Canada (House of Commons) v. Vaid, 2002 FCA 473

Date: 20021128

Docket: A-1-02

Neutral citation: 2002 FCA 473

CORAM:        LINDEN J.A.

LÉTOURNEAU J.A.

ROTHSTEIN J.A.

BETWEEN:

                                                                                    HOUSE OF COMMONS and

                                                                         THE HONOURABLE GILBERT PARENT

                                                                                                                                                                                                            Appellants

                                                                                                             and

                                                                                           SATNAM VAID and

                                                                    CANADIAN HUMAN RIGHTS COMMISSION

                                                                                                                                                                                                         Respondents

                                                                                                             and

                                                            SOCIAL SCIENCE EMPLOYEES ASSOCIATION and

                                                          COMMUNICATIONS, ENERGY AND PAPERWORKERS

                                                                                           UNION OF CANADA

                                                             and THE PUBLIC SERVICE ALLIANCE OF CANADA

                                                                 and THE PROFESSIONAL INSTITUTE OF THE

                                                                                  PUBLIC SERVICE OF CANADA

                                                          and THE SPEAKER OF THE LEGISLATIVE ASSEMBLY

                                                                                                  OF ONTARIO

                                                                                                                                                                                                           Interveners

                                               Heard at Ottawa, Ontario, on June 19, 2002

                                Judgment delivered at Ottawa, Ontario, on November 28, 2002

REASONS FOR JUDGMENT BY:                                                                          LÉTOURNEAU J.A.

CONCURRED IN BY:                                                                                                         LINDEN J.A.

CONCURRING REASONS IN RESULT ONLY BY:                                               ROTHSTEIN J.A.

Date: 20021128

Docket: A-1-02

Neutral citation: 2002 FCA 473

CORAM:        LINDEN J.A.

LÉTOURNEAU J.A.

ROTHSTEIN J.A.

BETWEEN:

                                                                                    HOUSE OF COMMONS and

                                                                         THE HONOURABLE GILBERT PARENT

                                                                                                                                                                                                            Appellants

                                                                                                             and

                                                                                           SATNAM VAID and

                                                                    CANADIAN HUMAN RIGHTS COMMISSION

                                                                                                                                                                                                         Respondents

                                                                                                             and

                                                            SOCIAL SCIENCE EMPLOYEES ASSOCIATION and

                                                          COMMUNICATIONS, ENERGY AND PAPERWORKERS

                                                                                           UNION OF CANADA

                                                             and THE PUBLIC SERVICE ALLIANCE OF CANADA

                                                                 and THE PROFESSIONAL INSTITUTE OF THE

                                                                                  PUBLIC SERVICE OF CANADA

                                                          and THE SPEAKER OF THE LEGISLATIVE ASSEMBLY

                                                                                                  OF ONTARIO

                                                                                                                                                                                                           Interveners

                                                        REASONS FOR JUDGMENT

LÉTOURNEAU J.A.

[1]                 The issue in this appeal is whether the Human Rights Commission is permitted to investigate an allegation of discrimination by a discharged employee of the House of Commons against the former Speaker of the House, or whether parliamentary privilege blocks such an inquiry. Before I address the respective submissions of the parties and interveners, a word needs to be said about the facts, the nature of Human Rights legislation and the parliamentary privilege invoked.

The Facts

[2]                 The respondent, Satnam Vaid, worked as a chauffeur to three successive Speakers of the House of Commons between 1984 and 1994. On January 11, 1995, he was terminated, allegedly because he refused to assume new duties under a changed job description and refused alternative employment. He grieved the termination pursuant to the Parliamentary Employees Staff Relations Act, R.S.C. 1985, c. 33 (2^nd Supp.) (PESRA). The matter was referred to adjudication under PESRA. The adjudicator heard the grievance and, in a decision dated July 25, 1995, found in favour of Mr. Vaid and ordered that he be reinstated to his position as chauffeur.

[3]                 Mr. Vaid returned to work August 17, 1995, at which time he was told that the chauffeur's position had been designated "bilingual imperative". Lacking the necessary French language skills to resume his former post, Mr. Vaid was not allowed to resume driving duties and instead, was sent for French language training.

[4]                 In a letter dated April 8, 1997, Mr. Vaid advised the Speaker that he wished to resume his former duties. By letter dated May 12, 1997, from the Speaker's office, Mr. Vaid was advised that the Speaker's office had been reorganized and that his substantive position would become surplus effective May 29, 1997.

[5]                 Mr. Vaid filed two complaints with the Commission, both dated July 10, 1997, alleging that the House of Commons discriminated against him on the basis of his race, colour and ethnic or national origin by refusing to continue to employ him. On October 2, 2000, the complaints were referred to a panel of the Tribunal. In a preliminary objection before the Tribunal, the appellants asserted that the Tribunal was without jurisdiction to consider Mr. Vaid's complaints on the grounds that the Speaker and the House of Commons are not subject to the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA) because of parliamentary privilege.

[6]                 On April 17, 2001, the panel, by a 2-1 majority, dismissed the parliamentary privilege objection. The appellants then sought judicial review of the Tribunal's decision in the Trial Division of the Federal Court. On December 4, 2001, the Trial Division dismissed the application for judicial review (reasons reported at [2002], 2 F.C. 583), affirming that application of the CHRA to the appellants was not barred by parliamentary privilege and that the Tribunal had jurisdiction to hear and decide Mr. Vaid's complaints.

[7]                 The appellants now appeal the decision of the Trial Division to this Court.

The nature of human rights legislation

[8]                 Human rights are found throughout the laws of Canada, but the CHRA provides the framework for their interpretation and implementation. The purpose of the CHRA is stated in section 2:

[9]                 The language of this provision clearly indicates that the object of the CHRA is to operate, in conjunction with other laws, to protect Canadians from discrimination. It is a unique piece of legislation in that it embodies fundamental Canadian values, such as equality, and declares public policy. As such, human-rights legislation has consistently been treated differently than specific statutes as it enjoys quasi-constitutional status, and as a result can only be overridden by express and unequivocal legislative language. (See: Ford Motor Co. of Canada v. Ontario (Human Rights Commission), [2001] O.J. No. 4937, 209 D.L.R. (4^th) 465 (Ont. C.A.); University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2. S.C.R. 321; C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114; Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., [1985] 2. S.C.R. 536; and Winnipeg School Division No. 1 v. Craton, [1985] 2. S.C.R. 150.)

[10]            In [1982] 2 S.C.R. 145">Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, Justice Lamer (as he then was) described the unique nature of human-rights legislation as follows, at 157-158:

When the subject matter of a law is said to be the comprehensive statement of the "human rights"of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.

...Indeed the Human Rights Code, when in conflict with "particular and specific legislation", is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law.

[11]            Accordingly, human-rights protection for employees is a vital part of what it means to live in a democratic state like Canada. And, as the jurisprudence tells us, federal and provincial acts that enshrine such protections in our legal landscape are paramount to all but the constitution.

[12]            The complexity of the present appeal lies in the fact that this Court has not been asked to simply consider the scope of a specific statute in conflict with the CHRA. Instead, we have been asked to attempt to reconcile the competing paradigms of the federal human-rights scheme with the parliamentary immunity bestowed on members of the House of Commons.          

The status of parliamentary privilege

[13]            Unlike a specific law that can be overridden by a human-rights statute, parliamentary privilege is part of our constitution. In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, a case in which the Supreme Court of Canada found that the Nova Scotia Legislature has the power to restrict journalists from filming its proceedings, Justice McLachlin (as she was then) described parliamentary privilege and its constitutional status in light of its origins. At paragraphs 117 and 126, she explained:

"Privilege" in this context denotes the legal exemption from some duty, burden, attendance or liability to which others are subject. It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.

...Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning. These privileges are part of the fundamental law of our land, and hence are constitutional. The courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege.

                                                                                                                                           (emphasis added)

[14]            I shall come back to and discuss at greater length this second excerpt from the decision as the scope of the privilege and the role of the Courts are at the core of the debate in the present litigation.

[15]            Parliamentary privilege, in other words, exists so that parliamentarians perform their functions free from some forms of legal scrutiny, and with a certain degree of independence. The purpose of the privilege is to foster the functioning of democracy by enabling members of parliament to engage in open discussions without the fear of being sued for their statements or conduct while performing their legislative role.

[16]            The privilege enjoyed by Parliament is also conferred by statute. Section 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1, expressly provides for parliamentary privilege, referring to it as a constitutional doctrine received in Canada from the United Kingdom at the time of confederation. That section reads as follows:

The relationship between parliamentary privileges and the courts

[17]            Because parliamentary privilege is rooted in our constitution, courts must defer to the immunity Parliament enjoys. And, while parliamentary privilege may be absolute on occasion, it does not cover all matters involving parliamentarians. In New Brunswick Broadcasting, supra, McLachlin J. set out a necessity test for determining the breadth of parliamentary privilege. She described the application of the test as follows, at paragraph 123:

The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute "parliamentary" or "legislative" jurisdiction. If a matter falls within the necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.

[18]            Accordingly, to determine whether or not a particular matter falls within the privileged jurisdiction of Parliament, it is necessary to determine whether the matter over which privilege is claimed is, it would seem, necessary to uphold the dignity and efficiency of the House of Commons. I have stated, at this time, the test in tentative terms because, as we shall see, the exact wording of the test is not free from ambiguity. This now brings me to stating the position of the appellants in the present instance.

[19]            Relying upon judicial precedents, counsel for the appellants argues that the control and management of the parliamentary staff fall within the scope of parliamentary privilege. Therefore, he contends that the exercise of that privilege is immune from review by the Courts or the Canadian Human Rights Tribunal even though the scope of the privilege may be reviewed and delimited by the Courts: House of Commons v. C.L.R.B., [1986] 2 F.C. 372 (F.C.A.); N.B. Broadcasting Co. v. N.S., supra; Ontario (Speaker) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) 595 (Ont. C.A.); Soth v. Ontario (Speaker of the Legislative Assembly) (1997), 32 O.R. (3d) 440 (Ont. Gen. Div., Div. Ct.).

[20]            With respect, I am of the view that the parliamentary privilege claimed in the present instance finds no application for the following reasons that I shall explain in greater detail. First, the powers claimed in this case are not necessary and, consequently, not within the scope of the privilege as delimited by the doctrine of necessity. Second, I can find no clear intent of Parliament, either explicit or implicit, to shield its managerial activities from the application of the CHRA. Finally, the enactment by Parliament of PESRA reveals, in any event, an intention to exclude from the scope of the privilege those employees, like Mr. Vaid, who are subject to that Act.

The scope of the parliamentary privilege relating to control and management of the House of Commons' staff

a)         Under the necessity test

[21]            In an article entitled "If the Devil Himself Knows Not the Mind of Man", How Possibly Can Judges Know the Motivation of Legislators (1978) 15 San Diego Law Review 1167, the author, A.S. Miller, stresses the difficulties encountered in trying to ascertain the legislative intent when reviewing legislative enactments, observing the fact "that on many statutes an individual member simply has no intent": see page 1170. The difficulties are generally

compounded with the passage of time as the principal actors are gone from the scene and the institutional memory has faded. Of course, parliamentary debates, in addition to legal doctrine and jurisprudence, can be a useful tool, but they have their limits. I confess the present case is one of the few instances where I struggled over the scope of the rule of law and Parliament's intent in enacting pieces of legislation not easily reconciled. Perhaps I should begin by underlining some of the difficulties I encountered in the jurisprudence when trying to delimit the scope of this parliamentary privilege.

[22]            In N.B. Broadcasting Co. v. N.S., supra, at page 380, the majority of the Court cited Erkkine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament (21^st ed. 1989) in which the learned author states that "the privileges of Parliament are rights 'absolutely necessary for the due execution of its powers'" (the emphasis is mine). Lamer C.J., in concurring reasons quoted a statement to the same effect by John Hatsell in Precedents of Proceedings in the House of Commons, vol. 1, 3^rd ed. 1976, at page 1: see page 343. The majority of the Court also referred to an earlier decision of the Court where Ritchie J. commented that the House of Assembly of Nova Scotia did not have the power to punish for an offence that was not an immediate obstruction to the due course of its proceedings as such power was not essentially necessary for the exercise of its functions: Landers v. Woodworth (1878), 2 S.C.R. 158, at pages 201-202, cited at page 382. It went on to adopt the necessity test in defining the scope of parliamentary privileges, but one, however, of simple necessity: see page 384. Thus, parliamentary privileges refer to rights that are necessary, but necessary to what? Unfortunately,

the case law on this second part of the test, itself composed of two elements, namely functioning and maintaining dignity and integrity of the House, is not free from ambiguity.

[23]            In the N.B. Broadcasting Co. case, supra, at page 381, the majority concluded, as part of the necessity test, that a review of the authorities "indicates that Canadian legislative authorities properly claim as inherent privileges those rights which are necessary to their capacity to function as legislative bodies". Indeed, the majority asked itself in that case whether, in the Canadian context of 1992, the right to exclude strangers was "necessary to the functioning of our legislative bodies": see page 387.

[24]            Yet, earlier on at page 384, the majority had summarized its understanding of the law by adding a qualifier to the word "functioning" and saying that, "from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning" (the emphasis is mine). However, later on at page 387, it enunciated this time that the privilege was necessary "not only for the autonomy of the legislative body, but to ensure its effective functioning" (the emphasis is mine).

[25]            The language used by the minority in the subsequent case of Harvey v. New Brunswick (A.G.), [1996] 2 S.C.R. 876 also reflects some ambiguity as to the necessity standard. While the majority refrained from addressing the issue, the minority discussed again the scope of parliamentary privileges. At pages 919, it reiterated that the test retained in the N.B. Broadcasting Co. case was one of necessity for the proper functioning of the legislature. But it

then went on to ask whether the privilege claimed is necessary to the efficient functioning of the legislature: ibid. It concluded at page 926 that "the power to disqualify members for corruption is necessary to the dignity, integrity and efficient functioning of a legislature" (the emphasis is mine). I should add that resort to the French translation is of little assistance in trying to ascertain the exact qualifier because the words "proper functioning" have been translated in French by "bon fonctionnement" and the words "efficient functioning" have been translated at one time by "fonctionnement efficace" (see the N.B. Broadcasting Co. case at page 387) and at another by "bon fonctionnement" (see the Harvey case at the bottom of page 919 and pages 922, 925 and 926, and the N.B. Broadcasting Co. case at the top of page 385). Indeed, the words "necessary to the functioning", where there is no qualifier to the term "functioning", have even been rendered in French by the words "bon fonctionnement" as in proper functioning (see the N.B. Broadcasting Co. case at page 387). I note in passing that the appellants adopted, in their application for judicial review of the Canadian Human Rights Tribunal's decision, the notion of efficiency as the criterion defining the scope of the parliamentary privilege. They submitted that the Tribunal misdirected itself in law and failed to "properly apply the test for the existence of parliamentary privilege", which should be stated in words to the following effect: "whether the matter in issue" - that is, the power to appoint and manage its staff - "falls within the necessary sphere of matters without which the dignity and efficiency of the House of Commons cannot be upheld?" (the emphasis is mine: see Appeal Book, page 47, paragraph V).

