Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 SCR 223

Quebec (Attorney General) v. Quebec (Human Rights Tribunal), [2004] 2 S.C.R. 223, 2004 SCC 40

Commission des droits de la personne et des

droits de la jeunesse, acting on behalf of

Caroline Charette                                                                                             Appellant

v.

Attorney General of Quebec                                                                        Respondent

and

Quebec Human Rights Tribunal, Honourable Simon Brossard,

Caroline Gendreau and Stéphanie Bernstein                                              Interveners

Indexed as:  Quebec (Attorney General) v. Quebec (Human Rights Tribunal)

Neutral citation:  2004 SCC 40.

File No.:  29187.

2003:  October 14; 2004:  June 11.

Present:  McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and Fish JJ.

on appeal from the court of appeal for quebec

Civil rights — Human rights tribunal — Jurisdiction — Complainant leaving work on maternity leave no longer entitled to receive social assistance benefits provided to low income families with children under income security legislation — Complainant alleging discrimination on basis of sex and pregnancy — Commission des affaires sociales having jurisdiction to deal with disputes concerning ministerial decisions to discontinue a person’s benefits under legislation — Whether Commission has exclusive jurisdiction over dispute — Whether Human Rights Tribunal may decide issue of alleged discrimination.

The complainant was entitled to participate in a government program called APPORT that provided social assistance benefits to low income families with children where at least one adult was receiving income from employment in the labour force. When she left work on maternity leave, she was told that she would not receive the benefits because the employment insurance benefits she would receive while on maternity leave were not income from employment.  She filed a complaint with the Quebec Human Rights Commission alleging discrimination on the basis of sex and pregnancy.  The complaint was referred to the Human Rights Tribunal.  The Tribunal rejected a motion that it decline jurisdiction on the ground that the Commission des affaires sociales (CAS) possessed exclusive jurisdiction over the dispute.  The motions for judicial review and suspension of the Tribunal proceedings were later dismissed by the Superior Court.  The Court of Appeal reversed the orders, holding that the Tribunal had no jurisdiction over the dispute and that the complainant’s only remedy was an appeal to the CAS.

Held (McLachlin C.J. and Iacobucci and Major JJ. dissenting):  The appeal should be dismissed.

Per Bastarache and Arbour JJ.:  The Tribunal des droits de la personne did not have jurisdiction ratione materiae to hear this dispute.  The key  issue in each case is whether the essential character of the dispute, in its factual context, arises either expressly or inferentially from a statutory scheme.  Here, the essential character of the dispute consists in deciding whether the complainant qualifies for the PWA program, an issue that lies within the exclusive jurisdiction of the CAS.

Where there is a comprehensive administrative scheme, such as the one established by the Act respecting the Commission des affaires sociales and the Income Security Act, that gives a specialized administrative body and that body alone the jurisdiction to apply and interpret that scheme, this administrative body will not lose its exclusive jurisdiction simply because a case raises a human rights issue or involves declaring a legislative provision to be of no force or effect.  The legislature did not make a distinction between disputes that are based on human rights grounds and those that are not.  On the contrary, it has explicitly granted  the CAS the power to decide questions of law arising out of the application of ss. 78 and 81 of the Income Security Act, this power being presumed to include the authority to declare the Minister’s decision to exclude the complainant from the PWA program discriminatory and declare any provision of the Income Security Act contravening the Quebec Charter of Human Rights and Freedoms to be of no force or effect.  This authority is consistent with the intent of the Quebec legislature, which gave the Tribunal non-exclusive powers and stipulated that administrative bodies not specializing in human rights nevertheless have a duty to enforce those rights in their decisions.  Finally, even if a dispute raises a question of non-compliance with obligations under the Charter, the resolution of this dispute requires a thorough understanding of the objectives of the legislative scheme, as well as of the practical constraints related to its application and the consequences of the remedies proposed.

Per Binnie and Fish JJ.:  Section 21 of the CAS Act makes it clear that the administrative appeal route for claimants dissatisfied with the Minister’s discontinuance of an income security benefit is exclusive to the CAS and the jurisdiction is not overlapping or concurrent with that of any other Tribunal.  While it is true that the dispute can also be viewed as a human rights claim about the validity of an aspect of the legislative scheme, the question of validity under the Quebec Charter of Human Rights and Freedoms is also within the jurisdiction of the CAS, and the complainant cannot sidestep the clearly expressed will of the Quebec legislature by failing to ask for reconsideration or failing to exercise her right of administrative appeal.  The legal factors that favoured the jurisdiction of the Commission in Morin do not apply here.  First, there is no doubt that the complainant’s claim is under the Income Security Act and that the CAS is competent to deal with it, including the Charter arguments.  Second, the complainant here would not be represented by unions opposed, on the face of it, to her interests.  Third, the CAS has jurisdiction over all relevant parties to the complaint about discontinuance of the income supplement.  Fourth, while the dispute potentially affects many individuals, this is true of Charter claims generally, and it is a factor which the Quebec legislature inevitably took into account when it gave exclusive jurisdiction to the CAS, including jurisdiction to adjudicate Charter issues, subject to judicial review.

