Date: 20130311
Docket: A-145-12
Citation: 2013 FCA 75
CORAM: PELLETIER
J.A.
STRATAS
J.A.
WEBB
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
CANADIAN HUMAN RIGHTS COMMISSION,
FIRST NATIONS CHILD AND FAMILY
CARING SOCIETY,
ASSEMBLY OF FIRST NATIONS, CHIEFS
OF ONTARIO,
AMNESTY INTERNATIONAL
Respondents
and
CANADIAN CIVIL LIBERTIES
ASSOCIATION
Intervener
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
The
Attorney General appeals from the judgment dated April 18, 2012 of the Federal
Court (per Mactavish J.): 2012 FC 445. For the following reasons, I
would dismiss the appeal without costs.
A. Introduction
[2]
This
matter arises from a complaint under the Canadian Human Rights Act,
R.S.C. 1985, c. H-6, brought by the respondents, the First Nations Child
and Family Caring Society and the Assembly of First Nations (the
“complainants”). The complainants allege that the Government of Canada has
engaged in prohibited discrimination by under-funding child welfare services
for on‑reserve First Nations children, and denying them services available
to other Canadian children.
[3]
The
Canadian Human Rights Commission referred the complaint to the Canadian Human
Rights Tribunal for hearing.
B. Proceedings
before the Tribunal
[4]
Before
the Tribunal, the Attorney General brought a preliminary motion alleging that
the complaint could not succeed. The Tribunal granted the motion and quashed
the complaint: 2011 CHRT 4.
[5]
The
Tribunal considered the complaint to raise paragraph 5(b) of the Act,
not paragraph 5(a) of the Act. Section 5 of the Act reads as follows:
|
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.
|
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.
|
[6]
The
Tribunal considered whether the complainants could establish that the
Government of Canada “differentiate[d] adversely” under paragraph 5(b)
of the Act concerning its funding for assistance programs for Aboriginal
children. On its view of paragraph 5(b), the Tribunal concluded that in
order to succeed, the complainants would have to point to some other similarly
situated group, such as another group receiving the same assistance programs
from the Government of Canada.
[7]
The
Tribunal’s conclusion is best seen in the following passages
in the Tribunal’s
reasons (at paragraphs 10-12):
[10] In
order to find that adverse differentiation exists, one has to compare
the experience of the alleged victims with that of someone else receiving those
same services from the same provider. How else can one experience
adverse differentiation? These words of the [Act] must be accorded their
clear meaning as intended by Parliament. These words are unique to the CHRA....
These words... requir[e] a comparative analysis.... Further the complaint itself
seeks a comparison. The heart of the complaint involves comparing [Indian and
Northern Affairs Canada’s] funding to provincial funding.
[11] Regarding
the issue of choice of comparator, the parties agree that [Indian and Northern
Affairs Canada] does not fund or regulate child welfare for off-reserve
children. The provision of child welfare to off reserve children is entirely a
provincial matter.... Can federal government funding be compared to provincial
government funding to find adverse differentiation as set out in section 5(b)
[sic] of the Act? The answer is no.
[12] The
Act does not allow a comparison to be made between two different service
providers with two different service recipients. Federal funding goes to
on-reserve First Nations children for child welfare. Provincial funding goes to
all children who live off-reserve. These constitute separate and distinct
service providers with separate service recipients. The two cannot be compared.
[emphasis in original]
Accordingly,
the Tribunal held that the complainants could not succeed under paragraph 5(b)
of the Act and quashed the complaint: there is no relevant comparator group
because the Government of Canada does not provide welfare funding for any other
children.
C. Proceedings
before the Federal Court
[8]
The
Federal Court set aside the Tribunal’s decision for two reasons:
(1) The
decision was substantively unreasonable. The Federal Court identified three
matters that took the Tribunal’s decision outside of the range of the
acceptable and defensible and made it unreasonable:
● The
Tribunal improperly characterized the complaint as raising only paragraph 5(b).
The complaint also raised paragraph 5(a). The Tribunal did not deal with
paragraph 5(a) of the Act, as it should have. (See Reasons, at
paragraphs 207-221.)