[26]            Finally, the second element of the second part of the necessity test refers to the need to resort to the privilege to maintain the dignity and integrity of the legislative body. In the Harvey

case, at page 919, the minority was of the view that the necessity inquiry would ask whether "the dignity, integrity and efficiency of the legislative body could be maintained if it were not permitted to carry out the type of action sought to be done" (the emphasis is mine). Later on, at the bottom of the page, the same test was reiterated but this time in a disjunctive form: "whether the privilege claimed is necessary to the dignity, integrity or efficient functioning of the legislature (the emphasis is mine). The final conclusion found at page 926 enunciates the test in conjunctive terms: "or" has been replaced by "and".

[27]            In this modern era where constitutional rights to equality before and under the law (section 15 of the Charter) and quasi-constitutional human rights have been given by Parliament itself to every individual (section 2 of the CHRA), I would have been inclined to believe that parliamentary privileges refer to those rights that are absolutely necessary to the proper functioning of the House of Commons and maintain its dignity and integrity. In my respectful view, those rights should be absolutely necessary if individuals are to be deprived of their constitutional, Charter and fundamental human rights without the possibility of seeking proper redress of their grievances before the courts or any other remedial instance. To violate with legal impunity a Charter right or a fundamental human right is no small business: it is a serious matter. It requires nothing less than a very stringent test, especially as it was Parliament's intent, in section 24 of the Charter, to give an appropriate and just legal remedy to any person whose Charter rights have been infringed or denied. Many of the fundamental human rights have been constitutionalized in the Charter and are, therefore, subject to the protection of section 24.

[28]            The need for a conservative rather than broad interpretation of the parliamentary privilege as it relates to control and management of the staff, i.e., control of the internal affairs or what the appellants termed the "inner workings of the House of Commons" (see Appeal Book, pages 46-47, paragraph a) and subparagraph (viii)), has also been stressed in England.

[29]            In an article entitled Labour Law, Parliamentary Staff and Parliamentary Privilege, (1983) 12 Industrial Law Journal 28, at page 37, the author, G.F. Lock, concluded that "staff employment rights are a field very remote from the original purpose of this aspect of privilege - the preservation of M.P.'s freedom of speech, - and the exclusion of staff matters from the category "internal affairs of the House" would not impair the rights which the House actually needs to function".

[30]            In a Report published on March 30, 1999 by the House of Lords and the House of Commons on Parliamentary Privilege, the authors, dealing with the right of each House to administer its internal affairs within its precincts, criticized the vagueness of terms like "control of internal affairs". In paragraph 241 of Chapter 5: Control by Parliament over its Affairs, they wrote:

In one important respect this heading of privilege is unsatisfactory. 'Internal affairs' and equivalent phrases are loose and potentially extremely wide in their scope. On one interpretation they embrace, at one edge of the spectrum, the arrangement of parliamentary business and also, at the other extreme, the provision of basic supplies and services such as stationery and cleaning. This latter extreme would be going too far if it were to mean, for example, that a dispute over the supply of photocopy paper or dismissal of a cleaner could not be decided by a court or industrial tribunal in the ordinary way. Here, as elsewhere, the purpose of parliamentary privilege is to ensure that Parliament can discharge its functions as a legislative and deliberative assembly without let or hindrance. This heading of privilege best serves Parliament if not carried to extreme lengths.

                                                                                                                                           (emphasis added)

[31]            Having recalled that the precincts of Parliament are not a haven from the law and that there is a need for a dividing line between activities of the House which call for protection under this head of the privilege and those which do not, they concluded, in respect of the management of services for members, that "for the most part, and rightly so, these services are not treated as protected by privilege". At paragraphs 247 and 248, they wrote:

The dividing line between privileged and non-privileged activities of each House is not easy to define. Perhaps the nearest approach to a definition is that the areas in which the courts ought not to intervene extend beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament's sovereignty as a legislative and deliberative assembly. One example is the Speaker's decision on which facilities within the precincts of the House should be available to members who refuse to take the oath or affirmation of allegiance. Another example might be steps taken by the library of either House to keep members informed upon matters of significant political interest. Such steps, if authorised by the presiding officer of the House, would properly be within the scope of the principle and not amenable to orders of the court.

It follows that management functions relating to the provision of services in either House are only exceptionally subject to privilege. In particular, the activities of the House of Commons Commission, a statutory body appointed under the House of Commons Administration Act 1978, are not generally subject to privilege, nor are the management and administration of the House departments.The boundary is not tidy. Occasionally management in both Houses may deal with matters directly related to proceedings which come within the scope of article 9. For example, the members' pension fund of the House of Commons is regulated partly by resolutions of the House. So too are members' salaries, and the appointment of additional members of the House of Commons Commission under section 1(2)(d) of the House of Commons Administration Act. These resolutions and orders are proceedings in Parliament, but their implementation is not.

                                                                                                                                           (emphasis added)

[32]            In addition, coming back to the necessity test, I think that proper functioning should be preferred over efficient functioning as part of the appropriate test. Moreover, the second element of the second part of the test, i.e., dignity and integrity of the House of Commons, should be conjunctive. It is not difficult to imagine a situation where the action sought to be done might, on the one hand, offend the dignity of the legislative body, but, on the other hand, be claimed necessary for an efficient functioning.

[33]            For example, in order to be efficient, the House may want to unlawfully discriminate to attain its objectives and, thereby, may sacrifice its dignity and integrity. By contrast, proper functioning requires, in my view, dignity and integrity because lack of dignity and integrity, in the near-term and certainly in the long run, is bound to bring disrepute upon the House, its functioning and its capacity to function properly. In other words, it is improper functioning for an institution to compromise its dignity and integrity by indulging in an illegal and unlawful discriminatory act in order to be efficient or function effectively. Indeed, efficiency as a criterion for determining the scope of parliamentary privileges may become an end in itself, the pursuit of which might justify the means, all means. This is why, in my view, proper functioning is to be preferred over efficient functioning in conjunction with dignity and integrity.

[34]            Having said all that, I believe it is not necessary in the particular circumstances of the present case to determine whether I should apply a test of "absolute necessity" or of "simple necessity". As we shall see, whatever test is applied, the end result would be the same. For the sake of clarity, I will postulate a test of simple necessity. I will assume that the parliamentary privilege in issue here refers to the powers of the House necessary to ensure its proper functioning and maintain its dignity and integrity.

[35]            I think it is fair to assume, as Viscount Radcliffe said in Att.-Gen. of Ceylon v. De Livera, [1963] A.C. 103, at page 120 (P.C.), that, "given the proper anxiety of the House to confine its own or its members' privileges to the minimum infringement of the liberties of others, it is

important to see that those privileges do not cover activities that are not squarely within a member's true function". This appears in essence to be, in the Supreme Court of Canada, the position taken by the minority in the Harvey case, supra, when it ruled that section 3 of the Charter "still operates to prevent citizens from being disqualified from holding office on grounds which fall outside the rules by which Parliament and the legislatures conduct their business: race and gender would be examples of grounds falling into this category": see paragraph 70. To use Viscount Radcliffe's words, it is not within a member's true function to illegally discriminate on the basis of race and gender because both the existence and the exercise of illegal discriminatory powers are not necessary to ensure the proper functioning of the House and maintain its dignity and integrity.

[36]            In my view, the necessity test used to define the scope of the privilege refers to both components of the powers asserted, that is to say their existence and their exercise. In other words, the necessity test is met when the existence of the powers and their exercise are necessary to the House. The Courts' review function, in cases like the present where a parliamentary privilege is claimed, I believe, involves two steps: the first one to determine that the powers claimed need to exist and the second, when satisfied as to the necessity of their existence, to determine that their exercise was necessary to ensure the proper functioning of the House and maintain its dignity and integrity.