Per McLachlin C.J. and Iacobucci and Major JJ. (dissenting):  To determine whether the Human Rights Tribunal has jurisdiction to decide the dispute, one must consider both the legislation conferring jurisdiction to the CAS and the nature of the dispute, taken in its factual context and viewed in its essential nature rather than formalistically.  Where legislation confers exclusive jurisdiction, one must go on to determine over what the jurisdiction is exclusive.  This helps ensure that jurisdictional issues are decided in a manner that is consistent with the legislative regimes governing the parties and that the tribunal with the best fit with the dispute will have jurisdiction.

Here, the legislature has granted the CAS exclusive  jurisdiction to deal with disputes concerning ministerial decisions to discontinue a person’s benefits under the Income Security Act and, in exercising its jurisdiction, the CAS has the authority to interpret and apply the Quebec Charter of Human Rights and Freedoms.  Viewed in its essential nature, however, the dispute is about discrimination on the ground of pregnancy; it is not an appeal from a ministerial ruling on security benefits.  Notwithstanding the broad grant of exclusive jurisdiction to the CAS, the Income Security Act does not give the CAS exclusive jurisdiction over a dispute that, viewed in its full factual matrix, is essentially a human rights claim about the validity of a law that affects the complainant and many others in her situation.  The Tribunal is thus entitled to exercise jurisdiction over the claim under its governing legislation since the complainant has not pursued any other remedy.  Lastly, the Tribunal seems to be the “best fit” for the dispute.

Cases Cited

By Bastarache J.

Applied:  Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; referred to:  Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854.

By Binnie J.

Applied: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; referred to:  Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704.

By McLachlin C.J. (dissenting)

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Brunet v. Commission des affaires sociales, [1993] R.J.Q. 443.

Statutes and Regulations Cited

Act respecting income security, R.S.Q., c. S-3.1.1, ss. 76, 78, 81.

Act respecting the Commission des affaires sociales, R.S.Q., c. C-34, ss. 21, 23.

Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 10, 12, 49, 77(2), (4), 80.

Authors Cited

Garant, Patrice, et autres.  La Commission des affaires sociales:  Tribunal administratif d’appel.  Québec:  Faculté de droit, Université Laval, 1979.

APPEAL from a judgment of the Quebec Court of Appeal, [2002] R.J.Q. 583, 44 C.H.R.R. D/335, [2002] Q.J. No. 369 (QL), reversing a judgment of the Superior Court, [2000] Q.J. No. 5646 (QL).  Appeal dismissed, McLachlin C.J. and Iacobucci and Major JJ. dissenting.

Béatrice Vizkelety and Christian Baillargeon, for the appellant.

Mario Normandin and Patrice Claude, for the respondent.

Georges Marceau, for the interveners.

The reasons of McLachlin C.J. and Iacobucci and Major JJ. were delivered by

The Chief Justice (dissenting) —

A.  Introduction

1                                   The issue here, as in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39 (“Morin”), is whether the Quebec Human Rights Tribunal is deprived of jurisdiction to decide an issue of alleged discrimination, on the ground that the legislature has conferred exclusive jurisdiction on a different tribunal, in this case the Commission des affaires sociales (“CAS”).

2                                   The complainant worked in a law office earning $22,000 a year.  As such, she was entitled to participate in a government program called APPORT under the Act respecting income security, R.S.Q., ch. S-3.1.1 (“Income Security Act”).  The APPORT program provided social assistance benefits to low income families with children where at least one adult was receiving income from employment in the labour force.  The complainant became pregnant.  She was told that when she left work on maternity leave, she would not receive these benefits because the employment insurance benefits she would receive while on maternity leave were not income from employment.

3                                   Although entitled to do so, the complainant did not appeal this decision to the CAS.  Instead, she filed a complaint with Quebec’s Human Rights Commission alleging discrimination on the basis of sex and pregnancy contrary to ss. 10 and 12 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., ch. C-12.  The Commission investigated and proposed changes to the scheme, which the responsible Minister rejected.  The Commission then referred the complaint to the Human Rights Tribunal.  The Attorney General of Quebec filed a motion that the Human Rights Tribunal decline jurisdiction on the ground that the CAS possessed exclusive jurisdiction over the dispute.  The Human Rights Tribunal rejected the motion.  The Superior Court rejected the Attorney General’s motions for judicial review and suspension of the Tribunal proceedings ([2000] Q.J. No. 5646 (QL)).  The Court of Appeal reversed these orders, holding that the Human Rights Tribunal had no jurisdiction over the dispute and that the complainant’s only remedy was an appeal to the CAS ([2002] R.J.Q. 583).

