Between Henry Woodard and Clarence Blanchard, applicants, and The Minister of Provincial Affairs for the Province of Prince Edward Island, respondent, and The Minster of Transportation and Public Works for the Province of Prince Edward Island and The Minister for Economic Development and Tourism for the Province of Prince Edward Island, respondents And between Shirley Murphy, applicant, and The Minister of Provincial Affairs and Tourism for the Province of Prince Edward Island, respondents

   Administrative law — Judicial review — Error of law — Review of exercise of statutory power — Bias — Civil rights — Discrimination — Employment — Political activities — Canadian Charter of Rights and Freedoms — Freedom of Expression — Equality and protection of the law.

   Application for judicial review of the Minister's decision to decline exercising his discretion under section 25(1) of the Human Rights Act to appoint a board of inquiry to investigate the applicants' complaints that they were discriminated against in their employment on the basis of their political views. Following a provincial election, the applicants had not been rehired by the Government of Prince Edward Island.  After filing complaints with the Human Right Commission, they were informed that the Commission had found insufficient evidence to substantiate their complaints; however, upon the applicants' request a report could be forwarded to the Minister to determine whether or not a board of inquiry should be held. All three applicants requested a report be forwarded to the Minister.  The Minister declined to exercise his discretion to appoint a Board of Inquiry.  The applicants argued that the Minister had not applied the proper test when considering whether or not to order a Board of Inquiry in that the information before the Minister provided some evidence of the complaints.  As well, they alleged that there had been a reasonable apprehension of bias, given that the Minister was a member of the respondent government. Finally, they alleged that their rights under Canadian Charter of Rights and Freedom were violated.  The applicants argued that their loss of employment due to political affiliation was a breach of their section 2(b), 3, 7 and 15(1) rights.

   HELD:  The application was dismissed.  The proper standard to be applied by the Minister was whether there existed a reasonable basis in the evidence for proceeding with an inquiry.  The Minister considered the Commission's report, and then made his own decision based on this information.  The Minister had not made an error when he decided not to appoint an inquiry board.  There was no evidence that the Minister was in fact biased, nor was there a reasonable apprehension of bias.  He had not acted improperly in making the decision he was expressly empowered to make.  There was insufficient evidence to establish that the applicants' Charter rights were violated.

Cases cited:

Statutes, Regulations and Rules Cited:

Counsel:

¶ 1      DesROCHES J.:— This is an application for judicial review of the decision of the Minister of Provincial Affairs, being the Minister responsible for the administration of the Human Rights Act, R.S.P.E.I. 1988, Cap. H-12, declining to exercise his discretion under s. 25(1) of the Act to appoint a board of inquiry to investigate the complaints of the applicants that they were discriminated against in their employment on the basis of their political beliefs.

BACKGROUND:

¶ 2      The applicant Clarence Blanchard (Blanchard) was hired in 1983 by the Government of Prince Edward Island to work for the Department of Transportation and Public Works, on a seasonal basis, on a community fencing crew in West Prince County.  In 1984, he was hired by the Department of Transportation and Public Works as a labourer on an asphalt patching crew, and in 1985 he was rehired for the asphalt patching crew without having to reapply for the position.

¶ 3      The applicant Henry Woodard (Woodard) was hired on a seasonal basis in 1983 by the Government of Prince Edward Island to work for the Department of Transportation and Public Works as a wing man on a snowplow operating out of the government garage in Summerside.  He was rehired for that position in both 1984 and 1985 without having to make any further application for employment.

¶ 4      The applicant Shirley Murphy (Murphy) was hired in 1979 by the Government of Prince Edward Island to work for the Department of Tourism and Parks as a park worker at Jacques Cartier Provincial Park in Kildare.  He was rehired for this seasonal position each year through to the year 1985.

¶ 5      It is common knowledge that in April 1986 a provincial general election was held and the then government formed by members of the Progressive Conservative Party was defeated and replaced by a government formed by members of the Prince Edward Island Liberal Party.

¶ 6      Following the provincial election Blanchard was not rehired for the job on the asphalt patching crew in West Prince County, despite having filed an application with the respondent Department of Transportation and Public Works for the position.  In June of 1986 Blanchard filed a complaint with the Prince Edward Island Human Rights Commission alleging the Minister of Transportation and Public Works had discriminated against him in his employment on the basis of his political belief.

