Date: 20120127
Docket: T-8-11
Citation: 2012 FC 105
Ottawa, Ontario, January 27
2012
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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THE ATTORNEY GENERAL OF CANADA
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Applicant
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and
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CHIEF R. DONALD MARACLE IN HIS PERSONAL
CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE
MOHAWKS OF THE BAY OF QUINTE, CHIEF WILLIAM MONTOUR IN HIS PERSONAL CAPACITY
AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE SIX NATIONS
OF THE GRAND RIVER, CHIEF JOEL ABRAM IN HIS PERSONAL CAPACITY AND IN A
REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE ONEIDA NATION OF THE
THAMES AND CHIEF HAZEL FOX-RECOLLET IN HER PERSONAL CAPACITY AND IN A
REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF WIKWEMIKONG UNCEDED
INDIAN RESERVE
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
respondents present themselves as four of the five largest First Nations in Ontario. On January
28, 2010, Mr. Patrick Macklem filed a complaint on their behalf before the
Canadian Human Rights Commission (the Commission) pursuant to section 5 of the Canadian
Human Rights Act, RCS 1985, c H-6 (the Act) alleging discrimination by Indian
and Northern Affairs Canada (INAC) on the basis of national or ethnic origin. The
complaint alleges that the funding policies of INAC have an adverse effect on
the largest First Nations as compared to smaller First Nations in Ontario. On November
24, 2010, the Commission decided to deal with the complaint. This is the decision
being challenged in this application for judicial review brought by the
Attorney General of Canada under section 18.1 of the Federal Courts Act,
RCS 1985, c. F-7.
I. Background and decision under review
[2]
The
basis of the complaint lies in various funding formulas and policies (the funding
formulas) used by INAC to allocate funds to First Nations. These funds support
a wide range of social and economic programs, policies and initiatives in
reserve communities (ex: Band government, Band support, economic development,
education, environment, income support, infrastructure, lands and trusts, major
capital, minor capital and self-government negotiations).
[3]
In
2008, INAC, in cooperation with the five largest First Nations of Ontario, undertook
a study for the purpose of examining INAC’s funding formulas to determine
whether funding inequities existed between the largest First Nations and other
First Nations in Ontario. The study was conducted by PricewaterhouseCoopers
LLP and concentrated on four main areas: education funding, major capital
funding, minor capital funding and infrastructure funding.
[4]
The
respondents submit that the study identified many instances where the five
largest First Nations receive substantially less funding per capita than smaller
First Nations. They concede that the study shows that economies of scale and
urban proximity may explain some differences in per capita funding between larger
and smaller First Nations but they argue that, nevertheless, funding gaps in
per capita funding remain in each of the four areas studied that cannot be
explained or justified by any factor. Thus, the funding formulas distinguish in
an arbitrary manner between members who belong to larger and smaller First
Nations. The respondents further contend that each First Nation has a unique
national or ethnic origin and that therefore a distinction on the basis of
First Nation membership amounts to a distinction on the basis of national or
ethnic origin, which is a prohibited ground of discrimination. Thus, the
funding formulas which distinguish on the basis of the neutral criterion of
First Nations’ size have an adverse discriminatory effect on members who belong
to larger First Nations; members of the larger First Nations will receive less
funding per capita because of their membership in that particular First Nation.
[5]
The
respondents’ complaint is based on section 5 of the Act which defines the
concept of discriminatory practice:
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5.
It is a discriminatory practice in the provision of goods, services, facilities
or accommodation customarily available to the general public
(a)
to deny, or to deny access to, any such good, service, facility or
accommodation to any individual, or
(b)
to differentiate adversely in relation to any individual,
on
a prohibited ground of discrimination.
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5.
Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction
illicite, le fait, pour le fournisseur de biens, de services, d’installations
ou de moyens d’hébergement destinés au public :
a) d’en priver un individu;
b) de le défavoriser à
l’occasion de leur fourniture.