[37]            From a purely practical point of view, the existence in the abstract of a power means in itself very little until it is actually exercised. Indeed, the scope of a power is, in practice, revealed

by the exercise that is made of that power. It is at that point that the issue of scope and delimitation comes into play. It is at the moment of the exercise of the power that the necessity test becomes significant. It is at this juncture that one has to determine whether, as part of the scope of the power, its exercise was necessary to attain the objectives for which the power was given. In the present case, it means determining whether the exercise of the power was necessary to ensure the proper functioning of the House and maintain its dignity and integrity.

[38]            A requirement of necessity at the level of both the existence and the exercise of a power is not a novelty when it comes to powers likely to affect an individual's constitutional or Charter rights. Subsection 495(1) of the Criminal Code gives peace officers the power to arrest without warrant a person who, for example, has committed an indictable offence. The existence of such power was found to be necessary to enable the peace officers to fulfill their duties to enforce the law and protect the public. However, subsection 495(2) requires them not to exercise such power unless it is necessary, among other things, to establish the identity of the person, ensure his or her attendance in court or prevent the continuation or repetition of the offence. The exercise by the House of Commons of the powers to manage and control its staff, in order to amount to parliamentary privilege, depends on the necessity to ensure its proper functioning and maintain its dignity and integrity just like the exercise of police powers is, broadly speaking, conditional on the necessity to protect public interest: see subsection 495(2) of the Criminal Code. When an existing power is used unnecessarily, such exercise becomes subject to judicial review as it may amount to an abuse of power falling outside the incumbent's true function. Indeed, when reviewing the decision of the Supreme Court in the N.B. Broadcasting Co. case where the Court

upheld the Legislative Assembly's right to exclude strangers from its chamber when it deemed them to be disruptive, it appears to me that not only the existence of the right, but also its exercise had to be necessary to the proper functioning of the legislature. Again, this is not dissimilar to statutory provisions granting the power to exclude members of the public from various proceedings. For example, the right of a criminal court to exclude the public exists and can only be exercised when, among other criteria, it is necessary to the proper administration of justice or to prevent injury to international relations or national defence: see subsection 486(1) of the Criminal Code. A similar power is given to a court martial under subsection 180(2) of the National Defence Act, R.S.C. 1985, c. N-5. In the same vein, subsection 155.1(5) of the Corrections and Conditional Release Act, S.C., 1992, c. 20, gives a judge conducting an inquiry the power to issue an order when it is necessary to ensure the confidentiality of the inquiry because matters of public security or privacy may be involved, or life, liberty or security of a person would be endangered.

[39]            It can fairly be said that statutes are replete with examples of the exercise of power being made conditional on some necessary element or elements. Powers of search and seizure may be exercised without warrant on condition that it is necessary because of exigent circumstances (see e.g. subsection 22(2) of the Explosives Act, R.S.C., 1985, c. E-17, subsection 117.02(1) of the Criminal Code, and subsection 49.1(3) of the Fisheries Act, R.S.C. 1985, c. F-14). Exigent circumstances are also a precondition, pursuant to subsection 529.3(1) of the Criminal Code, to a peace officer's ability to enter a dwelling-house to make an arrest without a warrant. For that provision, "exigent circumstances" are defined in subsection 529.3(2) as arising on necessity of preventing imminent bodily harm or death, or to prevent imminent loss or destruction of evidence.

[40]            The use of force is also a power whose exercise is conditional on necessity. It must be exercised within reasonable boundaries. For example, section 25 of the Criminal Code permits persons authorized to enforce the law to use as much force as is necessary for the purpose of enforcing the law. Even the use of force that is intended or is likely to cause death or grievous bodily harm is justified in some circumstances, but only where necessary for the self-preservation of the person or the preservation of any one under that person's protection from death or grievous bodily harm: see subsection 25(3) of the Criminal Code. Similar conditions are placed on the use of force under other statutes. For example, subsection 154(1) of the National Defence Act grants a power to use force to arrest persons who have committed or are believed on reasonable grounds to have committed a service offence, but requires that the power be exercised only with "such force as is reasonably necessary for that purpose".

[41]            In the context of staff management and control, this approach avoids the difficulty of determining the scope or limits of the privilege by the nature and importance of the employment as in Thompson v. McLean (1997), 37 C.C.E.L. (2d) 170, at page 178, where the Ontario Court of Justice, General Division, asked itself whether the way the employee was treated in her employment was "so central to the work of the Legislative Assembly that it would interfere with its essential parliamentary function to let her case be determined in court". Is a chauffeur's employment function more deserving of the privilege than that of an office clerk or a caretaker?

Paradoxically, those to whom the privilege would apply would be rewarded with less protection, if not with no protection at all, while those at the lower end of the importance scale would get full review by the courts. In addition, where is the reviewing court to draw the line in creating, as the motions judge mentions, two categories of employees, one more fortunate than the other in terms of access to the courts?

[42]            To sum up, the necessity test in defining the scope of the parliamentary privilege of the House of Commons to manage and control its staff means that the existence and the exercise of the rights claimed to be part of the privilege must be necessary to ensure the proper functioning of the House and maintain its dignity and integrity. It means that such powers cannot escape the scrutiny of the Courts or other review mechanisms when exercised unnecessarily because they then fall outside the scope of the privilege delimited by the necessity. Applying this conclusion to the facts of the present case, it means that the parliamentary privilege claimed with respect to staff management does not preclude a review of the necessity to possess and exercise the privilege where there is an allegation of racial or ethnic discrimination contrary to the Charter or the CHRA. In my view, the scope of the privilege does not extend to an exercise of managerial powers involving human rights violations as presently alleged which in fact, if proven, diminish the dignity and integrity of the House without improving its functioning.

[43]            Even if I am wrong in my understanding and application of the necessity test retained by the Courts to define the scope of this parliamentary privilege, I am still of the view that the

privilege claimed in the present instance does not apply as a result of Parliament enacting PESRA.

b)         Under the Parliamentary Employment and Staff Relations Act

[44]            PESRA was enacted to provide to parliamentary employees collective bargaining and other employment rights, including a recourse to third party decision-makers for enforcement of these rights.

[45]            Section 4 of PESRA found in Part I of the Act protects the parliamentary privileges, powers and immunities mentioned in section 4 of the Parliament of Canada Act, previously cited. It also identifies a number of persons to whom PESRA does not apply:

Section 4 of PESRA:

[46]            How is the elaborate mechanism for the filing and adjudication of grievances, also found in Part I of the Act, to be reconciled with subsection 4(1) if nothing in Part I abrogates or even derogates from the House's privilege to manage its staff? I agree with the submissions of the Canadian Human Rights Commission as well as the Public Service Alliance of Canada that the only reasonable interpretation one can give to section 4 and Part I is that the parliamentary privilege does not apply to the matters and persons covered by PESRA. Otherwise, the entire mechanism contained in Part I would be of no force as it derogates from the parliamentary privilege by allowing a review of every aspect of the exercise of the privilege. However, the persons listed in subsection 4(2) to whom Part I does not apply remain subject to the privilege delimited by the necessity test. Thus, PESRA in its present form creates two categories of parliamentary employees and affords each category a different and unequal protection.

[47]            That being said, it remains to be determined, as contended by the appellants, if the mechanism established by PESRA is exclusive of other forms of review, whether judicial or administrative.