● By
making the existence of a comparator group a mandatory requirement in paragraph
5(b), the Tribunal adopted a “rigid and formulaic interpretation” of paragraph
5(b), an interpretation that was “inconsistent with the search for
substantive equality mandated by the [Act] and Canada’s equality jurisprudence”
(Reasons, at paragraph 9). A comparator group might be evidence that is helpful
on the issue of discrimination, but is not a prerequisite to a finding of
discrimination. In the Federal Court’s words (at paragraph 290): “A comparator group is not part of the definition of discrimination” but is “an evidentiary tool that may assist in identifying whether
there has been discrimination in some cases” [emphasis in
original]. (See also Reasons, at paragraphs 280-315.)
● In
the alternative, even if the complainants had to point to a comparator group,
the Tribunal unreasonably found that one did not exist – in its funding
policies, the Government of Canada has adopted provincial child welfare
standards. (See Reasons, at paragraphs 367-390.)
(2) The
decision was procedurally unfair. The Tribunal improperly considered a
large volume of extrinsic material in arriving at its decision. (See Reasons,
at paragraphs 167-204.)
[9]
The
Attorney General appeals to this Court.
D. The
substantive reasonableness of the decision
[10]
The
Federal Court reviewed the Tribunal’s decision on the basis of the deferential
standard of reasonableness: Reasons, at paragraphs 234-240. This was the proper
standard of review. Reasonableness is the presumptive standard of review of a tribunal’s
interpretation of its own statute: Alberta (Information and Privacy
Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3
S.C.R. 654 at paragraph 34. Further, the Supreme Court has recently confirmed reasonableness
to be the presumptive standard of review when the Tribunal is interpreting the
Act: Canada (Canadian Human Rights Commission) v. Canada (Attorney General),
2011 SCC 53, [2011] 3 S.C.R. 471 at paragraphs 15-27 (also known as the Mowat
decision).
[11]
The
Attorney General submits that the Federal Court misapplied the reasonableness standard
by adopting an insufficiently deferential posture. In particular, the
Attorney General says the Federal Court developed its own interpretation of
paragraph 5(b) and used it as a yardstick to judge the Tribunal’s
interpretation.
[12]
I
disagree. A review of the Federal Court’s reasons as a whole shows that it
appreciated the test for reasonableness – whether the
Tribunal’s decision falls within a range of acceptability and defensibility on
the facts and the law – and applied it deferentially: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190 at paragraph 47.
[13]
As
the Attorney General accepted in argument before us, one must remember that the
range of acceptability and defensibility “takes its colour from the context,”
widening or narrowing depending on the nature of the question and other
circumstances: Catalyst Paper Corp. v. North Cowichan (District), 2012
SCC 2, [2012] 1 S.C.R. 5 at paragraphs 17-18 and 23; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 59; and see
also Canada (Attorney General) v. Abraham, 2012 FCA 266 at paragraphs
37-50.
[14]
In
this case, the range is relatively narrow. The Tribunal’s decision primarily
involves statutory interpretation – a matter constrained by the text, context
and purpose of the statute. It also involves equality law – a matter
constrained by judicial pronouncements. In this case, the Tribunal had less
room to manoeuvre than in a case turning upon one or more of factual
appreciation, fact-based discretions, administrative policies, or specialized
experience and expertise not shared by the reviewing court on the particular
point in issue.
[15]
The
Supreme Court’s decision in Mowat, supra – also involving a
review of the Tribunal’s interpretation of the Act – illustrates this
well. There, the Supreme Court reviewed the Tribunal on the basis of the
deferential standard of reasonableness. However, acting under that standard, the
Supreme Court engaged in an exacting review of the Tribunal’s decision, a
review more exacting than that of the Federal Court in this case. Some might
describe what the Supreme Court did in Mowat as disguised correctness
review. I disagree. Mowat is reasonableness review, still deferential,
conducted in recognition that, as far as the Supreme Court was concerned, the
Tribunal had only a narrow range of acceptability and defensibility open to it,
given the constrained nature of the matter before it. Within that range, the
Tribunal was entitled to deference. For similar examples, see British
Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52,
[2011] 3 S.C.R. 422 and Alberta (Education) v. Canadian Copyright
Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 S.C.R. 345.
