Ontario Board of Inquiry
Diane Gale Complainant
and
Ontario Human Rights Commission Commission
v.
Miracle Food Mart, a Division of Steinberg's Incorporated
and
Miracle Food Mart of Canada Limited
and
Great Atlantic & Pacific Company of Canada Limited
and
United Food Workers International Union Locals 175 and 633 Respondents
Date of Complaint: August 19, 1989 Date of Decision: July 3, 1992 Before: Ontario Board of Inquiry, Constance Backhouse Comm. Decision No.: 444B
Appearances by: Laura Trachuk, Counsel for the Complainant Geri Sanson, Kaye Joachim and Mark Hart, Counsel for the Commission Robin Cumine and Jim Ballard, Counsel for the Respondent Steinberg's Inc. Daniel J. Shields, Counsel for the Respondent Great Atlantic & Pacific Co. of Canada Ltd. Harold Caley, Counsel for the Respondent Union
HUMAN RIGHTS COMMISSIONS — Crown immunity — human rights commission is agent of the Crown — HUMAN RIGHTS — nature and purpose of human rights legislation — human rights legislation subject to other enactments
Summary: This is the third interim decision issued by the Board of Inquiry which was appointed to hear the complaint of Diane Gale and Miracle Food Mart, a division of Steinberg's Inc. It related to the effect of an order from the Quebec Superior Court under the Companies' Creditors Arrangement Act. This order requires that any proceedings against Steinberg's Inc. be stayed until such time as a plan of arrangements is drawn up regarding Steinberg's obligations to its creditors before October 23, 1992. Counsel for the respondents argued that the order restrained any further proceedings in this case, and that the Board of Inquiry should not continue.
The Board of Inquiry finds that the Companies' Creditors Arrangement Act does not apply to the Crown and that the Ontario Human Rights Commission is a Crown agency. It concludes that the order of the Quebec court does not prevent the Board of Inquiry from continuing.
The Board of Inquiry also finds that the purpose of the Companies' Creditors Arrangement Act is to allow an insolvent company to make compromises or arrangements with its creditors. The statute permits companies to resolve their financial difficulties without declaring bankruptcy or resorting to dissolution. The order issued by the Quebec Superior Court is intended to prevent creditors from litigating while a plan of arrangements is being worked out.
The Board of Inquiry concludes that the special, quasi-constitutional nature of hearings under the Human Rights Code places these proceedings beyond the scope of "proceedings" contemplated under the Companies' Creditors Arrangement Act.
The Board declines to stay the proceedings in this case.
[Ed. Note: See also preliminary decisions at 1992 CanLII 14228 (ON HRT), 17 C.H.R.R. D/162, 1992 CanLII 14232 (ON HRT), 17 C.H.R.R. D/495, 1992 CanLII 14293 (ON HRT), 17 C.H.R.R. D/502 and 1992 CanLII 14223 (ON HRT), 17 C.H.R.R. D/509.]
Cases Cited
Alberta Government Telephones v. Canada (Canadian Radio-Television and Telecommunications Comm.) (1989), 1989 CanLII 78 (SCC), 61 D.L.R. (4th) 193: 3
Canada (Attorney General) v. Les Entreprises Jean Mercier Ltée (12 March 1992), (Que. C.A.) [unreported]: 4
Canada Dairies Corp. (Re) (1981), 1981 CanLII 2965 (ON HCJ), 131 D.L.R. (3d) 605 (Ont. H.C.J.): 17
Gaston H. Poulin Construction Ltd. (Re) (1992), 92 D.T.C. 6338 (Ont. Ct. (Gen.Div.)): 6
MacLean v. Ontario (Liquor Licence Board) (1975), 1975 CanLII 513 (ON HCJ), 9 O.R. (2d) 597 (Div.Ct.): 17
Meridian Developments Inc. v. Toronto Dominion Bank (1984), 1984 CanLII 1176 (AB QB), 52 C.B.R. 109: 19
R. v. Ontario (Labour Relations Board) ex parte Ontario Food Terminal Board, 1963 CanLII 299 (ON CA), [1963] 2 O.R. 91 (C.A.): 8
Steinberg Inc. (Re.) (31 mai 1992), 500-05-008364-927 (Qué. C.S.) [unreported]: 2
Winnipeg School Div. No. 1 v. Craton (1985), 1985 CanLII 48 (SCC), 6 C.H.R.R. D/3014 (S.C.C.): 20, 22
Legislation Cited
Canada
Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36: 2
s. 11: 19, 22
Interpretation Act, R.S.C. 1985, c. I-21, s. 17: 3
Ontario
Crown Agency Act, R.S.O. 1990, c. C-48, s. 1: 8, 18
Crown Employees Collective Bargaining Act, R.S.O. 1990, c. C-50: 11
Human Rights Code, 1981, S.O. 1981, c. 53
s. 4(1): 1
s. 8: 1
s. 10: 1
Human Rights Code, R.S.O. 1990, c. H.19
s. 27(1): 9