Whether the grievance procedures and adjudication mechanism in PESRA are exclusive of judicial review and the review process found in the CHRA

[48]            I have come to the conclusion that PESRA does not oust the application of the CHRA. Nor does it preclude a review by the Courts of the decisions made under that Act.

a)         The applicability of the CHRA

[49]            The appellants' argument in support of their contention that the provisions of the CHRA do not apply to Parliament and parliamentary employees is based on section 2 of PESRA which reads:

                                                                                                                                           (emphasis added)

With respect, I am not convinced that the CHRA deals with matters that are similar to those provided in PESRA.

[50]            First, the scope of the two Acts is different. While PESRA deals with labour relations and is a labour relations statute, the CHRA is a human rights statute which ensures protection against discrimination with respect to goods, services, facilities, accommodation, advertisements, including protection against discriminatory policies or practices relating to employment: see sections 5 to 10 of the CHRA. I do not think it is a fair characterization of the CHRA to say that it is a statute that is work related. It has a much greater and more fundamental dimension although an aspect of it addresses the violation of human rights in the context of employment. But the focus remains human rights, not labour relations and bargaining. In addition, contrary to PESRA whose scope of application is limited to some parliamentary employees, the CHRA and the quasi-constitutional human rights it contains apply to all individuals: see section 2 of the CHRA.

[51]            Second, the purpose of each Act is different. PESRA, as I have already mentioned, provides collective bargaining rights and other employment rights so as to bring parliamentary employees to a position equivalent to that of Government employees governed by the Public Service Staff Relations Act, R.S., c. P-35: see the statement of Mr. Hnatyshyn in House of Commons, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-45, pages 1:74 and 1:75, May 13, 1986. At page 1:50 of the same Minutes, Mr. Hnatyshyn stated:

The process of building constructive labour-management relations on Parliament Hill requires that we assume our responsibility to put in place a collective bargaining regime that is specially tailored to the needs of the parliamentary institutions.

                                                                                                                                           (emphasis added)

PESRA also deals, through incorporation of the Canada Labour Code provisions, with Occupational Safety and Health as well as labour standards such as vacations and hours of work. Such incorporation applies to all parliamentary employees, regardless of whether or not they are organized to bargain collectively: see House of Commons Debates, November 1, 1985, page 8267. The purpose of the CHRA is quite different. It ensures equal opportunities to all individuals to fulfill their aspirations and needs in life, free of hindering discriminatory practices: see section 2 of the CHRA.

[52]            Third, the rights themselves conferred by each statute are different as it appears from this chart produced by the Canadian Human Rights Commission:

The only two provisions in PESRA referring to discrimination are also labour-related and designed to protect an employee's right to join an employee organization and not to be represented as bargaining agent by an employee organization that treats employees unfairly.

[53]            In addition, it bears repeating that it is well established that a clear legislative enactment is required in order to be excepted from the application of human rights protection. This is so because of the special and quasi-constitutional nature of such legislation.

[54]            As previously mentioned, the principle was first asserted by Lamer J. (as he then was) in relation to the Human Rights Code of British Columbia. In Insurance Corp. of B.C. v. [1982] 2 S.C.R. 145">Heerspink, supra, at pages 157-58, he wrote:

When the subject matter of a law is said to be the comprehensive statement of the "human rights" of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others.

Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.

                                                                                                                                           (emphasis added)

It was later reiterated by the whole Court in Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150, at page 156, quoting with approval Monnin C.J.M.:

"Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement. (emphasis is mine)."

Our Court applied it in Canada (Attorney General) v. Druken, [1989] 2 F.C. 24, at page 31 (F.C.A.). I see nothing in section 2 of PESRA, or for that matter in all the provisions of PESRA, which either reveals an express and unequivocal intent to deprive, or a clear legislative pronouncement by Parliament depriving, parliamentary employees of the human rights protection afforded by the CHRA.

[55]            The appellants also rely upon section 14 of PESRA to support their contention that Parliament has accepted only one kind of review process:

Under that provision, a report is to be laid before each House of Parliament in case there is a failure to comply with an order of the Public Service Staff Relations Board (Board) endowed with the jurisdiction to enforce compliance with Part I of PESRA.

[56]            I suppose the short answer to this argument is the fact that the role given to Parliament under section 14 is not one of review or which precludes review at various steps of the process leading to the issuance of the order, but rather is one of ultimate enforcer of that order. Section 14 provides an enforcement mechanism unrelated to the privilege: see Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-45, June 10, 1986 at page 8:22. Indeed, the Public Service Staff Relations Act, which has no relationship to parliamentary privileges, contains a similar provision in section 24. Therefore, the decision of Prof. Institute of Public Service v. Treasury Board, [1977] 1 F.C. 304, at page 312 (F.C. T.D.), is no authority for the proposition by the intervener in support of the appellants that the entire labour-dispute process escapes judicial review. In that case, Addy J. recognized that section 24 (then section 21) of the Public Service Staff Relations Act, equivalent to our section 14 of PESRA, was an enforcement mechanism. He went on to add at page 313 that there was "no question of the Board or of the Chief Adjudicator having refused or neglected to exercise jurisdiction or of jurisdiction having been exceeded", thereby acknowledging that judicial review would be available to ensure proper exercise of jurisdiction, even by the Board.

[57]            Thus, I do not believe that one can reasonably infer from that provision that Parliament, because of its Parliamentary privilege, intended to keep ultimate control over labour relations and exclude any form of remedy other than the mechanism set up in PESRA. As mentioned, section 24 of the Public Service Staff Relations Act, which, I repeat, applies to Government employees not subject to Parliamentary privileges, contains a similar reporting mechanism. Yet, judicial review as well as review proceedings under the CHRA remain available to these employees of the Public Service (see, for example, Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27 (F.C.A.)). In addition, to give such a broad effect to section 14 would make redundant section 72 of the same Act which, it is alleged, prohibits judicial review.

[58]            In sum, neither section 14 nor, as mentioned previously, section 2 of PESRA constitute clear legislative enactments ousting the quasi-constitutional protections contained in the CHRA. I now turn to the arguments on the non-availability of judicial review.

b)         The availability of judicial review

[59]            In addition to the arguments previously discussed which they also use to foreclose the possibility of judicial review, the appellants rely upon section 72 of PESRA which contains a privative clause:

This kind of clause is not peculiar to PESRA and, in my respectful view, cannot be used to support the contention that Parliament intended thereby to exclude all curial review.

[60]            Indeed, it has never been possible to completely shield administrative tribunals from review by the courts, even with the strongest of privative clauses. Early consideration of such clauses resulted in the finding that they could not totally oust judicial review, as to do so would be tantamount to endowing an administrative tribunal with powers constitutionally reserved to courts exclusively under the B.N.A. Act (see [1981] 2 S.C.R. 220">Crevier v. A.-G. Québec, [1981] 2 S.C.R. 220). Even with a strong privative clause, review was always available for jurisdictional errors. That was the approach taken by this Court in the 1977 case of Canada v. Public Service Staff Relations Board, [1977] 2 F.C. 663, when it considered the privative clause in the PSSRA, which it bears noting contained virtually identical wording to section 72 of PESRA. That provision, which was repealed in 1992, read:

100(1) Except as provided in this Act, every order, award, direction, decision, declaration, or ruling of the Board, an arbitrator appointed under section 62 or an adjudicator is final and shall not be questioned or reviewed by any Court.

[61]            In that case, this Court concluded that the jurisdiction of the Federal Court of Appeal under section 28 of the Federal Court Act to review the PSSR Board decision being attacked was not ousted by section 100 of the PSSRA because the grounds of attack were ones that went to the jurisdiction of the tribunal.

