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Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307

 

The British Columbia Human Rights Commission,

the Commissioner of Investigation and Mediation,

the British Columbia Human Rights Tribunal and

Andrea Willis                                                                                     Appellants

 

v.

 

Robin Blencoe                                                                                    Respondent

 

and

 

Irene Schell                                                                                        Intervener

 

and

 

The Attorney General for Ontario,

the Attorney General of British Columbia,

the Saskatchewan Human Rights Commission,

the Ontario Human Rights Commission,

the Nova Scotia Human Rights Commission,

the Manitoba Human Rights Commission,

the Canadian Human Rights Commission,

the  Commission des droits de la personne et des droits de la jeunesse,

the British Columbia Human Rights Coalition and

the Women’s Legal Education and Action Fund                              Interveners

 

 

 

Indexed as:  Blencoe v. British Columbia (Human Rights Commission)

 

Neutral citation:  2000 SCC 44.

 

File No.:  26789.

 


2000:  January 24; 2000:  October 5.

 

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

                                                                    

on appeal from the british columbia court of appeal

 

Constitutional law – Charter of Rights  -- Application -- Human Rights Commission -- Commission implementing specific governmental program and  exercising statutory authority -- Commission independent from government and acting judicially -- Whether Canadian Charter of Rights and Freedoms applicable to Commission’s actions – Canadian Charter of Rights and Freedoms , s. 32 .

 

Constitutional law -- Charter of Rights  -- Liberty and security of person -- Sexual harassment complaints filed against respondent before Human Rights Commission -- Lengthy delay in processing complaints -- Whether respondent’s constitutional rights to liberty and security of person engaged -- Canadian Charter of Rights and Freedoms , s. 7 .

 

Administrative law -- Abuse of process -- Delay -- Sexual harassment complaints filed against respondent before Human Rights Commission -- Lengthy delay in processing complaints -- Whether respondent’s ability to have fair hearing compromised -- Whether lengthy delay amounted to denial of natural justice or abuse of process.

 


In March 1995, while serving as a minister in the Government of British Columbia, the respondent was accused by one of his assistants of sexual harassment. A month later, the premier removed the respondent from Cabinet and dismissed him from the NDP caucus.  In July and August of 1995, two complaints of discriminatory conduct in the form of sexual harassment were filed with the British Columbia Council of Human Rights (now the British Columbia Human Rights Commission) against the respondent by two other women, W and S. The complaints centered around various incidents of sexual harassment alleged to have occurred between March 1993 and March 1995.  The respondent was informed of the first complaint in July 1995 and of the second in September 1995.  After the Commission’s investigation, hearings were scheduled before the British Columbia Human Rights Tribunal in March 1998, over 30 months after the initial complaints were filed.

 

Following the allegations against the respondent, media attention was intense.  He suffered from severe depression.  He did not stand for re-election in 1996.  Considering himself “unemployable” in British Columbia due to the outstanding human rights complaints against him, the respondent commenced judicial review proceedings in November 1997 to have the complaints stayed.  He claimed that the Commission had lost jurisdiction due to unreasonable delay in processing the complaints.  The respondent alleged that the unreasonable delay caused serious prejudice to him and his family which amounted to an abuse of process and a denial of natural justice.  His petition was dismissed by the Supreme Court of British Columbia.  A majority of the Court of Appeal allowed the respondent’s appeal and directed that the human rights proceedings against him be stayed.  The majority found that the respondent had been deprived of his right under s. 7  of the Canadian Charter of Rights and Freedoms  to security of the person in a manner which was not in accordance with the principles of fundamental justice.

 

Held (Iacobucci, Binnie, Arbour and LeBel JJ. dissenting in part):  The appeal should be allowed.


Per McLachlin C.J. and L’Heureux-Dubé, Gonthier, Major and Bastarache JJ.:  The Charter  applies to the actions of the British Columbia Human Rights Commission.  The Commission is created by statute and all of its actions are taken pursuant to statutory authority.  Bodies exercising statutory authority are bound by the Charter  even though they may be independent of government.  The Commission in this case is both implementing a specific government program and exercising powers of statutory compulsion.  Further, the Commission cannot escape Charter  scrutiny merely because it exercises judicial functions.  The ultimate source of authority is government.  The Commission is carrying out the legislative scheme of the Human Rights Code and must act within the limits of its enabling statute.  There is clearly a “governmental quality” to the functions of a human rights commission which is created by government to promote equality in society generally.  It is the administration of a governmental program that calls for Charter  scrutiny.

 

Section 7  of the Charter  can extend beyond the sphere of criminal law, at least where there is state action which directly engages the justice system and its administration.  If a case arises in the human rights context which, on its facts, meets the usual s. 7  threshold requirements, there is no specific bar against such a claim and s. 7  may be engaged.

 


In order for s. 7  to be triggered, one must first establish that the interest in respect of which the respondent asserted his claim falls within the ambit of s. 7 .  The liberty interest protected by s. 7  is no longer restricted to mere freedom from physical restraint.  “Liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices.  The s. 7  liberty interest protects an individual’s personal autonomy.  In our free and democratic society, individuals are entitled to make decisions of fundamental importance free from state interference.  Such personal autonomy, however, is not synonymous with unconstrained freedom.  Here, the state has not prevented the respondent from making any “fundamental personal choices”. Therefore, the interests sought to be protected in this case do not fall within the “liberty” interest protected by s. 7 .

 

The right to security of the person guaranteed by s. 7  protects the psychological integrity of an individual.  However, in order for this right to be triggered, the psychological harm must result from the actions of the state and it must be serious.  In this case, the direct cause of the harm to the respondent was not the state‑caused delay in the human rights process.  While the respondent has suffered serious prejudice in connection with the allegations of sexual harassment against him, for s. 7  to be engaged there must be a sufficient causal connection between the state-caused delay and the prejudice suffered.  The most prejudicial impact on the respondent was caused not by the actions of the Commission but rather by the events prior to the complaints the allegations of the respondent’s assistant -- which caused the respondent to be ousted from Cabinet and caucus as well as the actions by non-governmental actors such as the press.  The harm to the respondent resulted from the publicity surrounding the allegations themselves, coupled with the political fallout which ensued. When the respondent began to experience stigma, the human rights proceedings had yet to commence.  Further, there is a pending civil suit against the respondent for sexual harassment and W’s complaint against the Government on these very same issues.  The prolongation of stigma from ongoing publicity was likely regardless of the delay in the human rights proceedings.  At best, the respondent was deprived of a speedy opportunity to clear his name.  Lastly, the human rights process did not seriously exacerbate the respondent’s prejudice.  It is difficult to see how procedural delay could have seriously increased damage already done to the respondent’s reputation.


Even accepting that the outstanding complaints may have contributed to the respondent’s stigma to some degree, thereby causing some of his suffering, and assuming without deciding that there is a sufficient nexus between the state-caused delay and the prejudice to the respondent, the state interference with the respondent’s psychological integrity did not amount to a violation of his right to security of the person.  First, the s. 7  rights of “liberty and security of the person” do not include a generalized right to dignity, or more specifically a right to be free from the stigma associated with a human rights complaint.  While respect for the inherent dignity of persons is clearly an essential value in our free and democratic society which must guide the courts in interpreting the Charter , this does not mean that dignity is elevated to a free-standing constitutional right protected by s. 7 .  The notion of “dignity” is better understood as an underlying value.  Like dignity, reputation is not a free-standing right.  Neither is freedom from stigma.  Second, the state has not interfered with the ability of the respondent and his family to make essential life choices.  In order for security of the person to be triggered in this case, the impugned state action must have had a serious and profound effect on the respondent’s psychological integrity.  It is only in exceptional cases where the state interferes in profoundly intimate and personal choices of an individual that state-caused delay in human rights proceedings could trigger the s. 7  security of the person interest.  Here,  the alleged right to be free from stigma associated with a human rights complaint does not fall within this narrow sphere.  The state has not interfered with the respondent’s right to make decisions that affect his fundamental being.  The prejudice to the respondent is essentially confined to his personal hardship.

 


There is no constitutional right outside the criminal context to be “tried” within a reasonable time.  The majority of the Court of Appeal erred in transplanting s. 11 (b) principles set out in the criminal law context to human rights proceedings under s. 7 .  Not only are there fundamental differences between criminal and human rights proceedings, but, more importantly, s. 11 (b) of the Charter  is restricted to a pending criminal case.

 

There are remedies available in the administrative law context to deal with state-caused delay in human rights proceedings.  However, delay, without more, will not warrant a stay of proceedings as an abuse of process at common law. There must be proof of significant prejudice which results from an unacceptable delay.  Here, the respondent’s ability to have a fair hearing has not been compromised.  Proof of prejudice has not been demonstrated to be of sufficient magnitude to impact on the fairness of the hearing.  Unacceptable delay may also amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised.  Where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process.  It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute.  A court must be satisfied that the proceedings are contrary to the interests of justice.  There may also be abuse of process where conduct is oppressive.  A stay is not the only remedy available for abuse of process in administrative law proceedings and a respondent asking for a stay bears a heavy burden.  In this case, the respondent did not demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings.  While the stress and stigma resulting from an inordinate delay may contribute to an abuse of process, the delay in processing the complaints was not inordinate.

 


The determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the case and its complexity, the purpose and nature of the proceedings, and whether the respondent contributed to the delay or waived the delay.  Here, although the Commission took longer than is desirable to process the complaints, the delay was not so inordinate as to amount to an abuse of process.  The case may not have been an extremely complicated one, but the various steps necessary to protect the respondents in the context of the human rights complaints system take time.  The trial judge found that only the 24-month period between the filing of the complaints and the end of the investigation process should be considered for the delay, stating that the Human Rights Tribunal could not be criticized for not setting the hearing dates earlier as the respondent did not press for earlier dates.  During that 24-month period,  there was no extended period without any activity in the processing of the complaints, except for an inexplicable five months of inaction.  The respondent challenged the lateness of the complaints and brought forward allegations of bad faith and, as a result, the process was delayed by eight months.  The Commission should not be held responsible for contributing to this part of the delay.  When all the relevant factors are taken into account, in particular the ongoing communication between the parties,  the delay in processing the complaints is not one that would offend the community’s sense of decency and fairness.  Nevertheless, in light of the lack of diligence displayed by the Commission, the Court’s discretion under s. 47  of the Supreme Court Act   should be exercised to award costs against the Commission in favour of the respondent and the complainants.

 

Per Iacobucci, Binnie, Arbour and LeBel  JJ. (dissenting in part):  This matter should be resolved on the basis of administrative law principles. It is therefore  unnecessary to express a definite opinion on the application of s. 7  of the Charter . 

 


Administrative delay that is determined to be unreasonable based on its length, its causes, and its effects is abusive and contrary to administrative law principles.  Unreasonable delays must be identified within the specific circumstances of every case because not all delay is the same and not all administrative bodies are the same.  In order to differentiate reasonable and unreasonable delay, courts must remain alive not only to the needs of administrative systems under strain, but also to their good faith efforts to provide procedural protections to alleged wrongdoers.  In assessing the reasonableness of an administrative delay, three main factors should be balanced:  (1) the time taken compared to the inherent time requirements of the matter before the particular administrative body; (2) the causes of delay beyond the inherent time requirements of the matter; and (3) the impact of the delay.  A consideration of these factors imposes a contextual analysis.

 


Here, inefficiency in the Human Rights Commission’s handling of this matter has led to abuse of process.  First, although serious, the allegations of sexual discrimination against the respondent did not raise complex issues and were not of a nature that could justify a prolonged investigation.  There was little to investigate.  Even though the inherent time requirements were minimal, in all it took the Commission approximately two years to determine that the complaints should go to a hearing.  The time from the initial filing of the complaints to the scheduled hearing was approximately 32 months.  While it is true that the Commission’s decision to send the matter to a hearing involved a number of steps, nothing in the inherent time requirements of the case came close to requiring the delay that occurred.  Second,  although the respondent sought to use the defences available to him, he did not become responsible for the sheer inefficiency of the Commission in dealing with these matters.  There was serious delay on both complaints despite the respondent’s efforts to find a way to end it.  The Commission admits that it cannot explain what was going on for five months of the time that it was dealing with the allegations against the respondent.  This five-month lapse is the high mark of the Commission’s ineptitude.  Third, although the administrative delay was not the only cause of the prejudice suffered by the respondent, it contributed significantly to its aggravation and the Commission did nothing to minimize the impact of the delay.  The  Commission’s conduct in dealing with this matter was less than acceptable.  Further, the inefficient and delay-filled process at the Commission harmed all parties involved in the process, including the complainants.  In the end, the specific and unexplained delay entitles the respondent to a remedy. 

 


The choice of the appropriate remedy requires a careful analysis of the circumstances of the case and imposes a balancing exercise between competing interests.  In human rights proceedings, the interest of the respondent, that of the complainants, and the public interest of the community itself must be considered.  The courts must also consider the stage of the proceedings which has been affected by the delay.  A distinction must be drawn between the process leading to the hearing and the hearing itself.  A different balance between conflicting interests may have to be found at different stages of the administrative process.  A stay of proceedings should  not generally appear as the sole or even the preferred form of redress.  It should be limited to those situations that compromise the very fairness of the hearing and to those cases where the delay in the conduct of the process leading to the hearing would amount to a gross or shocking abuse of the process.  In those two situations, the interest of the respondent and the protection of the integrity of the legal system become the paramount considerations.  More limited and narrowly focused remedies will be appropriate when it appears that the hearing will remain fair, in spite of the delay, and when the delay has not risen to the level of a shocking abuse,  notwithstanding its seriousness.  The first objective of any intervention by a court should be to make things happen, where the administrative process is not working adequately.  An order for an expedited hearing would be the most practical and effective means of judicial action.  An order for costs is a third kind of remedy.  It will not address the delay directly, but some of its consequences.

 

In this case, a stay of proceedings appears both excessive and unfair.  First, in spite of the seriousness of the problems faced by the respondent, the delay does not seem to compromise the fairness of the hearing. The delay rather concerns the process leading to the hearing. This delay arises from a variety of causes that do not evince an intent on the part of the Commission to harm the respondent wilfully, but rather demonstrate grave negligence and significant structural problems in the processing of the complaints.  Second, a stay of proceedings in a situation that does not compromise the fairness of the hearing or amount to shocking or gross abuse requires the consideration of the interest of the complainants.  The Court of Appeal completely omitted any consideration of this interest.  Here, an order for an expedited hearing should have been considered as the remedy of choice.  The stay should be lifted and the Commission should be ordered to pay costs on a party-to-party basis to the respondent in this Court and in the British Columbia courts.  It is fair and appropriate to use the power conferred by s. 47  of the Supreme Court Act , as the respondent has established that the process initiated against him was deeply flawed and that its defects justified his search for a remedy, at least in administrative law.  

 

Cases Cited

 

By Bastarache J.

 



Not followed: Nisbett v. Manitoba (Human Rights Commission) (1993), 101 D.L.R. (4th) 744; Canadian Airlines International Ltd. v. Canada (Human Rights Commission), [1996] 1 F.C. 638; Saskatchewan Human Rights Commission v. Kodellas (1989), 60 D.L.R. (4th) 143; considered:  Misra v. College of Physicians & Surgeons of Saskatchewan (1988), 52 D.L.R. (4th) 477; Stefani v. College of Dental Surgeons (British Columbia) (1996), 44 Admin. L.R. (2d) 122; Brown v. Assn. of Professional Engineers and Geoscientists of British Columbia, [1994] B.C.J. No. 2037 (QL); Ratzlaff v. British Columbia (Medical Services Commission) (1996), 17 B.C.L.R. (3d) 336; referred to: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624;  Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, rev’g (1997), 187 N.B.R. (2d) 81; R. v. Beare, [1988] 2 S.C.R. 387; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Heywood, [1994] 3 S.C.R. 761; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; R. v. Morgentaler, [1988] 1 S.C.R. 30; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Oakes, [1986] 1 S.C.R. 103; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v. Mills, [1999] 3 S.C.R. 668; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. L. (W.K.), [1991] 1 S.C.R. 1091; Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32; Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (1995), 24 C.H.R.R. D/464; Freedman v. College of Physicians & Surgeons (New Brunswick) (1996), 41 Admin. L.R. (2d) 196; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Jewitt, [1985] 2 S.C.R. 128;  R. v. Power, [1994] 1 S.C.R. 601; R. v. Young (1984), 40 C.R. (3d) 289; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Scott, [1990] 3 S.C.R. 979; R. v. Conway, [1989] 1 S.C.R. 1659; Allen v. Sir Alfred McAlpine & Sons, Ltd., [1968] 1 All E.R. 543; R. v. Morin, [1992] 1 S.C.R. 771.

 

By LeBel J. (dissenting in part)

 


Nisbett v. Manitoba (Human Rights Commission) (1993), 101 D.L.R. (4th) 744; Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (1995), 24 C.H.R.R. D/464; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Askov, [1990] 2 S.C.R. 1199; Bagg’s Case (1615), 11 Co. Rep. 93b, 77 E.R. 1271; Andover Case (1700), Holt. K.B. 441, 90 E.R. 1143; R. v. Barker (1762), 3 Burr. 1265, 97 E.R. 823; The King ex rel. Lee v. Workmen’s Compensation Board, [1942] 2 D.L.R. 665; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; R. v. Bradley, [1941] S.C.R. 270; Rourke v. The Queen, [1978] 1 S.C.R. 1021;  Muia v. Canada (Minister of Citizenship and Immigration) (1996), 113 F.T.R. 234; Dass v. Canada (Minister of Employment and Immigration), [1996] 2 F.C. 410; Dee v. Canada (Minister of Citizenship & Immigration) (1998), 46 Imm. L.R. (2d) 278; Kiani v. Canada (Minister of Citizenship & Immigration) (1999), 50 Imm. L.R. (2d) 81; Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315; R. v. Secretary of State for the Home Department, Ex parte Phansopkar, [1976] 1 Q.B. 606; Re Preston, [1985] A.C. 835; R. v. Chief Constable of the Merseyside Police, Ex parte Calveley, [1986] Q.B. 424; Misra v. College of Physicians & Surgeons of Saskatchewan (1988), 52 D.L.R. (4th) 477; Brown v. Assn. of Professional Engineers and Geoscientists of British Columbia, [1994] B.C.J. No. 2037 (QL); Stefani v. College of Dental Surgeons (British Columbia) (1996), 44 Admin. L.R. (2d) 122; Ratzlaff v. British Columbia (Medical Services Commission) (1996), 17 B.C.L.R. (3d) 336; R. v. Conway, [1989] 1 S.C.R. 1659; Saskatchewan (Human Rights Commission) v. Kodellas (1989), 60 D.L.R. (4th) 143; R. v. Morin, [1992] 1 S.C.R. 771; R. v. O’Connor, [1995] 4 S.C.R. 411; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; Schachter v. Canada, [1992] 2 S.C.R. 679.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 7 , 8 , 11 (b), 24 , 32 .

 

Human Rights Act, S.B.C. 1984, c. 22, s. 13(1)(d).

 

Human Rights Code, R.S.B.C. 1996, c. 210, ss. 24, 27.

 

Magna Carta (1215).

 

Supreme Court Act, R.S.C., 1985, c. S-26 , s. 47 .

 

 

Authors Cited

 

Blackstone, William.  Commentaries on the Laws of England, Book III, 4th ed.  Oxford: Clarendon Press, 1768.

 

Brookings Task Force on Civil Justice Reform.  Justice for All: Reducing Costs and Delay in Civil Litigation.  Washington: Brookings Institution, 1989.

 

Brown, Donald J. M., and John M. Evans.  Judicial Review of Administrative Action in Canada.  Toronto: Canvasback, 1998 (loose-leaf).