4                                   As in Morin, the facts giving rise to the dispute had an importance beyond the individual claim and could be seen as representative of the complaint of a large number of individuals like Ms. Charette about a disadvantageous measure which, in their view, did not comply with the Quebec Charter.

B.  Analysis

5                                   Is the jurisdiction of the Quebec Human Rights Tribunal to decide this dispute ousted because the legislature conferred exclusive jurisdiction on the CAS?

6                                   To answer this question we must consider the legislation conferring jurisdiction on the CAS and apply it to the dispute at issue.  As discussed in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and Morin, there are three possibilities.  The legislature may permit different tribunals to exercise “concurrent” jurisdiction.  It may require different tribunals to decide different aspects of a decision, an “overlapping” jurisdiction model.  Finally, it may confer exclusive jurisdiction on a particular tribunal, with the result that only that tribunal can decide the issue.

7                                   Merely looking at the legislation cannot tell us which of these three models the legislature chose.  Even if the legislation uses the word “exclusive” in describing a tribunal’s jurisdiction, a further question arises: exclusive over what?  For this reason, one must consider both the legislation and the nature of the dispute, taken in its factual context and viewed in its essential nature rather than formalistically.  As discussed in Morin, this helps ensure two things: first, that jurisdictional issues are decided in a manner that is consistent with the legislative regimes governing the parties; and second, that the tribunal with the best fit with the dispute will have jurisdiction.

8                                   Turning first to the legislation, the legislature has granted the CAS (and now the Administrative Tribunal of Quebec — the ATQ), jurisdiction under the Income Security Act and the Act respecting the Commission des affaires sociales, R.S.Q., ch. C-34,  to deal with disputes concerning ministerial decisions to discontinue a person’s benefits under the Income Security Act.  Section 76 of the Income Security Act provides that “[e]very person affected by a decision of the Minister . . .  may, in writing, apply for a review of the decision and present observations within 90 days from the date of notice of the decision.”  Under s. 78, the person may contest a decision before the CAS if the application was “refused on the ground that it was received after the period prescribed”.  As for s. 81 of the Act, if the claimant considers himself or herself “wronged by a reviewed decision . . . [the claimant] may contest the decision before the Administrative Tribunal of Québec within 60 days of notification”.  At the CAS, the emphasis is on the quick and efficacious resolution of disputes arising from administrative decisions made under specific provincial legislation or regulations; see s. 21 of the CAS Act.  To this end, the CAS’s procedures are more informal than those of the traditional justice system; see P. Garant et al., La Commission des affaires sociales: Tribunal administratif d’appel (1979), at pp. 103-4.

9                                   The Act respecting the Commission des affaires sociales provides at s. 21 that the administrative appeal route for dissatisfied claimants is not overlapping or concurrent with the courts or other tribunals, but is exclusive to the CAS:

The object of the Commission [now the ATQ] is to hear, to the exclusion of every other commission, tribunal, board or body, except as regards the requests contemplated in paragraph d of this section:

(a) the appeals brought under section 78 or section 81 of the Act respecting income security . . . . [Emphasis added.]

10                               In exercising its jurisdiction, the CAS has the authority to interpret and apply the Quebec Charter: see s. 23 of the CAS Act.  This said, the CAS does not possess any particular expertise in dealing with human rights issues.  The Quebec Court of Appeal explained the limited expertise of the CAS as follows in Brunet v. Commission des affaires sociales, [1993] R.J.Q. 443, at p. 450, per Baudouin J.A.:

[translation] [T]he Commission des affaires sociales is truly a specialized and technical tribunal.  Even though it has jurisdiction with respect to several statutes, it possesses a specialized expertise and vocation: it sits, for example, in specialized divisions and its assessors are specifically designated. [Emphasis added.]

Although the CAS does not have any particular expertise over human rights matters, s. 23 of the CAS Act provides that “its decisions shall be final and without appeal”.

11                               Where legislation confers exclusive jurisdiction, one must go on to determine its scope.  “Exclusive over what?” remains the question.  This brings us to how this legislation applies to the dispute here.  The essential question is this: Is the dispute, viewed in its factual matrix and not formalistically, an “appea[l] brought under section 78 or section 81 of the Act respecting income security . . .” and thus within the exclusive jurisdiction of the CAS?  Looking at the facts of the dispute, one must determine whether the dispute falls within the legislative scheme.