[62]            More recent jurisprudence has clarified considerably the approach to be taken when confronted by a privative clause. We are now to be guided by a pragmatic and functional approach, of which the presence and strength of a privative clause is just one of the factors used to determine the appropriate standard for reviewing a tribunal's decision. In setting out the pragmatic and functional approach in the case of Pushpanathan v. Canada, [1998] 1 S.C.R. 982, Bastarache, J., at paragraph 30, addressed the issue of the privative clause as follows:

"...the presence of a "full" privative clause is compelling evidence that the court ought to show deference to the tribunal's decision, unless other factors strongly indicate the contrary as regards the particular determination in question. A full privative clause is "one that declares that decisions of the tribunal are final and conclusive and from which no appeal lies and all forms of judicial review are excluded."

[63]            Thus, while section 72 of PESRA constitutes a "full" or "strong" privative clause, that does not mean that it is a bar to review, but only that a reviewing court must exercise deference to the decision being reviewed. This was precisely the finding in a recent judgment involving PESRA. InAuclair v. Library of Parliament, [2002] F.C.J No. 1054, Kelen J. of the Federal Court, Trial Division reviewed the decision of an adjudicator and interfered with it on the basis that the decision was patently unreasonable.

Conclusion

[64]            The privilege here asserted by the appellants to control and manage the staff of the House of Commons would be a considerable extension of the members' right to freedom of expression and of Parliament's original right to initially control its proceedings. The CHRA is a fundamental law of Canada that guarantees the right to work free from discrimination. I need not discourse on the importance that citizens attach to their right to work and fulfill their aspirations in life. In assessing the interests at stake, considerable weight ought to be given to the special nature of human rights legislation which emanates from Parliament itself.

[65]            To accept the appellants' contention as submitted by their counsel with respect to the scope of the parliamentary privilege is to put the human rights of parliamentary employees beyond the reach of the courts and specialized human-rights tribunals established for enhanced protection and enforcement of these rights. It would also give provincial legislatures and Parliament permission to indulge in human rights violations under the disguise of a properly-functioning legislative body. Furthermore, it would eliminate an important incentive for parliamentarians to act in accordance with the principles of equality and human dignity enshrined in the Charter and human rights legislation. While I am willing to accept that the parliamentary privilege in issue here may, on occasion, shield some questionable conduct from judicial review,

I do not believe that it was intended to be used as a sword to curtail parliamentary employees' human rights. I do not think that Parliament intended that their own employees, among all Canadians, be the only ones not protected from illegal or unlawful discriminatory acts. It would be unreasonable to conclude that Parliament intends to take a position so inimical to the fundamental Canadian values and ideals that it is normally dedicated to defend and promote.

[66]            In conclusion, I am of the view that the motions judge made no error when she dismissed the appellants' application for judicial review. Consequently I would dismiss the appeal with costs.

                                                                                                                                       "Gilles Létourneau"                 

                                                                                                                                                                  J.A.

"I agree

A.M. Linden J.A."

ROTHSTEIN J.A. (Concurring in result only)

INTRODUCTION

[67]            I have had the opportunity of reading the reasons of my colleague, Létourneau J.A. I concur in his result but I am unable to completely agree with his analysis. I, therefore, provide these concurring reasons.

FACTS

[68]            I agree with the facts set out in the reasons of Létourneau J.A.

THE CHRA

[69]            I also agree with Létourneau J.A. that the authorities are to the effect that human rights legislation is unique and quasi-constitutional in nature and that it should receive a broad and purposive interpretation.

[70]            Further, I agree that the substantive provisions of the CHRA reflect fundamental values of Canadian society. For such human rights legislation not to apply, there must be a "clear legislative pronouncement." See Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150 at 156.

DOES PARLIAMENTARY PRIVILEGE DISPLACE APPLICATION OF THE CHRA?

[71]            Human rights tribunals occupy a unique space in Canada's legal and political landscape. A human rights tribunal operates as part of the executive branch of government. In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, McLachlin J. stated at paragraph 32:

[...] tribunals span the constitutional divide between the judiciary and the executive. While they may possess adjudicative functions, they ultimately operate as part of the executive branch of government, under the mandate of the legislature.

Some scholars have expressed the view that Ocean Port, supra did not close the door to administrative tribunals which perform adjudicative functions being considered part of the judicial branch of government or, perhaps, even a free-standing fourth branch of government. See David Mullan, "Ocean Port Hotel and Statutory Compromises of Tribunal Independence" (2002) 9 C.L.E.L.J. 189 at 197-199. However, from any view, administrative tribunals are not part of the legislative branch of government. To the extent the conduct of the business of Parliament is subject to parliamentary privilege, that conduct is not to be interfered with by an administrative tribunal.

[72]            Parliamentary privilege is provided for in section 18 of the Constitution Act, 1867 and section 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1.

[73]            In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, McLachlin J.(as she then was) succinctly described parliamentary privilege at page 378:

I turn first to the historical tradition of parliamentary privileges. "Privilege" in this context denotes the legal exemption from some duty, burden, attendance or liability to which others are subject. It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.

[74]            In House of Commons v. Canada Labour Relations Board, [1986] 2 F.C. 372 (C.A.), Pratte J.A. found that the right of the House of Commons and Senate to appoint and control their staff was one of their privileges. At page 384 he stated:

Now, parliamentarians, rightly or wrongly, consider the right of the House and the Senate to appoint and control their staff as one of their privileges.

Hugessen J.A. came to the same conclusion at page 391:

On the contrary, it seems to me that one of those privileges is precisely that the House shall have the direction and control of its staff [...]

[75]            A test of necessity is to be applied to determine whether a claimed privilege is required by Parliament for the dignified and efficient conduct of its business as a legislative body. (See New Brunswick Broadcasting, supra, at page 381.) However, the test of necessity is not applied to judge the content of a claimed privilege, but rather to determine the necessary sphere of exclusive or absolute parliamentary jurisdiction. At page 383 of New Brunswick Broadcasting, supra, McLachlin J. stated:

The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute "parliamentary" or "legislative" jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.

[76]            What constitutes the content of a claimed privilege which is beyond the inquiry of the Court as compared to its sphere into which the Court may inquire, is explained by McLachlin J. at page 384:

Were the courts to examine the content of particular exercises of valid privilege, and hold some of these exercises invalid, they would trump the exclusive jurisdiction of the legislative body, after having admitted that the privilege in issue falls within the exclusive jurisdiction of the legislative body. The only area for court review is at the initial jurisdictional level: is the privilege claimed one of those privileges necessary to the capacity of the legislature to function? A particular exercise of a necessary privilege cannot then be reviewed, unless the deference and the conclusion reached at the initial stage be rendered nugatory.

As I understand this language, it is the particular exercise of a valid privilege that is immune from the Court's scrutiny. However, what constitutes the scope of a valid privilege is a preliminary jurisdictional question.

[77]            The appellants and Ontario Speaker say that the determination that appointment and control of staff is subject to parliamentary privilege is conclusive, the test of necessity is met, and the Court may not conduct any further inquiry. The respondents and intervener unions say that the right to discriminate in employment is not necessary for the dignified and efficient functioning of Parliament.

[78]            I accept that the judicial branch of government must exercise considerable restraint when faced with questions involving encroachment on the autonomy of the legislative branch. However, I do not agree with the argument of the appellant and Ontario Speaker that the Court must accept that the relevant scope of privilege in respect of the appointment and control of staff includes any conceivable matter that may fall under that rubric. The Court is entitled to inquire into the scope of appointment and control of staff, that is, what the term covers. Matters which fall outside the rules necessary for the dignified and efficient functioning of Parliament will not be privileged.