 

Bryden, Philip.  “Blencoe v. British Columbia (Human Rights Commission):  A Case Comment” (1999), 33 U.B.C. L. Rev. 153.

 

Evans, J. M., H. N. Janisch and David J. Mullan.  Administrative Law: Cases, Text, and Materials, 4th ed. Toronto: Edmond Montgomery, 1995.

 

Hawkins, Robert E.  “Reputational Review III: Delay, Disrepute and Human Rights  Commissions” (2000), 25 Queen’s L.J. 599.

 

Hogg, Peter W.  Constitutional Law of Canada, vol. 2, loose-leaf ed. Scarborough, Ont.: Carswell, 1992 (update 1999, release 1).

 


Holdsworth, Sir William.  A History of English Law, 7th ed., vol. I.  Revised under the general editorship of A. L. Goodhart and H. G. Hanbury.  London:  Methuen & Co., 1956.

 

Jones, David Phillip, and Anne S. de Villars.  Principles of Administrative Law, 3rd ed.  Scarborough, Ont.: Carswell, 1999.

 

McMurtrie, Sheena N.  “The Waiting Game -- The Parliamentary Commissioner’s Response to Delay in Administrative Procedures”, [1997] Public Law 159.

 

Ontario.  Human Rights Commission. Annual Report 1997-1998. Toronto: The Commission, 1998.

 

Simpson, J.  “Human Rights Commission Mill Grinds Slowly”, The Globe & Mail, October 1, 1998, p. A18.

 

Skiffington, Lawrence S.  “Federal Administrative Delay: Judicial Remedies and Application in the Natural Resource Context” (1982), 28 Rocky Mtn. Min. L. Inst. 671.

 

Wade, Sir William, and Christopher Forsyth.  Administrative Law, 7th ed.  Oxford, Clarendon Press, 1994.

 

 

APPEAL from a judgment of the British Columbia Court of Appeal (1998), 49 B.C.L.R. (3d) 216, 160 D.L.R. (4th) 303, 107 B.C.A.C. 162, 174 W.A.C. 162, 7 Admin. L.R. (3d) 220, 31 C.H.R.R. D/175, 53 C.R.R. (2d) 189, [1998] 9 W.W.R. 457, [1998] B.C.J. No. 1092 (QL), allowing an appeal from a decision of the British Columbia Supreme Court  (1998), 49 B.C.L.R. (3d) 201, 35 C.C.E.L. (2d) 41, 30 C.H.R.R. D/439, [1999] 1 W.W.R. 139, [1998] B.C.J. No. 320 (QL), dismissing the respondent’s petition for judicial review and order that proceedings be terminated due to delay. Appeal allowed, Iacobucci, Binnie, Arbour and LeBel  JJ. dissenting in part.

 

John J. L. Hunter, Q.C., Thomas F. Beasley, K. Michael Stephens and Stephanie L. McHugh, for the appellants the British Columbia Human Rights Commission and the Commissioner of Investigation and Mediation.

 


Written submissions only by Susan E. Ross, for the appellant the British Columbia Human Rights Tribunal.

 

 

 

Robert B. Farvolden, for the appellant Andrea Willis.

 

Joseph J. Arvay, Q.C., for the respondent.

 

Mark C. Stacey and Rosy M. Mondin, for the intervener Irene Schell.

 

Hart Schwartz, for the intervener the Attorney General for Ontario.

 

Harvey M. Groberman, Q.C., for the intervener the Attorney General of British Columbia.

 

Milton Woodard, Q.C., for the intervener the Saskatchewan Human Rights Commission.

 

Cathryn Pike and Jennifer Scott, for the intervener the Ontario Human Rights Commission.

 

Lara J. Morris and Maureen E. Shebib, for the intervener the Nova Scotia Human Rights Commission.

 

Aaron L. Berg and Denis Guénette, for the intervener the Manitoba Human Rights Commission.


 

Fiona Keith, for the intervener the Canadian Human Rights Commission.

 

Hélène Tessier, for the intervener the Commission des droits de la personne et des droits de la jeunesse.

 

Frances Kelly and James Pozer, for the intervener the British Columbia Human Rights Coalition.

 

Jennifer L. Conkie and Dianne Pothier, for the intervener the Women’s Legal Education and Action Fund.

 

The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Major and Bastarache JJ. was delivered by

 

 

Bastarache J.

 

I.  Introduction

 

1                                   This case raises the issue of whether the respondent’s rights to “liberty and security of the person” under s. 7  of the Canadian Charter of Rights and Freedoms  were violated by state-caused delay in the human rights proceedings against him.  In the alternative, should this Court find that s. 7  of the Charter  was not engaged, it must be determined whether the respondent was entitled to a remedy pursuant to principles of administrative law, notwithstanding that he had not been prejudiced in his ability to respond to the complaints against him.

 


2                                   I have concluded that the respondent’s rights to liberty and security of the person were not implicated in the circumstances of this case.  There is therefore no need to determine whether the alleged violation was in accordance with the principles of fundamental justice.  While I accept that, under administrative law principles, a denial of natural justice may occur for reasons other than procedural unfairness to the respondent, I find that there has been no denial of natural justice or abuse of process in the circumstances of this case.

 

II.  Factual Background

 

3                                   In 1995, the respondent, Robin Blencoe, had been a member of the British Columbia legislature for 12 years.  In March of that year the respondent’s assistant, Fran Yanor, went public with allegations that the respondent had sexually harassed her.  Following this allegation, the respondent stepped down as Minister, but remained in Cabinet pending the results of an inquiry.  On April 4, 1995, Premier Harcourt removed the respondent from Cabinet and dismissed him from the New Democratic Party caucus.  Subsequently, in July and August of 1995, two sexual harassment complaints were filed with the British Columbia Council of Human Rights (“Council” or “Commission”) against the respondent and the provincial Crown under the Human Rights Act, S.B.C. 1984, c. 22 (now the Human Rights Code, R.S.B.C. 1996, c. 210, since January 1, 1997) (also referred to as the “Act” or the “Code”) by the appellant Andrea Willis and the intervener, Irene Schell (“Complaints” or “Complaint”).

 


4                                   The Complaints centered around various incidents of sexual harassment alleged to have occurred between March 1993 and March 1995.  It is not necessary, for the purposes of this appeal, that I comment on the particulars of the Complaints in any detail.  In brief, Ms. Willis worked as a senior clerk in the respondent’s ministerial office and alleged that the respondent discriminated against her because of her sex with respect to terms and conditions of her employment, causing her to resign.  The alleged incidents occurred in August 1994 and March 1995.  Ms. Schell represented a government-funded sports association with which the respondent had contact in his ministerial capacity.  She alleged that the respondent had discriminated against her because of her sex with respect to a service or facility customarily available to the public.  The alleged incidents occurred in March 1993 and on several occasions in July 1993 and July 1994.

 

5                                   While the events that followed in the human rights proceedings are lengthy, they nevertheless merit recitation in some detail in order to adequately address the alleged delay in the process.  The following are what I consider to be the most relevant facts regarding each of the Complaints.

 

A.  The Schell Complaint

 

6                                   The Schell Complaint dealt with conduct which allegedly occurred more than six months before the Complaint was filed.  For this reason, a threshold issue of timeliness arose pursuant to s. 13(1)(d) of the Act.  By letter dated July 20, 1995, the respondent’s counsel was informed that the Commission was considering whether to proceed with the investigation of the Schell Complaint and that timeliness submissions should be made.  Letters were sent by the respondent on July 21 and July 28, 1995, requesting particulars of the Complaint.  Particulars were provided by the Commission by letter dated August 2, 1995.

 


7                                   On August 31, 1995, the respondent’s counsel notified the Commission that the respondent would not provide a detailed submission on the timeliness issue until Ms. Schell discharged the onus of proving that her Complaint was filed in good faith.  The Commission informed the respondent that it was not necessary for Ms. Schell to adduce further material on this matter.  The respondent subsequently provided substantive submissions on the timeliness issue on September 22, 1995.

 

8                                   On November 14, 1995, the respondent was informed that the Commission had received Ms. Schell’s submissions on October 11, 1995, and that the submissions of both parties were being considered.  The respondent had not been forwarded a copy of Ms. Schell’s submissions.  Following two requests for such by Mr. Blencoe, the Commission provided him with a copy of this document on December 15, 1995, stating that the production of such document was a departure from normal procedures.  On February 8, 1996, the respondent provided the Commission with a response to Ms. Schell’s timeliness submissions.

 

9                                   On February 21, 1996, the respondent was informed that the Council had decided to proceed with the investigation and that he had 30 days to provide a full response to the allegations.  In letters dated March 1 and March 27, 1996, the respondent requested the initial correspondence between Ms. Schell and the Commission.  The respondent maintained that he would not respond to the particulars of allegation until such correspondence was produced.  On April 1, 1996, the respondent was informed that such documents would not be disclosed and that the investigation would continue on the basis of existing materials if no response was received by April 10, 1996.  A general denial to the allegations was given by the respondent on April 10, 1996.  On June 19, 1996, the respondent received a letter from the Commission in response to his request regarding how long he would be required to wait for a hearing date.  He was informed that a hearing could not be scheduled until the Commission determined that a hearing was required.


 

10                               On September 6, 1996, the respondent was notified that an investigator had been assigned to the Schell Complaint.  By letter dated November 8, 1996, the Commission wrote to the respondent, requesting a response to certain information obtained in the course of investigating the Schell Complaint.  Such information was provided by the respondent on December 23, 1996.  On March 4, 1997, Mr. Blencoe’s counsel was provided with a copy of the investigation report and asked for a written response by April 8, 1997.  Such response was given on March 27, 1997.  On April 15, 1997, the respondent was provided with the submissions received from Ms. Schell in response to the investigation report.  Mr. Blencoe was requested to reply by May 15, 1997.  Such response was provided on May 14, 1997.

 

11                               By letter dated July 3, 1997, the respondent was notified that the Schell Complaint would be referred to the British Columbia Human Rights Tribunal (“Tribunal”) for a hearing, without specifying the hearing date.  That ended the involvement of the Commission in the Complaint.  On September 10, 1997, the respondent was informed that the hearing was set for March 4, 5 and 6, 1998 and a pre-hearing conference in November of 1997.  The hearing was thus scheduled to take place approximately 32 months after the initial Complaint was filed.

 

 

B.  The Willis Complaint

 


12                               The respondent was informed of the Willis Complaint by letter dated September 11, 1995.  The respondent challenged the timeliness of the Complaint and asked the Council to make a decision pursuant to s. 13(1)(d) of the Act.  The respondent was asked to provide submissions on timeliness within 15 days of the letter dated September 21, 1995.  Such submissions were provided by Mr. Blencoe on October 11, 1995 with respect to both Complaints.  On December 21, 1995, the respondent was sent a copy of Ms. Willis’s submissions on timeliness which were dated October 16, 1995.  It was standard practice of the Council not to give respondents the complainant’s response submissions.

 

13                               On January 9, 1996, the respondent wrote to the Council, requesting that it refrain from making a decision regarding timeliness until he could reply to Ms. Willis’s submissions.  The respondent challenged both the timeliness of the Complaints and whether they were made in good faith.  He declined to provide his response until such preliminary issues were addressed, contending that the Complaints should not be addressed at all.  The Council concluded that the Complaints were timely, that there was no evidence of bad faith, and that the Complaints should be fully investigated.  On January 11, 1996, the respondent was notified that the Commission was proceeding with its investigation of the Willis Complaint.  The decision to proceed with this Complaint had been reached by the Council more than three weeks earlier, on December 18, 1995.  The delay was said to have resulted from Council not returning the decision on timeliness file to the case management secretary and a temporary backlog in the clerical area.

 

14                               On January 29, 1996, the respondent informed the Council that he was prepared to waive the investigation stage of the process and asked that the Council set the matter for hearing.  However, this waiver was not feasible since the respondent was not prepared to concede that there was a sufficient evidentiary basis to warrant a hearing.

 


15                               In April 1996, Mr. Blencoe’s counsel inquired as to when the hearing was expected to occur.  In June 1996, he was informed that this could not be determined until the investigation was completed.  The respondent was also informed that no investigator had been assigned to the Willis Complaint at that time and that there was a backlog of investigation files.  By letter dated September 6, 1996, Mr. Blencoe was informed that an investigator had been assigned to the Willis Complaint.  On November 8, 1996, Mr. Blencoe was asked to respond to certain information obtained during the investigation.  Such response was given on December 23, 1996.  On March 3, 1997, the respondent was provided with a completed investigation report and asked for written responses which were provided by the respondent on March 27, 1997.  In April 1997, the respondent was sent the submissions of Ms. Willis.  He replied to them on May 14, 1997.

 

16                               On July 3, 1997, the respondent was informed that the Willis Complaint would be referred to the Tribunal for hearing.  That ended the involvement of the Commission in the Complaint.  On September 10, 1997, the respondent was notified that the hearing was set for March 18, 19 and 20, 1998 and a pre-hearing conference in November 1997.  The hearing was thus scheduled to take place approximately 32 months after the initial Complaint was filed.

 


17                               Subsequent to the allegations of sex discrimination, the respondent and his family have been hounded by the media.  Mr. Blencoe has suffered from severe depression and both he and his wife have sought psychological counselling.  The respondent did not stand for re-election when his province went to the polls in 1996.  Mr. Blencoe and his wife decided to move their family to Ontario in August 1996, in order to escape the media attention and seek employment.  In May 1997, the family returned to Victoria, allegedly because they could not escape the harassment of the media which followed them to Ontario and because the respondent’s wife received an excellent job offer in British Columbia.  The respondent continues to be clinically depressed and has been prescribed medication.  He was prevented from coaching his youngest son’s soccer team on the grounds that the soccer association did not want him working with children.  The respondent considers himself  unemployable in British Columbia, due to the outstanding human rights Complaints against him.

 

18                               On November 27, 1997, the respondent commenced proceedings for judicial review, claiming that the Commission had lost jurisdiction due to unreasonable delay in processing the human rights Complaints.  The respondent alleged that the unreasonable delay caused serious prejudice to him and his family which amounted to an abuse of process and a denial of natural justice.

 

III.  Judicial History

 

A.  British Columbia Supreme Court (1998), 49 B.C.L.R. (3d) 201

 


19                               The respondent’s application for judicial review was dismissed by Lowry J. on February 11, 1998.  The question before the court was whether, given the time that had elapsed since the Complaints were first made to the Commission, personal hardship attributable to the stigma attached to the allegations justified the supervisory intervention of the court.  The respondent also alleged that, because two prospective witnesses had died and the memories of other witnesses had faded, he would be unable to obtain a fair hearing.  The respondent did not make an express s. 7  argument before the lower court, but relied instead on principles of natural justice, pursuant to administrative law jurisprudence and common law protections against undue delay.  The respondent did however cite s. 7  jurisprudence to support his claim that the prejudice he suffered was analogous to the prejudice that justifies a stay of proceedings in the s. 7  context.

 

20                               Lowry J. recognized that the allegations of sexual harassment had significantly affected the respondent’s life and that his political career appeared to be finished.  However, he added that it was difficult to determine to what extent such prejudice could be fairly attributed to any delay in the proceedings.

 

21                               Lowry J. rejected the contention that, absent any application of the Charter , personal hardship attributable to unacceptable delay in an administrative process could, standing alone, constitute prejudice that entitled a respondent to prerogative relief.  He held that delay will only constitute a denial of natural justice if the result of the delay is to directly prejudice the ability of an affected party to respond.  He concluded that Mr. Blencoe’s ability to have a fair hearing had not been prejudiced, since he was able to respond to the Complaints in an evidentiary sense.

 

22                               Apart from an unexplained five-month period in the human rights process, Lowry J. found that there had been no extended period of inactivity in the processing of the Complaints from receipt to referral.  Communication had been ongoing between the Commission, solicitors and complainants, and the respondent had not been ignored.  Lowry J. thus concluded that there had been no “unacceptable delay” in the human rights process.  He also noted that the respondent had not brought any of his personal hardship to the Commission’s attention, nor had he requested a prioritization of the Complaints on that basis.

 

B.  British Columbia Court of Appeal (1998), 49 B.C.L.R. (3d) 216

 


23                               Before the Court of Appeal, Mr. Blencoe expressly argued that his s. 7  rights to liberty and security of the person were violated due to the length of the delay in resolving the Complaints against him.  On May 11, 1998, the Court of Appeal (McEachern C.J.B.C. and Prowse J.A. for the majority, in separate concurring reasons) allowed the appeal and directed that the human rights proceedings against the respondent be stayed.  Lambert J.A., in dissent, would have upheld the judgment of the British Columbia Supreme Court.

 

(a)  Majority Decision of McEachern C.J.B.C.

 

24                               McEachern C.J.B.C. concluded that the undue delay and the continued prejudice to privacy and human dignity could not be in accordance with the principles of fundamental justice (para. 104).  McEachern C.J.B.C. found that the delay could not be attributed to Mr. Blencoe since he was unable to identify any steps taken by the respondent to which he was not entitled in defending himself.  McEachern C.J.B.C. opined that the Complaints were not complex, but were rather of the type that are “quickly resolved by courts and tribunals all the time” (para. 37), such that “a week at the outside would have sufficed” to complete the investigation (para. 51).  He added (at paras. 47 and 51):

 

. . . a delay of over 30 months from the date of the complaints to a hearing on the merits is far too long.  If Mr. Blencoe had been charged in the criminal courts with this type of sexual assault, the charge would very likely be dismissed on grounds of delay . . . .

 

As I have already commented, the investigation was necessarily one-dimensional as there were no eyewitnesses, and a week at the outside would have sufficed.

 


25                               Turning to the issue of prejudice, McEachern C.J.B.C. found that but for these proceedings, “it might reasonably be expected that the overwhelming [media] attention would have died away and [Blencoe] and his family could have attempted to reconstruct their lives” (para. 53).  He considered the contention that the prejudice suffered by the respondent was not caused by the delay, but rather by his dismissal from Cabinet.  In this connection McEachern C.J.B.C. held that the Supreme Court of Canada has elevated the “exacerbation” of an existing deprivation to the same level as the creation of the deprivation itself.  He held that the excessive delay both created a substantial stigma against the accused and exacerbated an existing state of affairs, thus triggering the s. 7  right to security of the person.

 

26                               McEachern C.J.B.C. noted that the jurisprudence surrounding the application of s. 7  in a non-penal context was “fraught with considerable difficulty” (para. 60).  He identified two competing streams of jurisprudence as to the scope of s. 7  in the Supreme Court.  First, McEachern C.J.B.C. described what he referred to as the “judicial domain” school, which limits s. 7  protection to criminal proceedings.  This approach was then contrasted with a broader approach to s. 7  which protects an individual’s right to “human dignity” and “privacy” outside the arena of criminal proceedings.  McEachern C.J.B.C. adopted the more expansive approach (at para. 101):

 

. . . I feel constrained to follow what I regard as the emerging, preferred view in the Supreme Court of Canada that s. 7 , under the rubric of liberty and security of the person, operates to protect both the privacy and dignity of citizens against the stigma of undue, prolonged humiliation and public degradation of the kind suffered by [Blencoe] here.  Everyone can be made answerable, according to law, for his or her conduct or misconduct, but a process established by law to provide accountability and appropriate remedies cannot be completely open-ended in the sense that human dignity, even for wrongdoers if such is the case, can be compromised for as long as it has occurred in this case.

 

(b)  Concurring Majority Judgment of Prowse J.A.


 

27                               Prowse J.A. held that the allegations in this case were analogous to allegations of sexual assault and thus engaged s. 7  of the Charter .  Having regard to the nature of the allegations and the extent of the prejudice suffered by Mr. Blencoe, she agreed with McEachern C.J.B.C. that the delay of over 30 months was unreasonable and breached the respondent’s right to security of the person in a manner not in accordance with the principles of fundamental justice.

