2020 FC, 2020 FC 1127

Date: 20201207 Docket: T-1189-19 Citation: 2020 FC 1127 Ottawa, Ontario, December 7, 2020 PRESENT: Mr. Justice McHaffie BETWEEN:THE BANK OF NOVA SCOTIAApplicantandMARCUS WILLIAMSRespondent JUDGMENT AND REASONS I. Overview [1] The Bank of Nova Scotia brings this application for judicial review seeking to quash the Canadian Human Rights Commission’sdecision, made under subsection 41(1) of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA], to deal with the complaint ofMarcus Williams. The Bank argues the Commission reached unreasonable conclusions on whether Mr.

Williams’ complaint wasfrivolous or vexatious, and failed to address the Bank’s arguments that aspects of the complaint were out of time. [2] At the conclusion of the Bank’s submissions, I advised that I would be dismissing the application for judicial review because theapplication was premature, and that I would be providing reasons to follow. These are those reasons. [3] Absent exceptional circumstances, parties to an administrative proceeding are expected to exhaust their remedies in that proceedingbefore pursuing recourse to the courts.

This principle generally precludes as premature judicial review of interlocutory administrativedecisions. Very recently, my colleague Justice Roussel applied these principles in the context of a decision to deal with a human rightscomplaint under subsection 41(1) of the CHRA, in Laurentian Bank of Canada v Fortin, 2020 FC 921.

Justice Roussel concluded atparagraph 19 that "“[a]n application for judicial review of a decision of the Commission to deal with a complaint under subsection 41(1)of the CHRA is therefore premature.”" [4] Despite the Bank’s able arguments, I am not satisfied that Laurentian Bank was wrongly decided, or that the circumstances of thiscase constitute exceptional circumstances in which this Court should hear an application for judicial review of a subsection 41(1)decision to deal with the complaint. The application for judicial review is therefore premature, and is dismissed on that basis. II.

Issue [5] The Bank brought this application arguing, on a number of grounds, that the Commission’s decision was not reasonable. Thesegrounds were modified somewhat in the wake of the Supreme Court of Canada’s decision in Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65, but the Bank maintained that it was unreasonable for the Commission to (

a) conclude that Mr.Williams’ complaint was not frivolous; (

b) disregard its objection to the complaint on timeliness grounds; and (

c) deal with thecomplaint despite it being vexatious. [6] Shortly after I was assigned to hear this application, and shortly before the hearing of the application, I issued a direction asking theparties to be prepared to address Justice Roussel’s decision in Laurentian Bank and the question of whether the application waspremature, an issue that had not been raised by Mr. Williams. While this did not leave a great deal of time for the parties to preparesubmissions, they were able to file additional case law and academic references.

The parties advised at the hearing that they had hadsufficient opportunity to consider the issue of prematurity and to make argument thereon. I thank counsel for their prompt considerationand preparation on this issue. [7] For the reasons that follow, I conclude that the question of prematurity is determinative. The only issue is therefore: Should this application for judicial review of the Commission’s decision to deal with Mr. Williams’ complaint be dismissed aspremature? III.

Analysis [8] Absent exceptional circumstances, parties must exhaust the statutory procedures governing an administrative process before they canseek administrative law remedies in the courts: Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 at paras 4, 30–31.This general principle of non-interference with ongoing administrative processes is driven by the need for litigation efficiency andrespect for the legislative assignment of decision making authority to administrative deciders: CB Powell at para 4.

It preventsfragmentation of proceedings, avoids wasting judicial resources on interlocutory decisions, and minimizes costs to parties: CB Powell atpara 32; Zündel v Canada (Human Rights Commission), (FCA), [2000] 4 FC 255 (CA) at para 10.

[9] The decision at issue in this matter is of an interlocutory nature. The Canadian Human Rights Commission’s decision undersubsection 41(1) to deal with a complaint is one step among many in the assessment and determination of human rights complaints underthe CHRA. Justice Roussel recently applied the general principle of non-interference to such a decision in Laurentian Bank. Sheconcluded that the bank’s application for judicial review was premature, and dismissed it on that basis.

The Bank of Nova Scotiasubmits that Laurentian Bank was wrongly decided and inconsistent with past jurisprudence, and that it is in any event distinguishable inthis case. For the following reasons, I do not agree, and similarly conclude that the Bank’s application for judicial review is premature. A.