s. 27(2): 10
s. 27(3): 9
s. 27(4): 9
s. 27(5): 11
s. 29(i): 18
s. 31: 10
s. 39(1)(a): 18
s. 41(1)(a): 20
s. 46: 10
Public Service Act, R.S.O. 1990, c. P-47: 11
Authorities Cited
Houlden, L.W. and C.H. Morawetz, Bankruptcy Law of Canada (Toronto: Carswell, 1991): 19
INTERIM DECISION
1This inquiry involves a complaint made by Diane Gale against Miracle Food Mart (a division of Steinberg's, Incorporated), Miracle Food Mart of Canada Limited and Great Atlantic & Pacific Company of Canada Limited (A&P), and a complaint made by the Ontario Human Rights Commission (the "Commission") against the United Food & Commercial Workers International Union, Locals 175 and 633. Diane Gale's complaint, dated 4 November 1985 and amended 9 August 1989, alleges discrimination in employment on the basis of sex by Miracle Food Mart (a division of Steinberg's Incorporated) pursuant to ss. 4(1), 8 and 10 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53 [now R.S.O. 1990, H. 19]. On 7 April 1992, pursuant to a motion of the Commission, Miracle Food Mart of Canada Limited and the Great Atlantic & Pacific Company of Canada Limited (A&P) were added as respondents. The Commission's complaint, dated 4 December 1987, alleges discrimination in employment on the basis of sex by the respondent union, pursuant to ss. 4(1) and 8 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. I was appointed to serve as the Chair of a board of inquiry by the Minister of Citizenship on 12 November 1991.
2This is the third interim decision in this matter. It relates to the effect of an order from the Quebec Superior Court, In the matter of: Steinberg Inc. (31 May 1992) 500-05-008364-927, (Que. S.C.), pursuant to the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36 (hereafter "CCAA"). The order states at pp. 1 and 7–8:
[Translation] I, the undersigned, André Denis, Justice of the Superior Court, sitting in Chambers;
para. 13: STAY and/or SUSPEND until the date of the sanction of the plan of arrangement or until a subsequent Order of the Court, all notices of default of any nature whatsoever, any automatic resiliation, cancellation or resolution, procedures of execution or other, taking of possession and seizure of any nature whatsoever by any creditor, ordinary, preferred, special or secured, except with leave of the Court upon a motion to such effect, served on the Petitioner, in the care of its attorneys Langlois Robert, and including a notice of presentation providing at least two (2) clear legal days notice, and under the conditions that the Court may impose, the whole until a new Order of the Court in this matter;
para. 14: SUSPEND all proceedings instituted or that may be instituted against the Petitioner pursuant to any law of general application, contract, agreement or accord of any nature, as well as any proceedings pursuant to the Bankruptcy Act and the Winding-Up Act or one or the other of these acts, until the sanction of the final plan of arrangement or until a new Order of the Court or with leave of the Court, upon a motion to such effect, served on the Petitioner, in the care of its attorneys, Langlois Robert, and including a notice of presentation providing at least two (2) clear legal days notice, and under the conditions that the Court may impose, the whole until a new Order of the Court in this matter;
para. 15: RESTRAIN any further proceedings in any action, suit or proceeding already instituted against the Petitioner under such conditions as may be deemed opportune by the Court or with leave of the Court upon a motion to such effect, served on the Petitioner, in the care of its attorneys, Langlois Robert, and including a notice of presentation providing at least two (2) clear legal days notice, and under the conditions that the Court may impose, the whole until a new Order of the Court in the matter;
para. 16: ORDER that no action, suit or other proceedings be proceeded with or commenced by anyone against the Petitioner, except with leave of the Court, upon a motion to such effect, served on the Petitioner, in the care of its attorneys, Langlois Robert, and including a notice of presentation providing at least two (2) clear legal days notice and subject to such conditions as the Court may impose, the whole until a new Order of the Court in the matter . . .
