A Federal Court judge has ordered a stay of a judicial review proceeding involving allegations of sexual harassment and disability discrimination at United Parcel Service Canada Ltd. (UPS), pending the release of a forthcoming remedy decision by the Canadian Human Rights Tribunal (CHRT).
The case under review stems from a CHRT liability decision that found UPS and one of its employees, L.G., liable to T.P., a complainant who alleged that L.G. sexually harassed her and that UPS discriminated against her on the basis of disability. According to the Federal Court order, “the CHRT concluded Gordon sexually harassed Peters, UPS discriminated against Peters based on a disability, and UPS is liable for the acts and omissions of its employee, Gordon.”
UPS had initiated judicial review proceedings to challenge the CHRT’s findings. However, the Tribunal issued its liability decision and deferred its remedy decision. The remedy portion remains outstanding, including T.P.’s claim that the CHRT can award up to $20,000 for each discriminatory practice. In response, UPS brought a motion seeking an order to stay the judicial review until the CHRT issued its remedy decision. L.G. and the CHRT consented to that motion. T.P. consented to the stay but opposed the proposed timetable for next steps, citing her need to consult with counsel.
In an order dated December 5, 2024, Associate Judge Michael D. Crinson granted the stay and dismissed a related motion for advanced costs brought by T.P. The Court’s ruling effectively halts proceedings in the judicial review until the CHRT issues its decision on remedies. “In the context of this case,” wrote Crinson, “the parties are agreed that no further steps should take place until the Remedy Decision has been issued.”
Central to UPS’s motion was its request for a schedule to proceed with a consolidated review of both the liability and remedy decisions once the latter is issued. The Federal Court rejected that request as premature, reasoning that the remedy decision was not yet available, and that any future judicial review of it could not be assumed or combined without proper procedural steps. The Court stated that “a separate decision will require a separate notice of application” and that it was “premature to set a prolonged schedule at this stage.” Instead, once the CHRT issues its remedy decision, the parties are to notify the Court, which will then convene a case management conference to address next steps.
The Court emphasized the utility of case management in complex proceedings such as this. Citing Rule 385(1)(a) of the Federal Courts Rules, Crinson noted the Court’s power to “give any directions or make any orders that are necessary for the just, most expeditious and least expensive outcome of the proceeding.” The ruling underscores that a case management judge familiar with the matter can make “speedy procedural determinations” after the CHRT’s remedy decision is known.
On a related issue, T.P. brought a motion seeking advanced costs from UPS to fund her participation in the ongoing litigation. The respondent contended that she could not afford to proceed without financial assistance and that the case raised issues of public importance. The Court, however, found the request premature. Without a remedy decision, it is not yet clear what issues will ultimately be at stake in the judicial review, and therefore whether T.P.’s request for advanced costs meets the criteria set by the Supreme Court of Canada.
In its analysis, the Court referred to the threshold test for awarding interim or advanced costs in public interest litigation, as outlined in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71. That test requires that the party seeking advanced costs prove, among other things, that they genuinely cannot afford the litigation, that the claim to be adjudicated is prima facie meritorious, and that the issues transcend individual interests and carry public importance.
“In order to succeed in an advance costs award,” wrote Crinson, citing Okanagan Indian Band, the party must demonstrate that without such funding the litigation could not proceed, that the claim is at least prima facie meritorious, and that the issues extend beyond a single individual’s case and are of public importance. Even where these criteria appear to be met, “the Court must also consider that an advance costs award is a last resort and is only warranted in a ‘rare and exceptional’ case,” the ruling noted, referencing Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2.
As the remedy decision was still pending, the Court determined it was not yet possible to assess whether T.P. would have no other realistic option to continue litigation or whether the ultimate issues on review would rise to the level of public importance. “These potential issues cannot be ascertained until the Remedy Decision has been made,” the Court stated, adding that “no determination of the importance of the issues is possible until the issues are fully identified.” Consequently, the motion for advanced costs was dismissed without prejudice, allowing T.P. to renew the request at a later stage should circumstances warrant.
Although UPS had been successful in resisting the advanced costs motion and T.P. had prevailed in ensuring the stay would proceed without the immediate schedule UPS had proposed, Associate Judge Crinson decided not to award costs to either side at this stage. Instead, the costs of both motions will be “payable by United Parcel Service Canada Ltd. or Tesha Peters in the cause,” meaning that cost determinations will be deferred to a later point in the overall litigation.
In practical terms, the Court’s order leaves the parties awaiting the CHRT’s remedy decision. The next steps in the Federal Court proceeding will be set only after that decision is rendered and the parties return for a case management conference. The Court made clear that no further procedural measures should occur in the meantime.
As it stands, the judicial review application challenging the CHRT’s initial liability findings against UPS and L.G. remains in place but paused. Once the remedy decision is available, the parties will have an opportunity to address any new issues through separate or amended applications, depending on the content of the CHRT’s ruling and the procedural path chosen at that time.
Ultimately, the order’s effect is to keep the file inactive until the CHRT concludes its work. Then, the Federal Court, under the guidance of a case management judge, will decide how best to proceed, ensuring that the procedural steps taken align with the contents of the final remedy decision.
For more information, see United Parcel Service Canada Ltd. v. Peters , 2024 FC 1967 (CanLII).