 

(c)  Dissenting Reasons of Lambert J.A.

 

28                               In determining whether the delay was unacceptable, for the purposes of an assessment of natural justice, Lambert J.A. held that such decision was an issue of fact which was decided by the lower court.  Consequently, he stated that Lowry J.’s decision should only be interfered with if there was a misconception of the evidence or if the decision was palpably wrong, neither of which had occurred in this case.  On the legal question of which sorts of prejudice affect natural justice, Lambert J.A. agreed with Lowry J. that prejudice arising from delay must go to the intrinsic fairness of the hearing process and not merely to extrinsic factors such as stigma, stress or other forms of suffering.

 


29                               Turning to the Charter  issue, Lambert J.A. found it unnecessary to decide whether s. 7  of the Charter  applies to non-criminal proceedings or whether suffering induced by stigmatization, stress and disruption of family life can constitute a deprivation of liberty or security of the person in the human rights context.  He found that the stigma suffered by Mr. Blencoe, the stress and anxiety related thereto, the media publicity, and Mr. Blencoe’s lack of employment, could not be attributed to the human rights process, nor were they exacerbated by a breach of the principles of fundamental justice.  Lambert J.A. emphasized that Mr. Blencoe’s rights and expectations had to be balanced against those of the two complainants, in the context of the public interest in upholding an effective human rights process.  Concluding that the principles of fundamental justice arising in the human rights process were not breached, Lambert J.A. would have found that the respondent was not entitled to relief under ss. 7  and 24  of the Charter .

 

IV.  Relevant Constitutional Provisions

 

30                               Canadian Charter of Rights and Freedoms 

 

7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

11.  Any person charged with an offence has the right

 

                                                                   . . .

 

(b) to be tried within a reasonable time;

 

24.  (1)  Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

32.  (1)  This Charter  applies

 

(a)  to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

 

(b)  to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

 

V.  Issues

 


31                               The following are the central issues to be determined for the disposition of this appeal:

 

A.                               Does the Charter  apply to the actions of the British Columbia Human Rights Commission?

 

B.                                Have the respondent’s s. 7  rights to liberty and security of the person been violated by state-caused delay in the human rights proceedings?

 

C.                               If the respondent’s s. 7  rights were not engaged, or if the state’s actions were in accordance with the principles of fundamental justice, was the respondent entitled to a remedy pursuant to administrative law principles where the delay did not interfere with the right to a fair hearing?

 

D.                               If the respondent is entitled to a Charter  or administrative law remedy, was the stay of proceedings an appropriate remedy in the circumstances of this case?

 

VI.  Analysis

 

A.                Does the Charter  Apply to the Actions of the British Columbia Human Rights Commission?

 

32                               The scope of the Charter ’s application is delineated by s. 32(1)  of the Charter  which states:

 

32.  (1)  This Charter  applies

 


(a)  to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

 

(b)  to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

 

 

It is clear that both the federal Parliament and provincial legislatures are bound by the Charter .  However, one threshold issue which has been raised in this case is whether the Commission and the Tribunal are agents of government pursuant to s. 32  of the Charter .  The following three factors have been put forth to support the argument that these bodies are not bound by the Charter :  (i) the organizations in question are required to be independent of government; (ii) the challenge in this case is not to any statutory provisions that might be said to be within the legislative sphere; and (iii) the organizations in question must act judicially since their functions are analogous to those exercised by courts of law.

 

33                               For the reasons I address below, these claims are misguided with respect to their approach to the application of the Charter .  Furthermore, for the purposes of this appeal, it is only necessary to address the Charter ’s applicability to the actions of the Commission since the prejudice suffered by the respondent is alleged to have resulted from unreasonable delay in the actions of the Commission.

 

34                               The mere fact that a body is independent of government is not determinative of the Charter ’s application, nor is the fact that a statutory provision is not impugned.  Being autonomous or independent from government is not a conclusive basis upon which to hold that the Charter  does not apply.

 


35                               Bodies exercising statutory authority are bound by the Charter  even though they may be independent of government.  This was confirmed by La Forest J., speaking for a unanimous Court in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 21:

 

There is no doubt, however, that the Charter  also applies to action taken under statutory authority.  The rationale for this rule flows inexorably from the logical structure of s. 32 .  As Professor Hogg explains in his Constitutional Law of Canada (3rd ed. 1992 (loose‑leaf)), vol. 1, at pp. 34‑8.3 and 34‑9:

 

Action taken under statutory authority is valid only if it is within the scope of that authority.  Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter , neither body can authorize action which would be in breach of the Charter .  Thus, the limitations on statutory authority which are imposed by the Charter  will flow down the chain of statutory authority and apply to regulations, by‑laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority.

 

There is no doubt that the Commission is created by statute and that all of its actions are taken pursuant to statutory authority.

 

36                               One distinctive feature of actions taken under statutory authority is that they involve a power of compulsion not possessed by private individuals (P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 34‑12).  Clearly the Commission possesses more extensive powers than a natural person.  The Commission’s authority is not derived from the consent of the parties.  The Human Rights Code grants various powers to the Commission to both investigate complaints and decide how to deal with such complaints.  Section 24 of the Code specifically allows the Commissioner to compel the production of documents.  The relevant portions of this section state:

 


24 (1)  For the purpose of investigating a complaint, the commissioner of investigation and mediation or a human rights officer may

 

(a)  require the production of books, documents, correspondence or other records that relate or may relate to the complaint, and

 

(b) make any inquiry relating to the complaint of any person, in writing or orally.

 

(2)       If a person refuses to

 

(a)  comply with a demand under subsection (1) (a) for the production of books, documents, correspondence or other records, or

 

(b)  respond to an inquiry made under subsection (1) (b),

 

the commissioner of investigation and mediation or a human rights officer may apply to the Supreme Court for an order requiring the person to comply with the demand or respond to the inquiry.

 

                                                                   . . .

 

(4)       For the purpose of investigating a complaint, the commissioner of investigation and mediation or a human rights officer may, with the consent of the owner or occupier, enter and inspect any premises that in the opinion of that commissioner or the human rights officer may provide information relating to the complaint.

 

37                               The Commission in this case cannot therefore escape Charter  scrutiny merely because it is not part of government or controlled by government.  In Eldridge, a unanimous Court concluded that a hospital was bound by the Charter  since it was implementing a specific government policy or program.  The Commission in this case is both implementing a specific government program and exercising powers of statutory compulsion.

 


38                               With respect to the claim that the Commission exercises judicial functions and is thereby not subject to the Charter , the decision of this Court in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, is conclusive.  Lamer J. (as he then was), in partial dissent but speaking for a unanimous Court on this point, held that the Charter  applies to the orders of a statutorily appointed labour arbitrator.  This determination was not open to challenge, as expressed by Lamer J., at pp. 1077-78:

 

The fact that the Charter  applies to the order made by the adjudicator in the case at bar is not, in my opinion, open to question.  The adjudicator is a statutory creature:  he is appointed pursuant to a legislative provision and derives all his powers from the statute.  [Emphasis added.]

 

 

39                               The facts in Slaight and the case at bar share at least one salient feature:  the labour arbitrator (in Slaight) and the Commission (in the case at bar) each exercise governmental powers conferred upon them by a legislative body.  The ultimate source of authority in each of these cases is government.  All of the Commission’s powers are derived from the statute.  The Commission is carrying out the legislative scheme of the Human Rights Code.  It is putting into place a government program or a specific statutory scheme established by government to implement government policy (see Eldridge, supra, at paras. 37 and 44, and Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, at p. 584).  The Commission must act within the limits of its enabling statute.  There is clearly a “governmental quality” to the functions of a human rights commission which is created by government to promote equality in society generally.

 


40                               Thus, notwithstanding that the Commission may have adjudicatory characteristics, it is a statutory creature and its actions fall under the authority of the Human Rights Code.  The state has instituted an administrative structure, through a legislative scheme, to effectuate a governmental program to provide redress against discrimination.  It is the administration of a governmental program that calls for Charter  scrutiny.  Once a complaint is brought before the Commission, the subsequent administrative proceedings must comply with the Charter .  These entities are subject to Charter  scrutiny in the performance of their functions just as government would be in like circumstances.  To hold otherwise would allow the legislative branch to circumvent the Charter  by establishing statutory bodies that are immune to Charter  scrutiny.  The above analysis leads inexorably to the conclusion that the Charter  applies to the actions of the Commission.

 

B.  Have the Respondent’s Section 7  Rights to Liberty and Security of the Person

      Been Violated by State-caused Delay in Human Rights Proceedings?

 

(a)  Court of Appeal Decisions on This Issue

 

41                               Four appellate courts have dealt with the issue of whether s. 7  of the Charter  applies in circumstances similar to the case at bar, including the decision under appeal.  The majority of the Court of Appeal in Blencoe followed the decision in Saskatchewan Human Rights Commission v. Kodellas (1989), 60 D.L.R. (4th) 143 (Sask. C.A.), to hold that s. 7  of the Charter  was violated.  However, the Manitoba Court of Appeal in Nisbett v. Manitoba (Human Rights Commission) (1993), 101 D.L.R. (4th) 744, and the Federal Court of Appeal in Canadian Airlines International Ltd. v. Canada (Human Rights Commission), [1996] 1 F.C. 638, refused to follow Kodellas, holding that s. 7  cannot be applied to the consequences of delays in human rights proceedings.

 


42                               In Kodellas, between the date of the first complaint and the date fixed for the hearing, almost four years had elapsed and three years and two months had elapsed with respect to the second complaint.  Bayda C.J.S., dissenting in part with respect to the appropriate remedy, held that the delay violated Mr. Kodellas’s s. 7  security of the person.  In reaching this conclusion, Bayda C.J.S. referred to the dissenting judgment of Lamer J. in Mills v. The Queen, [1986] 1 S.C.R. 863 (hereinafter “Mills (1986)”), at p. 919, and reiterated in R. v. Rahey, [1987] 1 S.C.R. 588, at p. 605, where, in the context of s. 11 (b) of the Charter , security of the person encompasses protection against “overlong subjection to the vexations and vicissitudes of a pending criminal accusation” (Kodellas, at p. 152).  The unreasonable delay in Kodellas was found to result in two forms of prejudice to Mr. Kodellas.  First, it extended his psychological trauma.  Second, it reduced Mr. Kodellas’s chances of a fair hearing (Kodellas, at p. 161).

 

43                               In Nisbett, the Manitoba Court of Appeal denied relief sought by a medical doctor to prohibit the hearing of his employee’s complaint of sexual harassment that had been outstanding for over three years.  This decision was reached despite the stigma attached to the allegations which was described as anxiety, the strain on family life, the disruption of his professional practice, the quest for evidence of similar conduct from former employees, the damage to his personal dignity and professional standing, the loss of self‑esteem, and the continuing uncertainty as to the final outcome of the proceedings (Nisbett, at p. 749) (quoting from the trial judgment (1992), 90 D.L.R. (4th) 672, at p. 679).  The Manitoba Court of Appeal refused to follow Kodellas, questioning whether the impact of a criminal proceeding for sexual assault can be equated with a human rights proceeding on allegations of sex discrimination for the purposes of s. 7 .  The Court of Appeal concluded that s. 7  had no application to non-penal proceedings under human rights legislation and that s. 11  of the Charter  was restricted to criminal cases.

 


44                               In Canadian Airlines, there was a 50-month delay between the filing of the complaint and the appointment of a tribunal to investigate.  The Federal Court of Appeal also refused to follow Kodellas, and concluded that s. 7  did not apply to administrative proceedings of a non-criminal nature.

 

(b)  Applicability of Section 7  Outside the Criminal Context

 

45                               Although there have been some decisions of this Court which may have supported the position that s. 7  of the Charter  is restricted to the sphere of criminal law, there is no longer any doubt that s. 7  of the Charter  is not confined to the penal context.  This was most recently affirmed by this Court in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, where Lamer C.J. stated that the protection of security of the person extends beyond the criminal law (at para. 58).  He later added (at para. 65):

 

.  .  .  s. 7  is not limited solely to purely criminal or penal matters.  There are other ways in which the government, in the course of the administration of justice, can deprive a person of their s. 7  rights to liberty and security of the person, i.e., civil committal to a mental institution:  see B. (R.), supra, at para. 22.

 


46                               Thus, to the extent that the above decisions of Nisbett and Canadian Airlines stand for the proposition that s. 7  can never apply outside the criminal realm, they are incorrect.  Section 7  can extend beyond the sphere of criminal law, at least where there is “state action which directly engages the justice system and its administration” (G. (J.), at para. 66).  If a case arises in the human rights context which, on its facts, meets the usual s. 7  threshold requirements, there is no specific bar against such a claim and s. 7  may be engaged.  The question to be addressed, however, is not whether delays in human rights proceedings can engage s. 7  of the Charter  but rather, whether the respondent’s s. 7  rights were actually engaged by delays in the circumstances of this case.  Various parties in this case seem to have conflated the delay issue with the threshold s. 7  issue.  However, whether the respondent’s s. 7  rights to life, liberty and security of the person are engaged is a separate issue from whether the delay itself was unreasonable.  I will now examine whether the s. 7  threshold requirements have been met and whether the respondent has demonstrated a breach of his s. 7  rights.

 

(c)  Section 7  – General Principles

 

47                               Section 7  of the Charter  provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  Thus, before it is even possible to address the issue of whether the respondent’s s. 7  rights were infringed in a manner not in accordance with the principles of fundamental justice, one must first establish that the interest in respect of which the respondent asserted his claim falls within the ambit of s. 7 .  These two steps in the s. 7  analysis have been set out by La Forest J. in R. v. Beare, [1988] 2 S.C.R. 387, at p. 401, as follows:

 

To trigger its operation there must first be a finding that there has been a deprivation of the right to “life, liberty and security of the person” and, secondly, that the deprivation is contrary to the principles of fundamental justice.

 

Thus, if no interest in the respondent’s life, liberty or security of the person is implicated, the s. 7  analysis stops there.  It is at the first stage in the s. 7  analysis that I have the greatest problem with the respondent’s s. 7  arguments.

 


48                               McEachern C.J.B.C. collapsed the s. 7  interests of “liberty” and “security of the person” into a single right protecting a person’s dignity against the stigma of undue, prolonged humiliation and public degradation of the kind suffered by the respondent.  In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 204-5, Wilson J. emphasized that “life, liberty and security of the person” are three distinct interests, and that it is incumbent on the Court to give meaning to each of these elements.  This statement was endorsed by Lamer J. for a majority of this Court in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 500.  In addressing the issue of whether the respondent’s s. 7  rights have been breached in this case, I also prefer to keep the interests protected by s. 7  analytically distinct to the extent possible.  For the purposes of this appeal, the outcome is dependent upon the meaning to be given to the interests of “liberty” and “security of the person”.

 

(d)  Liberty Interest

 


49                               The liberty interest protected by s. 7  of the Charter  is no longer restricted to mere freedom from physical restraint.  Members of this Court have found that “liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices.  This applies for example where persons are compelled to appear at a particular time and place for fingerprinting (Beare, supra); to produce documents or testify (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425); and not to loiter in particular areas (R. v. Heywood, [1994] 3 S.C.R. 761).  In our free and democratic society, individuals are entitled to make decisions of fundamental importance free from state interference.  In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 80, La Forest J., with whom L’Heureux‑Dubé, Gonthier and McLachlin JJ. agreed, emphasized that the liberty interest protected by s. 7  must be interpreted broadly and in accordance with the principles and values underlying the Charter  as a whole and that it protects an individual’s personal autonomy:

 

. . . liberty does not mean mere freedom from physical restraint.  In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

 

50                               In R. v. Morgentaler, [1988] 1 S.C.R. 30, Wilson J., speaking for herself alone, was of the opinion that s. 251  of the Criminal Code  violated not only a woman’s right to security of the person but her s. 7  liberty interest as well.  She indicated that the liberty interest is rooted in fundamental notions of human dignity, personal autonomy, privacy and choice in decisions regarding an individual’s fundamental being.  She conveyed this as follows, at p. 166:

 

Thus, an aspect of the respect for human dignity on which the Charter  is founded is the right to make fundamental personal decisions without interference from the state.  This right is a critical component of the right to liberty.  Liberty, as was noted in Singh, is a phrase capable of a broad range of meaning.  In my view, this right, properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance.

 

The above passage was endorsed by La Forest J. in B. (R.), supra, at para. 80.  This Court in B. (R.) was asked to decide whether the s. 7  liberty interest protects the rights of parents to choose medical treatment for their children.  The above passage from Wilson J. was applied by La Forest J. to individual interests of fundamental importance in our society such as the parental interest in caring for one’s children.

 


51                               In Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 66, La Forest J., writing for L’Heureux‑Dubé J. and McLachlin J. (as she then was), reiterated his position that the right to liberty in s. 7  protects the individual’s right to make inherently private choices and that choosing where to establish one’s home is one such inherently personal choice:

 

The foregoing discussion serves simply to reiterate my general view that the right to liberty enshrined in s. 7  of the Charter  protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference.  I must emphasize here that, as the tenor of my comments in B. (R.) should indicate, I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs.  Indeed, such a view would run contrary to the basic idea, expressed both at the outset of these reasons and in my reasons in B. (R.), that individuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please.  Moreover, I do not even consider that the sphere of autonomy  includes within its scope every matter that might, however vaguely, be described as “private”.  Rather, as I see it, the autonomy protected by the s. 7  right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence.  As I have already explained, I took the view in B. (R.) that parental decisions respecting the medical care provided to their children fall within this narrow class of inherently personal matters.  In my view, choosing where to establish one’s home is, likewise, a quintessentially private decision going to the very heart of personal or individual autonomy.  [Emphasis added.]

 

La Forest J. therefore spoke in Godbout of a narrow sphere of inherently personal decision-making deserving of the law’s protection.  Choosing where to establish one’s home fell within that narrow class according to three members of this Court.

 


52                               Dissenting at the New Brunswick Court of Appeal in G. (J.), I also favoured a more generous approach to the liberty interest that would protect personal rights that are inherent to the individual and consistent with the essential values of our society (New Brunswick (Minister of Health and Community Services) v. J.G. (1997), 187 N.B.R. (2d) 81, at para. 49).  In this vein, the parental interest in raising and caring for one’s children would be protected.  I however agreed with La Forest J.’s caution that the liberty interest would encompass only those decisions that are of fundamental importance.

 

53                               Professor Hogg, supra, at p. 44-9,  supports a more cautious approach to the interpretation of s. 7  such that s. 7  does not become a residual right which envelopes all of the legal rights in the Charter .  Professor Hogg also addresses the deliberate omission of “property” from “life, liberty and security of the person” in s. 7 , and states, at p. 44-12:

 

It also requires . . . that those terms [liberty and security of the person] be interpreted as excluding economic liberty and economic security; otherwise, property, having been shut out of the front door, would enter by the back.

 

54                               Although an individual has the right to make fundamental personal choices free from state interference, such personal autonomy is not synonymous with unconstrained freedom.  In the circumstances of this case, the state has not prevented the respondent from making any “fundamental personal choices”.  The interests sought to be protected in this case do not in my opinion fall within the “liberty” interest protected by s. 7 .

 

(e)  Security of the Person

 


55                               In the criminal context, this Court has held that state interference with bodily integrity and serious state-imposed psychological stress constitute a breach of an individual’s security of the person.  In this context, security of the person has been held to protect both the physical and psychological integrity of the individual (Morgentaler, supra, at p. 56, per Dickson C.J., and at p. 173, per Wilson J.; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 587, per Sopinka J.; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1177, per Lamer J.).  These decisions relate to situations where the state has taken steps to interfere, through criminal legislation, with personal autonomy and a person’s ability to control his or her own physical or psychological integrity such as prohibiting assisted suicide and regulating abortion.