[16]
In
this case, the Federal Court concluded that the Tribunal’s interpretation of
paragraph 5(b) –
an interpretation requiring the complainants to point to a similarly situated
comparator group in order to succeed – was outside the
range of acceptability and defensibility and, thus, was unreasonable. In
reaching this conclusion, the Federal Court relied upon the following matters,
each of which it found to be inconsistent with the Tribunal’s interpretation:
● the
text of paragraph 5(b) (Reasons, at paragraphs 251-275);
● the
surrounding wording in the Act and the wider context, including the repeal of
section 67 of the Act (Reasons, at paragraphs 276-279 and 341-347);
● the
purposes underlying the Act (Reasons, at paragraphs 243-250);
● this Court’s jurisprudence concerning similar
provisions of the Act (Reasons, at paragraph 299; and see, e.g., Morris v. Canada (Canadian Armed Forces), 2005 FCA 154);
● Canada’s international obligations, with which
Canada’s domestic legislation is presumed to accord unless ousted by clear,
contrary legislative intent (Reasons, at paragraphs 348-356; and see R. v.
Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at paragraph 53); and
● Canada’s
equality jurisprudence, including the recent diminution of the role of
comparator groups in the equality analysis ((Reasons, at paragraphs 280-340). The Federal Court’s
analysis reflects the position articulated by the Supreme Court in Withler
v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 at paragraph
59: in some cases “finding a mirror [comparator] group may be impossible, as
the essence of an individual's or group's equality claim may be that, in light
of their distinct needs and circumstances, no one is like them for the purposes
of comparison.” See also Withler at paragraphs 2, 3,
45-48, 55 and 80-81.
[17]
Despite the able submissions of the Attorney
General, I am not persuaded that the Federal Court erred in its conclusion that
the Tribunal’s decision was unreasonable. To the contrary, the careful,
reflective and scholarly reasoning of the Federal Court amply demonstrates that
the Tribunal’s decision fell outside the range of the acceptable and defensible
and, thus, was unreasonable.
[18]
On the inconsistency between the Tribunal’s
decision requiring the complainants to show a comparator group under paragraph
5(b) and Canada’s equality jurisprudence, cases postdating the Federal
Court’s decision have confirmed the reduced role of
comparator groups in the equality analysis:
● In Moore v. British Columbia (Education),
2012 SCC 61, the Supreme Court reiterated that the existence of a comparator
group does not determine or define the presence of discrimination, but rather,
at best, is just useful evidence. It added that insistence on a mirror
comparator group would return us to formalism, rather than substantive
equality, and “risks perpetuating the very disadvantage and exclusion from
mainstream society the [Human Rights] Code is intended to remedy”
(at paragraphs 30-31). The focus of the inquiry is not on comparator groups but
“whether there is discrimination, period” (at paragraph 60).
● In Quebec (Attorney General) v. A.,
2013 SCC 5 at paragraph 346 (per Abella J. for the majority), the
Supreme Court has reaffirmed that “a mirror comparator group analysis may fail
to capture substantive equality, may become a search for sameness, may shortcut
the second stage of the substantive equality analysis, and may be difficult to
apply”: Withler, supra at paragraph 60. The Supreme Court went so far as
to cast doubt on the authority of Nova Scotia (Attorney General) v. Walsh,
2002 SCC 83, [2002] 4 S.C.R. 325, an earlier case in which an unduly
influential or determinative role was given to the existence of a comparator
group – similar to what the Tribunal did here.
In light of
these recent cases, the Tribunal’s decision lies even further outside of the
range of reasonableness.