The Legislative Scheme of the Canadian Human Rights Act [10] As described at paragraph 18 of Laurentian Bank, the CHRA is designed on a "“gatekeeper”" model, in contrast with the "“directaccess”" model that has been adopted in certain Canadian jurisdictions: Human Rights Code (Ontario), RSO 1990, c H.19, s 34; HumanRights Code (British Columbia), RSBC 1996, c 210, s 21. Under this model, a human rights complaint is filed with the Commission,which performs a screening and filtering role before a complaint may proceed to a determination before the Canadian Human RightsTribunal: CHRA, ss 40–44,

Section 40 of the CHRA provides for the filing of complaints with the Commission. The CHRA then setsout a number of steps and a number of potential determinations that the Commission may make in respect of the complaint. For example,with

section 40 itself, the Commission may refuse to deal with a complaint not filed by the victim of discrimination unless the victimconsents thereto (s 40(2)), may decide to deal with similar complaints jointly (s 40(4)), and may need to determine whether thediscrimination occurred in Canada or to a Canadian citizen or permanent resident (s 40(5)). [11] Subject to these provisions, subsection 41(1) requires the Commission to "“deal with”" any complaint filed unless it "“appears tothe Commission”" that one of five situations applies: Commission to deal withcomplaint Irrecevabilité 41

(1) Subject to

section 40, theCommission shall deal with anycomplaint filed with it unless inrespect of that complaint itappears to the Commission that"" 41

(1) Sous réserve de l’article40, la Commission statue surtoute plainte dont elle est saisie àmoins qu’elle estime celle-ciirrecevable pour un des motifssuivants :" " (

a) the alleged victim of thediscriminatory practice to whichthe complaint relates ought toexhaust grievance or reviewprocedures otherwise reasonablyavailable;

a) la victime présumée de l’actediscriminatoire devrait épuiserd’abord les recours internes oules procédures d’appel ou derèglement des griefs qui lui sontnormalement ouverts; (

b) the complaint is one thatcould more appropriately bedealt with, initially orcompletely, according to aprocedure provided for under anAct of Parliament other than thisAct;

b) la plainte pourraitavantageusement être instruite,dans un premier temps ou àtoutes les étapes, selon desprocédures prévues par une autreloi fédérale; (

c) the complaint is beyond thejurisdiction of the Commission;

c) la plainte n’est pas de sacompétence; (

d) the complaint is trivial,frivolous, vexatious or made inbad faith; or

d) la plainte est frivole, vexatoireou entachée de mauvaise foi; (

e) the complaint is based on actsor omissions the last of whichoccurred more than one year, orsuch longer period of time as theCommission considersappropriate in the circumstances,before receipt of the complaint.

e) la plainte a été déposée aprèsl’expiration d’un délai d’un anaprès le dernier des faits surlesquels elle est fondée, ou detout délai supérieur que laCommission estime indiqué dansles circonstances. [12] Given the "“gatekeeping”" nature of this section, this Court has held that the Commission should only decline to deal with acomplaint where it is "“plain and obvious”" that it falls under one of the grounds for not dealing with it: Canada Post Corporation vCanadian Human Rights Commission, (FC), aff’d (FCA), lv to app ref’d [1999] SCCA No 323.Where required to allow the Commission to assess whether it should deal with the complaint, the Commission sometimes prepares a"“section 40/41 report”" after reviewing the complaint and any submissions from the parties on

section 40 and 41 issues. [13] Where the Commission decides not to deal with a complaint, it is required to send the complainant a written notice of its decisionwith reasons: CHRA, s 42(1). Otherwise, the Commission may appoint an investigator to investigate the complaint, who is to submit areport of the findings of the investigation to the Commission: CHRA, ss 43, 44. While the Commission may request that the Chairperson

of the Tribunal institute an inquiry into the complaint "“at any stage after the filing of a complaint,”" this generally occurs after theCommission receives a

section 43/44 investigation report: CHRA, 44(3)(a), 49(1). After an inquiry, the Tribunal may dismiss thecomplaint if it is not substantiated, or make an appropriate order where the complaint is substantiated: CHRA, s 53. B. The Decision at Issue [14] After Mr. Williams filed his complaint, the Commission concluded it would be preparing a

section 40/41 report and invitedsubmissions on paragraph 41(1)(d). Mr. Williams responded that the complaint was not "“trivial, frivolous, vexatious or made in badfaith,”" and the Bank filed submissions objecting to the complaint under paragraphs 41(1)(a), (b), (d), and (

e) of the CHRA. A HumanRights Officer prepared a

section 40/41 report on March 13, 2019, recommending Mr. Williams’ complaint be dismissed as frivolousunder paragraph 41(1)(d). The Officer therefore found it unnecessary to address the Bank’s allegation that the complaint was also time-barred under paragraph 41(1)(

e) of the CHRA. [15] The parties were again invited to make submissions on the

section 40/41 report before the Commission made its decision whetherto deal with the complaint. After receiving those submissions, the Commission made a decision on June 12, 2019, conveyed to theparties on June 24, 2019, deciding to deal with the complaint. The Commission gave brief reasons, concluding that it was not "“plain andobvious”" that Mr. Williams’ allegations were "“mere bald assertions”" as the Bank had alleged. The Commission did not address otherarguments made by the Bank, including its arguments regarding the impact of a hearing of Mr.