 

56                               The principle that the right to security of the person encompasses serious state-imposed psychological stress has recently been reiterated by this Court in G. (J.), supra.  At issue in G. (J.) was whether relieving a parent of the custody of his or her children restricts a parent’s right to security of the person.  Lamer C.J. held that the parental interest in raising one’s children is one of fundamental personal importance.  State removal of a child from parental custody thus constitutes direct state interference with the psychological integrity of the parent, amounting to a “gross intrusion” into the private and intimate sphere of the parent-child relationship (at para. 61).  Lamer C.J. concluded that s. 7  guarantees every parent the right to a fair hearing where the state seeks to obtain custody of their children (at para. 55).  However, the former Chief Justice also set boundaries in G. (J.) for cases where one’s psychological integrity is infringed upon.  He referred to the attempt to delineate such boundaries as “an inexact science” (para. 59).

 


57                               Not all state interference with an individual’s psychological integrity will engage s. 7 .  Where the psychological integrity of a person is at issue, security of the person is restricted to “serious state-imposed psychological stress” (Dickson C.J. in Morgentaler, supra, at p. 56).  I think Lamer C.J. was correct in his assertion that Dickson C.J. was seeking to convey something qualitative about the type of state interference that would rise to the level of infringing s. 7  (G. (J.), at para. 59).  The words “serious state-imposed psychological stress” delineate two requirements that must be met in order for security of the person to be triggered.  First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state.  Second, the psychological prejudice must be serious.  Not all forms of psychological prejudice caused by government will lead to automatic s. 7  violations.  These two requirements will be examined in turn.

 

(i)    Was the Harm to Mr. Blencoe the Result of State-Caused Delay in* the Human Rights Process?

 

58                               In G. (J.), Lamer C.J. found direct state interference with the psychological integrity of the parent, describing the government action in that case as “direct state interference with the parent-child relationship” (para. 61).  Later, at para. 66, Lamer C.J. referred to a child custody application as “an example of state action which directly engages the justice system and its administration” (emphasis added).  He stressed that not every state action which interferes with the parent-child relationship would have triggered s. 7 .

 

59                               Stress, anxiety and stigma may arise from any criminal trial, human rights allegation, or even a civil action, regardless of whether the trial or process occurs within a reasonable time.  We are therefore not concerned in this case with all such prejudice but only that impairment which can be said to flow from the delay in the human rights process.  It would be inappropriate to hold government accountable for harms that are brought about by third parties who are not in any sense acting as agents of the state.


 

60                               While it is incontrovertible that the respondent has suffered serious prejudice in connection with the allegations of sexual harassment against him, there must be a sufficient causal connection between the state-caused delay and the prejudice suffered by the respondent for s. 7  to be triggered.  In Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 447, Dickson J. (as he then was) concluded that the causal link between the actions of government and the alleged Charter  violation was too “uncertain, speculative and hypothetical to sustain a cause of action”.  In separate concurring reasons, Wilson J. also conveyed the need to have some type of direct causation between the actions of the state and the resulting deprivation.  She stated, at p. 490:

 

It is not necessary to accept the restrictive interpretation advanced by Pratte J., which would limit s. 7  to protection against arbitrary arrest or detention, in order to agree that the central concern of the section is direct impingement by government upon the life, liberty and personal security of individual citizens.  At the very least, it seems to me, there must be a strong presumption that governmental action which concerns the relations of the state with other states, and which is therefore not directed at any member of the immediate political community, was never intended to be caught by s. 7  even although such action may have the incidental effect of increasing the risk of death or injury that individuals generally have to face.  [Emphasis added.]

 

61                               The appellants submit that the nexus between the harm to the respondent and the alleged delay in processing the Complaints is remote.  They assert that the largest measure of prejudice to Mr. Blencoe resulted not from any delay but from the publicity surrounding the events, especially his dismissal from Cabinet and later from the NDP caucus.  They add that the respondent himself fought the allegations against him in the public domain.  For the reasons I set out below, I also have doubts whether, on the facts, the psychological harm suffered by the respondent can be seen as the result of state-caused delay in the human rights process.


 

62                               On March 1, 1995, the respondent was informed by Premier Harcourt that his former assistant, Fran Yanor, made sexual harassment allegations against him.  This allegation was made public one week later.  On March 9, 1995, Mr. Blencoe stepped down as Minister but remained in Cabinet, pending the results of an inquiry.  He issued a press release, vehemently denying the harassment allegations.  On March 10, 1995, the national and provincial press began running stories about the respondent’s resignation and allegations against him by Ms. Yanor and two other women.  On April 4, 1995, Premier Harcourt removed the respondent from Cabinet and dismissed him from the NDP caucus.

 

63                               While the respondent was only notified of the Schell and Willis Complaints in July and September of 1995, the record demonstrates that Mr. Blencoe had suffered the following prejudice or “stigmatization” prior to that time:  Mr. Blencoe and his family were hounded by the media from the time that the Yanor harassment allegations were made public; the respondent and his wife feared press leaks and stopped speaking to persons outside their close circle of family and friends; Mr. Blencoe’s children were subjected to insults and name-calling at school; and Mr. Blencoe was under the care of a physician and was prescribed antidepressants by April of 1995.  The respondent himself admits that from mid-March 1995 until August 1995, he was “extremely unwell”.  From April 11, 1995, to September 7, 1995, the respondent was on medical leave from the legislature.  In the Fall of 1995, Mr. Blencoe considered whether to run in the upcoming election.  Since he suspected that Premier Harcourt would refuse to sign his nomination papers, he decided not to seek the NDP nomination in his riding and resigned from the party on December 29, 1995All of these events had occurred prior to any delays in the proceedings.

 


64                               There is no question that the respondent’s life and that of his family have been terribly affected by the allegations of sexual harassment against him.  His political career appears to be finished and, as professed by Lowry J., [t]he impact on his family of what has seemed at times an unrelenting media coverage has been traumatic (para. 12).  The respondent attributes this prejudice to the delay in the human rights proceedings.  McEachern C.J.B.C. agreed, stating (at para. 53) that:

 

There can be no doubt that [Blencoe] was severely wounded by the publicity surrounding his dismissal from the Cabinet.  Such is the price of public life.  But for these proceedings, however, it might reasonably be expected that the overwhelming attention would have died away and [Blencoe] and his family could have attempted to reconstruct their lives.  [Emphasis added.]

 

With respect, I cannot agree with McEachern C.J.B.C.’s speculation that the respondent would have been able to reconstruct his life but for the proceedings (or I should say, delay in the proceedings).  A higher level of certainty is required than might reasonably be expected in order to find that government has caused a deprivation of an individual’s Charter  rights.

 


65                               Based on the above facts, the Willis and Schell allegations were clearly not the first events in the sexual harassment claims against the respondent.  Lambert J.A. asserted that “[t]he human rights process started with the complaints in April, 1995” (para. 5 (emphasis in original)).  Based on the record, however, it is clear that the Willis and Schell Complaints were only filed with the Commission in July and August of that year.  The respondent himself asserts that the complaints to the Premier’s office are what resulted in his removal from Cabinet and caucus.  He makes this assertion to support his contention that the date from which the delay should be computed should pre-date the official Complaints to the Commission.  This argument rather undermines the respondent’s assertion that the state caused his prejudice.  The central event leading to the intense media scrutiny was the dismissal of the respondent from Cabinet and caucus in April 1995, following the allegations of Fran Yanor.  At that time, there had been no complaints to the Commission.  The Yanor allegations are thus more closely tied to the dismissal from Cabinet, and consequently the stigma.  I therefore find that the most prejudicial impact on Mr. Blencoe was caused not by the actions of the Commission but rather by the events prior to the Complaints which caused the respondent to be ousted from Cabinet and caucus as well as the result of actions by non-governmental actors such as the press, employers and a soccer association.  The harm to the respondent resulted from the publicity surrounding the allegations themselves coupled with the political fall-out which ensued rather than any delay in the human rights proceedings which had yet to commence at the time that the respondent began to experience stigma.

 

66                               Lambert J.A. rejected the connection between the delay and the prejudice.  Although recognizing that the respondent and his family had suffered dreadfully, Lambert J.A. found that “[n]one of that stigma was brought about by the processes under the Human Rights Act or the Human Rights Code.  Nor, in my opinion, was it much exacerbated by those processes (para. 29).  Lambert J.A. was also of the opinion that the stigma would not come to an end after the Tribunal had made its decision, no matter the content of that decision (para. 29).

 

67                               I am in agreement with Lowry J. and Lambert J.A. on this issue.  My understanding is that there remains a civil suit pending against Mr. Blencoe for sexual harassment and that Ms. Willis’s Complaint against the Government on these very same issues has not been stayed.  The prolongation of stigma from this ongoing publicity was therefore likely regardless of the delay in the human rights proceedings.  At best, the respondent was deprived of a speedy opportunity to clear his name.


 

68                               While I conclude that the delay in the human rights process was not the direct cause of the respondent’s prejudice, another question which arises is whether it exacerbated his prejudice.  According to McEachern C.J.B.C., the excessive delay in the human rights proceedings both created a stigma against Mr. Blencoe and exacerbated an existing prejudice, which, according to the majority of the Court of Appeal, is tantamount to the creation of the prejudice itself.  McEachern C.J.B.C. relied on the decision of this Court in Rodriguez, supra, to find that the Commission’s exacerbation of the deprivation of security of the person that Mr. Blencoe suffered at the hands of the media, triggered s. 7  (at para. 56).  The respondent similarly argues that the delay exacerbated the stigmatization, claiming that additional media stories surfaced each time there was a new development in the processing of the Complaints.  He relies on this Court’s decision in Morgentaler, supra, to support the position that it is sufficient if the delay is a contributing cause of the prejudice.

 


69                               First, with respect to this contributing cause argument, I find it very difficult to equate the situations in Rodriguez and Morgentaler with that in the case at bar.  In Rodriguez, the Crown had erroneously characterized Mrs. Rodriguez’s deprivation of security of the person as caused not by government but by her physical disabilities.  In rejecting that argument, Sopinka J. held that the Criminal Code  prohibition at s. 241 (b) would contribute to Mrs. Rodriguez’s distress if she was prevented from managing her death (at p. 584).  A Criminal Code prohibition therefore directly deprived Mrs. Rodriguez of the ability to terminate her life.  The Court in Rodriguez surely did not eliminate the need to establish a relationship between the harm complained of and the state action.  In Rodriguez, all of the members of the Court agreed that government actions deprived Mrs. Rodriguez of the right to terminate her life at the time of her choosing.  In the absence of government involvement, Mrs. Rodriguez would not have suffered a deprivation of her s. 7  rights.  The same cannot be said of the facts in the case at bar.

 

70                               In the same vein, the Morgentaler case dealt with direct state interference with a woman’s bodily integrity in that the delays in obtaining therapeutic abortions were caused by the mandatory procedures in s. 251  of the Criminal Code  and resulted in a higher probability of complications and greater health risks to women.  In that case, it could not have been argued that the cause of the deprivation is a woman’s pregnancy rather than the Criminal Code  prohibition.  The decisions in Morgentaler and Rodriguez do not, in my opinion, obviate the need to establish a significant connection between the harm and the impugned state action to invoke the Charter .

 

71                               Moreover, even accepting this exacerbation argument, it is difficult to see how the respondent’s prejudice was seriously exacerbated by the delays.  In the absence of delays in the proceedings, the respondent would nevertheless have faced unproven allegations of sexual harassment and discrimination and suffered stigma as a result.  It is thus clear that the respondent’s reputation was harmed prior to the filing of the Complaints with the Commission.  The delays in the proceedings could only have extended the time that rumours were circulating.  As previously mentioned, the continuation of the concurrent complaint and civil action must also be considered.  As professed by L’Heureux‑Dubé J. in R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 119, with respect to privacy, once invaded, it can seldom be regained.  Much the same is true of reputation; it is quickly ruined and difficult to re-establish.  It is thus difficult to see how procedural delay could have seriously increased the damage to the respondent’s reputation that had already been done.  The true prejudice to the respondent in this case may only be the lost opportunity to clear his name rapidly.

 


72                               At trial, Lowry J. made the following finding concerning the cause of Mr. Blencoe’s suffering (at para. 13):

 

The stigma attached to the outstanding complaints has certainly contributed in large measure to the very real hardship Mr. Blencoe has experienced.  His public profile as a Minister of the Crown rendered him particularly vulnerable to the media attention that has been focused on him and his family, and the hardship has, in the result, been protracted and severe.

 

73                               Perhaps this statement supports the view that the outstanding Complaints did contribute to the stigma to some degree and that it was therefore a cause of the respondent’s suffering.  Because I find in the next section that the state has not directly intruded into a private and intimate sphere of the respondent’s life, I assume without deciding that there is a sufficient nexus between the state-caused delay and the prejudice to Mr. Blencoe.  I now turn to the question of whether this interference amounts to a violation of the respondent’s security of the person.

 

(ii)  Quality of the Interference

 

74                               McEachern C.J.B.C. concluded that liberty and security of the person under s. 7  protect both the privacy and dignity of individuals against the stigma of undue, prolonged humiliation and public degradation of the kind suffered by Mr. Blencoe (at para. 101).  He therefore conflated s. 7  into a general right to dignity and protection against the stigma of undue, prolonged humiliation and public degradation suffered as a result of an administrative proceeding.  The question which arises is whether the rights of  “liberty and security of the person” protected by s. 7  of the Charter  include a generalized right to dignity, or more specifically, a right to be free from stigma associated with a human rights complaint?  In my opinion, they do not.


 

75                               The “right to dignity” accepted by McEachern C.J.B.C. essentially rests on several ideas.  First, it is based on previous statements by this Court as to the importance and value of dignity.  Second, it is based on the recognition in cases such as Morgentaler and O’Connor that state-induced psychological stress can infringe s. 7 .  Third, McEachern C.J.B.C. imports the notion of “stigma” as developed under s. 11 (b) of the Charter  in the criminal law context.  Each of these bases for a generalized right to dignity under s. 7  will be addressed in turn.

 

1.  Dignity

 

76                               The Charter  and the rights it guarantees are inextricably bound to concepts of human dignity.  Indeed, notions of human dignity underlie almost every right guaranteed by the Charter  (Morgentaler, supra, at pp. 164-66, per Wilson J.).  As professed by Dickson C.J. in his discussion of s. 1  of the Charter  in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136:

 

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.  The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter  and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.  [Emphasis added.]

 


77                               In Rodriguez, supra, Sopinka J. states that it is unquestioned that respect for human dignity is an underlying principle upon which our society is based (at p. 592).  In O’Connor, supra, at para. 63, L’Heureux‑Dubé J. states that, “[t]his Court has repeatedly recognized that human dignity is at the heart of the Charter ”.  More recently, this Court has stated in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 51, that the purpose of s. 15(1)  of the Charter , “is to prevent the violation of essential human dignity and freedom”.  Respect for the inherent dignity of persons is clearly an essential value in our free and democratic society which must guide the courts in interpreting the Charter .  This does not mean, however, that dignity is elevated to a free-standing constitutional right protected by s. 7  of the Charter .  Dignity has never been recognized by this Court as an independent right but has rather been viewed as finding expression in rights, such as equality, privacy or protection from state compulsion.  In cases such as Morgentaler, Rodriguez and B. (R.), dignity was linked to personal autonomy over one’s body or interference with fundamental personal choices.  Indeed, dignity is often involved where the ability to make fundamental choices is at stake.

 

78                               In my view, the notion of “dignity” in the decisions of this Court is better understood not as an autonomous Charter  right, but rather, as an underlying value.  In Beare, supra, at p. 401, La Forest J. cautions that s. 7  must not be interpreted too broadly, stating that:

 

Like other provisions of the Charter , s. 7  must be construed in light of the interests it was meant to protect.  It should be given a generous interpretation, but it is important not to overshoot the actual purpose of the right in question. . . .

 


While this statement may have been obiter since the case was decided on the principles of fundamental justice, this caution with respect to the interpretation of “life, liberty and security of the person” is relevant nevertheless.  La Forest J. chose not to base his finding of a s. 7  deprivation on any principle of “dignity or self-respect”, as did Bayda C.J.S. of the Court of Appeal in that case.  La Forest J. chose instead to find a deprivation of liberty and security of the person for the reasons of Cameron J.A. in the court below, based on the statutory requirement that a person surrender himself into the custody of the authorities and submit to bodily intrusions on pain of arrest and prosecution.  La Forest J. conveys this, at p. 402:

 

The Court of Appeal, we saw, found that the impugned provisions constituted an infringement of the right guaranteed by the opening words of s. 7 , the majority because fingerprinting offends the “dignity and self-respect” of at least those persons who because of their self-perception or the perception of the community would feel demeaned by being thus treated.  In short, the majority thought that being subjected to fingerprinting was to be treated like a criminal.  This approach appears to be broad and indefinite and to introduce an undesirable notion of differentiation among those subjected to the procedure.  For my part, I prefer the more specific finding of Cameron J.A. that the impugned provisions infringe the rights guaranteed by s. 7  because they require a person to appear at a specific time and place and oblige that person to go through an identification process on pain of imprisonment for failure to comply.  [Emphasis added.]

 

79                               According to the respondent, the human dignity of a person is closely tied to a person’s reputation and privacy interests.  Indeed, much of the harm which has been suffered by Mr. Blencoe in this case has been the damage which has been done to his reputation.  Essentially, the respondent argues that his reputation has been ruined through the stigma he has suffered as a result of the publicity relating to the human rights proceedings against him.  While this Court found in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, that reputation was a concept underlying Charter  rights, it too is not an independent Charter  right in and of itself (at para. 120):

 

Although it is not specifically mentioned in the Charter , the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter  rights.  It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society.  [Emphasis added.]


80                               Respect for a person’s reputation, like respect for dignity of the person, is a value that underlies the Charter .  These two values do not support the respondent’s proposition that protection of reputation or freedom from the stigma associated with human rights complaints are independent constitutional s. 7  rights.  Moreover, the above passages from Hill regarding the protection of reputation were made in the context of a defamation case.  Defamation laws are intended to protect reputation.  Dignity and reputation are not self-standing rights.  Neither is freedom from stigma.  I would therefore agree with the following passage from Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, supra, at p. 1170, wherein Lamer J. cautioned:

 

If liberty or security of the person under s. 7  of the Charter  were defined in terms of attributes such as dignity, self-worth and emotional well-being, it seems that liberty under s. 7  would be all inclusive.  In such a state of affairs there would be serious reason to question the independent existence in the Charter  of other rights and freedoms such as freedom of religion and conscience or freedom of expression.

 

2.  State Interference with Psychological Integrity

 

81                               In order for security of the person to be triggered in this case, the impugned state action must have had a serious and profound effect on the respondent’s psychological integrity (G. (J.), supra, at para. 60).  There must be state interference with an individual interest of fundamental importance (at para. 61).  Lamer C.J. stated in G. (J.), at para. 59:

 

It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action.  If the right were interpreted with such broad sweep, countless government initiatives could be challenged on the ground that they infringe the right to security of the person, massively expanding the scope of judicial review, and, in the process, trivializing what it means for a right to be constitutionally protected.


He went on to state (at paras. 63-64):

 

Not every state action which interferes with the parent‑child relationship will restrict a parent’s right to security of the person.  For example, a parent’s security of the person is not restricted when, without more, his or her child is sentenced to jail or conscripted into the army.  Nor is it restricted when the child is negligently shot and killed by a police officer:  see Augustus v. Gosset, [1996] 3 S.C.R. 268.