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Since the complainants allege adverse
effect discrimination, subsection 5(b) is relevant to this case.
[6]
The
prohibited grounds of discrimination, enumerated at section 3 of the Act, are:
race, national or ethnic origin, colour, religion, age, sex, sexual
orientation, marital status, family status, disability and conviction for which
a pardon has been granted.
[7]
The
applicant objected to the Commission’s jurisdiction to deal with the respondents’
complaint on the basis that the matter of the complaint fell beyond its jurisdiction
pursuant to paragraph 41(1)(c) of the Act, which reads as follows:
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41. (1)
Subject to section 40, the Commission shall deal with any complaint filed
with it unless in respect of that complaint it appears to the Commission that
…
(c) the
complaint is beyond the jurisdiction of the Commission;
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41.
(1) Sous réserve de l’article 40, la Commission statue sur toute plainte dont
elle est saisie à moins qu’elle estime celle-ci irrecevable pour un des
motifs suivants :
[…]
c) la plainte n’est pas de sa
compétence;
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[8]
The
applicant argued before the Commission that the distinctions created by the
funding formulas are not based on ethnic or national origin but rather on the
size of the First Nations, which is not a prohibited ground of discrimination pursuant
to section 3 of the Act.
[9]
On
June 17, 2010, the Resolution Services Division of the Commission issued a
Section 40/41 Report endorsing INAC’s position and recommending that the
Commission decide not to deal with the complaint. The Section 40/41 Report
concluded that the complaint did not disclose reasonable grounds for believing
that the alleged discrimination was linked to a prohibited ground.
[10]
The
respondents replied to the Section 40/41 Report and their submissions led the
Commission to decide, on January 24, 2010, to deal with the complaint. Indeed,
the text of Commission’s decision was taken directly from a passage of the
respondents’ reply to the Section 40/41 Report:
On the issue of whether the complainant
has provided reasonable grounds for believing that the alleged adverse
differentiation between Aboriginal nations or groups is based on national or
ethnic origin, the Commission is persuaded by the following, set out in the
complainant’s September 7, 2010 submission, that the Commission should not, at
this preliminary stage, decide not to deal with the Complaint:
. . .
In the language of adverse effects, size
of First Nation is an ostensibly neutral criterion being applied in a way that
causes benefits to be withheld from particular groups of individuals on the
basis of their personal characteristics, in particular their First Nation
membership or affiliation. . . . The clear effect of its funding allocations
is to adversely differentiate based on that very ground. This is because an
aboriginal person in Ontario, as elsewhere in Canada, is part of a particular
First Nation group because of his or her national or ethnic origin. The size criterion being
used in INAC’s funding allocations therefore provides certain groups of
individuals sharing common national or ethnic origin (the various smaller Ontario First Nations) with
disproportionate benefits. It concomitantly - and arbitrarily - causes equal
benefits to be withheld from other groups of individuals sharing common
national or ethnic origin (the five largest First Nations in Ontario). Put another way, a
member of one of the Complainant First Nations receives less social services
funding than a member of one of Ontario’s smaller First Nations only because of
his or her First Nation affiliation, which is, at the same time, only because
of his or her national or ethnic origin.
The Complainant First Nations also meet
the tests for national or ethnic origin recognized by the CHRT in Rivers,
supra. . . .
The specific national or ethnic
differences between the First Nations implicated in this complaint are, at the
present stage of the proceeding, largely allegations of fact. Despite the RSD’s
references to lack of substantive evidence on the issue, that is exactly how it
should be, The present pre-screening phase is not an appropriate time for
detailed and, even expert evidence as to the distinguishing social, cultural,
and historical features between the groups, such as was heard by the CHRT
during the course of a formal hearing in Rivers. . . .The issue here and now
is not whether there is substantial evidence distinguishing the First Nations,
but whether the claim that their members are of distinct national or ethnic origin
is reasonable and, if believed, could lead to a finding of discrimination under
the Act. In our submission, the allegations are reasonably based and the
Complainant First Nations should be given the opportunity of proving them
through the evidentiary processes of a Commission proceeding and, potentially,
a hearing before the CHRT.