¶ 7      In the fall of 1986 Woodard did not receive any notice to return to his work as a wing man on the snowplow. He subsequently learned the position had been filled by a newly hired employee.  On February 6, 1987, Woodard filed a complaint with the Prince Edward Island Human Rights Commission alleging the Minister of Transportation and Public Works had discriminated against him in his employment on the basis of his political belief.

¶ 8      Murphy was not rehired for the job at Jacques Cartier Provincial Park in the summer of 1986.  In June of that year Murphy filed a complaint with the Prince Edward Island Human Rights Commission alleging the Minister of Tourism and Parks had discriminated against him in his employment on the basis of his political belief.

¶ 9      On November 18, 1986, all persons who had filed political belief discrimination complaints, including the applicants, were informed by the Human Rights Commission that a request had been made to the Supreme Court of Prince Edward Island for an interpretation of the term "political belief" as it was defined in the Human Rights Act then in existence.  The applicants were informed that all complaints relating to political belief discrimination had been placed in a holding file while awaiting the legal opinion of the Supreme Court.

¶ 10      On April 21, 1988, the applicants were informed the Human Rights Commission was unable to continue to deal with the political belief discrimination complaints filed by them with the Commission due to the recent decision of the Prince Edward Island Supreme Court, Appeal Division ([1988] 1 P.E.I.R. B-8)to the effect that the term "political belief" as defined in the Human Rights Act then in effect (R.S.P.E.I. 1979, Cap. H-12.2), was incapable of a reasonable interpretation.  The applicants were also informed that, according to information received, any amendment to clarify the term "political belief" would not be made retroactive, and therefore the Human Rights Commission would be unable to revive the applicants' complaints based on any future amended definition of the phrase.

¶ 11      Contrary to the information provided to the applicants by the Human Rights Commission in April of 1988, on June 26, 1989, the Commission informed the applicants that the Legislature of the Province had passed an amendment to the Human Rights Act relating to the phrase "political belief" defining the phrase as it was used in the Act, and that the new definition was to apply to any complaint alleging discrimination in relation to political belief which had been filed with the Commission on or before March 25, 1988.  The applicants were informed the Commission was in the process of reviewing all complaints and applying the new definition to the allegations made in those complaints.  By letters dated May 2, 1990, to the applicant Murphy, July 5, 1990, to the applicant Blanchard and July 10, 1990, to the applicant Woodard, the applicants were informed the Commission was of the opinion that insufficient evidence existed to substantiate their complaints of discrimination in employment based on political belief.  The applicants also were informed they were entitled to request that the Commission forward a report to the Minister responsible for the Human Rights Act to determine whether or not a board of inquiry should be held into their complaints.  They were requested to contact the Commission's office if they intended to make such a request.

¶ 12      Following the decision in Thibodeau et al. v. The Prince Edward Island Human Rights Commission (1993), 2 P.E.I.R. 377 (P.E.I.S.C.T.D.),  the Commission undertook a re-examination of complaints in respect of which it had earlier formed the opinion that insufficient evidence existed to substantiate a complaint of political discrimination.  The applicants' files were re-examined and by letters dated March 7, 1994, the Chairman of the Commission informed the solicitor then acting for the applicants, and the appropriate Ministers, that since the applicants had not requested in 1990 that a report be forwarded to the Minister, no further action had been taken.  The Commission Chairperson requested to be provided with an explanation by the applicants as to why the complaints should be re-opened.

¶ 13      Through his solicitor, Blanchard responded to the request and by letter of September 27, 1994 the Commission indicated it was prepared to forward a report to the Minister of Provincial Affairs regarding Blanchard's complaint.  By letter dated November 25, 1994, the Commission provided Blanchard a summary of the findings of the investigation of his complaint.  Blanchard subsequently wrote to the Commission to provide it with further information concerning his complaint.

¶ 14      Similarly, the solicitor responded to the Commission's letter on behalf of Woodard and Murphy, and as a result the Commission undertook to take further action with respect to their complaints.  On November 25, 1994, the Commission wrote to Woodard and Murphy providing a summary of the findings of the investigation into their complaints. Woodard and Murphy subsequently provided to the Commission further information concerning their complaints.

