Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 1999 CanLII 712 (SCC), [1999] 1 SCR 381

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [1999] 1 S.C.R. 381

City of Montreal Appellant

and

Communauté urbaine de Montréal Appellant

v.

Commission des droits de la personne et

des droits de la jeunesse Respondent

and

Réjeanne Mercier Mis en cause

and between

City of Boisbriand Appellant

and

Communauté urbaine de Montréal Appellant

v.

Commission des droits de la personne et

des droits de la jeunesse Respondent

and

Palmerino Troilo Mis en cause

Indexed as: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City)

File No.: 26583.

1999: February 24.

Present: Binnie J.

application to vacate stay of execution

Practice -- Supreme Court of Canada -- Stay of execution -- Stay of proceedings -- Tribunal des droits de la personne dismissing complainant’s compensation claim -- Court of Appeal reversing decision and sending matter back to Tribunal to deal with issue -- Supreme Court granting leave to appeal and municipal employer serving notice of appeal before Tribunal could render its decision -- Tribunal not prevented from rendering its decision in this case since stay of execution contemplated in s. 65(1) of Supreme Court Act not automatically imposing stay of proceedings -- Application for stay of proceedings should be made under s. 65.1(1) of Act and Rule 27 -- Supreme Court Act, R.S.C., 1985, c. S-26, ss. 65, 65.1 -- Rules of the Supreme Court of Canada, SOR/83-74, Rule 27.

Cases Cited

Referred to: Industrial Development Bank v. Canadian Plywood Corp., 1971 989 (BC SC), [1972] 1 W.W.R. 298; G. (L.) v. B. (G.), 1994 24 (SCC), [1995] 3 S.C.R. 367; Keable v. Attorney General of Canada, 1978 183 (SCC), [1978] 2 S.C.R. 135; RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311; Corner Brook Pulp and Paper Ltd. v. Bowater Inc. (1989), 1989 3942 (NL CA), 246 A.P.R. 353; R. v. Consolidated Fastfrate Transport Inc. (1995), 1995 1527 (ON CA), 40 C.P.C. (3d) 160.

Statutes and Regulations Cited

Charter of Human Rights and Freedoms, R.S.Q., c. C-12.

Code of Civil Procedure, R.S.Q., c. C-25, art. 522.1 [ad. 1995, c. 2, s. 8].

Rules of the Supreme Court of Canada, SOR/83-74, Rule 27.

Supreme Court Act, R.S.C., 1985, c. S-26, ss. 65(1), (4) [ad. 1994, c. 44, s. 100], 65.1(1) [repl. idem, s. 101], (2) [idem], 66 , 67.

Authors Cited

Jowitt’s Dictionary of English Law, 2nd ed. By John Burke. London: Sweet & Maxwell, 1977, “execution”.

APPLICATION to vacate stay of execution. Application dismissed.

Written submissions by Jean-René Maranda, for the applicant Mercier.

Written submissions by Diane Lafond, for the City of Montreal, respondent on the application.

The following is the order delivered by

1Binnie J. -- This is an application by Réjeanne Mercier under s. 65(4) of the Supreme Court Act, R.S.C., 1985, c. S-26, to vacate a stay of execution which she believes was imposed automatically by s. 65(1) thereof. She is not a party to the appeal in this Court. The respondent here is the Commission des droits de la personne et des droits de la jeunesse, which has taken up Ms. Mercier’s complaint against her employer, the City of Montreal.

2The relevant facts are as follows. The applicant Réjeanne Mercier successfully completed a horticulture course, as well as an internship with the Montreal Botanical Garden, during which she carried out duties and responsibilities similar to those attached to the permanent position of gardener. Upon completion of the internship, she applied for the position of gardener with the Botanical Garden. During the hiring process, it was discovered that the applicant suffers slightly from scoliosis, which is a disability affecting the curvature of the spine. Consequently, the City of Montreal rejected her candidature. The applicant Réjeanne Mercier thereupon filed a complaint with the Commission des droits de la personne et des droits de la jeunesse claiming discrimination by her employer, the City of Montreal.

3Subsequently, medical opinions confirmed that her disability would not prevent her from carrying out the duties of the position applied for. The City agreed to hire Ms. Mercier to this position, provided that a settlement was reached with respect to her claim for compensation. No settlement was concluded and the Commission applied to the Tribunal des droits de la personne on behalf of Ms. Mercier for compensation. The Tribunal des droits de la personne concluded, however, that as the applicant’s disability did not impose functional limitations, it did not constitute a “handicap” under the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12. Consequently, it dismissed the complaint. The Quebec Court of Appeal reversed this decision: 1998 13250 (QC CA), [1998] R.J.Q. 688. It found that functional limitations were not necessary to constitute a “handicap” under the Quebec Charter and sent the matter back to the Tribunal to deal with the remaining issues according to the corrected view of the law. It is this “corrected view of the law” that forms the subject matter of the appeal in this Court between the municipal employer and the Commission.