[79]            In reasons written for herself and L'Heureux-Dubé J. in Harvey v. New Brunswick (A.G.) [1996] 2 S.C.R. 876, McLachlin J. observed that disqualification from holding office on grounds of race and gender would be examples of grounds which fall outside the rules by which Parliament and the legislatures conduct their business. An inquiry of these matters is one into whether a claimed privilege exists. It is a screening role. At page 918, she states:

This screening role means that where it is alleged that a person has been expelled or disqualified on invalid grounds, the courts must determine whether the act falls within the scope of parliamentary privilege. If the court concludes that it does, no further review lies.

[80]            In the case at bar, the appellant and Ontario Speaker say that appointment and control of staff is privileged to the exclusion of considerations under the CHRA. In other words, they say the appellants are free to hire and fire or discipline staff for reasons that would be prohibited under the CHRA in the case of all other employers subject to the jurisdiction of Parliament.

[81]            I am unable to agree. No evidence or argument has been put forward as to why a right to discriminate, contrary to the provisions of the CHRA, is a requirement of Members of Parliament necessary for the dignified and efficient functioning of Parliament. However, efficiency is not to be read in isolation If it were to be suggested that the efficient functioning of Parliament was being impeded, for example, by a requirement to reasonably accommodate disabled employees, the efficiency considerations alone could not justify a claim to parliamentary privilege. The operation of Parliament is to be both dignified and efficient. When the dignity of its employees is diminished by an employer without justification, the dignity of the employer is also adversely affected.

[82]            Parliament enacted the CHRA and made it applicable to all matters coming within the legislative authority of Parliament. The CHRA reflects fundamental Canadian values. I can no more imagine that the dignified and efficient functioning of Parliament requires that, in respect of the appointment and control of its staff, its members be exempt from the process of the CHRA than from the Criminal Code.

[83]            I think the rather colourful language of Lord Chancellor Brougham in Wellesley v. The Duke of Beaufort, [1831] 2 Russ. & M. 538, albeit written at another time and in another context, is apt in the present circumstances. At page 547, in rejecting a claim of parliamentary privilege, he stated:

If in the Court of King's Bench a Member of Parliament should so far forget his honour as a representative, and his duty as a man, as to prevaricate grossly on his oath, was it ever dreamt he would be at liberty to say, "true, I have prevaricated; but I am a knight of the shire, I am a citizen, or I am a burgess in Parliament; true it is, I have done that which degrades or disgraces me, that which is the most flagrant attempt that can be made to defeat the administration of justice; true it is, I have done that for committing which any other man would have been hurried from hence to a dungeon; but I am a Member of the House of Commons, I have privilege of Parliament, and my person is as sacred as the oath which I have taken and broken".

[84]            I have no hesitation concluding that an employer's actions involving the appointment and control of staff on grounds that violate human rights fall outside the rules by which Parliament conducts its business. These are invalid grounds on which to hire and fire or discipline employees and are not subject to parliamentary privilege. Therefore, parliamentary privilege does not displace application of the CHRA to employees of Parliament and, specifically, to Mr. Vaid.

DOES THE PESRA PRECLUDE APPLICATION OF THE CHRA TO MR. VAID?

[85]            Even if human rights violations by a parliamentary employer is not protected by parliamentary privilege, does the PESRA preclude application of the CHRA to Mr. Vaid?

[86]            Subsection 4(2) of the PESRA lists the positions that are not governed by the PESRA. It is agreed that Mr. Vaid's position is not included in subsection 4(2) and that the PESRA has application to Mr. Vaid's employment as a chauffer to the Speaker. Indeed, he grieved his first termination and availed himself of an adjudication pursuant to which he was ordered reinstated.

[87]            Section 2 states that Acts of Parliament which provide for matters similar to those provided for in the PESRA shall not apply to persons governed by the PESRA. Section 2 states in relevant part:

[88]            In my opinion, section 2 of the PESRA does not preclude application of the CHRA and the jurisdiction of a human rights tribunal to hear and decide Mr. Vaid's human rights complaint. To reach this conclusion, I have taken into consideration whether the CHRA deals with "matters similar" to the PESRA.

[89]            In many respects, the PESRA is similar to the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, (PSSRA) which governs the employment of employees of the Crown. However in its relationship with other statutes that provide for matters similar, the PESRA is the converse of the PSSRA. Section 2 of the PESRA displaces the other statutes while the PSSRA defers to them.

[90]            Subsection 91(1) of the PSSRA provides:

[91]            In Canada (Attorney General) v. Boutillier (C.A.), [2000] 3 F.C. 27, Linden J.A. found that while an adjudicator under the PSSRA might have the scope to decide a human rights matter, the adjudicator's jurisdiction to do so is displaced by section 91 of the PSSRA in favour of the procedure under the CHRA.

[92]            The fact that the remedies under the PSSRA and other statutes might not be identical was not sufficient to preserve the jurisdiction of the PSSRA adjudicator. In Byers Transport Ltd. v. Kosanovich (C.A.), [1995] 3 F.C. 354, Strayer J.A. dealt with the issue in the following words at page 378.

I believe that the complaint (i.e. the factual situation complained of) must be essentially the same in the other "procedure for redress". But I doubt that the remedies have to be as good or better under the other provision in order to oust the jurisdiction of the adjudicator under paragraph 242(3.1)(b). That paragraph does not require that the same redress be available under another provision of the Canada Labour Code or some other federal Act. [Underlining in original] What it requires is that in respect of the same complaint there be another procedure for redress. [Underlining in original] The point is even clearer in the French version which simply requires that there be "un autre recours". I do not believe that for there to be a "procedure for redress . . . elsewhere" there must be a procedure which will yield exactly the same remedies, although no doubt that procedure must be capable of producing some real redress which could be of personal benefit to the same complainant.

Strayer J.A. further observed that the intention of section 91 was to preclude concurrent jurisdiction in more than one tribunal:

[...] where Parliament has established specialist tribunals, whether under the Canada Labour Code or elsewhere, to deal with certain aspects of employer-employee relationships, it should not be taken to have conferred concurrent jurisdiction on ad hoc adjudicators to deal with the same matter. [at pages 379-380]

In Boutillier, supra, Linden J.A. found that section 91 precluded a PSSRA adjudicator's jurisdiction in favour of the application of the CHRA.

[93]            Contrary to the scheme in the PSSRA, it is the PESRA that displaces other tribunals that might otherwise have concurrent jurisdiction with an adjudicator under the PESRA. The words "matters similar" in section 2 of the PESRA must refer to similar types of complaints being brought under the PESRA and under another Act of Parliament. It must also refer to redress being available under the PESRA which, while not necessarily the same as under the other Act, at least is of some benefit to employees.

[94]            Létourneau J.A. accepts the argument of the respondents and unions that the focus or the purpose and scope of the CHRA differs from the focus of the PESRA and, therefore, does not deal with similar matters. I am unable to agree with those reasons. Every Act of Parliament has its own purpose and scope which will be different from the purpose and scope of another enactment. That is why there are separate Acts. The purpose of section 2 of the PESRA is to avoid duplication. If scope and purpose were the relevant tests for "matters similar", there would never be any "matters similar". Section 2 of the PESRA would, inevitably, lead to the same conclusion in all cases - that no other Act deals with "matters similar". That cannot be the way "matters similar" is to be interpreted. I think "matters similar" is to be interpreted having regard to whether similar complaints can be made and relief of some benefit to employees is available under both Acts. Following Strayer J.A. in Byers Transport, supra, as long as the procedure under the PESRA would have the capability of providing some real redress which would be of personal benefit to employees, based on the same type of complaint, that is sufficient to preclude application of legislation that otherwise might provide for concurrent jurisdiction in a tribunal under another statute.

[95]            There are no words of limitation that would preclude an employee from grieving an alleged human rights violation under the PESRA. Paragraph 62(2)(b) provides:

Therefore, similar complaints may be grieved under the PESRA or filed under the CHRA.