 

While the parent may suffer significant stress and anxiety as a result of the interference with the relationship occasioned by these actions, the quality of the injury to the parent is distinguishable from that in the present case.  In the aforementioned examples, the state is making no pronouncement as to the parent’s fitness or parental status, nor is it usurping the parental role or prying into the intimacies of the relationship.  In short, the state is not directly interfering with the psychological integrity of the parent qua parent.  The different effect on the psychological integrity of the parent in the above examples leads me to the conclusion that no constitutional rights of the parent are engaged.  [Emphasis added.]

 

82                               The quality of the injury must therefore be assessed.  In my opinion, all of the cases which have come within the broad interpretation of “security of the person” outside of the penal context differ markedly from the interests that are at issue in this case.  Violations of security of the person in this context include only serious psychological incursions resulting from state interference with an individual interest of fundamental importance.

 

83                               It is only in exceptional cases where the state interferes in profoundly intimate and personal choices of an individual that state-caused delay in human rights proceedings could trigger the s. 7  security of the person interest.  While these fundamental personal choices would include the right to make decisions concerning one’s body free from state interference or the prospect of losing guardianship of one’s children, they would not easily include the type of stress, anxiety and stigma that result from administrative or civil proceedings.


 

84                               In O’Connor, supra, this Court dealt with the disclosure of therapeutic records of a complainant in a sexual assault case.  L’Heureux‑Dubé J. described the psychological trauma that could be faced by sexual assault victims if forced to disclose their therapeutic records, at para. 112:

 

These people must contemplate the threat of disclosing to the very person accused of assaulting them in the first place, and quite possibly in open court, records containing intensely private aspects of their lives, possibly containing thoughts and statements which have never even been shared with the closest of friends or family.

 

Such a situation amounts to direct state interference with a complainant’s psychological integrity.  Moreover, O’Connor was reached primarily on the basis of privacy concerns and animated by principles protected by s. 8  of the Charter .  In O’Connor, at para. 110, L’Heureux‑Dubé J. listed the cases in which the Court “expressed sympathy” for the idea that s. 7  includes a right to privacy.  But she concluded that people have only a “reasonable expectation of privacy” (emphasis deleted) because privacy “must be balanced against legitimate societal needs” (para. 117).  However, unlike sexual assault victims who may be said to have a reasonable expectation of privacy in their therapeutic records, the Commission in this case has not invaded any of the respondent’s privacy interests.  If there was any invasion of the respondent’s privacy, it cannot be said to have resulted from state action.  Moreover, when one assumes a very prominent public office as the respondent has, it is arguable that a certain amount of public scrutiny is to be expected.  The respondent injected himself into the public realm and the public scrutiny that it entailed.  An individual can have no more than a reasonable expectation of privacy.

 


85                               Where the therapeutic relationship between a sexual assault complainant and his or her physician is threatened by the disclosure of private records, this Court has recently held that security of the person is implicated (R. v. Mills, [1999] 3 S.C.R. 668 (hereinafter “Mills (1999)”), at para. 85).  However, this is because the therapeutic relationship between doctor and patient is crucial to the patient’s psychological integrity.  This relationship must be protected to safeguard the mental integrity of patients and to thereby aid victims in recovering from their trauma.  To disclose confidential records would undermine this relationship and jeopardize the victim’s psychological integrity.

 

86                               Few interests are as compelling as, and basic to individual autonomy than, a woman’s choice to terminate her pregnancy, an individual’s decision to terminate his or her life, the right to raise one’s children, and the ability of sexual assault victims to seek therapy without fear of their private records being disclosed.  Such interests are indeed basic to individual dignity.  But the alleged right to be free from stigma associated with a human rights complaint does not fall within this narrow sphere.  The state has not interfered with the respondent’s right to make decisions that affect his fundamental being.  The prejudice to the respondent in this case, as recognized by Lowry J., at para. 10, is essentially confined to his personal hardship.  He is not employable as a politician, he and his family have moved residences twice, his financial resources are depleted, and he has suffered physically and psychologically.  However, the state has not interfered with the respondent and his family’s ability to make essential life choices.  To accept that the prejudice suffered by the respondent in this case amounts to state interference with his security of the person would be to stretch the meaning of this right.

 

3.  Importing the Notion of “Stigma” from the Criminal Law Context


 

87                               In Mills (1986), supra, at pp. 919-20, Lamer J., in dissent, found that the combination of loss of privacy, stigma, and disruption of family life engaged an individual’s security of the person in the context of s. 11 (b) of the Charter , stating that:

 

. . . security of the person is not restricted to physical integrity; rather, it encompasses protection against “overlong subjection to the vexations and vicissitudes of a pending criminal accusation”. . . .  These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction.

 

88                               However, it must be emphasized that this statement was made in the context of s. 11 (b) of the Charter  which provides that a person charged with an offence has the right “to be tried within a reasonable time”.  The qualifier to this right is that it applies to individuals who have been charged with an offence.  The s. 11 (b) right therefore has no application in civil or administrative proceedings.  This Court has often cautioned against the direct application of criminal justice standards in the administrative law area.  We should not blur concepts which under our Charter  are clearly distinct.  The s. 11 (b) guarantee of a right to an accused person to be tried within a reasonable time cannot be imported into s. 7 There is no analogous provision to s. 11 (b) which applies to administrative proceedings, nor is there a constitutional right outside the criminal context to be tried within a reasonable time.

 

89                               Lamer C.J. later reiterated this statement from Mills (1986) in G. (J.), at para. 62.  In so doing, however, this Court did not make freedom from stigma a free-standing right.  Nor did it establish that respondents in sexual harassment proceedings suffer so greatly that s. 11 (b) principles should apply to them.  As will be demonstrated below, the nature of the harm caused by human rights delay is different.


 

90                               In Kodellas, supra, the Saskatchewan Court of Appeal clearly equated criminal sexual assault charges with human rights sex discrimination complaints.  Bayda C.J.S. (dissenting on another issue) conveyed this as follows, at pp. 152-53:

 

For the purpose of determining the effect upon the security of the person I see no logical distinction of substance between the subjection to the vexations and vicissitudes of  “a pending criminal accusation based upon sexual harassment and sexual assault and the subjection to the vexations and vicissitudes of a pending accusation in penal (i.e., quasi‑criminal) proceedings under s. 35(2) of the Code, of discrimination based upon sexual harassment and sexual assault.  It is but a small step from there to find that for the same purpose no distinction of substance can be made between an accusation in a penal proceeding under the Code and an identical accusation in remedial proceedings under ss. 27 to 33 of the Code.  Whether they occur in a criminal context, or in the context of a penal proceeding, such as that provided for in the Code, or in the context of remedial proceedings (which, as will be shown later, is the context relevant to this case) the vexations and vicissitudes will invariably include stigmatization of the (alleged discriminator), loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction.  This is so because the hurt to the alleged discriminator emanates from the accusation, not from the type of proceedings in which the accusation is made.  After all, it matters not a whit to all of the relevant actors – the public, the persons who are the source of the hurt, those who are indirectly affected by the hurt (such as the alleged discriminator’s family) and the alleged discriminator, who is directly affected by the hurt and who is the subject and direct object of the hurt – whether the accusation is made in one procedural forum or another.  What matters is the fact of the accusation. . . .

 

In determining whether prejudice occurred in a given situation, it is important to note that it is in the very nature of this form of prejudice (i.e., feelings of mental hurt or stigmatization) that it arises automatically upon a formal accusation being made.  Lamer J. in Rahey, while elucidating this form of prejudice (in the context of s. 11 (b) of the Charter ), recognized this when he said at p. [609]:

 


With respect to the security of the person, I do not believe that actual impairment need be proven by the accused to render the section operative.  An objective standard is the only realistic means through which the security interest of the accused may be protected under the section.  Otherwise, each individual accused would have the burden of demonstrating that he or she has subjectively suffered a form of anxiety, stress or stigmatization as a result of the criminal charge.  We are dealing largely with the impairment of mental well-being, a matter which can only be established with considerable difficulty at considerable cost.  [Underlining added; italics in original.]

 

91                               The majority of the Court of Appeal in the case at bar followed the above reasoning in Kodellas.  The effect of the Appeal Court decision in Blencoe was to import a requirement for a hearing within a reasonable time into the processing of human rights complaints.  Although the majority of the Court of Appeal disclaimed a direct s. 11 (b) right, numerous references were made in its reasons, equating sexual harassment proceedings to criminal proceedings for sexual assault where s. 11 (b) would apply.  Indeed, the majority speaks of this type of sexual assault” (para. 47), stigma against the accused” (para. 56), prosecution of these complaints” (para. 58), a straightforward case of sexual assault” (para. 102), “[allegations] which are tantamount to . . . sexual assault” (para. 108), and unproven charges of sexual harassment” (para. 57).  The basis for the majority of the Court of Appeal’s reasons in this case is the treatment of sexual harassment human rights complaints as akin to a pending criminal sexual assault charge.

 


92                               With respect, the Court of Appeal in Kodellas and the majority of the Court of Appeal in the case at bar have erred in transplanting s. 11 (b) principles set out in the criminal law context to human rights proceedings under s. 7 .  Not only are there fundamental differences between criminal proceedings and human rights proceedings that the majority failed to recognize, but, more importantly, s. 11 (b) of the Charter  is restricted to a pending criminal case.  The effect of the Court of Appeal’s decision was to extract an element of s. 11 (b) – the element of stigma, which may be sufficient in the context of criminal proceedings and s. 11 (b), to create a deprivation of the security of the person – and apply it to a process that differs with respect to objectives, consequences and procedures.  As this Court has recently confirmed in Mills (1999), supra, at paras. 61 and 64, Charter  rights must be interpreted and defined in a contextual manner, because they often inform, and are informed by, other similarly deserving rights and values at play in particular circumstances.  The Court of Appeal has failed to examine the rights protected by s. 7  in the context of this case.

 

93                               In the criminal law context, the test to be applied under s. 11 (b) is an objective one, and prejudice may be inferred from unreasonable delay.  This stands in sharp contrast to the two-tiered approach to s. 7  of the Charter , where the mere passage of time in resolving a complaint does not automatically give rise to the kind of prejudice that is presumed to follow from the laying of a charge under s. 11 (b) of the Charter .  In this regard, Lamer J.’s comments in Mills (1986), supra, are premised on the fact that there has already been an “overlong subjection to the vexations and vicissitudes of a pending criminal accusation” (p. 919).  This is a finding that would be made not at the threshold stage of the s. 7  analysis but is rather to be examined at the principles of fundamental justice stage.  The Court of Appeal in Kodellas and in the case at bar erred in conflating the two stages of the s. 7  analysis.  Philip Bryden similarly concluded that the two stages of the s. 7  analysis were merged by the majority of the Court of Appeal in this case (“Blencoe v. British Columbia (Human Rights Commission):  A Case Comment” (1999), 33 U.B.C. L. Rev. 153, at p. 158):

 

In my view, Chief Justice McEachern’s formulation of when s. 7  applies tends to conflate the threshold question of whether liberty or personal security have been denied with the ultimate question of whether the process in place satisfies the requirements of fundamental justice.  The main reason we use threshold tests for the applicability of constitutional protection is to focus our attention on the situations where we believe the special safeguards associated with constitutional protection are needed.

 


94                               In discussing the nature and purpose of s. 11 (b), Lamer J. emphasized in Mills (1986), supra, that the need for protecting the individual in such cases arises “from the nature of the criminal justice system and of our society” (p. 920).  He described the criminal justice process as “adversarial and conflictual” and states that the very nature of the criminal process will heighten the stress and anxiety that results from a criminal charge.  In contrast to the criminal realm, the filing of a human rights complaint implies no suspicion of wrongdoing on the part of the state.  The investigation by the Commission is aimed solely at determining what took place and ultimately to settle the matter in a non-adversarial manner.  The purpose of human rights proceedings is not to punish but to eradicate discrimination.  Tribunal orders are compensatory rather than punitive.  The investigation period in the human rights process is not one where the Commission “prosecutes” the respondent.  The Commission has an investigative and conciliatory role until the time comes to make a recommendation whether to refer the complaint to the Tribunal for hearing.  These human rights proceedings are designed to vindicate private rights and address grievances.  As stated by Dickson C.J. in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, at p. 917:

 

It is essential, however, to recognize that, as an instrument especially designed to prevent the spread of prejudice and to foster tolerance and equality in the community, the Canadian Human Rights Act  is very different from the Criminal Code .  The aim of human rights legislation, and of s. 13(1) , is not to bring the full force of the state’s power against a blameworthy individual for the purpose of imposing punishment.  Instead, provisions found in human rights statutes generally operate in a less confrontational manner, allowing for a conciliatory settlement if possible and, where discrimination exists, gearing remedial responses more towards compensating the victim.

 


95                               In criminal proceedings, the accusation alone may engage a security interest because of the grave social and personal consequences to the accused – including potential loss of physical liberty, subjection to social stigma and ostracism from the community – which are the unavoidable consequences of an open and adversarial judicial system.  However, this Court in Taylor, supra, at pp. 932-33, has commented directly on the diminished role of stigma in the human rights context:

 

. . . the present appeal concerns an infringement of s. 2(b) in the context of a human rights statute.  The chill placed upon open expression in such a context will ordinarily be less severe than that occasioned where criminal legislation is involved, for attached to a criminal conviction is a significant degree of stigma and punishment, whereas the extent of opprobrium connected with the finding of discrimination is much diminished and the aim or remedial measures is more upon compensation and protection of the victim.  As was stated in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134, under a human rights regime:

 

It is the (discriminatory) practice itself which is sought to be precluded.  The purpose of the Act is not to punish wrongdoing but to prevent discrimination.

 

The last point is an important one and it deserves to be underscored.  There is no indication that the purpose of the Canadian Human Rights Act  is to assign or to punish moral blameworthiness.

 


96                               I do not doubt that parties in human rights sex discrimination proceedings experience some level of stress and disruption of their lives as a consequence of allegations of complainants.  Even accepting that the stress and anxiety experienced by the respondent in this case was linked to delays in the proceedings, I cannot conclude that the scope of his security of the person protected by s. 7  of the Charter  covers such emotional effects nor that they can be equated with the kind of stigma contemplated in Mills (1986), supra, of an overlong and vexatious pending criminal trial or in G. (J.), supra, where the state sought to remove a child from his or her parents.  If the purpose of the impugned proceedings is to provide a vehicle or act as an arbiter for redressing private rights, some amount of stress and stigma attached to the proceedings must be accepted.  This will also be the case when dealing with the regulation of a business, profession, or other activity.  A civil suit involving fraud, defamation or the tort of sexual battery will also be “stigmatizing”.  The Commission’s investigations are not public, the respondent is asked to provide his version of events, and communication goes back and forth.  While the respondent may be vilified by the press, there is no “stigmatizing” state pronouncement as to his “fitness” that would carry with it serious consequences such as those in G. (J.).  There is thus no constitutional right or freedom against such stigma protected by the s. 7  rights to “liberty” or “security of the person”.

 

(f)  Conclusion on Liberty and Security of the Person

 

97                               To summarize, the stress, stigma and anxiety suffered by the respondent did not deprive him of his right to liberty or security of the person.  The framers of the Charter  chose to employ the words, “life, liberty and security of the person”, thus limiting s. 7  rights to these three interests.  While notions of dignity and reputation underlie many Charter  rights, they are not stand-alone rights that trigger s. 7  in and of themselves.  Freedom from the type of anxiety, stress and stigma suffered by the respondent in this case should not be elevated to the stature of a constitutionally protected s. 7  right.

 

98                               My conclusion that the respondent is unable to cross the first threshold of the s. 7  Charter  analysis in the circumstances of this case should not be construed as a holding that state-caused delays in human rights proceedings can never trigger an individual’s s. 7  rights.  It may well be that s. 7  rights can be engaged by a human rights process in a particular case.  I leave open the possibility that in other circumstances, delays in the human rights process may violate s. 7  of the Charter .

 


99                               Because of my conclusion that there was no deprivation of the respondent’s right to liberty or security of the person, I need not proceed to the second stage of the analysis to determine whether the alleged deprivation was in accordance with the principles of fundamental justice.  However, for the reasons that immediately follow in the administrative law section, I express the view that the delay, in the circumstances of this case, would not have violated the principles of fundamental justice.

 

C.                Was the Respondent Entitled to a Remedy Pursuant to Administrative Law Principles?

 

100                           While I have concluded that the respondent is not entitled to a remedy under the Charter , I must still address the issue of whether the respondent is entitled to a remedy under principles of administrative law.  This issue was pleaded before Lowry J. of the British Columbia Supreme Court.  Counsel were advised by us during the hearing that, notwithstanding that pleadings were not made before this Court on administrative law per se, we were nevertheless prepared to deal with this issue.  The question to be addressed in this section is whether the delay in this case could amount to a denial of natural justice even where the respondent’s ability to have a fair hearing has not been compromised.

 

(a)  Prejudice to the Fairness of the Hearing

 


101                           In my view, there are appropriate remedies available in the administrative law context to deal with state-caused delay in human rights proceedings.  However, delay, without more, will not warrant a stay of proceedings as an abuse of process at common law.  Staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period (see:  R. v. L. (W.K.), [1991] 1 S.C.R. 1091, at p. 1100; Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32 (C.A.).  In the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay.

 

102                           There is no doubt that the principles of natural justice and the duty of fairness are part of every administrative proceeding.  Where delay impairs a party’s ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 9-67; W. Wade and C. Forsyth, Administrative Law (7th ed. 1994), at pp. 435-36).  It is thus accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied (see, for example, J. M. Evans, H. N. Janisch and D. J. Mullan, Administrative Law:  Cases, Text, and Materials (4th ed. 1995), at p. 256; Wade and Forsyth, supra, at pp. 435-36; Nisbett, supra, at p. 756; Canadian Airlines, supra; Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (1995), 24 C.H.R.R. D/464 (Ont. Div. Ct.); Freedman v. College of Physicians & Surgeons (New Brunswick) (1996), 41 Admin. L.R. (2d) 196 (N.B.Q.B.)).

 


103                           The respondent argued before the British Columbia Supreme Court that the delay in the administrative process caused him prejudice that amounted to a denial of natural justice in that he could no longer receive a fair hearing.  He alleged that two witnesses had died and that the memories of many witnesses might be impaired by the passage of time.  Lowry J. referred to these claims as “vague assertions that fall far short of establishing an inability to prove facts necessary to respond to the complaints” (para. 10).  Lowry J. concluded that the respondent’s opportunity to make full answer and defence had not been compromised and thereby refused to terminate the proceedings.

 

104                           The respondent also argued before Lowry J. that he was not provided with a copy of Ms. Schell’s timeliness submissions for a two-month period and that he had not received proper disclosure.  Lowry J. did not consider the respondent prejudiced in this regard.  With respect to the alleged failure to disclose information to the respondent, this is not, in my opinion, a case in which the unfairness is so obvious that there would be a denial of natural justice, or in which there was an abuse of process such that it would be inappropriate to put the respondent through hearings before the Tribunal.  I would therefore adopt the finding of Lowry J. that the delay in this case is not such that it would necessarily result in a hearing that lacks the essential elements of fairness.  The respondent’s right to a fair hearing has not been jeopardized.  Proof of prejudice has not been demonstrated to be of sufficient magnitude to impact on the fairness of the hearing.  This is a finding of fact made by the trial judge that has not, in my opinion, been successfully attacked on appeal.  The question which must be addressed is therefore whether the delay in this case could amount to a denial of natural justice or an abuse of process even where the respondent has not been prejudiced in an evidentiary sense.