Williams’ complaint under the CanadaLabour Code, RSC 1985, c L-2, and its arguments about the timeliness of the complaint. [16] This decision to deal with the complaint is the subject of the Bank’s application for judicial review. In

summary, the Bank arguesthat the decision was unreasonable both in what it did decide, and for failing to address its other arguments. C. The Application is Premature

(1) Laurentian Bank was not wrongly decided [17] In Laurentian Bank, Justice Roussel similarly had before her an application for judicial review of a decision by the Commissionunder subsection 41(1) to deal with a complaint. In thoughtful reasons, she considered the jurisprudence dealing with the generalprinciple of non-interference with ongoing administrative processes, and with subsection 41(1). She noted that "“[i]n deciding to dealwith the complaint, the Commission is not rendering a final decision or deciding any substantive right of the parties.

Rather, it isperforming a screening and filtering role”": Laurentian Bank at para 18. Justice Roussel concluded that the general principle thereforeapplied, and that the application was premature: Laurentian Bank at paras 18–19, 27.

In doing so, she rejected the bank’s submissionsthat its res judicata argument was an "“exceptional circumstance”" justifying early judicial intervention, and the bank’s reliance on theCommission’s letter conveying the decision, which suggested that judicial review could be brought: Laurentian Bank at paras 20–26. [18] The Bank of Nova Scotia argues that Laurentian Bank was wrongly decided since it is inconsistent with past jurisprudence of thisCourt exercising its authority to judicially review a subsection 41(1) decision to deal with a complaint: Canada Post Corp v Canada(Attorney General), (FC) at paras 25-27; Cameco Corporation v Maxwell, 2007 FC 260 at para 14; Canada(Attorney General) v Mohawks of the Bay of Quinte First Nation, 2012 FC 105 at paras 21 and 48; Canadian Museum of Civilization vPublic Service Alliance of Canada, 2014 FC 247 at para 95; Canada (Attorney General) v Windsor-Brown, 2016 FC 1201 at paras 16-33. [19] I cannot agree.

In all of the cases cited by the Bank, the issue of prematurity was not addressed by the Court, and was apparentlynot raised. Rather, in each case, the application was dismissed for other grounds. The cases do show that the Court has considered themerits of judicial review of a decision to deal with a complaint under subsection 41(1) in the past. However, I cannot conclude they standfor the principle that such a review is not premature when that question was not addressed.

It is to be recalled that judicial review is aninherently discretionary remedy: Canadian Pacific Ltd v Matsqui Indian Band, (SCC), [1995] 1 SCR 3 at paras 30–31.The general principle of non-interference and the concept of prematurity are principles governing the exercise of that discretion: Matsquiat paras 32–37; Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 at paras 35–36; CB Powell atparas 30–31.

That the Court may have exercised its discretion to hear a judicial review on the merits in other cases in which the questionof prematurity was not raised does not make it incorrect to apply the principle of non-interference in declining to exercise jurisdiction in alater case, be it in Laurentian Bank or this case. [20] I note, as did Justice Roussel, that Laurentian Bank is not the only decision that has found that judicial review of a decision undersubsection 41(1) of the CHRA will be premature.

Justice Gauthier, then of this Court, came to the same conclusion in two decisionsmade prior to CB Powell: Canada (Attorney General) v Hotte, 2005 FC 246 at para 39; National Gallery of Canada v Public ServiceAlliance of Canada, 2003 FC 1458 at paras 22–23; Laurentian Bank at para 19. [21] In any event, the cases cited by the Bank cannot be taken to overrule the binding authority of the Federal Court of Appeal in CBPowell.

Drawing on lengthy Supreme Court jurisprudence, Justice Stratas for the Court in that case set out with clarity the generalprinciple of judicial non-interference with ongoing administrative processes: "“[p]ut another way, absent exceptional circumstances,courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remediesare exhausted”": CB Powell at para 31. [22] The Bank contends that the situation in CB Powell was different, since the statutory scheme at issue had a statutory appealmechanism from the Canada Border Services Agency decision at issue to the Canadian International Trade Tribunal: CB Powell at paras20, 28–29.