4A companion appeal involves a claim of discrimination on similar grounds by Mr. Palmerino Troilo against the City of Boisbriand. He has not joined in Ms. Mercier’s application for relief against the presumed stay of execution. However, Ms. Mercier seeks an order to permit the Tribunal proceedings to continue in both cases.

Brief History of the Stay of Proceedings

5On March 24, 1998, Forget J.A. of the Court of Appeal dismissed the application of the City of Montreal for an order staying the execution of that court’s judgment remitting these cases back to the Tribunal des droits de la personne on the basis that the City intended to apply for leave to appeal to this Court. The motion was brought pursuant to art. 522.1 of the Quebec Code of Civil Procedure, R.S.Q., c. C-25. Forget J.A. concluded that the municipal employer had not met the onus laid down in the authorities to obtain a stay of execution.

6The City’s motion for a stay having failed, the hearings thereupon resumed before the Tribunal des droits de la personne pursuant to the original judgment of the Quebec Court of Appeal. The Tribunal reserved its decision on September 11, 1998. Before the Tribunal could render its decision, this Court granted the City leave to appeal on October 8, 1998 and the appellant, the City of Montreal, served its notice of appeal on November 3, 1998.

7At that point all parties apparently concluded that the proceedings before the Tribunal were automatically stayed by reason of s. 65(1) of the Supreme Court Act, and that a “stay of execution” prevented the Tribunal from rendering its decision. Section 65(1) of the Supreme Court Act reads as follows:

65. (1) On filing and serving the notice of appeal and depositing security as required by section 60, execution shall be stayed in the original cause, except that

(a) where the judgment appealed from directs an assignment or delivery of documents or personal property . . .

(b) where the judgment appealed from directs the execution of a conveyance or any other instrument . . .

(c) where the judgment appealed from directs the sale or delivery of possession of real property or chattels real . . .

(d) where the judgment appealed from directs the payment of money . . . . [Emphasis added.]

8Acting on her understanding of the words “execution shall be stayed” in s. 65(1), the complainant/applicant next filed a motion pursuant to s. 65(4) of the Supreme Court Act before the Quebec Court of Appeal (Chamberland J.A.) to vacate the stay of execution. Her motion to vacate was dismissed on the basis that to allow the proceedings before the Tribunal to continue would impose a complex and costly exercise that would be wasted if this Court should in the end allow the appeal. The complainant/applicant now comes before this Court seeking the same relief.

Analysis

9Although the issue is not free from difficulty, I am of the view that the stay of execution contemplated by s. 65(1) of the Supreme Court Act does not have the effect of staying the proceedings of the Tribunal in the present case. It is necessary to underline the fact that s. 65(1) deals with the stay of execution of a judgment in appeal. Section 65(1) has to be read with s. 65.1(1), which in the English version provides that an application must be made for a stay of proceedings. Although s. 65.1(1) can be invoked at the leave stage, and s. 65(1) cannot, the point is that the Supreme Court Act in the English version of the Act clearly draws a distinction between a stay of execution in s. 65(1) and a stay of proceedings in s. 65.1(1). The French version, I should add, creates a measure of uncertainty by using the words “sursis d’exécution” in both s. 65(1) and s. 65.1(1). However, as the former grants an automatic stay subject to further order, and the latter provides no stay without an order, I think “sursis d’exécution” must be interpreted in the context of the different sections. The distinction drawn in the English version cannot be ignored. I should note, parenthetically, that the distinction between a stay of execution and a stay of proceedings is important in other jurisdictions as well: see, e.g., Industrial Development Bank v. Canadian Plywood Corp., 1971 989 (BC SC), [1972] 1 W.W.R. 298 (B.C.S.C.).

10This Court has held on a number of occasions that the filing of a notice of appeal to this Court does not result in an automatic suspension of the judgment appealed from. See, for example, G. (L.) v. B. (G.), 1994 24 (SCC), [1995] 3 S.C.R. 367, where Sopinka J. summarized the previous case law at para. 6 as follows:

An appeal to this Court does not result in a suspension of the judgment appealed from. Although execution of the judgment by a third party is stayed in the circumstances specified in s. 65 (see Keable v. Attorney General of Canada, 1978 183 (SCC), [1978] 2 S.C.R. 135), a party seeking to suspend the operation of the judgment on appeal in other circumstances must resort to s. 65.1 and Rule 27. [Emphasis added.]