Conclusion
For the foregoing reasons and with
respect, the RSD’s recommendation to the Commission is in error. It is not
plain and obvious that the complaint is beyond the Commission’s jurisdiction
generally. Specifically, it is not plain and obvious that members of the
Complainant First Nations are not being discriminated on grounds of their
national or ethnic origin.
[Emphasis added]
II. Issue
[11]
The
only issue raised in this judicial review proceeding is whether the Commission
erred in deciding to deal with the complaint.
III. Standard of review
[12]
This
hearing was held before the Supreme Court of Canada issued its judgment in Canada
(Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53
[Mowat]. On November 21, 2011, I issued a direction whereby I offered
both parties the opportunity to make additional submissions on the issue of the
applicable standard of review in light of Mowat, and both parties have
done so.
[13]
The
applicant contends that the case law as to the appropriate standard of review for
decisions by the Commission pursuant to paragraph 41(1)(c) of the Act is
unsettled. However, the applicant argues that, in this case, the Commission’s
decision bore on a question of law pertaining to the jurisdiction of the
Commission. As such, it should be reviewed on a standard of correctness. The
applicant cites Canada (Attorney General) v Watkin, 2007 FC 745, 313 FTR
318, aff’d 2008 FCA 170 at para 23, 378 NR 268 and Hicks v Canada (Attorney General), 2008 FC
1059 at paras 9, 21, 334 FTR 260 [Hicks] in support of this position.
[14]
The
applicant further argues that Mowat militates in favor of the
correctness standard of review as it reaffirms that the correctness standard
applies to true questions of jurisdiction or vires. In the applicant’s
view, the question of whether a prohibited ground is engaged by a complaint
constitutes a true question of jurisdiction as it determines whether the
Commission may deal with the complaint.
[15]
The
respondents, for their part, contend that the question of whether a distinction
on the basis of the size of a First Nation amounts to adverse effect
discrimination is a question of mixed fact and law. The question relates to the
proper interpretation of the Act and such a question is entitled to deference
by a reviewing court. They also acknowledged that the question of whether a
complaint establishes a link to a prohibited ground of discrimination also
attracts the reasonableness standard of review. On the other hand, they contend
that the question of whether Band or First Nation membership equates to or is a
marker for national or ethnic origin, is a true question of jurisdiction or vires
which should be reviewed under the correctness standard of review. They add
that this question is one that is of central importance to the legal system as
a whole and that it raises constitutional issues.
[16]
They
argue, however, that Mowat emphasizes that the focus of analysis should
remain on the nature of the issue that was before the Commission. In deciding
to deal with the complaint, the Commission did not decide all of those above-mentioned
issues; it simply determined that it was not plain and obvious that the
complaint was beyond its jurisdiction and that it would undertake an investigation
into the complaint. The respondents submit that, according to Mowat, the
Commission was required to answer this question correctly.
[17]
In
my opinion, the question of whether a complaint falls beyond the Commission’s
jurisdiction involves an assessment of whether the complaint discloses a
sufficient link to a prohibited ground of discrimination which is a question of
mixed fact and law. Therefore, and for the following reasons, I am of the view
that the Commission’s decision should be reviewed under the reasonableness
standard of review.
[18]
In
Dunsmuir v New Brunswick, 2008 SCC 9 at para 62, 1 SCR 190 [Dunsmuir],
the Supreme Court held that the first step in conducting a standard of review
analysis is to “ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of deference to be accorded with regard to a
particular group of questions. . .” (see also Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 53,
[2009] 1 S.C.R. 339).
[19]
The
wording of section 41 of the Act suggests the exercise of discretion by the
Commission. Recent case law also suggests that the applicable standard of
review of a decision by the Commission as to whether a complaint falls within
its jurisdiction should be reviewed under the standard of reasonableness (Comstock
v Public Service Alliance of Canada, 2007 FC 335 at paras 27, 30, 310 FTR
277 [Comstock]; Hartjes v Canada (Attorney General), 2008 FC 830 at
para 17, 334 FTR 277 [Hartjes]).