[19]
In oral submissions, the Attorney General
questioned the Federal Court’s examination of cases under section 15 of the Charter
instead of restricting its analysis to cases specific to the Act. In my view, the
Federal Court had to have regard to the Charter cases – and the same can
be said for the Tribunal. The equality jurisprudence under the Charter informs
the content of the equality jurisprudence under human rights legislation and vice
versa: see e.g., Andrews v. Law Society of British
Columbia,
[1989] 1 S.C.R. 143 at pages 172-176; Law v. Canada (Minister of
Employment and Immigration),
[1999] 1 S.C.R. 497 at paragraph 27; Moore,
supra at paragraph 30; A., supra at paragraphs 319 and 328.
[20]
As mentioned previously, the Federal Court based
its conclusion of unreasonableness upon a second ground: the Tribunal’s failure
to consider the complaint under paragraph 5(a) of the Act. Here, in my
view, the Federal Court’s analysis is unimpeachable. The complaint refers
globally to “section 5” (i.e., both paragraphs 5(a) and 5(b)),
certain of the allegations in the complaint do raise matters that potentially
fall under paragraph 5(a), and earlier proceedings show that paragraph
5(a) was part of the complaint: Reasons, at paragraphs 216-220.
[21]
The Federal Court relied upon an alternative
ground for its finding of unreasonableness, namely that comparison with the
provinces might be appropriate in light of the Government
of Canada’s adoption of provincial child welfare standards in its funding
policies. I prefer not to comment upon this. The legal significance and factual
relevance of the Government of Canada’s adoption of provincial child welfare
standards in its funding policies – and, for that matter, larger issues such as
whether comparison can be made to provincial child welfare funding and whether
provincial funding constitutes relevant evidence deserving of weight in the
analysis of discrimination – is best left for the Tribunal to consider
alongside all of the evidence it will receive.
[22]
In
this regard, it bears recalling that discrimination is a broad, fact-based
inquiry. Among other things, it requires “going behind the facade of
similarities and differences”, and taking “full account of social, political,
economic and historical factors concerning the group”: Withler, supra at paragraph 39. Consequently, the relevance and significance of
particular facts, such as the existence or non-existence of a comparator, will
vary in the circumstances. As the Supreme Court wrote in Withler, “the
probative value of comparative evidence…will depend on the circumstances” (at
paragraph 65).
[23]
Accordingly, nothing in these reasons should be
taken to express any view concerning what relevance and significance, if any,
the Tribunal should assign to any of the evidence placed before us in this
appeal. These matters will be for the Tribunal to decide in accordance with
proper legal principles.
E. Procedural
fairness
[24]
The
Tribunal considered material outside of the formal record on the motion.
Accepting, for the sake of argument, this material is “extrinsic,” I agree with
the Federal Court that the Tribunal committed procedural unfairness in the
circumstances of this important and hard-fought motion to dismiss the
complaint. In these circumstances, the parties were entitled to know exactly
what the Tribunal was considering and to have the opportunity to address it.
[25]
The
Attorney General submits that the respondents have not shown any prejudice
arising from the Tribunal’s consideration of extrinsic evidence and so the Federal
Court should not have set aside the Tribunal’s decision.
[26]
The
Attorney General is correct that in an appropriate case a court may find a lack
of prejudice and, in its discretion, decide to leave the procedurally-flawed decision
in place: Mobil Oil Canada Ltd. v. Canada-Newfoundland
Offshore Petroleum Board, [1994] 1 S.C.R. 202.
However, on the facts before it, the Federal Court exercised its discretion to
the contrary: Reasons, at paragraph 204. This Court can reverse the Federal
Court’s fact-based discretion only upon demonstration of palpable and
overriding error or failure to give weight to all relevant considerations: H.L.
v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; MiningWatch
Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010]
1 S.C.R. 6 at paragraph 43; Community
Panel of the Adams Lake Indian Band v. Adams Lake Band, 2011 FCA 37 at
paragraph 31.
No such error has been shown here.
F. Disposition
[27]
The
parties have agreed that there should be no costs. Accordingly, I would dismiss
the appeal without costs.
"David
Stratas"
“I
agree
J.D. Denis Pelletier J.A.”
“I
agree
Wyman W. Webb J.A.”
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