12                               If the nature of the dispute is viewed formalistically, it is possible to say that this is a dispute about “income security”.  But the majority decision in Weber, as discussed, proscribes a formalistic characterization of the dispute.  It demands that we look at the dispute in its full factual context and seize its essence.

13                               Here the facts are that Ms. Charette was employed.  Because of her low salary ($22,000 a year) she was entitled to an income supplement under the APPORT scheme.  Her salary plus the APPORT benefits provided her with her living.

14                               Then things changed.  Ms. Charette became pregnant.  She had to leave her job and take maternity leave.  That itself posed no problem, since she was entitled to employment insurance benefits in place of her salary.  However, the APPORT portion of her income was stopped.  Ms. Charette was told that while APPORT benefits were available to supplement earned income from employment, they were not available to supplement employment insurance benefits.  Ms. Charette was faced with a net reduction in her income, simply because she had become pregnant and was relying on employment insurance benefits instead of income from employment.

15                               Ms. Charette contends that the Regulations of the APPORT scheme that lead to this result discriminate against her and other pregnant women in her situation, in violation of the Quebec Charter.  She sought an order that the Regulations are invalid on this basis.  Accordingly, she went to the forum which the legislature had established for investigating discrimination claims — the Human Rights Commission.  The Commission, in turn, filed the claim before the Human Rights Tribunal — the forum established by the legislature to hear discrimination claims under the Quebec Charter.

16                               The Attorney General contends this is simply a claim for benefits under the Income Security Act.  The Commission, by contrast, sees the dispute as essentially a discrimination claim.  The question is which view captures the essence of the dispute?  In my view, the Commission’s characterization is more accurate.  The Attorney General’s characterization of the dispute diminishes Ms. Charette’s claim.  First, it eliminates the essence of the claim — the allegation that the Income Security Act and the APPORT scheme it creates violate the equality rights guaranteed by the Quebec Charter.  Second, it removes the collective aspect of the complaint.  Ms. Charette is seeking a declaration that the program itself is discriminatory and that this violates not only her rights but those of all pregnant women treated as she was.  Thirdly, the Attorney General’s characterization of Ms. Charette’s complaint diminishes its significance.  It treats the complaint as if it were an issue of the improper application of the law, instead of an issue of the validity of the law itself.

17                               Here, as in Morin, the parties are in essential agreement about the interpretation and application of the relevant legal scheme.  No one suggests that the APPORT scheme was misinterpreted or misapplied in the case of Ms. Charette.  Under this scheme, she was not entitled to social assistance benefits if she was not earning income from employment — something she would not be doing while on maternity leave.  As in Morin, the real dispute is about the validity of the scheme, not about its application.

18                               I conclude that this dispute, viewed in its essential nature, is about discrimination on the ground of pregnancy, an established head of gender discrimination.  Viewed in its essential nature, the dispute is not an appeal from a ministerial ruling on security benefits over which the legislature intended the CAS to have exclusive jurisdiction, notwithstanding the broad grant of exclusive jurisdiction to the CAS.  While the dispute over jurisdiction is arguable, here, as in Morin, the legislation and the dispute, viewed in their full context, lead me to conclude that the Human Rights Tribunal has jurisdiction.  The Income Security Act does not give the CAS exclusive jurisdiction over a dispute that, viewed in its full factual matrix, is essentially a human rights claim about the validity of a law that affects Ms. Charette and many others in her situation. 

19                               The Human Rights Commission and the Human Rights Tribunal were created by the legislature to resolve precisely this type of issue.  These bodies were created by the legislature to promote equality, combat discrimination and provide remedies for individuals who have been treated unfairly.  The complaint was brought by Ms. Charette to the Commission, which chose, ultimately, to file a claim before the Human Rights Tribunal.  The Tribunal was entitled to exercise jurisdiction over it.  In choosing not to decline jurisdiction, the Tribunal must have been satisfied that Ms. Charette had not personally pursued one of the remedies provided for in ss. 49 or 80 of the Quebec Charter; see s. 77(2) of the Quebec Charter.   If Ms. Charette had chosen to pursue an alternative remedy, such as an appeal before the CAS, the Tribunal might have chosen to decline jurisdiction, as a matter of discretion; see s. 77(4) of the Quebec Charter.  But, Ms. Charette had not pursued any other remedy and thus the Commission was entitled to file the complaint before the Human Rights Tribunal.  For these same reasons, the Tribunal was entitled to exercise its jurisdiction over the claim under the governing legislation. 