 

(b)  Other Forms of Prejudice

 


105                           It is trite law that there is a general duty of fairness resting on all public decision-makers (Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at p. 628).  The human rights processes at issue in this case must have been conducted in a manner that is entirely consistent with the principles of natural justice and procedural fairness.  Perhaps the best illustration of the traditional meaning of this duty of fairness in administrative law can be discerned from the following words of Dickson J. in Martineau, at p. 631:

 

In the final analysis, the simple question to be answered is this:  Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved?  It seems to me that this is the underlying question which the courts have sought to answer in all the cases dealing with natural justice and with fairness.

 

106                           Throughout the authorities in this area, terms such as “natural justice”, “procedural fairness”, “abuse of process”, and “abuse of discretion” are employed.  In Martineau, at p. 629, Dickson J. (writing for three judges, while all nine concurred in the result), stated that “the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework”.  With regard to these terms, I would adopt the following words of Sherstobitoff J.A. of the Saskatchewan Court of Appeal in Misra v. College of Physicians & Surgeons of Saskatchewan (1988), 52 D.L.R. (4th) 477, at p. 490:

 

There are two common denominators in each of the terms.  The first is the impossibility of precise definition because of their breadth and the wide array of circumstances which may bring them into play.  The other is the concept of “fairness” or “fair play”.  They clearly overlap.  Unreasonable delay is a possible basis upon which to raise any of them.

 

107                           The respondent contends that the delay in the human rights proceedings constitutes a breach of procedural fairness amounting to a denial of natural justice and resulting in an abuse of process.  The question is whether one can look to the psychological and sociological harm caused by the delay rather than merely to the procedural or legal effect, namely, whether the ability to make full answer and defence has been compromised, to determine whether there has been a denial of natural justice.  This issue is a difficult one and there is no clear authority in this area.


 

108                           In cases where the Charter  was held not to apply, most courts and tribunals did not go further to decide whether the stress and stigma resulting from an unacceptable delay were so significant as to amount to an abuse of process.  On the other hand, where courts did go further, they most often adopted a narrow approach to the principles of natural justice.  For example, in Nisbett, supra, the Manitoba Court of Appeal concluded that delay may amount to an abuse of process that the law will remedy only where “on the record there has been demonstrated evidence of prejudice of sufficient magnitude to impact on the fairness of the hearing” (p. 757).  In Canadian Airlines, supra, the Federal Court of Appeal followed Nisbett, concluding that the prejudice must be such “as to deprive a party of his right to a full and complete defence” (p. 641).  In the case at bar, Lowry J. for the British Columbia Supreme Court, found that unless there was prejudice to hearing fairness, the type of personal hardship and psychological prejudice suffered by Mr. Blencoe could not give rise to a breach of natural justice (at para. 31):

 

. . . it cannot be said that the personal hardship Mr. Blencoe has suffered, albeit protracted by the time the administrative process has taken, gives rise to any Charter  considerations.  To my mind, it then becomes difficult to see how it can nonetheless be said to be a prejudice giving rise to a denial of natural justice.  If it were, there would have been no need for the Kodellas court to resort to section 7  of the Charter .  And, having rejected the applicability of section 7 , the Nisbett court would have been bound to consider whether the personal hardship in that case constituted a prejudice that supported the prerogative relief sought.

 


109                           However, courts and tribunals have also referred to other types of prejudice than trial fairness, holding that, where a commission or tribunal has abused its process to the detriment of an individual, a court has the discretion to grant a remedy.  For example, in Stefani v. College of Dental Surgeons (British Columbia) (1996), 44 Admin. L.R. (2d) 122 (B.C.S.C.), a variety of effects on the petitioner were examined, including a cloud over his professional reputation resulting from a delay of two years and three months between the receipt of the complaint and the inspection, and an additional six- or seven-month delay which followed.  However, the delay in that case had also resulted in an inability for the petitioner to have a fair hearing.

 

110                           We have also been referred to the case of Brown v. Assn. of Professional Engineers and Geoscientists of British Columbia, [1994] B.C.J. No. 2037 (QL), where the British Columbia Supreme Court referred to the petitioner’s right to a fair trial having been jeopardized as well as the petitioner suffering harm to his reputation.  In Brown, it took three years to serve the petitioner with notice of the inquiry after receiving the complaints.  The delays were in no part caused by the petitioner.

 

111                           In Misra, supra, a college disciplinary board elected to await the completion of criminal proceedings against Misra, while suspending him from the practice of medicine in the interim five-year period.  After five years, the criminal proceedings were abandoned and the board council decided to hold a hearing.  Sherstobitoff J.A. held for the court that (at p. 490):

 

The concept of natural justice or procedural fairness as outlined by Dickson J. in Martineau is broad enough to encompass principles which, in other contexts, have been termed abuse of discretion or abuse of process because of delay and related matters.  A court, in exercising its supervisory function over an administrative tribunal is entitled to prohibit abuse of that tribunal’s process in cases of unfairness or oppression caused or contributed to by delay resulting in a denial of natural justice.

 


112                           The Court of Appeal found that Misra’s ability to defend himself would likely be impaired and that he had already been punished by virtue of the five-year suspension (at pp. 492-93).  It is clear, however, that in Misra the court felt that it is only in exceptional cases that delay will amount to unfairness.  Moreover, in Misra, an essential part of the prejudice suffered was the result of the lengthy suspension.  Finally, the court also concluded that there was prejudice to Misra’s right to a fair hearing due to the passage of a five-year period.

 

113                           In Ratzlaff v. British Columbia (Medical Services Commission) (1996), 17 B.C.L.R. (3d) 336, Hollinrake J.A. for the British Columbia Court of Appeal agreed with the appellant that, “where the delay is so egregious that it amounts to an abuse of power or can be said to be oppressive, the fact that the hearing itself will be a fair one is of little or no consequence” (para. 19).  At issue in Ratzlaff was a lengthy delay in processing disciplinary charges against a physician that had affected how the physician arranged his finances.  In not restricting abuse of process to procedural unfairness, Hollinrake J.A. stated, at paras. 22-23:

 

Abuse of power is a broader notion, akin to oppression.  It encompasses procedural unfairness, conduct equivalent to breach of contract or of representation, and, in my view, unjust delay.  I should add that not all lengthy delays are unjust; regard must be had to the causes of delay, and to resulting reasonable changes of position.

 

Where a party in the position of the appellant relies on delay as amounting to an abuse of power it is incumbent on that party to demonstrate a resulting change of position.  In my opinion, the very fact that the appellant continued with his practice as he did and throughout the whole period of time in issue is sufficient to establish such a change of position.

 

114                           Ratzlaff differs from the case at bar in that the physician carried on his practice thinking that his problems were behind him.  He had even retired thinking that his billing disputes were over.  Moreover, the chambers judge found that the physician had literally requested that action be taken but that it was three years before the Commission even communicated with him (para. 11).  In all, it had been seven years before the physician had received a hearing notice.


 

115                           I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised.  Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.  The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay.  It must however be emphasized that few lengthy delays will meet this threshold.  I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process.  It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute.  The difficult question before us is in deciding what is an “unacceptable delay” that amounts to an abuse of process.

 

(c)  Abuse of Process – Principles

 

116                           The respondent’s case is that there has been an unacceptable delay in the administrative process which has caused him to be prejudiced by the stigma attached to the two Complaints to an extent that justifies the process being terminated now.  Abuse of process is a common law principle invoked principally to stay proceedings where to allow them to continue would be oppressive.  As stated by Brown and Evans, supra, at pp. 9-71 and 9-72:

 


The stringency of the requirements for showing that delay constitutes a breach of fairness would seem to be due, at least in part, to the drastic nature of the only appropriate remedy.  Unlike other instances of procedural unfairness where it is open to a court to remit the matter for redetermination in a procedurally fair manner, the remedy for undue delay will usually be to prevent the tribunal from exercising its legislative authority, either by prohibiting it from proceeding with the hearing, or by quashing the resulting decision.  [Emphasis added.]

 

117                           In the context of a breach of s. 11 (b) of the Charter , a stay has been found to constitute the only possible remedy (R. v. Askov, [1990] 2 S.C.R. 1199).  The respondent asked for the same remedy in his administrative law proceedings before Lowry J.  There is, however, no support for the notion that a stay is the only remedy available in administrative law proceedings.  A stay accords very little importance to the interest of implementing the Human Rights Code and giving effect to the complainants’ rights to have their cases heard.  Other remedies are available for abuse of process.  Where a respondent asks for a stay, he or she will have to bear a heavy burden.  The discussion that follows often links abuse of process and the remedy of a stay because the stay, as I have said, is the only applicable remedy in the context of a s. 11 (b) application.  Nevertheless, I wish to underline that my inquiry here is directed only at the determination of the existence of an abuse of process on the facts of this case.

 


118                           In R. v. Jewitt, [1985] 2 S.C.R. 128, this Court unanimously affirmed that the doctrine of abuse of process was available in criminal proceedings.  In so doing, and as professed by L’Heureux‑Dubé J. in R. v. Power, [1994] 1 S.C.R. 601, at p. 613, the Court borrowed the comments of Dubin J.A. in R. v. Young (1984), 40 C.R. (3d) 289 (Ont. C.A.), in describing the abuse of process doctrine, stating that a stay of proceedings should be granted where “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency” or where the proceedings are “oppressive or vexatious”.  The Court also adopted the Ontario Court of Appeal’s warning in Young that this is a power which can be exercised only in the “clearest of cases” (p. 614)This was reiterated on many occasions by this Court (see, for example, R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Scott, [1990] 3 S.C.R. 979; Power, supra).

 

119                           In R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667, L’Heureux‑Dubé J. explained the underlying purpose of the doctrine of abuse of process as follows:

 

Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge.  The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court.  The doctrine is one of the safeguards designed to ensure that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society (Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function.  Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.  [Emphasis added.]

 


120                           In order to find an abuse of process, the court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted” (Brown and Evans, supra, at p. 9-68).  According to L’Heureux‑Dubé J. in Power, supra, at p. 616, “abuse of process” has been characterized in the jurisprudence as a process tainted to such a degree that it amounts to one of the clearest of cases.  In my opinion, this would apply equally to abuse of process in administrative proceedings.  For there to be abuse of process, the proceedings must, in the words of L’Heureux‑Dubé J., be “unfair to the point that they are contrary to the interests of justice” (p. 616).  “Cases of this nature will be extremely rare” (Power, supra, at p. 616).  In the administrative context, there may be abuse of process where conduct is equally oppressive.

 

(d)  Was the Delay Unacceptable?

 

121                           To constitute a breach of the duty of fairness, the delay must have been unreasonable or inordinate (Brown and Evans, supra, at p. 9-68).  There is no abuse of process by delay per se.  The respondent must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings.  While I am prepared to accept that the stress and stigma resulting from an inordinate delay may contribute to an abuse of process, I am not convinced that the delay in this case was “inordinate”.

 

122                           The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case.  As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community’s sense of fairness would be offended by the delay.

 


123                           With respect to the actual length of the delay in this case and whether it had been “unacceptable”, Lowry J. noted that, unlike the cases to which he had been referred, there was no extended period without any activity in the processing of the Complaints from receipt to referral, except for an inexplicable five-month period of inaction from April 10, 1996, when the respondent provided his substantive response to the Complaints, to September 6, 1996, when human rights officers were assigned to investigate the Complaints.  The Commission’s counsel provided no explanation or excuses for this five-month gap at the oral hearing.  However, according to a letter to the complainant and the respondent dated March 6, 1996, the Council referred to a period of “adjustment” where investigative resources were being transferred from the Employment Standards Branch to the Council and that from then on the Council was to conduct its own investigations.  This letter also stated that some investigations would be commenced prior to April 1, 1996, beginning with those complaints that had experienced the longest delays.  The Council stated that it appreciated the parties’ patience in waiting to be notified as to when the investigation would begin.  Lowry J. found that, other than during this five-month period, communication had been ongoing between the Council, solicitors and complainants, and the respondent had not been ignored.  There had been a continuous dialogue between the parties (at para. 39).

 

124                           With respect to calculating the delay, Lowry J. found that the only time that could be considered for the delay was between the filing of the Complaint to the end of the investigation process, in July.  He stated that the Tribunal could not be criticized for not setting the hearing dates earlier as the respondent did not press for earlier dates, did not question the fixed dates and cancelled the pre-hearing conference.  While the respondent did at one point inquire as to whether one of the Complaints could be set for hearing without investigation, this would have required a concession that there was sufficient evidence to warrant a hearing, a concession which Mr. Blencoe was not prepared to make.  Following Lowry J.’s reasoning, the delay would be computed until July 1997, thus reducing the delay from 32 months to 24 months.

 


125                           During those 24 months, the Commission also had to deal with a challenge by the respondent as to the lateness of the Complaints and his accusation that the Complaints were in bad faith.  The respondent refused to respond to the allegations until this determination was made.  As a result, the process was delayed for some eight months.  The respondent was perfectly entitled to bring forward allegations of bad faith and to question the timeliness of the Complaints.  However, the Commission should not be held responsible for contributing to this part of the delay.  In this regard, Lowry J. stated (at para. 42):

 

It is not suggested that Mr. Blencoe was not entitled to challenge the complaints, as he did at the outset, but having done so, and having been unsuccessful, it is not in my view open to him now to claim that the events of the eight months elapsed contributed to an unacceptable delay.

 

Thus, while the respondent was entitled to take the steps he did, the Court of Appeal wrongly considered the delay attributable to the aforementioned challenges in computing the delay caused by the Commission.  Clearly much of this delay resulted from the respondent’s actions, though there appear to be other delays caused by the Commission.  As expressed by Lambert J.A., at para. 29, some of the delay was attributable to the Commission, some to the respondent, but very little of it was attributable to either of the two complainants – Ms. Schell or Ms. Willis.

 


126                           The arguments advanced by the parties before us rely heavily on criminal judgments where delay was considered in the context of s. 11 (b) or s. 7  of the Charter .  It must be kept in mind, as mentioned in paras. 93-95, that the human rights process of receiving complaints, investigating them, determining whether they are substantial enough to investigate and report and then to refer the matter to the Tribunal for hearing is a very different process from the criminal process.  The British Columbia human rights process is designed to protect respondents by ensuring that cases are not adjudicated unless there is some basis for the claims to go forward and unless the issue cannot be disposed of prior to adjudication.  Pursuant to s. 27 of the Human Rights Code, the Commission may dismiss a complaint if, inter alia, it is brought too late, the acts alleged do not contravene the Code, there is no reasonable basis for referring the complaint to a hearing, if it does not appear to be in the interest of the group bringing the complaint, the complaint was filed for improper motives or if the complaint was made in bad faith.  The Commission therefore performs a gatekeeping or screening function, preventing those cases that are trivial or insubstantial from proceeding.  There is also the goal of settlement through mediation which is lacking in the criminal context.  The human rights process thus takes a great deal more time prior to referring a complaint to the Tribunal for hearing.

 

127                           The principles of natural justice also require that both sides be given an opportunity to participate in reviewing documents at various stages in the process and to review the investigation report.  The parties therefore have a chance to make submissions before a referral is made to the Tribunal.  These steps in the process take time.  Indeed, the Commission was under a statutory obligation to proceed as it did.  The process itself was not challenged in this case.  True, the Commission took longer than is desirable to process these Complaints.  I am not condoning that.  Nevertheless, McEachern C.J.B.C. has exaggerated in stating that “a week at the outside would have sufficed” to investigate these Complaints (para. 51).  While the case may not have been an extremely complicated one, these stages are necessary for the protection of the respondents in the context of the human rights complaints system.

 


128                           The Commission seems to have handled the Complaints against Mr. Blencoe in the same manner as it handles all of its human rights complaints.  The respondent argues that the Commission should have been sensitive to his particular needs and to have consequently expedited his Complaints on a priority basis.  However, as professed by Lowry J., there is, “little if anything in the record to suggest that Mr. Blencoe raised with the Commission any of the hardship he has suffered or that he sought to be afforded any priority on that basis” (para. 45).

 

129                           In Kodellas, supra, the Saskatchewan Court of Appeal held that the determination of whether the delay is unreasonable is, in part, a comparative one whereby one can compare the length of delay in the case at bar with the length of time normally taken for processing in the same jurisdiction and in other jurisdictions in Canada.  While this factor has limited weight, I would note that in this regard, on average, it takes the Canadian Human Rights Commission 27 months to resolve a complaint (J. Simpson, “Human Rights Commission Mill Grinds Slowly”, The Globe & Mail (October 1, 1998), p. A18, as quoted in R. E. Hawkins, “Reputational Review III:  Delay, Disrepute and Human Rights Commissions” (2000), 25 Queen’s L.J. 599, at p. 600).  In Ontario, the average length of complaints, according to the Annual Report 1997-1998 of the Ontario Human Rights Commission (1998), at p. 24, is 19.9 months.  The respondent’s counsel at the oral hearing quoted a report of the British Columbia Ministry where the average time to get to a hearing in British Columbia is three years.

 

130                           The delay in the case at bar should be compared to that in analogous cases.  In Nisbett, the sexual harassment complaint had been outstanding for approximately three years.  In Canadian Airlines, there was a 50-month delay between the filing of the complaint and the appointment of an investigator.  In Stefani, there was a delay of two years and three months between the complaint and the inspection and an additional six- or seven-month delay which followed.  In Brown, a three-year period had elapsed prior to serving the petitioner with notice of the inquiry.  In Misra, there was a five-year delay during which time Misra was suspended from the practice of medicine.  Finally, in Ratzlaff, it had been seven years before the physician received a hearing notice.


 

131                           A review of the facts in this case demonstrates that, unlike the aforementioned cases where there was complete inactivity for extremely lengthy periods, the communication between the parties in the case at bar was ongoing.  While Lowry J. acknowledged the five-month delay of inactivity, on balance, he found no unacceptable delay and considered the time that elapsed to be nothing more “than the time required to process complaints of this kind given the limitations imposed by the resources available” (para. 47).  Lowry J. concluded as follows (at para. 49):

 

In my view, it cannot be said that the Commission or the Tribunal have acted unfairly toward Mr. Blencoe.  They have caused neither an unacceptable delay in the process nor a prejudice to him whereby fairness of the hearings scheduled to be conducted next month have been compromised.  There has been no denial of natural justice and, accordingly, Mr. Blencoe’s petition for judicial review cannot succeed.

 

132                           As expressed by Salmon L.J. in Allen v. Sir Alfred McAlpine & Sons, Ltd., [1968] 1 All E.R. 543 (C.A.), at p. 561, “it should not be too difficult to recognise inordinate delay when it occurs”.  In my opinion, the five-month inexplicable delay or even the 24-month period from the filing of the Complaints to the referral to the Tribunal was not so inordinate or inexcusable as to amount to an abuse of process.  Taking into account the ongoing communication between the parties, the delay in this case does not strike me as one that would offend the community’s sense of decency and fairness.  While I would not presume to fix a specified period for a reasonable delay, I am satisfied that the delay in this case was not so inordinate as to amount to an abuse of process.

 


133                           As noted in the discussion pertaining to the application of s. 7  of the Charter  (paras. 59 to 72), I am also concerned with the causal connection in this case.  There must be more than merely a lengthy delay for an abuse of process; the delay must have caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected.  While Mr. Blencoe and his family have suffered obvious prejudice since the various sexual harassment allegations against him were made public, as explained above, I am not convinced that such prejudice can be said to result directly from the delay in the human rights proceedings.  As in the Charter  analysis above, I have simply assumed without deciding, for the purpose of my analysis, that the delay caused by the Commission was a contributory cause of the respondent’s prejudice.

 

VII.  Conclusion

 

134                           To summarize, it cannot be said that the respondent’s s. 7  rights were violated nor that the conduct of the Commission amounted to an abuse of process.  However, I emphasize that nothing in these reasons has any bearing on the merits of the case before the Tribunal.