[20]
On
this matter, I espouse Justice Snider’s comments in Hartjes:
17 In Comstock v. Public Service
Alliance of Canada, 2007 FC 335, aff'd 2008 FCA 197, Justice Gibson was
faced with a judicial review of a decision of the Commission, taken under s.
41(1)(c) of the Act. As in the case before me, the Applicant's complaints to
the Commission had been dismissed on the ground that "... the complaints
are beyond the jurisdiction of the Commission as no link to a prohibited ground
of discrimination was established". In his decision, Justice Gibson
carried out a careful analysis of the standard of review. Although this case
was pre-Dunsmuir, I note that Justice Gibson undertook a pragmatic and
functional analysis which is, in substance, no different than the second step
identified by the majority in Dunsmuir. Justice Gibson concluded that
that the decision was reviewable on a standard of reasonableness. On the basis
of this jurisprudence, I am satisfied that the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded with
regard to a decision of the Commission under s. 41(1)(c) of the Act; that
standard of review is reasonableness. I pause to note that Justice Gibson's
decision was affirmed by the Court of Appeal in Comstock v. Public Service
Alliance of Canada, 2008 FCA 197, with no comment on the standard of review
adopted by Justice Gibson.
. . .
19 In addition, a review of the four
factors relevant to the standard of review analysis leads to the same conclusion.
First, I observe that there is no privative clause in the CHRA; nor is there
any statutory right of appeal. Second, a decision whether the allegations of a
claimant are linked to or based on a prohibited ground of discrimination has a
significant factual component to it, and involves the exercise of discretion.
Third, while the purpose of the legislation is to give effect to the
fundamental Canadian value of equality, the CHRA grants the Commission a
remarkable degree of latitude when it is performing its screening functions.
Finally, the Commission has considerable expertise in human rights matters and
in balancing the competing interests of the parties to a complaint.
20 Taking the relevant factors into
account, I am satisfied that the Commission's determination as to whether
allegations of a complainant are linked to or based on a prohibited ground of
discrimination is reviewable under the reasonableness standard.
[21]
I
am also of the view that Mowat, above, supports the proposition that the
reasonableness standard of review should be applied to the Commission’s
decision. In Mowat, the Court reiterated the principles enunciated in Dunsmuir,
above, and stated at para 24 that “[i]n substance, if the issue relates to the
interpretation and application of its own statute, is within its expertise and
does not raise issues of general legal importance, the standard of
reasonableness should apply.”
[22]
While
the Commission’s determination related to its jurisdiction to deal with the
respondents’ complaint, this issue involved the interpretation of the Act and an
assessment of allegations of fact; these issues are within the core function
and expertise of the Commission and relate to the interpretation and
application of its enabling statute. Therefore, I am of the view that the
Commission’s decision must be reviewed under the reasonableness standard of
review.
[23]
That
standard was described as follows in Dunsmuir, above, para 47:
47 Reasonableness is a deferential standard animated by the
principle that underlies the development of the two previous standards of
reasonableness: certain questions that come before administrative tribunals do
not lend themselves to one specific, particular result. Instead, they may give
rise to a number of possible, reasonable conclusions. Tribunals have a margin
of appreciation within the range of acceptable and rational solutions. A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
IV. The submissions of the parties
[24]
The
applicant argues that the respondents take issue with distinctions that are
based on the size of the First Nations, not national or ethnic origin. The
applicant submits that the distinctions stemming from the funding formulas are
based on the number of people that make up the First Nations and that the national
or ethnic origin of a First Nation’s members has no impact on the level of funding
that this First Nation will receive. Size is not a prohibited ground under the
Act. Consequently, the complaint fails to disclose the necessary link to a
prohibited ground of discrimination.