The same order stipulates that there shall be a plan of arrangement drawn up regarding Steinberg's Inc.'s obligations to its creditors before 23 October 1992. Counsel for the respondents took the position that the order restrained any further proceedings of this inquiry until a plan had been filed, pursuant to the order.
The following questions require resolution:
is the Ontario Human Rights Commission an agent of the Crown and thus immune from the order;
is a human rights inquiry under the Ontario Human Rights Code, 1981, R.S.O. 1981, c. 53 as amended, a "proceeding" under s. 11 of the CCAA.
1. CROWN IMMUNITY
A. Does the CCAA Bind the Crown?
3Counsel for the Commission argued that the Ontario Human Rights Commission, as a provincial Crown agency, was not bound by this order, pursuant to s. 17 of the Interpretation Act, R.S.C. 1985, c. I-21, which states:
No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment.
The Supreme Court of Canada has held that s. 17 covers both levels of government, embracing both the Crown in right of Canada and the Crown in right of a province and including provincial Crown agents. (Alberta Government Telephones v. Canada (Canadian Radio-Television and Telecommunications Commission) (1989), 1989 CanLII 78 (SCC), 61 D.L.R. (4th) 193 at 225–28.) The Alberta Government Telephones case notes (at 233) that the Crown can only be bound:
where there are expressly binding words;
where there is a clear intention to bind, which is "manifest from the very terms of the statute"; or
where the purpose of the Act would be "wholly frustrated" if the government were not bound, or in other words, "if an absurdity (as opposed to simply an undesirable result) were produced."
4The CCAA has no specific provision that would bind the Crown. With respect to the second test, it would appear that there is no clear intention to bind, manifest from the terms of the statute. As a matter of legislative history, it appears that the CCAA was not intended to bind the Crown. The CCAA was enacted in 1933 to supplement the Bankruptcy Act and the Winding-Up Act. While the Bankruptcy Act was expressly stated as binding on the Crown, the Winding-Up Act contained no such provision. The courts held that the Winding-Up Act was not binding on the Crown, because of the absence of such express provision, in a ruling which preceded the enactment of the CCAA. Yet the federal government saw fit not to enact a specific clause within the CCAA to bind the Crown expressly. Furthermore, the CCAA has never been amended to apply to the Crown, although, at the very time when it came into force and was first used, the courts held that it did not apply to the Crown. (For discussion of the legislative history, see Attorney General of Canada v. Les Entreprises Jean Mercier Ltée (12 March 1992), (Que. C.A.) [unreported] at 12–14, per Gendreau J.A.)
5In the Jean Mercier Ltée case, supra, Mr. Justice Gendreau, of the Quebec Court of Appeal, discussing the CCAA noted as follows (at 13–14):
It is impossible to find, from either the circumstances of the adoption of the Act or the situation it was designed to remedy (the preservation of firms that might yet be saved notwithstanding their indebtedness as a result of the Depression), a legislative will, even an implicit one, to subject the Crown to the Act; instead the contrary would seem to me to be implied by acts of Parliament which adopted different legislative attitudes and techniques with regard to a number of insolvency statutes.
Mr. [Justice] Gendreau cited a long list of authorities for this position (at pp. 8–9):
But for a quite recent unreported decision of the Ontario Court (General Division) (Fine's Flowers Limited et al. v. The Creditors of Fine's Flowers Limited, File No. 57354/91, Ottawa, 17 January 1992), the courts, including our Court, and the commentators have concluded that the Crown was not bound by the Companies' Creditors Arrangement Act . . . : The Minister of National Revenue of Canada v. Cohen's Company Ltd., 17 C.B.R. 143; R. v. A. Kussner, 1936 CanLII 251 (CA EXC), 18 C.B.R. 58; In the Matter of Fairview Industries Ltd. et al., unreported, N.S.S.C. (1991), N.S.J. 453; Minister of National Revenue v. Roxy Frocks Mfg Co. Ltd. et al., 62 B.C. 113; Deputy Minister of Revenue v. Rayfact Industrie (1989), R.D.F.Q. 77; Reorganizations Under the Companies' Creditors Arrangement Act, David H. Goldman (1985) 55 C.B.R. (N.S.) 36, 40 and 41; Cours de formation professionnelle du Barreau du Québec [Quebec Bar Admission Course] (1988–89), Droit Commercial, vol. 9, Faillite [Bankruptcy] Title XI, Albert Bohemier, pp. 47, 58. The respondent submits that the Crown should be bound pursuant to the so-called doctrine of necessary implication. If this were so, we would have to ignore the consistent and virtually unanimous case law cited above.