11The reference to the Keable case is to the statement of Laskin C.J. at p. 138 wherein the Chief Justice, after a hearing by the full Court, pronounced as follows:

It is my opinion, in any event, that reliance on s. 70 [now s. 65] of the Supreme Court Act as prescribing an automatic stay of the order of suspension of the Keable Commission proceedings is misconceived. That provision has in view, as the exceptions therein make clear and as is evident from ss. 71 and 72 [now ss. 66 and 67], the intervention, for example, of a sheriff to carry out a direction in implementation of a judgment, where the judgment itself is left unimpaired pending the determination of an appeal to this Court.

12This interpretation of s. 65 was confirmed again by this Court in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, where Sopinka and Cory JJ. stated at pp. 328-29:

Examples of the former [an order arresting execution of the Court’s process by a third party], traditionally described as stays of execution, are contained in the subsections of s. 65 of the Act which have been held to be limited to preventing the intervention of a third party such as a sheriff but not the enforcement of an order directed to a party. [Emphasis added.]

13The interpretation requiring “intervention of a third party” is admittedly not immediately obvious from the text of s. 65(1) because paras. (a) to (d) enumerate as exceptions four specified activities required of the unsuccessful party none of which involve the “intervention of a third party” such as the sheriff. The usual inference would be that conduct of the parties not included in the exceptions would be stayed. In para. (b), for example, it is provided that where the judgment appealed from directs the execution of a conveyance or other instrument, the execution of the judgment shall not be stayed until the instrument has been executed and deposited with the proper officer of the court appealed from to abide the judgment of the Supreme Court. There would be no need for this “exception” unless the stay imposed by the opening words of s. 65 would otherwise relieve the unsuccessful party (as opposed to a third party such as a sheriff) from executing the instrument. The same observation can be made in relation to paras. (a), (c) and (d). Be that as it may, the “third party intervention” gloss was arrived at in the earlier judgments of this Court by reading s. 65 together with s. 66 (fiat to sheriff when security deposited) and s. 67 (money levied and not paid over before fiat). It was concluded that the entire group of sections referred to execution in the sense of enforcement action taken by some third party such as the sheriff. The result is that while s. 65(1) must be given effect according to its terms, the section as a whole is to be read restrictively in accordance with the interpretation authoritatively settled by the Court in Keable, supra, G. (L.) v. B. (G.), supra, and RJR-MacDonald, supra, as previously stated.

14Even a broader reading of s. 65(1), however, would not produce a stay of proceedings before the Tribunal in this case. The Quebec Court of Appeal in its judgment interpreted the applicable law and referred the case back to the Tribunal. No relief was granted against the applicant or the unsuccessful employers. The effect of the judgment was simply to require the Tribunal (and not any of the parties to the appeal) to reconsider its earlier decision on a corrected view of the law.

15Such a judgment gives rise to a potential stay of proceedings rather than a stay of execution. “Execution” is the key word in s. 65(1). Jowitt’s Dictionary of English Law (2nd ed. 1977), defines “execution” as “the last state of a suit whereby judgment is enforced”. This definition was accepted judicially by Gushue J.A. in Corner Brook Pulp and Paper Ltd. v. Bowater Inc. (1989), 1989 3942 (NL CA), 246 A.P.R. 353 (Nfld. C.A.), at p. 355. Similarly, in R. v. Consolidated Fastfrate Transport Inc. (1995), 1995 1527 (ON CA), 40 C.P.C. (3d) 160 (Ont. C.A.), Weiler J.A. placed a restricted meaning on the notion of “execution” at p. 199:

Execution . . . refers to the process by which a successful plaintiff may enforce a judgment. It encompasses those remedies available to a creditor after a court has declared that a sum of money is immediately due and owing by a debtor.

See also Industrial Development Bank v. Canadian Plywood Corp., supra, per Seaton J., at p. 301.

16It is not necessary for present purposes to define “execution” in the abstract. No doubt the word takes its colour from its surroundings. In light of the specific provision in the English version of s. 65.1(1) for a stay of proceedings, which may be used as an interpretive guide to the French version of the same text, no stay of proceedings is automatically imposed by s. 65(1). If such a stay is desired by a party who has “served and filed a notice of application for leave to appeal” (in this case the employer), it may move under s. 65.1(1) and Rule 27 at any time thereafter (or even beforehand under s. 65.1(2)). The right to apply is not cut off by the granting of leave. Section 65.1(1) does not express any such limitation. Rule 27, which is also not limited as to time, speaks of “execution or other relief against [the] judgment or order” (emphasis added).

17In the result, I conclude that there is no stay in effect and there is thus no need for the applicant to seek its dissolution. A stay that does not exist cannot be dissolved. The complainant/applicant therefore loses her motion but obtains her desired relief, which is a ruling that the Tribunal is at liberty to continue with its proceedings.

18The motion will therefore be dismissed but, in the circumstances, without costs.