[25]
In
addition, the applicant contends that the complaint does not disclose the
elements that, if proven, would satisfy a prima facie case of
discrimination for the following reasons.
[26]
First,
he argues that the respondents' premise is that each First Nation has its own
national or ethnic origin. The applicant asserts that the words "First
Nations" in the context of the respondents' case must be understood as
referring to "Bands" under the Indian Act, RCS 1985, c I-5 (the
Indian Act) since INAC’s funding is provided to "Bands", not to
"First Nations". The applicant submits that First Nation composition is
not an indication of the national or ethnic origin of its members. Bands are established
according to political rather than ethnic considerations. They also divide,
sub-divide or amalgamate for political or administrative purposes. The
applicant further contends that a Band (or a First Nation) can be composed of
people of different national or ethnic origins. Therefore, two First Nations
are not necessarily mutually exclusive with respect to national or ethnic
origin. Similarly, two First Nations can have a majority of their members
belonging to the same national or ethnic origin. Accordingly, a distinction
between two First Nations does not necessarily constitute a distinction on the
basis of national or ethnic origin.
[27]
Second,
the applicant contends that a finding of adverse effect discrimination can only
be made where an apparently neutral distinction has an unequal impact on a
group that shares a protected characteristic. The applicant submits that the
respondents filed their complaint collectively and that therefore they must
share the protected characteristic that they invoke. Yet, the complainants do
not share national or ethnic origin and their only shared characteristic is
being part of the group composed of the largest First Nations in Ontario. The same
can be said for the smaller First Nations. The applicant adds that, even if each
First Nation was to be recognized as having its own national or ethnic origin,
the only shared characteristic among each group – the complainants and the
comparator group – is size.
[28]
Finally,
the applicant submits that there cannot be a finding of adverse effect
discrimination because the prohibited ground – national or ethnic origin – plays
no role in the funding formula. The applicant cites the comments of Justice Abella
in McGill University Health Centre (Montreal General Hospital) v Syndicat
des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161,
in support of the proposition that a link or nexus between the prohibited
ground and the adverse treatment is required. In the absence of such a link,
the complaint cannot be said to contain the essential elements to make out a prima
facie case of discrimination. The applicant also relies on Armstrong v British
Columbia (Ministry of Health), 2010 BCCA 56, at para
10, 2 BCLR (5th) 290, leave to appeal to SCC refused, 410 NR 383 (note), 298
BCAC 319.
[29]
The
respondents, for their part, submit that it was reasonable for the Commission to
conclude, at the pre-investigation stage, that: (1) allocating funds to First
Nations on the basis of size can amount to a distinction on the basis of First
Nation membership and (2) because First Nation membership is a marker for
national or ethnic origin, a distinction between First Nations, be it on size
or on another neutral criterion, can also amount to discrimination on the basis
of national or ethnic origin.
[30]
The
respondents’ position is based on the proposition that members of each First
Nation share a common and distinct national or ethnic origin. They submit that
First Nation membership equates to a marker for national origin as a matter of
law. I do not find it necessary, for the purpose of this judgment, to expand on
this argument.
[31]
The
respondents further content that First Nation membership is also a marker of
national or ethnic origin as a matter of fact; members of each of the
respondents’ First Nations share a common and distinct national or ethnic
origin. More specifically, the respondents allege that members of each First
Nation do share a common national or ethnic identity that is embedded in the
distinctive legal traditions and customary laws of their First Nation. They
argue that members of each First Nation, by blood, marriage or adoption, share
ancestry with an aboriginal community initially demarcated by the establishment
of a reserve or the making of a treaty.
[32]
The
respondents cite Mandla v Dowell Lee, [1983] 2 AC 548 at 562, 1 All ER
1062, a decision of the House of Lords, and King-Ansell v Police, [1979]
2 NZLR 531, a decision of the New Zealand Court of Appeal, which propound the
conditions necessary to establish the existence of a distinct “ethnic group”.