¶ 15      By letter dated February 23, 1995, relating to all three applicants, the Chairperson of the Commission informed the Minister responsible for human rights that, pursuant to s. 22 of the Human Rights Act, it had inquired into and endeavored to effect a settlement of the complaints of the applicants but was unsuccessful in doing so.  The Chairperson informed the Minister the Commission was reporting to him pursuant to s. 25(1) of the Act.  Attached to the letter were a total of 17 documents relating to the complaint of Woodard, 15 documents relating to the complaint of Murphy and 16 documents relating to the complaint of Blanchard which constituted the Commission's report to the Minister concerning each of the complaints.  The letter concluded with the hope the documents would provide the Minister with sufficient information for him to decide whether or not a Board of Inquiry should be held into the complaints, and inviting the Minister to contact the Commission office should he require further information.

¶ 16      On July 6, 1995, the Minister responsible for human rights wrote to the Chairperson of the Human Rights Commission the following letter quoted in its entirety:

¶ 17      It is this decision which is the subject of this judicial review.

LEGISLATION:

¶ 18      The following provisions of the Human Rights Act are relevant to this application:

ISSUES:

¶ 19      The issues raised in this application are set out by the applicants' solicitor in his joint factum as follows:

¶ 20      Issue 3 was not relied upon by the applicants at the hearing.  The remaining issues can be grouped into three main headings; did the Minister err in law, was the Minister biased, and were the applicants' Charter rights infringed?

a)   First Issue - Did the Minister Err in Law?

¶ 21      The crux of the applicants' argument in respect of issues 1 and 2 is that the Minister did not apply the proper test when considering whether or not to order a board of inquiry to investigate their complaints. According to the applicants, the only reasonable decision based on the applicable law, the record and the evidence, would have been to order a board of inquiry.  The applicants submit the proper test is whether the information placed before the Minister provided some evidence upon which a board of inquiry properly instructed as to the law could find the complaints to be proven on a balance of probabilities.  Mr. Maynard relies, in part, on the comments of Jenkins J. in Thibodeau, supra.

¶ 22      The respondent, on the other hand, submits the Minister exercised his discretion in a reasonable manner and used the correct standard to determine that the applicants' complaints should not proceed to a board of inquiry.

¶ 23      In support of their submissions the applicants rely in part upon Cook v. British Columbia Council of Human Rights and T. Eaton Company, Limited (1988), 26 B.C.L.R. (2d) 52 (B.C.S.C.), in which Wood J., considering the provisions of the Human Rights Act of British Columbia, concluded that when considering a complaint, the British Columbia Council of Human Rights must determine whether there is any evidence upon which either a board of inquiry under s. 16 or a designated member of council under s. 14(1)(d) of the British Columbia Act, acting reasonably could find the complaint to be proved on a balance of probabilities.  The learned Justice went on to state at p. 62, that if such evidence was found to exist, then the council ought not to order proceedings discontinued under s. 14(1)(a), but instead must move on to a consideration of the three remaining alternatives found in that subsection, namely:

¶ 24      It is interesting to note that unlike s. 25(1) of our Act which clearly gives the Minister a discretion whether or not to appoint a board of inquiry upon receiving a report, the British Columbia Act specifically provides in s. 14(3) that on receipt of a report the Minister shall either refer the complaint to a board of inquiry, or order that the proceedings be discontinued.

¶ 25      Somewhat more helpful in this case is the other decision relied upon by the applicants, Syndicat des Employés de Production du Québec et de L'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 (referred to herein as SEPQA). The question before the Court was the appropriate classification of the function of the Canadian Human Rights Commission when it dismisses a complaint of discrimination under s. 36(3) of the Canadian Human Rights Act S.C. 1976-77, c. 33.  Writing for the majority, Sopinka J stated the following at pp. 898-900:

¶ 26      As a preliminary matter, I conclude that the Minister responsible for human rights in acting on the report of the Human Rights Commission, and in exercising his discretion in declining to appoint a board of inquiry, was exercising an administrative function not subject to the requirements of a full natural justice hearing, but subject to a general duty of fairness.  However, as Estey J. pointed out in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181 at p. 231, fairness is a flexible concept and its content varies depending on the nature of the inquiry and the consequences for the individuals involved in terms of the penalties which will result.  In the instant case, the applicants were provided with a detailed summary of the Commission's investigation findings, and given an opportunity to respond and provide further information, before the matters were submitted to the Minister responsible for human rights for consideration under s. 25(1) of the Act.  Given the nature of the process and procedure established by the Human Rights Act, I am satisfied the general duty of fairness was met in the circumstances.