However, while the legislative framework in CB Powell involved a statutory appeal mechanism, the broader principleaffirmed by the Court of Appeal applies well beyond that administrative context. For example, the Court of Appeal in its decision inWilson confirmed the applicability of the "“general rule”" to the context of an adjudicator under the Canada Labour Code, from whomno appeal was available: Wilson v Atomic Energy of Canada Limited, 2015 FCA 17 at paras 28–34, rev’d on other grounds 2016 SCC

29 . Laurentian Bank and this case simply involve applying this binding and general principle to the particular situation of subsection 41(1). [ 23 ] The Bank argues that the result of this approach is inherently inequitable: a complainant may judicially review a decision under subsection 41(1) not to deal with a complaint, while a respondent cannot judicially review a decision to deal with the complaint. I see no difficulty in this dichotomy. A complainant whose complaint is not dealt with under subsection 41(1) has no further opportunity to make submissions to the Commission or to the Tribunal.

In comparison, the Bank could (and did) make further submissions to the Commission with respect to Mr. Williams’ complaint, including on the issues raised in this application. In other words, a decision not to deal with a complaint is final, whereas a decision to deal with a complaint is interlocutory: Laurentian Bank at para 19.

Notably, Parliament itself recognized the difference between the two situations, imposing a statutory obligation to issue a decision with reasons only where the Commission decides not to deal with a complaint: CHRA , s 42(1). [ 24 ] Parliament also established a scheme in which the issues set out in subsection 41(1) are again considered by the Commission after investigation, in determining whether to refer a complaint. After receiving a

section 43/44 investigation report, the Commission is called upon to decide whether a complaint should be referred to other authorities (on grounds that parallel paragraphs 41(1)(

a) and ( b )), or whether it should be dismissed (including on grounds mentioned in paragraphs 41(

c) to ( e )): CHRA , ss 44(2)–(3). While the Bank argues that the CHRA does not require the Commission to consider the same issues as those raised at the

section 41 stage, a request to institute an inquiry requires the Commission to be satisfied that the complaint should not be dismissed or referred elsewhere on precisely these grounds. [ 25 ] I also cannot accept the Bank’s contention that since Parliament enacted a screening process, it did not intend complaints that fall into the categories in subsection 41(1) to move forward, and that administrative principles of legality and fairness mean that decisions to deal with complaints should be subject to judicial review to safeguard the rationality of the administrative process.

While Parliament clearly created a mechanism by which non-meritorious complaints could be screened out at an early stage, this does not mean that it intended judicial oversight at every stage of the human rights complaint process.

To the contrary, Parliament indicated that a decision not to deal with a complaint should only be made where it " “appears to the Commission” " that one of the categories applies, indicating an intention to leave the determination in the hands of the administrative decision maker. [ 26 ] More broadly, one could theoretically apply the Bank’s argument to every provision in every statute governing an administrative scheme. Parliament no doubt intended them all to be respected.

Yet if that were enough to justify judicial review of every action or interlocutory decision by any administrative actor, there would be no end to interlocutory judicial reviews.

This would run directly contrary to the general principle of non-interference and the recognition that administrative processes are designed to capitalize on the expertise and efficiencies of administrative decision makers: Vavilov at paras 29–30 . [ 27 ] Similarly, the Bank’s argument that judicial economy favours addressing the matter now, since a positive determination by the Court could prevent the Bank, and the Tribunal, from having to engage in a lengthy and potentially costly inquiry, must be rejected.

The same argument could be made with respect to any potentially determinative issue raised in an administrative process. There are numerous potentially determinative issues that may arise in the course of an administrative proceeding.

Yet the Courts have recognized that even such fundamental issues as jurisdiction do not render interlocutory decisions amenable to judicial review: CB Powell at paras 39–46; Laurentian Bank at para 22. [ 28 ] I therefore conclude that Laurentian Bank was not wrongly decided and is consistent both with past jurisprudence interpreting subsection 41(1) of the CHRA and with jurisprudence applying the general principle of non-interference with ongoing administrative processes.