They submit that these conditions were cited with approval by the tribunal in Squamish
Indian Band v Canada, 2001 FCT 480, 207 FTR
1. They argue that in order to meet the conditions set out in these cases, they
need to introduce some evidence and that this can only be done if the
Commission investigates the complaint.
[33]
The
respondents further contend that their complaint is a classic case of adverse
effect discrimination: INAC’s funding formulas allocate benefits on the basis
of a neutral criterion – size of First Nations – which creates discriminatory
consequences for classes of people on the basis of their membership in a particular
First Nation. Since each First Nation has its own national or ethnic origin, the
effect of the funding formulas is to adversely differentiate between First
Nations on a prohibited ground of discrimination.
[34]
The
respondents also contend that to establish a prima facie case of adverse
effect discrimination, it is sufficient that the complaint show that the
neutral criterion – size of First Nations – withholds a benefit or imposes a
burden on an individual or group of individuals that are identifiable by their
national or ethnic origin.
V. Discussion
[35]
The
applicant asks that the respondents’ complaint be dismissed at the
pre-investigation stage.
[36]
For
the purposes of this judgment, it is relevant to situate the Commission’s
decision within the context of the entire discrimination complaint process set
out in the Act.
[37]
The
discrimination complaint process is set out in the Act. Section 40 of the Act provides
that an individual or a group of individuals may file a complaint with the
Commission if they have reasonable ground to believe that a person is engaging
or has engaged in a discriminatory practice.
[38]
Once
a complaint is filed, the Commission, which acts as a gate-keeper to the Canadian
Human Rights Tribunal (the Tribunal), must first decide whether to deal with
the complaint and investigate the allegations. If the Commission decides to
deal with a complaint, it will determine, following an investigation, whether the
allegations warrant a full inquiry by the Tribunal. The Commission’s mandate has
been authoritatively enunciated by Justice La Forest in Cooper
v Canada (Canadian
Human Rights Commission), [1996] 3 S.C.R. 854 at para 49, 140 DLR (4th) 193
:
49 A complaint of a discriminatory
practice may, under s. 40, be initiated by an individual, a group, or the
Commission itself. On receiving a complaint the Commission appoints an
investigator to investigate and prepare a report of its findings for the
Commission (ss. 43 and 44(1)). On receiving the investigator's report, the Commission
may, after inviting comments on the report by the parties involved, take steps
to appoint a tribunal to inquire into the complaint if having regard to all the
circumstances of the complaint it believes an inquiry is warranted (ss.
44(3)(a)). Alternatively the Commission can dismiss the complaint, appoint a
conciliator, or refer the complainant to the appropriate authority (ss.
44(3)(b), 47(1) and 44(2) respectively).
50 If the Commission decides
that a tribunal should be appointed, then, pursuant to the Commission's
request, the President of the Human Rights Tribunal Panel appoints a tribunal
(s. 49). This tribunal then proceeds to inquire into the complaint and to offer
each party the opportunity to appear in person or through counsel before the tribunal
(s. 50). At the conclusion of its inquiry the tribunal either dismisses the
complaint pursuant to s. 53(1) or, if it finds the complaint to be
substantiated, it may invoke one of the various remedies found in s. 53 of the
Act…
. . .
52 . . . Looking at the Act as a whole it
is evident that the role of the Commission is to deal with the intake of
complaints and to screen them for proper disposition. . .
53 The Commission is not an
adjudicative body; that is the role of a tribunal appointed under the Act. When
deciding whether a complaint should proceed to be inquired into by a tribunal,
the Commission fulfills a screening analysis somewhat analogous to that of a
judge at a preliminary inquiry. It is not the job of the Commission to
determine if the complaint is made out. Rather its duty is to decide if, under
the provisions of the Act, an inquiry is warranted having regard to all the
facts. The central component of the Commission's role, then, is that of
assessing the sufficiency of the evidence before it. . .
[Emphasis added]
[39]
As
stated above, the first decision that the Commission must make upon receiving a
complaint is whether it will deal with it and investigate the allegations.