¶ 27      It is clear, however, as may colleague Jenkins J. held in Thibodeau, supra, the Minister's discretion under s. 25(1) of the Act is not unfettered, and must be exercised reasonably in the circumstances.  In considering the investigative role of the Commission and the contents of its report, Jenkins J. concluded the report must include sufficient information from the Commission's investigation to enable the Minister responsible for human rights to make an informed, as opposed to an arbitrary, decision whether to appoint a board of inquiry.

¶ 28      It is equally clear the Minister has been accorded a discretion by s. 25(1) of the Act.  The word "may" is used, and there is nothing in the context which would give it other than the meaning ascribed to it by ss. 26(e.1) of the Interpretation Act, R.S.P.E.I. 1988, Cap. I-8 which reads:

¶ 29      It is a clearly established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility.  Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice (which is not a requirement in the instant case), and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.  (see Maple Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2).

¶ 30      A reading of the record indicates that in reaching his decision under s. 25(1), the Minister "... carefully reviewed, on an individual basis, the information supplied by the Commission relating to each complaint".  That information would have included not only the allegations of discrimination made by each applicant, but the results of the Commission's investigation into those allegations, and the opinion of the Commission, (expressed in May, 1990, in respect of Murphy and in July, 1990 in respect of Woodard and Blanchard), that, at least at that time, insufficient evidence existed to substantiate the complaints of discrimination in employment based on political belief.

¶ 31      The applicants have argued that if in reaching his decision under s. 25(1) the Minister relied on the expressed opinion of the Commission that insufficient evidence existed to substantiate their complaints, then in view of this Court's judgment in Thibodeau, supra, he was clearly wrong.  I cannot accept this argument.  It must be remembered that in Thibodeau the Commission had first determined in 1989 that sufficient evidence existed to support the complainants' allegations they had been discriminated against in their employment based on their political beliefs, and had so informed the complainants in that case.  The Commission, in accordance with its mandate, had accordingly recommended to the Minister responsible for human rights that boards of inquiry be appointed, and also had sought settlement of the claims.  Then in 1991 the Commission drastically changed its direction after the decision of the Appeal Division of this Court in Burge and the Human Rights Commission (P.E.I.) v. Liquor Control Commission (P.E.I.) et al. (1991), 97 Nfld. & P.E.I.R. 70, (P.E.I.S.C.A.D.) and recommended to the Minister responsible for human rights that the evidence gathered was insufficient to justify proceeding to boards of inquiry, and accordingly that no boards of inquiry be held.

¶ 32      In Thibodeau the record clearly indicated, according to Jenkins J. at p. 385, the sole stated reason for the Commission's complete change of direction was its conclusion that the Appeal Division in Burge had invoked a higher standard of proof for a complainant than the Commission had previously understood to be the case.

¶ 33      When the decision in Thibodeau is assessed with the above interpretation in mind, it is my view the decision does little to advance the applicant's argument on issues 1 and 2. Clearly, the Commission's 1990 opinion that insufficient evidence existed to substantiate the complaints in this case was arrived at during the period when the Commission was measuring complaints against the lower standard which it had imposed before it modified its position as a result of Burge. The Burge decision was not rendered until September 12, 1991. Therefore, from that point of view, Thibodeau is of no persuasive value for the applicants in this case.

¶ 34      Notwithstanding the opinion held by the Commission in 1990 in relation to the lack of evidence to substantiate the applicants' complaints, it is important to note that in making its report to the Minister pursuant to s. 25(1) of the Act, the Commission made no recommendation as to whether or not the Minister should appoint a board of inquiry. The questions, then, are: what standard is the Minister to apply in deciding whether or not to appoint a board of inquiry pursuant to s. 25(1) of the Act, and did he apply the proper standard in this case?

¶ 35      It has been noted that the procedural steps resulting from a complaint under the Human Rights Act of this province are somewhat different from other jurisdictions.  Our Act provides that the decision whether or not to appoint a board of inquiry is made by the Minister responsible for human rights, and not by the Human Rights Commission itself.  By analogy, it can be said that in making that decision the Minister should apply the same standard as is required of Commissions who make the same decision in other jurisdictions.

