] The filing and issuance of the application for judicial review is perfected, nunc pro tunc. [11] I now turn to the Respondent’s motion to strike the application for judicial review. [12] In general, the jurisdiction of the Court to strike an application for judicial review is exceptional and to be exercised in rarecircumstances; see the decision in David Bull Laboratories (Canada) Inc. v.

Pharmacia Inc. et al.(1994), (FCA), 58C.P.R. (3d) 209 (F.C.A.). [13] Judicial review of an interlocutory decision is also rare; see the decision in Canada (Border Services Agency) v. C.B. PowellLimited, 2010 FCA 61 , [2011] 2 F.C.R. 332 (F.C.A.).

[14] There is a difference between seeking to strike a notice of application for judicial review on the grounds of prematurity and on thegrounds of the availability of an alternative remedy. [15] In my opinion, the Respondent’s submissions about the prematurity of the within notice of application are not persuasive. Theeffect of the Tribunal’s decision is to narrow the issues for the pending hearing of the merits of the Respondent’s complaint under theAct. [16] The Respondent filed a complaint on or about April 23, 2004, alleging discrimination under sections 7, 10, 12 and 14 of the Act.

Healleges specifically that he and other black employees at the Toronto Immigration and Refugee Board Office face systemicdiscrimination that prohibits their career advancement. [17] In the decision under review, the Tribunal referred to prior judicial proceedings before the Federal Court heard before JusticeHansen and Justice Bédard. [18] Justice Hansen, in an Order dated August 18, 2009, dealt with a motion in writing made upon the consent of the Respondent,Attorney General of Canada, and allowed, in part, an application for judicial review of a decision of the Commissioner. [19] The Order of Justice Hansen provides as follows, in paragraphs 2 and 3: 2.

Setting aside the decision dated October 20, 2008 by Canadian Human Rights Commission (“Commission’”) in so far asit relates to the allegations of systemic discrimination, more precisely the allegations of clustering of visible minorities inlower status positions and underrepresentation of visible minorities as described in paragraphs 57 to 63 and 67 to 73 of theInvestigation Report dated June 9, 2008 written by Linda Foy on the following basis:

a) The investigation into the allegations of clustering of visible minorities in lower status positions and underrepresentationof visible minorities in permanent positions at the Immigration and Refugee Board (“IRB”) Toronto Regional office duringthe period of 12 months preceding the filing of the Complaint with the Commission was not thorough and thus constituted abreach of procedural fairness. 3.

Referring the matter back to the Commission for supplemental investigation conducted by a new investigator in theabove allegations;[…] [20] Justice Bédard, in her decision dated February 11, 2014 and reported as Norm Murray v.

Canadian Human Rights Commission andthe Attorney General of Canada (2014), 448 F.T.R. 27, heard an application for judicial review taken in respect of the decision of theCommission upon the Applicant’s complaint that he filed in April 2004. [21] Paragraphs 2 and 3 of Justice Bédard’s decision set out the context as follows: [2] The Commission forwarded the complaint to the Canadian Human Rights Tribunal [Tribunal] for an inquiry. In adecision dated January 4, 2013, Tribunal member Edward P. Lustig dismissed Mr. Murray’s complaint.

Dealing with amotion to dismiss the complaint filed by the IRB, the Tribunal found that the subject matter of Mr. Murray’s complaint hadpreviously been adjudicated by the Public Service Staffing Tribunal [PSST] and applying the doctrines of issue estoppel andabuse of process, the Tribunal found that adjudicating the complaint would amount to an abuse of its process. [3] The applicant filed an application for judicial review challenging that decision under

section 18.1 of the Federal CourtsAct, RSC 1985, c F-7. […] [22] In my opinion, the effect of the Tribunal’s decision about the contents of the "“Statement of Particulars”" can contribute to theorderly prosecution of the hearing before the Tribunal. [23] In light of the history of the Respondent’s complaint, including prior proceedings before the Commission and in this Court, I amsatisfied that the commencement of an application of judicial review by the Attorney General is appropriate. [24] According to the decision in Halifax (Regional Municipality) v.

Nova Scotia (Human Rights Commission), 2012 SCC 10 ,[2012] 1 S.C.R. 364, restrained intervention in an ongoing administrative process is based on practical and theoretical considerations.These considerations include avoidance of review without a full record and avoidance of review on the correctness standard whenreasonableness may be the appropriate standard, as well as the prevention of multiple proceedings and interference with comprehensivelegislative regimes. [25] For the foregoing reasons, I am satisfied that in the particular circumstances of the Respondent`s complaint, including the passageof time and previous judicial decisions, the motion to strike out the within application for judicial review should be dismissed. [26] An Order will issue addressing the disposition of the two motions.

In the exercise of my discretion pursuant to Rule 400 of theRules, costs will be in the cause. ORDER in T-101-19 THIS COURT’S ORDER is that the motion to extend the time for the commencement of the application for judicial review is grantedand the application for judicial review is deemed to have commenced on January 11, 2019. The motion to dismiss the application for judicial review is dismissed. In the exercise of my discretion pursuant to the Federal Courts Rules, SOR/98-106, costs are in the cause.

“E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-101-19 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. NORM MURRAY AND CANADIAN HUMAN RIGHTS COMMISSION MOTION IN WRITING CONSIDERED AT ST. JOHN’S, NEWFOUNDLAND AND LABRADOR PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND REASONS: HENEGHAN J. DATED: MAY 29, 2019 WRITTEN REPRESENTATIONS BY : George G. Vuicic Anne M.

Lemay For The applicant (ATTORNEY GENERAL OF CANADA) David Yazbeck For The respondent, Norm murray Ikram Warsame Samar Musallam FOR THE RESPONDENT, CANADIAN HUMAN RIGHTS COMMISSION SOLICITORS OF RECORD : Hicks Morley Hamilton Stewart Storie LLP Barristers & Solicitors Ottawa, Ontario For The applicant (ATTORNEY GENERAL OF CANADA) Raven, Cameron, Ballantyne & Yazbeck LLP Barristers & Solicitors Ottawa, Ontario For The respondent, norm murray Canadian Human Rights Commission Ottawa, Ontario FOR THE RESPONDENT, CANADIAN HUMAN RIGHTS COMMISSION