6With respect to the third test, whether the purpose of the CCAA would be "wholly frustrated," the Jean Mercier case, supra, also determined that the Crown was not bound (at p. 14):
The respondent submits that the Act would be "wholly frustrated", to use the words of Chief Justice Dickson, if the Crown were excluded. I am fully prepared to acknowledge that because of the ever-greater involvement of the State in business, whether as tax collector, lender or even partner, it might be preferable if its debts were included and dealt with in the debtor's arrangement proposal. But the test is not that of greater or more desirable benefit but is rather the complete frustration of the Act. The Act was regularly applied throughout the 1930s, and rediscovered fifty (50) years later and since then used regularly. It must be concluded from this past and present use and some quite numerous judicial debates to which its application and construction have given rise, that the Act has fulfilled and continues to fulfil its role, at least with respect to the particular group of companies.
A similar ruling is found in In the matter of Gaston H. Poulin Construction Limited (1992), 92 D.T.C. 6338 (Ont. Court of Justice), at 6342:
I am also not persuaded that the purpose and intention of the C.C.A.A. would be wholly frustrated if the Crown were not bound by arrangements under the C.C.A.A. The C.C.A.A. has been resorted to with varying degrees of intensity for over fifty years and numerous arrangements under the C.C.A.A. have been proceeded with and proven effective. The fact that there may be claims by the Crown which must be dealt with outside the arrangement does not appear to have been a road block in the path of successfully negotiating and concluding arrangements under the C.C.A.A. over the years. In short it seems to me that there is no evidence that the intent and purpose of the C.C.A.A. is wholly frustrated by its non-application to the Crown.
In conclusion, it would appear that the CCAA is not binding upon the Crown.
B. Is the Ontario Human Rights Commission an Agent of the Crown?
7It is also necessary to consider whether the Ontario Human Rights Commission constitutes an agent of the Crown, something which was disputed by counsel for the respondents.
8The Crown Agency Act, R.S.O. 1990, c. C-48, s. 1 defines a "Crown agency" to mean:
a board, commission, railway, public utility, university, manufactory, company or agency, owned, controlled or operated by Her Majesty in right of Ontario, or by the Government of Ontario or under the authority of the Legislature or the Lieutenant Governor in Council.
In R. v. Ontario Labour Relations Board ex parte Ontario Food Terminal Board, 1963 CanLII 299 (ON CA), [1963] 2 O.R. 91 (C.A.) at 95, Laidlaw J.A. stated:
It is not possible for me to formulate a comprehensive and accurate test applicable in all cases to determine with certainty whether or not an entity is a Crown agent. The answer to that question depends in part upon the nature of the functions performed and for whose benefit the service is rendered. It depends in part upon the nature and extent of the powers entrusted to it. It depends mainly upon the nature and degree of control exercisable or retainable by the Crown.
9The Ontario Human Rights Commission is a regulatory agency, operating under the Ministry of Citizenship, with responsibility for administering and enforcing the Human Rights Code [1990], implementing programs of compliance and conciliation, and engaging in consultation and public education. Pursuant to s. 27(1) of the Code, [1990] the Commission is composed of not fewer than seven individuals, as appointed by the Lieutenant Governor in Council. Pursuant to s. 27(3) [1990], the Lieutenant Governor designates a member of the Commission as chair (generally referred to as the Chief Commissioner), and a member as vice-chair. Pursuant to s. 27(4) [1990], the Lieutenant Governor also fixes the remuneration and expense allowances of the chair, vice-chair and members of the Commission.
10Pursuant to s. 27(2) of the Code [1990], the Commission is responsible to the Minister for the administration of the Code. By s. 46 [1990], "Minister" is defined to mean the member of the Executive Council to whom the powers and duties of the Minister under the Code are assigned by the Lieutenant Governor in Council. Prior to 1988, the Commission was responsible to the Minister of Labour, since that time to the Minister of Citizenship. Pursuant to s. 31 of the Code [1990], the Commission is required to make an annual report to the Minister. The Commission's annual report is thereafter submitted by the Minister to the Lieutenant Governor in Council, and ultimately placed before the Legislative Assembly.