Section 41 of the Act obliges the Commission to deal with all complaints that
are filed unless it appears to it that the complaint falls within the
exceptions set forth in section 41; one of those exceptions being that the complaint
is beyond its jurisdiction. The approach that the Commission should adopt when
deciding whether to deal with a complaint, and the approach that the reviewing
court should keep in mind, was enunciated by Justice Rothstein in Canada
Post Corp v Canada (Canadian Human Rights Commission) (1997), 130 FTR 241,
71 ACWS (3d) 935 (TD); aff’d (1999), 169 FTR 138, 245 NR 397 (FCA) [Canada
Post], wherein he held that the Commission should decline to deal with a
complaint only where it is plain and obvious that the matter is beyond its
jurisdiction:
3 A decision by the Commission under
section 41 is normally made at an early stage before any investigation is
carried out. Because a decision not to deal with the complaint will summarily
end a matter before the complaint is investigated, the Commission should
only decide not to deal with a complaint at this stage in plain and obvious
cases. The timely processing of complaints also supports such an approach.
A lengthy analysis of a complaint at this stage is, at least to some extent,
duplicative of the investigation yet to be carried out. A time consuming analysis
will, where the Commission decides to deal with the complaint, delay the
processing of the complaint. If it is not plain and obvious to the Commission
that the complaint falls under one of the grounds for not dealing with it under
section 41, the Commission should, with dispatch, proceed to deal with it.
[Emphasis added]
[40]
This
approach has been endorsed by this Court in several judgments (Comstock,
above, at paras 39-40, 43; Hartjes, above, at para 30, Hicks,
above, at para 22; Michon-Hamelin v Canada (Attorney
General),
2007 FC 1258 at para 16 (available on CanLII) [Michon-Hamelin]) and I also
endorse it. This approach is consistent with the Commission’s primary role under
the Act as a gate‑keeper responsible for assessing the allegations of a complaint
and determining whether they warrant an inquiry by the Tribunal. In deciding
whether to deal with a complaint, the Commission is vested with a certain level
of discretion but it must be wary of summarily dismissing a complaint since the
decision is made at a very early stage and before any investigation. The question
of whether a complaint falls within the Commission’s jurisdiction may, in
itself, require some investigation before it can be properly answered. It is
worth noting that, at the end of the investigation process, the Commission can
again, pursuant to subparagraph 44(3)(1)(b)(ii) of the Act, dismiss a complaint
for lack of jurisdiction.
[41]
A
complainant is not required to present evidence at the pre-investigation stage
but the complaint must nevertheless disclose a sufficient link to a prohibited
ground of discrimination.
[42]
As the respondents suggest, the “plain and obvious” test proposed
by Justice Rothstein is very similar to the test for striking out a court
pleading on the basis that it discloses no reasonable cause of action. The
approach proposed in the context of such a motion by the Supreme Court of
Canada in Hunt v Carey Canada Inc, [1990] 2 S.C.R. 959 at para 33, 74 DLR
(4th) 321, may be of assistance to the Commission when it determines whether a
complaint should be summarily dismissed without any investigation:
Thus, the test in Canada . . . is . . . assuming
that the facts as stated can be proved, is it “plain and obvious” that the
plaintiff’s statements of claim discloses no reasonable cause of action? As in England, if there is a chance that
the plaintiff might succeed, then the plaintiff should not be “driven from the
judgment seat”. Neither the length and complexity of the issues, the
novelty of the cause of action, nor the potential for the defendant to
present strong defence should prevent the plaintiff from proceeding with
his or her cause. …
[Emphasis added]
[43]
This Court has endorsed a similar approach in Michon-Hamelin,
above, at para 23, where Justice Mactavish held that at the pre-investigation stage,
the factual allegations contained in the complaint should be taken as true. In
my view, this is an appropriate approach. The decision of the Commission is of
a preliminary nature and is based on arguments presented by the parties without
any examination of evidence. A thorough analysis of the complainant’s
allegations and of the arguments of the opposing party, at the
pre-investigation stage would be “to some extent, duplicative of the
investigation yet to be carried” (Canada Post,
above, at para 3). Furthermore, where a party alleging a lack of jurisdiction
from the Commission raises arguments that involve both factual and legal
arguments, it is, in my view, an indication that some investigation is required
in order for the Commission to determine whether the allegations disclose a
sufficient link to a prohibited ground.