20                               I add that, as in Morin, the Human Rights Tribunal seems to be the “best fit” for this dispute.  Moreover, in investigating the dispute and determining whether the Regulations are discriminatory and hence invalid, the Tribunal will not be duplicating the work of the Minister and the CAS, whose basic task is to apply the existing law and regulations in a fair manner.

C.   Conclusion

21                               I would allow the appeal and reinstate the order of the Tribunal dismissing the respondent’s motion to decline to hear the case because the Tribunal lacked jurisdiction over the dispute.

English version of the reasons of Bastarache and Arbour JJ. delivered by

Bastarache J. —

I.  Introduction

22                               This case, like Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39 (“Morin”), concerns the manner of determining the essential character of a dispute between two parties when, at first glance, there appear to be two administrative bodies that could claim jurisdiction over the matter, but one of the bodies has an exclusivity clause in its enabling statute.  The Chief Justice concludes that a distinction must be made between the way the program Ms. Charette was excluded from is applied and the potentially discriminatory nature of the program itself.  In her opinion, the essential character of the dispute is not a question of whether the refusal to accept Ms. Charette’s claim under the program was justified or not; it is rather an issue of the validity of one aspect of the applicable statutory regime.  Following this approach, the exclusivity clause would be of no effect.

23                               I am of the opinion that such an approach, which would set aside the exclusivity clause because the refusal to grant the benefits claimed is an infringement of Ms. Charette’s human rights, is tantamount to saying that the legal characterization of the claim should prevail over the facts giving rise to the dispute.  The factual context was held to be the only applicable criterion in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14.  In my view, a review of the factual context of the case at bar shows that the essential character of the dispute consists in deciding whether Ms. Charette qualifies for the Parental Wage Assistance (“PWA”) program, an issue that lies within the exclusive jurisdiction of the Commission des affaires sociales (“CAS”).

II.  Analysis

24                               In the case at bar, after leaving her employment to take maternity leave, Ms. Charette was refused benefits under the PWA program, as the employment insurance benefits she received while on leave were not considered employment income.  Rather than apply to have the Minister’s refusal reviewed and then, if necessary, file an appeal with the CAS, she instead turned to the Commission des droits de la personne et des droits de la jeunesse, which referred her complaint to the Human Rights Tribunal (“Tribunal”).

25                               At paragraph 18 of her reasons, the Chief Justice concludes: “this dispute, viewed in its essential nature, is about discrimination on the ground of pregnancy”.  As I said in Morin, supra, at para. 67, I do not think there is any legal justification for making a distinction between disputes that are based on human rights grounds and those that are not.  In the case at bar, as in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42, the legislature did not make such a distinction.  On the contrary, the legislature stipulated in s. 21(a) of the Act respecting the Commission des affaires sociales, R.S.Q., c. C‑34 (“CAS Act”) that the CAS is to hear, to the exclusion of every other entity, appeals brought under s. 78 or s. 81 of the Act respecting income security, R.S.Q., c. S‑3.1.1 (“Income Security Act”).  No exception is made for cases involving human rights issues.

26                               Section 23 of the CAS Act effectively provides that the CAS “is empowered to decide any question of fact or of law” submitted to it, a power which necessarily includes the jurisdiction to interpret and apply the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12.  This provision is similar to s. 185(1) of Nova Scotia’s Workers’ Compensation Act which this Court had occasion to consider in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54.  In that case, an appeal of a decision concerning the constitutionality of s. 10B of the Workers’ Compensation Act, this Court confirmed the following legal rule, per Gonthier J. (at para. 3):

Administrative tribunals which have jurisdiction — whether explicit or implied — to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision.  This presumption may only be rebutted by showing that the legislature clearly intended to exclude Charter issues from the tribunal's authority over questions of law.

Applying this rule to the present case, I believe that the CAS has been explicitly granted the power to decide questions of law arising out of the application of ss. 78 and 81 of the Income Security Act, this power being presumed to include the authority to declare the Minister’s decision to exclude Ms. Charette from the PWA program discriminatory and declare any provision of the Income Security Act contravening the Charter to be of no force or effect.  To me, this would best reflect the legislature’s intent not to limit the effect of the exclusivity clause on the grounds that the refusal to grant benefits is motivated by discrimination forbidden under the Charter.