 

135                           Nevertheless, I am very concerned with the lack of efficiency of the Commission and its lack of commitment to deal more expeditiously with complaints.  Lack of resources cannot explain every delay in giving information, appointing inquiry officers, filing reports, etc.; nor can it justify inordinate delay where it is found to exist.  The fact that most human rights commissions experience serious delays will not justify breaches of the principles of natural justice in appropriate cases.  In R. v. Morin, [1992] 1 S.C.R. 771, at p. 795, the Court stated that in the context of s. 11 (b) of the Charter , the government “has a constitutional obligation to commit sufficient resources to prevent unreasonable delay”.  The demands of natural justice are apposite.

 


136                           I would allow the appeal.  The Court of Appeal decision is set aside and the Tribunal should proceed with the hearing of the Complaints on their merits.  Considering the lack of diligence displayed by the Commission, I would nevertheless exercise the Court’s discretion under s. 47  of the Supreme Court Act, R.S.C., 1985, c. S-26 , to award costs against the appellant Commission in favour of Robin Blencoe, Andrea Willis and Irene Schell.

 

The reasons of Iacobucci, Binnie, Arbour and LeBel JJ. were delivered by

 

137                           Lebel J. (dissenting in part) – The reasons of Justice Bastarache fully review the judicial history and the factual background of this case, and I do not intend to summarize them again.  I shall refer only to such elements of the evidence and of the history of this case, as may be required, for the purpose of my analysis.

 

I.       The Issues

 

138                           The parties have fought this case mainly on Charter  issues.  In the end, this approach turned into a constitutional problem, something that it was not.  The important and determinative issue should have been the role of judicial review and administrative law principles in the control of undue delay in administrative tribunal proceedings. Given that human rights commissions are administrative law creations, the first place we should look for solutions to problems in their processes is in the realm of administrative law. If the relevant administrative law remedy had been applied, the trial judge should have found that there had been undue delay in the process of the British Columbia Human Rights Commission (formerly the British Columbia Council of Human Rights), that this delay was abusive, and that some form of remedy should have been granted to the respondent Blencoe.


 

139                           Nevertheless, I agree that a stay of proceedings was not warranted in the circumstances of the case and should be lifted, as suggested by Bastarache J.  Such a remedy took no consideration of the interest of the complainants Irene Schell and Andrea Willis in the proceedings of the British Columbia Human Rights Commission (“Commission”).  Nobody benefits from delay, but the interests of innocent parties must influence our choice of remedy.  The Court of Appeal seems to have dealt with this case as if it were a pure conflict between the respondent and the state, without taking into account that the complainants Schell and Willis also had an important interest in an efficient disposition of their allegations against Blencoe and in the correct and timely application of the appropriate administrative law remedies.

 

 

II.     The Administrative Law Doctrine of Abuse of Process and the Control of Undue          Delay

  

 

140                           Unnecessary delay in judicial and administrative proceedings has long been an enemy of a free and fair society.  At some point, it is a foe that has plagued the life of almost all courts and administrative tribunals.  It’s a problem that must be brought under control if we are to maintain an effective system of justice, worthy of the confidence of Canadians.  The tools for this task are not to be found only in the Canadian Charter of Rights and Freedoms , but also in the principles of a flexible and evolving administrative law system.

 


141                           The legal doctrines that have developed both under the common law and under the Charter  to respond to delay are certainly not simple.  But the facts of this case point to one inescapable conclusion:  the respondent, Robin Blencoe, faced unreasonable delay that violated administrative law principles of fairness in the management of the process of an administrative tribunal or body.  Those principles concern not only the fairness of the hearing and of the final decision, but the very conduct of the procedures leading to the disposition in the matter.  In these reasons, I shall now examine those principles and the nature of the remedy that appears just and appropriate after giving due consideration to the interests of all parties concerned by this long and frustrating judicial debate.

 

III.       The Application for Judicial Review

 

142                           This case came before the courts when Blencoe brought a petition for judicial review.   Lowry J., in the British Columbia Supreme Court, denied any remedy under administrative law principles because, in his opinion, Blencoe had not established any prejudice that related “directly to the ability to respond to the complaint in an evidentiary sense” ((1998), 49 B.C.L.R. (3d) 201, at para. 37).  Judicial review would thus be essentially limited to assessing the impact of the delay on the hearing and the decision.

 

143                           Some case law did support this approach.  In Nisbett v. Manitoba (Human Rights Commission) (1993), 101 D.L.R. (4th) 744, the Manitoba Court of Appeal searched for delay that caused prejudice to an individual’s right to a fair and full hearing.  In Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (1995), 24 C.H.R.R. D/464, at p. 466, the Ontario Divisional Court explicitly followed the Nisbett analysis. 

 


144                           However, these decisions seem to have been exceptions in an otherwise steady progression toward a broader vision of administrative law abuse of process doctrine and the remedies that it provides for unreasonable delay.  Administrative law abuse of process doctrine is fundamentally about protecting people from unfair treatment by administrative agencies.  In Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at p. 631, Dickson J. (as he then was) described the administrative law principle of fairness in these classic terms:

 

In the final analysis, the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved?  It seems to me that this is the underlying question which the courts have sought to answer in all the cases dealing with natural justice and fairness.

 

 

When we ask whether there has been an administrative law abuse of process, we ask the same fundamental question: has an administrative agency treated people inordinately badly? 

 

IV.       Historical Context

 

145                           This question, however, does not exist outside of a legal historical context,  through which we must trace the role of courts on these kinds of questions up to the present day.  Two fundamental aspects of the common law’s history are relevant to the rules in this area: (1) the common law system’s abhorrence of delay; and (2) the common law’s development as to the power of courts to monitor the processes of administrative bodies.

 


146                           The notion that justice delayed is justice denied reaches back to the mists of time.  In Magna Carta in 1215, King John promised: “To none will we sell, to none will we deny, or delay, right or justice” (emphasis added).  As La Forest J. put it, the right to a speedy trial has been “a right known to the common law  . . .  for more than 750 years” (R. v. Rahey, [1987] 1 S.C.R. 588, at p. 636).  In criminal law cases, this Court had no difficulty determining in R. v. Askov, [1990] 2 S.C.R. 1199, at p. 1227, that “the right to be tried within a reasonable time is an aspect of fundamental justice protected by s. 7  of the Charter ”.  Outside the criminal law context, legislators have devised limitation periods, and courts have developed equitable doctrines such as that of laches.  For centuries, those working with our legal system have recognized that unnecessary delay strikes against its core values and have done everything within their powers to combat it, albeit not always with complete success.

 

147                           Under the common law, courts have gradually developed the power to monitor the processes of administrative bodies and their legality.  There is today no doubt that “[t]he superior courts have the inherent power to review the legality of administrative actions” (D. P. Jones and A. S. de Villars, Principles of Administrative Law (3rd ed. 1999), at p. 6).  Unnecessary delay is not excluded from the scope of judicial review.

  


148                           This supervisory power over administrative processes developed from the very beginnings of the prerogative writ most apropos in the case before us.  Mandamus is a storied writ.  At its origins, it empowered the Court of King’s Bench to order a court or an administrative body to do its duty: W. Holdsworth, A History of English Law (7th ed. 1956), vol. I, at p. 229; Sir W. Blackstone, Commentaries on the Laws of England (4th ed. 1768), Book III, at p. 110.  In the original cases that recognized it, the writ was used largely to prevent the procedurally illegitimate exclusion of citizens who were members of certain disliked groups from municipal offices: see Bagg’s Case (1615), 11 Co. Rep. 93b, 77 E.R. 1271; and Andover Case (1700), Holt.  K.B. 441, 90 E.R. 1143, at p. 1143.  But there was always the possibility of something much greater in the writ, and Lord Mansfield would go so far as to announce its prospective use “upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one” (R. v. Barker (1762), 3 Burr. 1265, 97 E.R. 823, at pp. 824-25 (emphasis added). Cf. Bagg’s Case, supra, at pp. 1277-78, referring generally to “misgovernment”.)  The writ always promised the possibility of ensuring that governmental officers would not shirk their duty to keep processes operating efficiently.  Perhaps significantly, the very words of the original form of the writ referred to “debitam et festinam justiciam” –  due and speedy justice (Holdsworth, supra, app. XV, at p. 659).

 

V.       Modern Developments

 


149                           Today, there is no doubt that mandamus may be used to control procedural delays. In the middle of the last century, a British Columbia Court of Appeal judgment recognized the principles behind mandamus, stating that “[t]he high prerogative writ of mandamus was brought into being to supply defects in administering justice”  (The King ex rel. Lee v. Workmen’s Compensation Board, [1942] 2 D.L.R. 665, at p. 678).  It went on to note that the granting of mandamus was “to be governed by considerations which tend to the speedy and inexpensive as well as efficacious administration of justice” (at p. 678, cited with approval in Harelkin v. University of Regina, [1979] 2 S.C.R. 561).  Members of our Court have on occasion alluded to the use of mandamus specifically to control delay.  (See notably: R. v. Bradley, [1941] S.C.R. 270, at p. 277, per Duff C.J.; Rourke v. The Queen, [1978] 1 S.C.R. 1021, at p. 1027, per Laskin C.J.; and Rahey, supra, at pp. 624-25,  per Wilson J., and p. 631, per La Forest J.)  And there exists a specific line of case law in the administrative context of immigration law that endorses just such a development, particularly where delay creates hardship: e.g., Muia v. Canada (Minister of Citizenship and Immigration) (1996), 113 F.T.R. 234;  Dass v. Canada (Minister of Employment and Immigration), [1996] 2 F.C. 410 (C.A.), at para. 24; Dee v. Canada (Minister of Citizenship & Immigration) (1998), 46 Imm. L.R. (2d) 278 (F.C.T.D.); and Kiani v. Canada (Minister of Citizenship & Immigration) (1999), 50 Imm. L.R. (2d) 81 (F.C.T.D.), at para. 34.  In such a context in Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315 (T.D.), at p. 317, Strayer J. offers this widely quoted statement:

 

But mandamus can issue to require that some decision be made.  Normally this would arise where there has been a specific refusal to make a decision, but it may also happen where there has been a long delay in the making of a decision without adequate explanation. [Emphasis added.]    

 

 

150                           The common law system has always abhorred delay.  In our system’s development of the courts’ supervisory role over administrative processes through mandamus, we see a crystallizing potential to compel government officers to do their duty and, in so doing, to avoid delay in administrative processes.  The historical context in which our case law is rooted is a soil of well-established principles.  This ground’s more modern seedlings must now be examined.

 

VI.       Undue Delay and Procedural Fairness

 


151                           English case law began in the last decades to bring these old streams of the common law together.  In R. v. Secretary of State for the Home Department, Ex parte Phansopkar, [1976] Q.B. 606, the English Court of Appeal was prepared to act against unreasonable delay based on the Magna Carta itself, as reinforced by the European Convention on Human Rights.  In Re Preston, [1985] A.C. 835, the House of Lords made clear that there could be judicial review of any delay amounting to an abuse of power or breach of natural justice.  In R. v. Chief Constable of the Merseyside Police, Ex parte Calveley, [1986] 1 Q.B. 424, the English Court of Appeal applied this to a lengthy delay in notifying police officers of disciplinary charges against them.  In the judgment of May L.J., at pp. 439-40, this was abusive and a breach of fairness because it disregarded the possibility of prejudice accruing to the officers on account of the delay.  Unreasonable delay in administrative processes triggers the ancient rights of individuals who suffer prejudice as a result, and it gives the courts good reason to intervene against injustice.  The modern English position, stated by W. Wade and C. Forsyth, Administrative Law (7th ed. 1994), at p. 649, is clear: “A statutory duty must be performed without unreasonable delay, and this may be enforced by mandamus” (emphasis added).

 

152                           With the few exceptions I noted at the outset of these reasons, modern Canadian courts have begun building on those historical principles and the developments in the English case law discussed above to develop a framework within which they may assess unreasonable delay.  First, courts have linked the idea of procedural fairness with a bar on abuse of process through unreasonable delay: e.g., Misra v. College of Physicians & Surgeons of Saskatchewan (1988), 52 D.L.R. (4th) 477 (Sask. C.A.) (leave to appeal to SCC granted, [1989] 1 S.C.R. viii, but appeal later discontinued, [1992] 1 S.C.R. vii).  Second, even on a traditional analysis, courts have expressed their preparedness to consider different kinds of adverse effects of delay, such as damage to individuals’ reputations or other aspects of their lives, in conjunction with the traditionally recognized effects on the hearing: see, e.g., Brown v. Assn. of Professional Engineers and Geoscientists of British Columbia, [1994] B.C.J. No. 2037 (QL) (S.C.); and Stefani v. College of Dental Surgeons (British Columbia) (1996), 44 Admin. L.R. (2d) 122 (B.C.S.C.). 

 


153                           Third, these two evolutions have become fused along with a realization that other adverse effects can create an abusive situation independently of evidentiary prejudice.  In Ratzlaff v. British Columbia (Medical Services Commission) (1996), 17 B.C.L.R. (3d) 336 (C.A.), at para. 22, Hollinrake J.A. set out a theoretical framework within which the courts may consider unreasonable delay, along with some of the relevant factors in assessing it:

 

Abuse of power is a broader notion, akin to oppression.  It encompasses procedural unfairness, conduct equivalent to breach of contract or of representation, and, in my view, unjust delay.  I should add that not all lengthy delays are unjust; regard must be had to the causes of delay, and to resulting reasonable changes of position. [Emphasis added.]

 

 

 

This analytical method, in which unreasonable delay is assimilated to a type of abuse,  helped  Hollinrake J.A. to recognize that adverse effects other than on hearing fairness can be considered independently.  He writes at para. 19, “where the delay is so egregious that it amounts to an abuse of power or can be said to be oppressive, the fact that the hearing itself will be a fair one is of little or no consequence”.

  

154                           Abusive administrative delay is wrong and it does not matter if it wrecks only your life and not your hearing.  The cases that have been part of this evolution have sometimes expressed the point differently, but the key consideration is this: administrative delay that is determined to be unreasonable based on its length, its causes, and its effects is abusive and contrary to the administrative law principles that exist and should be applied in a fair and efficient legal system.

 


155                           Unreasonable delay is not limited to situations that bring the human rights system into disrepute either by prejudicing the fairness of a hearing or by otherwise rising above a threshold of shocking abuse.  Otherwise, there would not be any remedy for an individual suffering from unreasonable delay unless this same individual were unlucky enough to have suffered sufficiently to meet an additional, external test of disrepute resulting to the human rights system.  Such a limitation may arise from a fear that the main remedy available would be the blunt instrument of the stay of proceedings.  However, as we will see below, a remedy other than a stay may be appropriate in other cases where ongoing delay is abusive.  It is true that some of the cases that have most developed the doctrine of abusive delay involved lengthier periods of time that, in conjunction with other factors, warranted stays of proceedings (see, e.g., the cases cited by Bastarache J. at paras. 117-18).  They were cases that passed the highest threshold of abusiveness.  Because of this, they did not discuss a lower threshold of unreasonable delay that might warrant some kind of judicial action and different, less radical, remedies than a stay in the administrative proceedings.

 

VII.       Assessing Unreasonable Delay

 

156                           The authorities and policy considerations that have been reviewed thus far confirm that modern administrative law is deeply averse to unreasonable delay.  But nobody suggests the elimination of all delay per se – and with good reason.  At the limit, a prohibition on delay per se would ban any and all delay.  This would be an absurd result that would undermine rather than uphold a fair judicial system.  Such an approach would, for example, deny parties on both sides the chance to prepare for the hearing (cf. R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1694).  Thus, unreasonable delays must be identified within the specific circumstances of every case.

 


157                           In assessing a particular delay in the process of a specific administrative body, we must keep in mind two principles: (1) not all delay is the same; and (2) not all administrative bodies are the same.  First, there are different kinds of delay.  There are two kinds of delay in an administrative context: general delay and individual delay.  Each of these, in turn, may encompass both necessary and unnecessary delay.  General delay may include certain kinds of delay due to substantive and procedural complexities inherent in the kind of matter the tribunal deals with, but it may also include delays from systemic problems.  Individual delay may relate to the special complexity of a particular decision, but it may also include delays from inattention to a particular file.  (See generally: S. N. McMurtrie, “The Waiting Game – The Parliamentary Commissioner’s Response to Delay in Administrative Procedures”, [1997] Public Law 159; and L. S. Skiffington, “Federal Administrative Delay: Judicial Remedies and Application in the Natural Resource Context” (1982), 28 Rocky Mtn. Min. L. Inst. 671.)

 

158                           Second, not all administrative bodies are the same.  Indeed, this is an understatement.  At first glance, labour boards, police commissions, and milk control boards may seem to have about as much in common as assembly lines, cops, and cows!  Administrative bodies do, of course, have some common features, but the diversity of their powers, mandate and structure is such that to apply particular standards from one context to another might well be entirely inappropriate.  Thus, inevitably, a court’s assessment of a particular delay in a particular case before a particular administrative body has to depend on a number of contextual analytic factors.

 

159                           In order to differentiate reasonable and unreasonable delay, a balancing exercise becomes necessary.  Courts must, indeed, remain alive not only to the needs of administrative systems under strain, but also to their good faith efforts to provide procedural protections to alleged wrongdoers.  One must approach matters with some common sense and ask whether a lengthy delay that profoundly harms an individual’s life is really justified in the circumstances of a given case.

 


160                           As indicated above, the central factors toward which the modern administrative law cases as a whole propel us are length, cause, and effects.  Approaching these now with a more refined understanding of different kinds and contexts of delay, we see three main factors to be balanced in assessing the reasonableness of an administrative delay:

 

(1) the time taken compared to the inherent time requirements of the matter before the particular administrative body, which would encompass legal complexities (including the presence of any especially complex systemic issues) and factual complexities (including the need to gather large amounts of information or technical data), as well as reasonable periods of time for procedural safeguards that protect parties or the public;

 

(2) the causes of delay beyond the inherent time requirements of the matter, which would include consideration of such elements as whether the affected individual contributed to or waived parts of the delay and whether the administrative body used as efficiently as possible those resources it had available; and

 

(3) the impact of the delay, considered as encompassing both prejudice in an evidentiary sense and other harms to the lives of real people impacted by the ongoing delay.  This may also include a consideration of the efforts by various parties to minimize negative impacts by providing information or interim solutions. 

 

(See generally: Ratzlaff, supra, at p. 346;  Saskatchewan (Human Rights Commission) v. Kodellas (1989), 60 D.L.R. (4th) 143 (Sask. C.A.); R. v. Morin, [1992] 1 S.C.R. 771; McMurtrie, supra; and Skiffington, supra.)  Obviously, considering all of these factors imposes a contextual analysis.  Thus, our Court should avoid setting specific time limits in such matters.  A judge should consider the specific content of the case he or she is hearing and make an assessment that takes into account the three main factors that have been identified above.


161                           A number of parties have raised the objection that the consideration of some of those factors may extend “special treatment” to certain kinds of individuals, whether these be people who commit more stigmatizing wrongs or who are more susceptible to harms like damage to their reputations.  Some interveners were afraid that the application of such factors might indeed require preferential treatment for powerful and influential people. These objections and fears are misplaced.  It appears sound administrative practice for decision-making bodies to recognize the relevance of the identified factors while deciding how to process a particular case.  For example, task forces analysing delay report that it is simply a good case management practice to send to different tracks cases of differing levels of complexity: see, e.g., Brookings Task Force on Civil Justice Reform, Justice for All: Reducing Costs and Delay in Civil Litigation (1989), at p. 3.  Similarly, it only makes sense for administrative bodies seeking to minimize their negative impacts on real people to consider the ramifications of their failure to act expeditiously.  In any event, every case should be processed with due dispatch.