[44]
The
respondents’ complaint contains a significant factual component; their position
is based on the proposition that each First Nation has a distinct national or
ethnic origin and that, therefore, First Nation membership is a marker for
national or ethnic origin. The applicant vigorously opposes this proposition
and further raises compelling arguments to support his position that the
complaint does not disclose elements that would be sufficient to establish a prima
facie case of discrimination. However, I am of the view that it is not the
Commission’s role, at the pre-investigation stage, and certainly not the
Court’s role, to weigh the evidence and arguments that each party put forward
to support their respective positions. Rather, the issue is whether the
respondents’ allegations, assuming that facts can be proven, disclose a link to
a prohibited ground of discrimination sufficient to trigger the Commission’s
jurisdiction to investigate the allegations.
[45]
In
Hartjes, above, at para 23, the Court recognized that there is a burden
on the complainant to include sufficient information to persuade the Commission
that there is a link “between complained-of acts and a prohibited ground”, but held
that this threshold is low.
[46]
In
this case, the respondents allege that the differential treatment that they
receive in application of INAC’s funding formulas derives from their membership
in specific First Nations, which are all identifiable by their national or
ethnic origin. I am not ready to conclude that it was unreasonable for the
Commission to determine, at the pre-investigation stage, that it was not plain
and obvious that the complaint falls beyond its jurisdiction. The respondents’ complaint
discloses a link, although a tenuous one, between the disadvantageous effects of
INAC’s funding formulas (they receive less funding per capita) and the fact
that they are members of specific First Nations identifiable by their national or
ethnic origin. Is the alleged link sufficient to reasonably support a case of
adverse effect discrimination? I am of the view that this determination is not
obvious on the face of the complaint and will be best reached following an
investigation. If, following the investigation, the Commission is not satisfied
that the complaint discloses a sufficient link to a prohibited ground of
discrimination, it can still dismiss a complaint for lack of jurisdiction.
[47]
The
wording of section 41 of the Act clearly suggests that the Commission is vested
with discretion when deciding to deal with a complaint. It is generally
accepted that a reviewing Court should not interfere with the exercise of
discretion merely because it may have had exercised this discretion differently
than the Court would (PPSC Enterprises Ltd. v Canada (Minister of
National Revenue), 2007 FC 784 at para 21, 159 ACWS (3d) 299. This Court may only
intervene when the Commission’s decision is unreasonable, meaning when it falls
outside the range of possible, acceptable outcomes which are defensible in
respect of the facts and the law (Dunsmuir, above, at para 47). In Dunsmuir,
at para 47, the Court also held that tribunals should “have a margin of
appreciation within the range of acceptable and rational solutions.” In Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, Justice Binnie,
writing for the majority, clearly indicated that the reviewing Court should not
substitute its own view of a preferable outcome:
59 Reasonableness
is a single standard that takes its colour from the context. One of the
objectives of Dunsmuir was to liberate judicial review courts from what
came to be seen as undue complexity and formalism. Where the reasonableness
standard applies, it requires deference. Reviewing courts cannot substitute
their own appreciation of the appropriate solution, but must rather determine
if the outcome falls within "a range of possible, acceptable outcomes
which are defensible in respect of the facts and law" (Dunsmuir, at
para. 47). There might be more than one reasonable outcome. However, as long as
the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome.
[48]
I
am therefore of the view that it was reasonable for the Commission to conclude
that it was not plain and obvious that the respondents’ complaint falls beyond
its jurisdiction. Accordingly, the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed
with costs in favour of the respondents.
“Marie-Josée
Bédard”
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