27                               This Court has already established that an issue that involves the application of the Charter and that may raise policy concerns must not be analysed outside its factual context, in this case, the review and appeal process provided for under the Income Security Act: Weber, supra, at para. 60.  We cannot ignore the legislative scheme in place nor the CAS’s expertise in matters concerning benefits under the Income Security Act. Even if a dispute raises a question of non‑compliance with obligations under the Charter, the resolution of this dispute requires a thorough understanding of the objectives of the legislative scheme, as well as of the practical constraints related to its application and the consequences of the remedies proposed: Nova Scotia (Workers’ Compensation Board), supra, at para. 30.

28                               Taking into account that the Tribunal does not have exclusive jurisdiction, setting aside the CAS’s exclusivity clause amounts to saying that the CAS and the Tribunal have concurrent jurisdiction.  Following this approach, Ms. Charette could, pursuant to ss. 49 and 80 of the Charter, bypass both tribunals and instead apply directly to the Superior Court.  Yet in Weber, supra, this Court ruled that the exclusivity clause should be applied, allowing all aspects of the dispute arising out of the collective agreement to be submitted to the same arbitrator.  As I explained in Morin, supra, the Quebec legislature gave the Tribunal non‑exclusive powers and stipulated that administrative bodies not specializing in human rights nevertheless have a duty to enforce those rights in their decisions.  Here, in contrast, the Chief Justice’s approach does not support handling all aspects of a dispute between the provider and the beneficiary of a benefit in the same forum, the reason being that the essential character of the dispute touches on the validity of the program itself, and not the application of that program, even if the administrative tribunal is authorized to apply the Charter and to declare the provisions that violate the Charter to be of no force or effect.  In my opinion, this does not foster the development of a general culture of respect for human rights throughout Quebec’s entire administrative system.  Such an approach had been favoured by McLachlin J., as she then was, in her dissenting opinion in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at para. 70:

The Charter is not some holy grail which only judicial initiates of the superior courts may touch.  The Charter belongs to the people.  All law and law‑makers that touch the people must conform to it.  Tribunals and commissions charged with deciding legal issues are no exception.  Many more citizens have their rights determined by these tribunals than by the courts.  If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals.

29                               How can the exclusivity clause be set aside if the CAS has jurisdiction to apply the Charter?  At paragraph 18 of her reasons, the Chief Justice says: “Viewed in its essential nature, the dispute is not an appeal from a ministerial ruling on security benefits over which the legislature intended the CAS to have exclusive jurisdiction, notwithstanding the broad grant of exclusive jurisdiction to the CAS”.  In other words, she believes that Ms. Charette’s claim does not fall squarely within the exclusive jurisdiction of the CAS.

30                               In light of the facts in this case, I cannot accept this interpretation.  We should bear in mind that Ms. Charette made a claim for benefits under the PWA program in 1996, a year in which she earned $22,000, that her claim was accepted, and that she received benefits throughout the year.  Her benefits were suspended in 1997 when she went on maternity leave and was receiving employment insurance benefits in lieu of her salary.  The notice of decision of March 14, 1997 indicated that the claimant had 90 days to apply for a review of the decision.  However, Ms. Charette did not apply for a review, which would have given her the right to an appeal to the CAS within 60 days.  Since Ms. Charette chose to bypass the appeal process under the Income Security Act and turn instead to the Tribunal, the Tribunal, if it had found in her favour on the merits, would have effectively made a ruling on the legality of the ministerial decision outside the scheme provided for under the Income Security Act.  Making a specific order compelling the payment of benefits under the Income Security Act would, in this case, essentially have infringed on the integrity of the scheme in question in a significant way.

31                               We must avoid taking an overly formalistic approach if we are to uncover the essential character of the dispute.  The Chief Justice writes that this case does not concern an “appeal” within the meaning of s. 21(a) of the CAS Act, but one need only look at the application of July 28, 1999 to institute proceedings before the Tribunal to see that the application itself refers to the refusal [translation] “to pay benefits under the PWA program” (appellant’s record, at p. 50, clause 3), asking that “ss. 46 and 48 of the Act respecting income security be declared invalid and of no force or effect with respect to Caroline Charette” and that Ms. Charette be awarded “the amount of $1,088.64 for the benefits she would have received under the PWA program” (emphasis added).  As mentioned in Regina Police, supra, the key issue in each case is whether the essential character of the dispute, in its factual context, arises either expressly or inferentially from a statutory scheme.  In the case at bar, the legislature explicitly provided that the CAS has exclusive jurisdiction to hear disputes involving the payment of benefits under the Income Security Act.

32                               There is every indication that this case concerns a cross‑appeal and a request that the Tribunal rule on the legality of the Income Security Act scheme.  To my mind, this by far oversteps the boundaries of the Tribunal’s role.  In my opinion, the dispute, in its essence, concerns Ms. Charette’s eligibility for the PWA program, in light of the Minister’s decision not to consider employment insurance benefits as income.  I do not think that the fact that the reasons for the refusal may apply to more than one person should have any bearing on the dispute’s essential character.  For example, in Weber, supra, more than one employee could have been placed under surveillance.  Similarly, in Parry Sound, supra, the incorporation of human rights provisions could have affected an entire class of employees.