¶ 36      I have already noted the decision of the Supreme Court of Canada in SEPQA, supra, in which Sopinka J. considered the principles governing exercise of the Canadian Human Rights Commission's authority under the relevant provisions of the federal statute to dismiss a complaint, after investigation, without appointing a tribunal to conduct a hearing.  Writing for the majority, Sopinka J. noted the federal legislation does not intend that this be a determination where the evidence is weighed as in a judicial proceeding but rather "... the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage.  It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal".  (my emphasis)

¶ 37      Jenkins J. observed in Thibodeau, supra, that in Cohen v. B.C. Council of Human Rights (1990), 14 C.H.R.R. D/99 (B.C.S.C.) it was held that the role of the B.C. Human Rights Council was to determine whether there is a reasonable basis in the evidence to proceed to the next stage.  Jenkins J. concluded in Thibodeau that the Commission, by its report in that case to the Minister responsible for human rights, had both exceeded its statutory role and failed to provide sufficient information to enable the Minister to make an informed and reasonable decision.  Unlike the situation in Thibodeau, the instant case is concerned with the role of the Minister under s. 25(1) of the Act, and not with the role of the Commission in not only reporting, but recommending to the Minister whether to appoint a board of inquiry.

¶ 38      While the provisions of our Human Rights Act differ from those of the federal statute, the words from SEPQA emphasized above, in my view, supply an appropriate and sufficient standard to be applied by the Minister in making the decision under s. 25(1) of our Act.  It was not intended that the Minister apply a sophisticated legal formula in the manner of a court of law.  For the purposes of s. 25(1), the Minister can be expected to apply his or her experience and common sense in evaluating the information provided in the Commission's report.  I will now consider some of the facts relating to each complaint to determine whether there was a reasonable basis in the evidence for appointing a board of inquiry.

¶ 39      In the instant case the applicant Murphy alleged in his complaint that he lost his job at the Jacques Cartier Provincial Park because of his affiliation with the Progressive Conservative Party.   That affiliation was also confirmed to the Commission's investigator, as was Murphy's assertion that he had attended meetings and election rallies of that party, and had served as a scrutineer at the Alberton poll on election day.  Murphy also alleged in his complaint that in June, 1986, he met Robert Campbell, the Liberal MLA for the 1st District of Prince County, on the street in Alberton and upon asking whether he (Murphy) would get his job back was told he might have a chance if he had not been working in the poll.  It is common knowledge that, unfortunately, Mr. Campbell died on May 31, 1992, and would not be available to a Board of Inquiry to comment on this alleged conversation.  The investigation also established, however, that Murphy's supervisor at the Park was not satisfied with his job performance. According to the supervisor, during the 1984 and 1985 seasons Murphy was unable to complete most of his tasks due to ill health, and he had an "attitude problem".  The supervisor described Murphy as being "very defensive" when asked to do anything; she felt he resented anyone who had authority over him.  The investigation further revealed that in 1984 and 1985 Murphy's evaluations were unacceptable, and his name had not been on the recommended list for 1985 and 1986.  The Commission's investigator was also advised that the Department of Tourism and Parks had a specific mandate to revitalize the parks, and it appeared changes in personnel were a result of that mandate rather than political affiliations.

¶ 40      The applicant Woodard alleged in his complaint that the morning after the 1986 provincial election he received a telephone call from a person he believed to be Mr. Edward Clark, Liberal MLA in 3rd Prince who informed him he would not be re-hired as snowplow wing man in the fall because he had been seen on television the previous evening congratulating Mr. Andrew Walker, the successful Progressive Conservative candidate for 5th Prince.  However, the Commission's investigator could find no evidence to support the contention that the telephone call had been made.  Mr. Clark acknowledged he knew Woodard, but denied having telephoned him as alleged; he could not recall ever having telephoned Woodard.  Woodard's political affiliation with the Progressive Conservative Party were confirmed, however the investigation revealed the person hired in the applicant's place was the holder of a Class I license, the most advanced license available to heavy equipment operators, while the applicant held a Class III license only.  Woodard informed the Commission he had obtained a Class I license in 1984, however, the records of the Highway Safety Branch of the Department of Transportation and Public Works back to 1987 gave no indication that Woodard had ever held such a license.  It appears from the report the person hired in place of Woodard had ten years previous experience operating a snowplow, and twelve years experience operating other heavy equipment. According to the investigation, Woodard's replacement was politically uninvolved, and obtained the position by applying for it in the usual manner.  The person hired had no connection with the Liberal Party; indeed there was some speculation his late father had been associated with the Progressive Conservative Party.