(2) Laurentian Bank is not distinguishable [ 29 ] The Bank sought to distinguish Laurentian Bank , arguing that the circumstances of this case were " “exceptional” " so that the Court should exercise its discretion to hear the application notwithstanding the general principle. I do not agree that the grounds it raises make this matter exceptional or distinguish it from that in Laurentian Bank . [ 30 ] The Bank first argues that the Commission’s decision was, in this case, a final determination with respect to whether the complaint is " “frivolous” " under paragraph 41(1)( d ). It points to the Commission’s ultimate decision made under

section 44 asking the Tribunal to institute an inquiry into Mr. Williams’ complaint. That decision, made on November 4, 2020, did not revisit the findings in the earlier

section 41 decision with respect to the allegation of frivolousness. The Bank argues that the

section 41 decision was therefore final on this issue, and had the potential to be final with respect to other issues. [ 31 ] I cannot accept this argument, for three reasons. First, on judicial review, the

section 41 decision is to be assessed on its face and at the time it was made. The merits of a subsequent decision by the Commission cannot affect the nature of its earlier decision. The Bank itself clearly did not consider the Commission’s

section 41 decision " “final” " on these issues at the time, as it continued to make submissions on the issues to the Commission after the

section 41 decision and after the

section 43/44 investigation report. [ 32 ] Second, the Commission’s decision under

section 44 itself by definition incorporated, implicitly or explicitly, its determinations under subsections 44(2) and (3), and thus the same issues identified in subsection 41(1). As the Bank conceded, the Commission implicitly adopted its earlier determination on the frivolousness issue in referring the matter to the Tribunal. If the Bank were able to seek judicial review of both the

section 41 decision and the

section 44 decision, as it contends, this could lead to two separate opportunities to seek challenge the Commission decisions on the same issue, even before addressing any determination by the Tribunal. [ 33 ] Third, and more broadly, the fact that a decision may determine a particular issue does not necessarily make it " “final” " for the purposes of judicial review.

Numerous interlocutory determinations, including evidentiary and procedural rulings, may be determinative of that particular issue and not subject to further decision by the administrative decision maker, but that does not make them " “final” " and amenable to judicial review. To the contrary, the Court of Appeal has confirmed that judicial review should not be undertaken until after " “the administrative process has run its course” " : CB Powell at para 31.

[ 34 ] The Bank also seeks to distinguish this case from that in Laurentian Bank since this application was subject to ongoing case management, during which the issue of prematurity was never raised by either Mr. Williams or the Court. It submits that the integrity of the Federal Court’s case management process would be undermined if the Court were to dismiss this application on the grounds of prematurity at this point in the proceedings. This argument is without merit. The case management process that the parties engaged in prior to the hearing dealt with procedural not substantive issues.

No order was made by the case management judge foreclosing or even pertaining to the issue of prematurity. The fact that the parties engaged in case management proceedings is not a sufficiently exceptional circumstance to warrant that the Court exercise its limited discretion to interfere with an ongoing administrative process: CB Powell at para 33. IV.

Conclusion [ 35 ] In light of the principle of non-interference with ongoing administrative processes, I conclude that applications for judicial review of a decision of the Commission under subsection 41(1) of the CHRA to deal with a complaint will be premature absent exceptional circumstances. I find that there are no exceptional circumstances in this case. Therefore, this application for judicial review is dismissed on the ground that it is premature.

As a necessary corollary, as was the case in Laurentian Bank , this judgment is without prejudice to the Bank’s right to raise the same arguments in a subsequent judicial review in respect of Mr. Williams’ complaint that is not premature. [ 36 ] Mr. Williams sought costs of the application in the all-inclusive amount of $5,000.

The Bank agreed that this was an appropriate disposition of costs and I so order. [ 37 ] Finally, as I advised the parties at the hearing, I consider my judgment in this matter to be pronounced, as that term is used in subsection 27(2) of the Federal Courts Act , RSC 1985, c F-7 , as of the date of this Judgment and Reasons, and not on the date of hearing when I advised the parties of my intention to dismiss the application with reasons to follow. JUDGMENT IN T-1189-19 THIS COURT’S JUDGMENT is that 1 . This application for judicial review is dismissed on the ground that it is premature. 2 . Mr.

Williams is awarded his costs of this application, which are fixed at $5,000. “Nicholas McHaffie” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1189-19 STYLE OF CAUSE: THE BANK OF NOVA SCOTIA v MARCUS WILLIAMS HEARING HELD BY VIDEOCONFERENCE ON NOVEMBER 23, 2020 FROM OTTAWA, ONTARIO (COURT) AND TORONTO, ONTARIO (PARTIES) JUDGMENT AND REASONS: MCHAFFIE J. DATED: December 7, 2020 APPEARANCES : Richard J. Charney For The Applicant Lars Brusven For The Respondent SOLICITORS OF RECORD :

Norton Rose Fulbright Canada LLP Toronto, Ontario For The Applicant Lax O’Sullivan Lisus Gottlieb LLP Toronto, Ontario For The Respondent