33                               Jurisdictional issues must be decided in accordance with the legislative scheme governing the parties.  In the case at bar, the Quebec legislature did not give the Tribunal exclusive jurisdiction to decide human rights issues.  The legislature’s intention to give the CAS exclusive jurisdiction is, however, explicit.  I am therefore of the opinion that where there is a comprehensive administrative scheme, such as the one established by the CAS Act and the Income Security Act, that gives a specialized administrative body and that body alone the jurisdiction to apply and interpret that scheme, this administrative body will not lose its exclusive jurisdiction simply because a case raises a human rights issue or involves declaring a legislative provision to be of no force or effect.

III.  Conclusion

34                               As I believe the Quebec Court of Appeal was correct in deciding that the Human Rights Tribunal did not have jurisdiction ratione materiae to hear this dispute, I would dismiss the appeal, with costs.

The reasons of Binnie and Fish JJ. were delivered by

35                               Binnie J. — In this case, as in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39 (“Morin”), released concurrently, the Court is required to examine two legislative schemes to determine which of the potential adjudicative bodies was intended by the legislature to resolve a dispute (in this case Ms. Charette’s claim to income security benefits), and if more than one body has a claim to adjudicative jurisdiction, how the potential conflict of jurisdictions is to be resolved.  While I agree with the Chief Justice about the test to be applied, as set out in Morin, I believe that a judicial evaluation of the “essential nature” of the dispute should not trump a clear legislative direction to have claims for provincial income security benefits determined by the Commission des affaires sociales (“CAS”).  To hold otherwise, with respect, is simply to substitute the Court’s procedural review preference for that laid down by the legislature. 

36                               Here the facts giving rise to the dispute were that Ms. Caroline Charette claimed some money under An Act respecting income security, R.S.Q., c. S-3.1.1 (“Income Security Act”).  Her claim was rejected by the Minister.  She says the program in question (APPORT) discriminates against women and, in particular, pregnant women, and that the ministerial decision denying her income support benefits was contrary to ss. 10 and 12 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (the “Charter”).

37                               Both this case and Morin raise important Charter issues, but they do so in entirely different factual and legislative contexts, and it is that context, not the legal character of the alleged wrong, that is crucial to the allocation of jurisdiction: St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, at p. 721.  As the present Chief Justice wrote in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at para. 49, “one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute”.  Here the “wrong” can be characterized as the subject matter of a Charter complaint but the “facts giving rise to the dispute” are the Minister’s discontinuance of an income security benefit, and Ms. Charette’s claim to get it back under an administrative scheme that the legislature in plain words has channelled directly to the CAS (now the Administrative Tribunal of Québec (“ATQ”)).

38                               The Income Security Act provides that “[e]very person affected by a decision of the Minister may, in writing, apply for a review of the decision and present observations within 90 days from the date of notice of the decision” (s. 76), and, if the claimant considers himself or herself “wronged by a reviewed decision . . . [the claimant] may contest the decision before the Administrative Tribunal of Québec within 60 days of notification” (s. 81 (emphasis added)).  The word “may” in s. 81 does not give Ms. Charette an option to take her complaint elsewhere.  It just means that she may, but is not required to, contest the Minister’s decision.

39                               Ms. Charette clearly considered herself “wronged” by the Minister’s decision but, instead of seeking review and launching an administrative appeal, took her complaint to the Commission des droits de la personne et des droits de la jeunesse.  Such a procedure is not compatible with the clearly expressed intent of the Quebec legislature.  In the Act respecting the Commission des affaires sociales, R.S.Q., c. C-34, it is provided at s. 21 that the administrative appeal route for dissatisfied claimants is not overlapping or concurrent with the jurisdiction of the courts or other tribunals, but is exclusive to the ATQ: 

The object of the Commission [now the ATQ] is to hear, to the exclusion of every other commission, tribunal, board or body, except as regards the requests contemplated in paragraph d of this section:

(a)  the appeals brought under section 78 or section 81 of the Act respecting income security . . . . [Emphasis added.]

(Paragraph d has to do with access to health information and while the exception as such is irrelevant to these proceedings, it shows that where the legislature intended an exception to exclusivity, it said so.)

40                               The Chief Justice writes that “[e]ven if the legislation uses the word ‘exclusive’ in describing a tribunal’s jurisdiction, a further question arises: exclusive over what?” (para. 7).  In this case the answer to the further question is clear: exclusive over disagreements with the Minister’s decision to discontinue Ms. Charette’s supplemental income benefits.