¶ 41      The applicant Blanchard stated in his complaint that although he had attended rallies for both parties before the 1986 election, he would be considered a Progressive Conservative "by family background". This assertion was contradicted by a defeated Progressive Conservative candidate who informed the Commission's investigator that Blanchard's family had been known as Liberal before the 1982 election, but after that election the applicant supported the Progressive Conservative Party.  Blanchard did inform the investigator he had never worked a poll for the Progressive Conservative Party, nor had he pledged support for the party, but had voted for its candidates.  There is no evidence in the record to suggest the persons hired for the seasonal positions in 1986 were affiliated with the Liberal Party.

¶ 42      In my view the strongest case in favour of the applicants is that of Blanchard.  Yet even in that instance I am not persuaded the Minister erred in law in deciding there was no reasonable basis in the evidence for proceeding to the next stage and appointing a board of inquiry at that late date.  The Minister was required to consider the report submitted by the Commission, and was then obliged to make his own decision based on this information.  This he did.  Having regard to the nature of the decision, and the whole of the circumstances disclosed by the report of the Human Rights Commission, I conclude the applicants have not established that the Minister erred in law when he made the decision not to appoint boards of inquiry under s. 25(1) of the Act.

Second Issue: Was the Minister Biased?

¶ 43      I accept as accurate the applicants' submission that the test for bias is whether a reasonable person would have a reasonable apprehension of bias.  There is no evidence before the Court to support a conclusion that the Minister was biased in fact, and indeed, as I understand the argument, the applicants do not rely on actual bias, but on the appearance or a reasonable apprehension of bias.  Their submission in this regard is supported by the comments of Laskin C.J.C. in Committee for Justice and Liberty et al. v. National Energy Board (1976), 68 D.L.R. (3d), (S.C.C.), at p. 733 concerning the test to be applied:

¶ 44     The test has been adopted and applied consistently. An example is the decision of Cullen J. in CNG Transmission Corp. v. Canada (National Energy Board) (1991), 3 Admin. L.R. (2d) 149 (Fed. Ct. T.D.) in which he stated the following at p. 163:

¶ 45      Therefore, it is well-established it is not necessary to demonstrate that a decision maker is actually biased, because the real issue is whether there is a reasonable apprehension of bias.

¶ 46      The applicants' submission on issues 4 and 5 is summarized in the following paragraph of their joint factum:

¶ 47      There are two difficulties with the applicants' submission.  In the first place, the issue of bias must be raised at the first opportunity and, certainly if it was intended to rely on bias to attack the Minister's decision, the matter should have been raised prior to the Minister making his decision under s. 25(1). In this respect see, for example, Ex. p. Perry (1929), 51 C.C.C. 105 (P.E.I.S.C.).

¶ 48      In the second place, even if there was a reasonable perception of bias in the Minister, it has been authorized by the express provisions of the Human Rights Act which specifically provides that the Minister responsible for human rights shall make the decision whether or not to appoint a board of inquiry.  In this connection I find persuasive the judgment of Culleton C.J.S. in Re Iwasyk et al. and Saskatchewan Human Rights Commission (1978), 87 D.L.R. (3d) 289 in which at p. 297 he adopted with complete agreement the following comments of Freedman C.J.M. in his dissenting judgment in Re McGavin Toastmaster Ltd. et al. and Powlowski et al. (1973), 37 D.L.R. (3d) 100:

¶ 49      The comments of Freedman, C.J.M. were quoted with approval by Dubin, J.A. delivering the judgment of the Ontario Court of Appeal in Re W.D. Latimer Co. Ltd. et al. and Bray et al. (1974), 52 D.L.R. (3d) 161 at p. 171, and were also accepted by necessary implication by Mitchell J. of the Appeal Division of this Court in Re Petroleum Products Act (1987), 62 Nfld. & P.E.I.R. 1 wherein he writes at p. 5:

¶ 50      This continues to be good law.  As recently as 1993 the Ontario Court (General Division) Divisional Court, composed of Montgomery, Carruthers and Campbell JJ., in its unanimous judgment in Great Atlantic & Pacific Co. v. Ontario (Human Rights Commission) (1993), 13 O.R. (3d) 824 stated:

¶ 51      Based on the above, in relation to issues 4 and 5 I am not persuaded the Minister acted improperly in making the decision he was expressly empowered by the Act to make.  In my opinion, the statutory provisions exclude by necessary implication the operation of the rule regarding any reasonable apprehension of bias.