11By s. 27(5) of the Code [1990], all employees of the Commission are appointed under the Public Service Act, R.S.O. 1990, c. P-47. Pursuant to that act, Commission employees are "civil servants," who are appointed to the service of the Crown. Similarly, all employees of the Commission must swear an oath of allegiance to Her Majesty. The Commission's relationship with its employees is governed by the Crown Employees Collective Bargaining Act, R.S.O. 1990, c. C-50.
12All funding for the operating expenses of the Commission is provided out of the Consolidated Revenue Fund. Each year moneys are requested by the Commission pursuant to a budget which is subject to approval by the Minister of Citizenship. The amount of money that is ultimately allocated to the Commission each fiscal year is determined by the Legislature. The Commission is not a legal entity capable of being sued in an action for damages. The Commission has no power to borrow money, issue securities, otherwise raise funds, or carry out any commercial activity. The Commission has no power to hold or acquire real or personal property, or to dispose of the same. The Commission has no power to enter into contracts.
13The existing reporting relationship between the Commission and the Minister of Citizenship is governed by a Memorandum of Understanding between the Commission and the Minister. Pursuant to the Memorandum, the Executive Director of the Commission, while accountable to the Chief Commissioner for the day-to-day operations of the Commission, continues to be directly accountable to the Deputy Minister of Citizenship for the overall management of financial and personnel matters.
14The Commission is required to prepare short- and long-range corporate plans and an annual budget to cover its financial arrangements for each fiscal year in accordance with Ministry requirements. These are submitted to the Minister for approval. The Commission is required to act within its approved budget. Variations in expenditures beyond approved levels and changes to the budget are not made without prior approval of the Minister. The Commission is required to abide by the financial policies expressed in Management Board Secretariat Directives and the Manual of the Office of the Treasury. The Commission is subject to audits by the Provincial Auditor, and can be subject to comprehensive audits at the request of the Minister. The Chief Commissioner is required to advise the Minister, at the Minister's request, on the status of any outstanding audit recommendations.
15The Commission is subject to all administrative policies in Management Board Secretariat Directives and Guidelines and the Ontario Manual of Administration. The Commission is required to adhere to the Ministry's Manual of Administrative Policies and Procedures and Ministry directives. The Ministry, through the Finance and Administration Division of the Ministry of Culture and Communications, provides the Commission with the following services:
Ӣ financial transactions, bookkeeping, accounting and budget control systems and procedures;
Ӣ all centralized payroll and benefits input for classified and unclassified staff, and reconciliation of classified and unclassified payroll;
Ӣ internal audit services;
Ӣ purchasing of goods and services;
Ӣ accommodation services and telephone installation and maintenance;
Ӣ stationery and office supplies;
Ӣ fleet management;
Ӣ mail handling, both within and external to the Ontario Public Service, courier services, and distribution centre services for corporate mailings;
Ӣ records and forms management;
Ӣ advice on office automation, telecommunications, computer systems and related technologies;
Ӣ liaison with central agencies (e.g., preparation of Management Board Secretariat submissions);
Ӣ co-ordinating processes such as allocation/estimates, MBR, base review, etc.;
Ӣ provision of French language services advice and analysis.
16The Minister and the Chief Commissioner meet quarterly or more frequently, as deemed desirable, to discuss affairs of the Commission, including such matters as budget, objectives, plans, procedures, and overall policy agenda. As a result of recent initiatives to reduce the Commission's backlog of cases, these meetings have been increased in number. At the request of the Minister, the Commission prepared a Case Management Plan for the Minister's approval, setting out a detailed strategy for reducing the overall caseload. Last summer, the government announced a one-time allocation of $6 million to establish a Task Force with a one-year mandate to process 1000 of the Commission's oldest cases. The Task Force, which commenced work in November 1991, is headed by a director who reports directly to the Minister of Citizenship.
17The Commission retains an obvious degree of independence and autonomy in carrying out its mandate under the Code, autonomy that is crucial in that the Commission receives and proceeds with complaints against various Ministries and Departments of the Government of Ontario. Despite this, however, it appears that the Commission is responsible and accountable to the Minister of Citizenship, and is subject to considerable financial and administrative control. In this respect, it is similar to other regulatory agencies, such as the Ontario Milk Commission and the Liquor Licence Board of Ontario, both of which have been held to be Crown agencies. (See Re Canada Dairies Corp. (1981), 1981 CanLII 2965 (ON HCJ), 131 D.L.R. (3d) 605 (Ont. H.C.J.); MacLean v. Liquor Licence Board of Ontario (1975), 1975 CanLII 513 (ON HCJ), 9 O.R. (2d) 597 (Div.Ct.).)