 

VIII.       Delays Before the British Columbia Human Rights Commission in This Case

 

162                           Unreasonable delay in administrative proceedings is illegal under administrative law.  It is a breach of the duty to conduct administrative proceedings fairly.  Because of the highly contextual nature of any assessment of delay, I turn now to an analysis of the identified factors in the case at bar.  I eventually conclude that inefficiency in the Commission’s handling of this matter has led to abuse of process that must be addressed with the appropriate remedies in the circumstances of the case and in consideration of the interests of the complainants.

 

A.       Length of Delay


 

163                           The first factor to be considered is the time taken relative to the inherent time requirements of the matter.  In the Court of Appeal, McEachern C.J.B.C. characterized the allegations in the case at bar as “relatively simple complaints” ((1998), 49 B.C.L.R. (3d) 216, at para. 37), stated that “[t]hese kinds of disputes are quickly resolved by courts and tribunals all the time, and there are no complex legal or factual issues” (para. 37), and concluded that “a week at the outside would have sufficed” (para. 51) for the investigation.  Although McEachern C.J.B.C. perhaps puts matters a bit optimistically in suggesting that the investigation could have been wrapped up within a week, there is a good measure of truth in what he says.

 

164                           At this point, a closer scrutiny of the facts is necessary in order to establish the inherent time requirements of the case.  Different kinds of “allegations of sexual discrimination” may be more or less complex.  A pay equity case might properly involve complex statistical analysis and innovative legal arguments and take time for those reasons.  A case about other forms of well-concealed systemic discrimination might involve numerous witnesses and take time for that reason.  But other cases that involve “allegations of sexual harassment” between individuals may have few complex legal or factual elements and thus appropriately should take much less time.

 


165                           Considering the complexity of the allegations should not be seen to reflect in any way on their merits.  This being said, the case at bar falls within a relatively less complex category.  The allegations with respect to Willis, an aide to Blencoe, were that Blencoe made sexual overtures to her and inappropriately kissed her when she came to work one evening in August 1994 and that he had subsequently put his arm on her arm in a sexual manner in March 1995.  The allegations with respect to Schell were that Blencoe in March 1993 had inappropriately kissed and hugged Schell, who worked for a sports organization deriving funding from Blencoe’s ministry, and that he had subsequently on several occasions between July 1993 and July 1994 given her unwanted attention  by inviting her for a drink.  There were no other direct witnesses to any of the incidents, although there was some corroborating evidence from a small number of other witnesses.  Blencoe denied some aspects of the allegations and admitted others.

 

166                           Recognizing that this case is far less complex than many other sexual discrimination cases does not alleviate the seriousness of the allegations, but it is clear  from the record that the allegations were not of a nature that could justify a prolonged investigation.  Ultimately, the case was about a “he said /she said” scenario concerning which there should have been an adjudication.  In this sense,  there was little or nothing to investigate, and there was no reason for the pre-hearing investigation to take a long period of time.

         

167                           Lowry J. expressed serious misgivings about the delays in this case.  He wrote at para. 46:

 

It may well be that the structure of the Commission should be such that, given the nature of the complaints made by Ms. Schell and Ms. Willis, two years would not be required to determine that they warrant a hearing. [Emphasis added.]

 

 

 

While Lowry J. went on to attribute the delay to a lack of resources, he questioned the effectiveness of the Commission, and his finding that two years was an inappropriately long time confirms my conclusion on this branch of the analysis.  The inherent time requirements in this case were minimal.

 


168                           By contrast, the time taken was anything but minimal.  After five to six months spent on determining that it could hear the complaints, and once Blencoe had a chance to respond, the Commission then mysteriously took the five months from April 1996 to September 1996 to appoint the same investigator who had been working on the file all along despite having told Blencoe that it expected to do so within two months (appellants’ record, at p. 229).  The investigation took some four months.  The trial judge found at para. 44 that this investigation was concluded in January 1997.  Given this finding, then after this conclusion of the investigation, it apparently took the investigator another two months to write and forward a 12-page report in early March 1997, and this only after letters from Blencoe’s lawyer asking about the delay (appellants’ record, at pp. 322-35).  After another four months, in July 1997, the Commission finally told Blencoe that the matter would proceed to a Tribunal hearing.  It then took another two months to get a date set for the hearing, which was scheduled to be some six months later in March 1998.  In all, the time for the Commission to make the determination that the complaints should go to a hearing was approximately two years.  The time from the initial filing of the complaints to the scheduled hearing was approximately 32 months.  While it is true that the Commission’s decision to send the matter to a hearing involved a number of steps, every one of these steps involved a significant delay.

  


169                           A particularly egregious example of the Commission’s unacceptable lack of diligence may be found in the events during the period from October 16, 1995 to December 21, 1995.  During that time, the Commission breached procedural fairness by failing to send to Blencoe Willis’s October 16 response to his submissions on the timeliness of her complaint.  In response to an inquiry, Blencoe received the Commission’s letter dated December 21 on December 27.  Although the December 21 letter denied that a decision had been made on this issue, a January 22, 1996 letter revealed that the Commission had actually already made the decision on December 18, before it even sent Blencoe the documents to which he had wished to reply and that the Commission had possessed for three months (see pp. 290-300 of the appellants’ record).  The Commission essentially failed even to keep those affected by its decisions up to date with what was going on.

 

170                           Regardless of any arguments that parts of the time were necessary for procedural  safeguards, the facts are that the Commission was slow at every step along the way.  This eventually added up to a delay measured in years for a decision that was not inherently complex.  Although a few letters back and forth might have been appropriate, nothing in the inherent time requirements of the case came close to requiring the delay that occurred.

 

B.       Cause of the Delay

 

171                           The second factor that we must consider is the cause of delay beyond the inherent time requirements of the matter.  It is true that Blencoe sought to use those defences available to him, including an argument about whether the complaints had been correctly filed within the limitation period provided by the statute.  But in so doing, he did not become responsible for the sheer inefficiency of the Commission in dealing with these and other matters.

 


172                           A measure of Blencoe’s determination to seek an end to the delay is that even after matters had been delayed to this point largely on account of the Commission’s failures to comply with basic procedural fairness,  he offered to forego the investigative stage of the complaints to bring them to a hearing.  In so doing, we may infer that he made clear to the Commission that he was seeking a way past the delay and red tape in which his life had become bound.  In his request, he was rebuffed, as the Commission would have required him to make major concessions on the existence of a prima facie case against him, if he wanted to proceed to the hearing.  (Although Blencoe made the offer only on the Willis complaint, this seems to be explained by the fact that he was simultaneously trying to find out whether a decision on the timeliness issue in the Schell complaint had been made without notification as had occurred with the Willis complaint (see the appellants’ record at pp. 220 and 301).)  On numerous other occasions as well, Blencoe asked about when there would be a decision on the complaints.  Indeed, Blencoe’s inquiries of this nature comprise a significant number of the letters in the record.  There can be no doubt that there was serious delay on both complaints and that Blencoe tried to find a way to end it.  After being thus rebuffed, his counsel was under no obligation to beg and cry for an expedited hearing to demonstrate to the Human Rights Commission the seriousness of his requests.

 

173                           A further measure of the Commission’s behaviour with respect to delay is that even at the Supreme Court of Canada, the Commission admits that it cannot explain what was going on for five months of the time that it was dealing with the allegations against Blencoe.  On a matter that ideally should not even have taken five months, a five-month period of unexplained delay remains surprising and troubling.  Lowry J. characterized this period as a “five-month hiatus when there appears to have been no activity in relation to the complaints” (para. 47).  After the gap, the Commission sent Blencoe a letter dated September 6, 1996 to advise him that it was appointing the same person as investigator as had up to that point been dealing with the pre-investigation report.  In other words, in five months, nothing happened.  This five-month lapse is just the high mark of the Commission’s ineptitude.

 


 

C.       Impact of Delay on the Respondent

 

174                           The third factor that we must consider is the harm accruing as a result of the delay.  Although Lowry J. found “that no clear case of prejudice in terms of an inability to defend has been made out” (para. 10), there is no doubt that Blencoe and his family suffered serious harm in other ways.  Lowry J. went so far as to write at para. 50:

 

There is, however, substance to the contention that the hardship Mr. Blencoe, his wife, and his children have suffered, and continue to suffer, is markedly disproportionate to the value there can now be in an adjudicated resolution.  [Emphasis added.]

 

 

 

175                           There can be no doubt about the impact of the allegations on the respondent and his family.  The respondent’s career is finished.  He and his family have been chased twice across the country in their attempts to make a new life.  He was under medical care for clinical depression for many months.  In the wake of the outstanding complaints before the Commission, even such a normal aspect of life as coaching his youngest son’s soccer team has been denied to Blencoe, since he has faced stigmatization in the form of presumed guilt as a sexual harasser.  As Lowry J. wrote at para. 13:

 

The point need not be further stressed.  The stigma attached to the outstanding complaints has certainly contributed in large measure to the very real hardship Mr. Blencoe has experienced.  His public profile as a Minister of the Crown rendered him particularly vulnerable to the media attention that has been focused on him and his family, and the hardship has, in the result, been protracted and severe.   [Emphasis added.]

 

 

 


176                           Although I do not deny that Blencoe might have taken additional steps to make the Commission more fully aware of the impact on him of continued delay, he did try to move matters along.  The Commission showed next to no regard for the possible impacts of its delays, often taking long periods of time even to respond to requests for information as to the progress of the file.  It certainly did nothing to minimize the impact of the delay on the respondent.

 

177                           It is true that administrative delay was not the only cause of the prejudice suffered by the respondent.  Nevertheless, it contributed significantly to its aggravation.  It must be added, though, that this delay also frustrated the complainants in their desire for a quick disposition of their complaints.  Finally, the inefficient and delay-filled process at the Commission linked with the specific blunders made in the management of those particular complaints harmed all parties involved in this sorry process.  Its flaws were such that it may rightly be termed to have been abusive in respect of the respondent.  In this connection, I note that my colleague, Bastarache J., despite coming to the conclusion that the conduct of the Commission did not amount to an abuse of process, nevertheless found it necessary to award costs against the Commission in light of the “lack of diligence [it] displayed” (para. 136).  In my view, this further demonstrates the tension in this appeal and the fact that the conduct of the Commission in dealing with this matter was less than acceptable.

 

IX.      Administrative Remedy

 


178                           In the end, the specific and unexplained delay entitles Blencoe to some kind of remedy.  The choice of the appropriate redress requires, though, a careful analysis of the circumstances of the case, in order to identify the causes and nature of the delay and its impact on the process, because the courts always have some discretion on orders of remedies founded on the old prerogative writs.  The selection of an appropriate remedy may also impose a delicate balancing exercise between competing interests.  In proceedings like those that gave rise to this appeal, we must factor in the interest of the respondent, that of the complainants themselves and finally, the public interest of the community itself which wants basic rights enforced efficiently but fairly.  As we have seen above, the courts must also consider the stage of the proceedings which has been affected by the delay.   A distinction must be drawn between  the process leading to the hearing and the hearing itself.  A different balance between conflicting interests may have to be found at different stages of the administrative process.

 

179                           Several kinds of remedies are available either to prevent or remedy abusive delay within an administrative process.  The main forms of redress that we need address here are a stay of proceedings, orders for an expedited hearing and costs.

 


180                           Whoever asks for a stay of proceedings carries a heavy burden.  In a human rights proceeding, such an order not only stops the proceedings and negates the public interest in the enforcement of human rights legislation, but it also affects, in a radical way, the interest of the complainants who lose the opportunity to have their complaints heard and dealt with.   The stay of proceedings should  not generally appear as the sole or even the preferred form of redress:  see R. v. O’Connor, [1995] 4 S.C.R. 411 , at para. 68.  A more prudent approach would  limit it to those situations that compromise the very fairness of the hearing and to those cases where the delay in the conduct of the process leading to it would amount to a gross or shocking abuse of the process.  In those two situations, the interest of the respondent and the protection of the integrity of the legal system become the paramount considerations.  The interest of the complainants would undoubtedly be grievously affected by a stay, but the prime concern in such cases becomes the safeguarding of the basic rights of the respondent engaged in a human rights proceeding and the preservation of the essential fairness of the process itself:  see Ratzlaff, supra, at para. 19.  Whatever its consequences, a stay may thus become the sole appropriate remedy in those circumstances.

 

181                           I note that my approach on the matter of a stay here is consistent with the approach that our Court has adopted in the slightly different context in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391.  There, the Court, following O’Connor, supra, recognized a stay as appropriate in situations where the fairness of the hearing had been compromised as well as in situations falling within a residual category.  For a residual case to give rise to a stay, the Court held in Tobiass, at paras. 90-91 that a stay could be granted where it was the only reasonable means of stopping an abuse that would be perpetuated and aggravated through the conduct of a trial.  For a stay to be appropriate as a remedy for an abuse that has already occurred, the abuse must rise to a level such that the mere carrying forward of the case will offend society’s sense of justice (Tobiass, at para. 91): i.e., in my analysis, where there is a gross or shocking abuse, or where the societal interest in proceeding does not outweigh the considerations I have enumerated.

 


182                           The approach of the courts should change when it appears that the hearing will remain fair, in spite of the delay and when the delay has not risen to the level of a shocking abuse,  notwithstanding its seriousness.   More limited and narrowly focused remedies would then become appropriate.   In the context of a judicial review procedure akin to mandamus, the first objective of any intervention by a court should be to make things happen, where the administrative process is not working adequately.  An order for an expedited hearing within such time frame and with such conditions as the Court might set would be the most practical and effective means of judicial action.  Used at the right moment, such a remedy may safeguard the interest of all parties to the process.  A litigant who believes he or she is facing undue delay should probably take that route rather than letting the process decay in the hope of stopping the old process on some future date.

 

183                           An order for costs is a third kind of remedy.  It will not address the delay directly, but some of its consequences.  If a party must resort to the courts to secure a timely hearing or to speed up the process in which he or she is engaged, some form of compensation for costs should at least be considered by the courts in their discretion.

Whenever parties are compelled to seek judicial interventions to safeguard their rights, costs must be considered to compensate at least in part the time, money and efforts expended in obtaining redress.  Even if costs cannot indemnify the party for all the losses and prejudice arising from administrative delay, they afford at least a measure of compensation. 

 

184                           In the present appeal, the remedy of a pure stay of proceeding appears both excessive and unfair.   First, in spite of the seriousness of the problems faced by Blencoe, the delay does not seem to compromise the fairness of the hearing.  As the trial judge found at para. 10, the respondent has not established that the delay has deprived him of evidence or information important to his defence.  The delay rather concerns the process leading to the hearing.  It arises from a variety of causes that do not evince an intent from the Commission to harm him wilfully, but rather demonstrate grave negligence and important structural problems in the processing of the complaints.  Second, a stay of proceedings in a situation that does not compromise the fairness of the hearing and does not amount to shocking or gross abuse requires the consideration of the interest of the complainants in the choice of the proper remedy (Tobiass, supra, at para. 92).  In the present matter, the judgment of the Court of Appeal completely omitted any consideration of this interest (see para. 39).   The lifting of the stay is thus both justified and necessary.


 

185                           However, rejecting the stay as a proper remedy in the present case does not mean that Blencoe should be deprived of any redress.  On the contrary, an order for an expedited hearing should have been considered as the remedy of choice.  There will be some irony in granting such a remedy more than five years after the proceedings began.  Such an outcome offers the respondent little solace.  Nevertheless, in spite of its rather symbolic value, at the present stage of the proceedings, it appears as a critically important remedy that should have been used at an earlier stage to prod the Commission along and to control the inefficiency of its process.

 

186                           In spite of the partial success of this appeal, as I agree that the stay should be lifted, Blencoe is entitled to some compensation in the form of costs in our Court and in the courts below.  Section 47  of the Supreme Court Act, R.S.C., 1985, c. S-26 , grants our Court broad discretion when awarding costs.  In the present case, it would be both fair and appropriate to use this power as the respondent has established that the process initiated against him was deeply flawed and that its defects justified his search  for a remedy, at least in administrative law.  He had to fight for his rights, and it would be unfair for him to bear the costs personally.  Although ultimately unsuccessful in his application for a stay, Blencoe brought to the attention of the courts the grave deficiency of the administrative processes of the Commission.  He should at least not be penalized for this mixture of success and failure (e.g., Schachter v. Canada, [1992] 2 S.C.R. 679, at p. 726).

 

X.       Section 7  of the Charter 

 


187                           The application of the general principles of administrative law would have justified the intervention of the trial court without any need to demonstrate a breach of an interest protected by s. 7  of the Charter .  As I think that this matter should have been resolved on the basis of administrative law principles, I do not think I have to express a definite opinion on the application  of s. 7  of the Charter  in the present case.

 

188                           We must remember though that s. 7  expresses some of the basic values of the Charter .  It is certainly true that we must avoid collapsing the contents of the Charter  and perhaps of Canadian law into a flexible and complex provision like s. 7 . But its importance is such for the definition of substantive and procedural guarantees in Canadian law that it would be dangerous to freeze the development of this part of the law.   The full impact of s. 7  will remain difficult to foresee and assess for a long while yet.  Our Court should be alive to the need to safeguard a degree of flexibility in the interpretation and evolution of s. 7  of the Charter .   At the same time, the Court should remind litigants that not every case can be reduced to a Charter  case. 

 

189                           Assuming that the Charter  must solve every legal problem would be a recipe for freezing and sterilizing the natural and necessary evolution of the common law and of the civil law in this country.  In the present appeal, the absence of a Charter  remedy does not mean that administrative law remedies could not have been identified and applied, as we have seen above.

XI.       Disposition

 

190                        For these reasons, I would allow the appeal in part, lift the stay of proceedings and order an expedited hearing of the complainants Schell and Willis.  I would also order the appellant British Columbia Human Rights Commission to pay costs on a party-to-party basis to the respondent Blencoe in this Court and in the British Columbia courts. 

 


Appeal allowed with costs against the appellant Commission, Iacobucci, Binnie, Arbour and LeBel  JJ. dissenting in part.

 

Solicitors for the appellants the British Columbia Human Rights Commission and the Commissioner of Investigation and Mediation: Davis & Company, Vancouver.

 

Solicitors for the appellant the British Columbia Human Rights Tribunal:  Morley & Ross, Victoria.

 

Solicitor for the appellant Andrea Willis: Robert B. Farvolden, Victoria.

 

Solicitors for the respondent:  Arvay Finlay, Victoria.

 

Solicitors for the intervener Irene Schell:  Allard & Company, Vancouver.

 

Solicitor for the intervener the Attorney General of British Columbia:  The Ministry of the Attorney General, Victoria.

 

Solicitor for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.

 

Solicitor for the intervener the Saskatchewan Human Rights Commission:  Milton Woodard, Saskatoon.

 

Solicitors for the intervener the Ontario Human Rights Commission:  Cathryn Pike and Jennifer Scott, Toronto.

 


 

Solicitor for the intervener the Nova Scotia Human Rights Commission:  Lara J. Morris, Halifax.

 

Solicitor for the intervener the Manitoba Human Rights Commission:  Manitoba Justice, Winnipeg.

 

Solicitor for the intervener the Canadian Human Rights Commission:  Fiona Keith, Ottawa.

 

Solicitor for the intervener the Commission des droits de la personne et des droits de la jeunesse:  Hélène Tessier, Montréal.

 

Solicitor for the intervener the British Columbia Human Rights Coalition:  Community Legal Assistance Society, Vancouver.

 

Solicitors for the intervener the Women’s Legal Education and Action Fund:  Jennifer L. Conkie and Dianne Pothier, Vancouver.

 

 



* See Erratum [2001] 2 S.C.R. iv

 

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