Issue Three: Were the Applicants' Charter Rights Infringed?

¶ 52      As I understand it, the applicants' submission relating to this final issue is essentially an argument based on s. 7 of the Canadian Charter of Rights and Freedoms (Charter).  The applicants submit their loss of employment with the Province due to their political affiliation can be viewed as a breach of their right to freedom of expression protected under s. 2(b) of the Charter, or a breach of their right to political freedom guaranteed under s. 3 of the Charter, or, if political belief is protected under s. 15(1) of the Charter, then their right to equality before and under the law and equal protection and equal benefit of the law has been violated.  They argue these rights are so fundamental they are included within the broad terms of "life, liberty and security of the person" found in s. 7 of the Charter, and by declining to appoint a board of inquiry to investigate their complaints, the Minister responsible for human rights has deprived them of those rights in contravention of the principles of fundamental justice.

¶ 53      The applicants submit this is an appropriate case for a declaratory judgment under s. 24(1) of the Charter which would recognize their Charter rights and direct that they are entitled to have their complaints investigated by a board of inquiry.  In the alternative, they submit the court should issue a declaration under s. 24(1) declaring the right of the applicants to have the question whether their complaints should proceed to a board of inquiry determined by an "independent authority".  In the further alternative, the applicants request a declaration under s. 24(1) that those portions of the Human Rights Act dealing with discrimination based on political belief run afoul of s. 7 of the Charter and, as a result, are inoperative.

¶ 54      Counsel for the applicants put forward very imaginative and spirited arguments with many references to various judicial decisions relating to ss. 2, 3, 7 and 15 of the Charter in support of his hypotheses.  If the applicants are to succeed on the s. 7 Charter argument, I must be satisfied their rights under ss. 2(b), 3 or 15(1) of the Charter were infringed or denied.  As I understand it, the s. 7 argument requires such a finding.   However, the only evidence before the Court concerning the allegations of an infringement of the rights guaranteed by ss. 2, 3 and 15 is that contained in the record.

¶ 55      I have already decided the record is not so persuasive as to require the Minister to appoint a board of inquiry under s. 25(1) of the Act.  How, then, can it amount to evidence sufficient to support the Charter remedies sought? Anyone seeking a Charter remedy bears the burden of persuading the court that his or her Charter rights or freedoms have been infringed or denied in fact.  He or she bears the initial burden of presenting evidence.  In a case where the evidence does not establish whether or not the rights of the person seeking the remedy were infringed, the court must conclude they were not.

¶ 56      Addressing the essential need to establish the factual basis in Charter case, Cory J. in MacKay v. Manitoba, [1989] 2 S.C.R. 357, says this:

¶ 57      Clearly, a Charter remedy should not be granted where the alleged violations of the applicants' rights are uncertain, speculative or hypothetical.  In my opinion there is insufficient evidence to establish that the applicants' ss. 2(b), 3 and 15(1) Charter rights were infringed, and I decline to grant the Charter remedies requested.

COSTS:

¶ 58      The respondent Ministers were not represented at the hearing.  Messrs. Sanderson and Howard represented the Attorney General for the Province.  In their factum they sought an order dismissing the applicants' application for judicial review with costs, but the matter of costs was not strenuously argued by them.  Mr. Maynard on behalf of the applicants urged me not to award costs against his clients in the event I dismissed their application.  He pointed out his clients are not prosperous and an award of costs against them would be a hardship.  He also noted the real question before the Court arose as a result of the unique nature of the provisions of the Human Rights Act, and especially s. 25(1). I am inclined to accept Mr. Maynard's submissions as to costs, and decline to make an order in that respect.

CONCLUSION:

¶ 59      The applicants' application for judicial review is dismissed.  The parties shall bear their own costs.

DesROCHES J.

QL Update:  960527
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