18In conclusion, the Ontario Human Rights Commission appears to be a "Crown agency" within the meaning of the Crown Agency Act, and is for all purposes an agent of Her Majesty in right of Ontario. The Commission is a mandatory party to every board of inquiry proceeding, and has carriage of every complaint, pursuant to s. 39(1)(a) of the Code [1990]. Under s. 29(i) of the Code [1990], the Commission is responsible for enforcing all orders made by boards of inquiry. Furthermore, in this particular proceeding, the Commission is actually a named complainant. Thus, it would appear that the order of the Quebec Superior Court under the CCAA does not operate to stay these proceedings.
2. A "PROCEEDING" UNDER THE CCAA
19Having concluded that these proceedings are not stayed because the order does not bind the Commission, a Crown agency, it is not, strictly speaking, necessary to consider the second question. However, in the event that any part of this analysis of the Crown immunity issue is in error, it is prudent to go on to determine the remaining matter of whether a human rights board of inquiry constitutes a "proceeding" under the CCAA.
Section 11 of the CCAA provides that the court may:
11(b) restrain further proceedings in any action, suit or proceeding against the company . . .; and
(c) make an order that no suit, action or other proceeding shall be proceeded with or commenced against the company except with the leave of the court and subject to such terms as the court imposes.
The purpose of the CCAA, a piece of commercial legislation, is to permit an insolvent company to make compromises or arrangements with its unsecured creditors and secured creditors. The statute gives the debtor company an opportunity to resolve its financial difficulties short of bankruptcy, foreclosure, or the seizure of assets through receivership proceedings. (See Houlden and Morawetz Bankruptcy Law of Canada (3d ed.), vol. 2 at 10A-1ff.) The Alberta Court of Queen's Bench described the intention of the legislation in Meridian Developments Inc. v. Toronto Dominion Bank(1984), 1984 CanLII 1176 (AB QB), 52 C.B.R. 109:
The intention was to prevent any manoeuvres for positioning among creditors during the interim period which would give the aggressive creditor an advantage to the prejudice of others who were less aggressive and would undermine the financial position of the company making it less likely that the eventual arrangement would succeed.
20Whether a human rights board of inquiry is caught within the ambit of this legislation is somewhat problematic. Human rights boards of inquiry interpret provincial and federal human rights legislation, enactments which have been held to be quasi-constitutional in nature, involving matters of broad public and social policy. (See Winnipeg School Division No. 1 v. Craton(1985), 1985 CanLII 48 (SCC), 6 C.H.R.R. D/3014 (S.C.C.) at para. 24270 [p. D/3015].) Boards of inquiry proceedings are not, primarily, commercial litigation. Furthermore, the powers of a board of inquiry extend far beyond its capacity to award pecuniary damages. Section 41(1)(a) of the Code provides that a board of inquiry may direct a party "to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices." Such orders can include the institution of a broad-ranging employment equity program, changes in practices, procedures and policies of a respondent company, managerial and employee training, the reinstatement of an employee, the displacing of an incumbent employee and the awarding of a position to an unsuccessful applicant, and on-going monitoring by the Commission.
21While the primary intent of the CCAA is to keep a business in operation, it is the on-going discriminatory practices of that business which may form the subject-matter of a board of inquiry proceeding. Thus, the interests of creditors in preserving the status quo while financial matters are sorted out may be directly at odds with public policy thrust of the Code.
22The broad and remedial powers of a board of inquiry go far beyond the commercial litigation matters contemplated by the CCAA. The importance of human rights legislation, expressly designated as being of a special, quasi-constitutional nature, would be frustrated or forestalled by ruling that its proceedings can be stayed by an order under s. 11 of the CCAA. The Supreme Court of Canada has stated in the Winnipeg School Division No. 1 case, supra, that exceptions to the general application of human rights legislation may only be made by clear legislative pronouncements (at para. 24270 [D/3016] per McIntyre J.):
Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such a nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement.
23In my opinion, the special, quasi-constitutional nature of hearings under the Human Rights Code places them beyond the scope of "proceedings" contemplated under s. 11 of the CCAA. Thus, even assuming that the Crown immunity argument fails, it would appear that the order of the Quebec Superior Court does not stay these proceedings.
24Consequently, it is unnecessary for me to rule on the question of whether these proceedings could be stayed against Steinberg's, Inc. only, or whether by necessary implication the proceedings would have to be stayed against the other respondents as well.