41                               While it is true, as the Chief Justice points out at para. 18, that the dispute can also be viewed as a human rights claim about the validity of an aspect of the legislative scheme, I do not think that Ms. Charette can sidestep the will of the Quebec legislature by failing to ask the Minister for reconsideration or failing to exercise her right of administrative appeal.  The Chief Justice accepts that Ms. Charette was “entitled” (para. 3) to appeal the Minister’s decision to deny her benefits, i.e., that the CAS would have had the jurisdiction to hear the appeal, including the Charter challenge.  If the CAS had jurisdiction in the circumstances of this case, it seems to me clear that such jurisdiction was intended to be exclusive.  The Chief Justice outlines, at para. 16, a number of policy considerations favouring the Human Rights Tribunal as the adjudicative body for the resolution of this dispute.  With respect, that was a policy choice for the legislature to make and, having made it, it is for the courts to respect that choice. 

42                               The legal factors that favoured the jurisdiction of the Quebec Human Rights Tribunal in Morin, outlined by the Chief Justice at para. 27 of her reasons in that case, do not apply here.  Firstly we held in Morin that “the nature of the question does not lend itself to characterization as a grievance under the collective agreement” (para. 27 (emphasis in original)).  There is no doubt here that Ms. Charette’s claim is under the Income Security Act and the CAS is competent to deal with it.  Secondly, Ms. Charette, unlike the situation in Morin, would not be represented by unions that were “on the face of it, opposed in interest to the complainants” (para. 28).  Third, the CAS, unlike the labour arbitrator in Morin, has jurisdiction over all of the relevant parties to Ms. Charette’s complaint about discontinuance of her income supplement.  Fourth, while the dispute here potentially affects many individuals other than Ms. Charette, as was the case in Morin and is a characteristic of Charter claims generally, this factor will always favour the Commission or a Human Rights Tribunal in turf wars with other branches of the provincial government.  It is a factor which the Quebec legislature inevitably took into account when it gave exclusive jurisdiction over income security benefits to the CAS including the power to adjudicate Charter arguments (subject to judicial review by the ordinary courts).

43                               In Morin, a majority of the Court decided that, while a labour arbitrator would have jurisdiction to deal with the complainants’ claims, such jurisdiction was not exclusive.  In the present case, the Attorney General of Quebec invokes the exclusive jurisdiction of the ATQ and, in my view, he is justified in doing so.

44                               The position of the Commission des droits de la personne et des droits de la jeunesse in the particular circumstances of this case is the same as described by Estey J. in St. Anne Nackawic, supra, i.e., as “a duplicative forum to which the legislature has not assigned these tasks” (p. 719).

45                               The appeal in this case should be dismissed with costs.

APPENDIX

Legislative Provisions:

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

10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

12.  No one may, through discrimination, refuse to make a juridical act concerning goods or services ordinarily offered to the public.

An Act respecting income security, R.S.Q., ch. S-3.1.1

76.  Every person affected by a decision of the Minister . . . may, in writing, apply for a review of the decision and present observations within 90 days from the date of notice of the decision.

78.  An application for review cannot be refused on the ground that it was received after the time prescribed, where the applicant proves that he was unable to act earlier. 

If an application is refused on the ground that it was received after the period prescribed, the decision may be contested before the Administrative Tribunal of Québec within 15 days from the date on which the person was notified of the decision.  If the Tribunal quashes the decision, the file shall be returned to the person or committee who or which rendered it.

81.  Every person who believes he has been wronged by a reviewed decision may contest the decision before the Administrative Tribunal of Québec within 60 days of notification.

An Act respecting the Commission des affaires sociales, R.S.Q., ch. C-34

21.  The object of the Commission is to hear, to the exclusion of every other commission, tribunal, board or body, except as regards the requests contemplated in paragraph d of this section:

(a) the appeals brought under section 78 or section 81 of the Act respecting income security . . . .

23. The Commission shall have all the powers necessary to exercise its jurisdiction and may in particular make any order it considers appropriate to safeguard the rights of the parties.

It is empowered to decide any question of fact or of law and its decisions shall be final and without appeal.

Appeal dismissed with costs, McLachlin C.J. and Iacobucci and Major JJ. dissenting.

Solicitor for the appellant:  Commission des droits de la personne et des droits de la jeunesse, Montréal.

Solicitors for the respondent:  Bernard, Roy & Associés, Montréal.

Solicitors for the interveners: Melançon, Marceau, Grenier & Sciortino, Montréal.