[96]            Under the PESRA, when a grievance has not been dealt with to the satisfaction of the employee, the employee may refer the grievance to adjudication. However, the right to refer a matter to adjudication is not as broad as the right to grieve. The right to grieve includes any occurrence or matter affecting the employee's terms and conditions of employment. The right to adjudication is more limited. Subsection 63(1) provides:

[97]            Generally speaking, it would seem that the right to adjudication is to be available only for matters such as termination or disciplinary action resulting in suspension or financial penalty. Certainly, that would cover the case of Mr. Vaid because he was terminated. However, would it cover all human rights violations in respect of employment? There is no indication that an employee who complained about harassment by an employer could have that matter adjudicated under the PESRA. Nor does the right to adjudication appear to apply in the case of an employee who, while not terminated or denied an appointment, complained of discrimination on account of physical disability. Other examples could be cited. But these are sufficient to make the point. There are human rights issues for which adjudication is not available under the PESRA. For such issues, the PESRA does not provide a procedure for redress in the form of an independent adjudication.

[98]            Therefore, the PESRA does not provide a comprehensive right to an independent adjudication that covers all human rights complaints. I think this must lead to the conclusion that the PESRA and the CHRA do not provide for matters similar.

[99]            Section 2 of the PESRA provides that "[...] nothing in any other Act of Parliament that provides for matters similar to those provided for under this Act and nothing done thereunder [...] shall apply". These words suggest that one is to look at specific provisions of the PESRA and the other Act to determine if each deals with similar matters. By section 2, did Parliament intend that certain human rights complaints were to be dealt with by a PESRA adjudicator and others pursuant to the CHRA? It is not entirely clear at what level of disaggregation the CHRA is to be considered in order to determine if it provides for matters similar to the PESRA. For example, section 7 of the CHRA provides:

A complaint of a refusal to continue to employ arising under paragraph 7(a) of the CHRA can also be adjudicated under the PESRA. However, it is not obvious that all matters that may arise under paragraph 7(b) can also be. Paragraph 14(1)(c) of the CHRA provides:

It would seem that harassment would not be a matter similar that could be adjudicated under the PESRA.

[100]        To deprive an individual of rights under the CHRA, there must be a clear legislative pronouncement. See Craton, supra, at page 156. Given this high standard, I do not think section 2 is sufficiently clear to conclude that provisions of the CHRA are to be disaggregated in detail in order to make the similar matters assessment; that is, that different sections of the CHRA are to be considered separately or, indeed, that paragraphs within a section are to be considered individually. I recognize that section 2 is intended to avoid duplication. However, section 2 is not clear enough to do so in the case of the CHRA. It is not clear to what extent, if at all, Parliament intended to exclude application of the CHRA to PESRA employees. In the absence of clear language in section 2, I do not think that Parliament can be taken to have denied PESRA employees the right to bring complaints under the CHRA for any alleged human rights violations in respect of their employment.

[101]        While this finding is sufficient to dispose of this appeal, Létourneau J.A. has expressed a view as to the relationship between parliamentary privilege and the PESRA with which I am not in total agreement. I, therefore, take this opportunity to express my view on that relationship.

THE RELATIONSHIP BETWEEN PARLIAMENTARY PRIVILEGE AND THE PESRA

[102]        Subsection 4(1) of the PESRA confirms the continued subsistence of parliamentary privilege notwithstanding enactment of the PESRA. Section 4(1) provides:

[103]        At first glance, the continued subsistence of parliamentary privilege appears to be inconsistent with the grievance and adjudication provision of the PESRA. Permitting employees to grieve matters affecting their employment and seek adjudication of such concerns would seem to derogate from the control over its staff that parliamentary privilege is said to confer on Parliament and its members. One might think that subsection 4(1) should read, "Except as provided by this Act, nothing in this part abrogates or derogates from any of the privileges...." Because such words do not appear, the PESRA must be interpreted to be consistent with parliamentary privilege.

[104]        When Parliament enacted the PESRA, it considered control over employment to be within its privilege. The PESRA was enacted very soon after this Court's decision in House of Commons v.C.L.R.B., supra which determined that the right to appoint and control employees was within parliamentary privilege. The transcript of the Minutes of the Legislative Committee discloses that the decision was expressly noted before the PESRA was enacted. I think it is a fair inference from the proximity of the House of Commons v. C.L.R.B., supra decision to the enactment of the PESRA, that Parliament considered the control and appointment of employees to be subject to parliamentary privilege and the wording of subsection 4(1) makes it apparent that it wished parliamentary privilege to subsist, notwithstanding enactment of the PESRA. (See: Canada, House of Commons, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-45, An Act respecting employment and employer and employee relations in the Senate and House of Commons, 33d Parliament Issue no. 1, 13 May 1986 at 50.)

[105]        How, then, is privilege consistent with the PESRA, which provides for grievances and adjudications with the jurisdiction of an adjudicator to grant relief to employees? I am of the opinion that the answer lies within the enforcement mechanisms of the PESRA. Under subsection 68(4), when an adjudicator requires action on the part of the employer, the employer is required to take that action. Under section 13, the Public Service Staff Relations Board is to examine and inquire into any complaint that an employer has failed to give effect to a decision of an adjudicator with respect to a grievance. Under section 14, if a Board order is not complied with, the Board is to cause a copy of the order to be laid before each house of Parliament.

[106]        Sections 13, 14 and subsection 68(4) provide:

[107]        The PESRA provides for a grievance and adjudication procedure and for the referral of non-compliance of an adjudicator's order to the Public Service Staff Relations Board. However, it is Parliament that retains control over the enforcement of an adjudicator's order, and ultimately employment matters, as is consistent with the claimed privilege.

[108]        The respondents and the unions argue that section 14 of the PESRA is almost identical to section 24 of the PSSRA, to which no parliamentary privilege attaches. It is argued, therefore, that section 14 cannot support a claim of parliamentary privilege in this instance. The respondents and unions have not indicated the purpose of section 14 of the PESRA or section 24 of PSSRA. If, indeed, PSSRA employees are not subject to parliamentary privilege, there are other reasons for section 24 of the PSSRA. However, that does not change the effect of section 14 of PESRA. The parliamentary enforcement provision in section 14 is consistent with the declaration of the subsistence of parliamentary privilege in subsection 4(1) of PESRA.

[109]        It is true that Parliament has the power not to enforce an adjudicator's order. However, the adjudicator's decision is within the public realm. The public visibility of an adjudicator's decision deters an employer from defying it. Nor could an employer justify defying an adjudicator's order on the grounds it was procedurally flawed or patently unreasonable. Notwithstanding the strong privative clause in section 72, if an employer is dissatisfied with a decision of the adjudicator, the employer is entitled to seek judicial review of the adjudicator's order and have the matter redetermined.

[110]        It would seem that the circumstances would have to be most unusual for an employer to refuse to abide by an adjudicator's decision, for the matter to be referred to the Public Service Staff Relations Board to no avail, for the matter to then be laid before Parliament, and for Parliament to uphold the employer's refusal. Indeed in the debates leading to the PESRA, the evidence was that under a similar provision in the PSSRA, no matter had ever been laid before Parliament. (See: Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-45, supra, Issue No. 8, 8 June 1986 at 22.) Even though there is strong reason to believe an adjudicator's order would be complied with, in the final analysis, Parliament has retained its privilege to appoint and control its staff while providing a procedural recourse for employees who are aggrieved by actions of an employer.

CONCLUSION

[111]        For all the above reasons, I conclude that neither parliamentary privilege nor the PESRA preclude application of the CHRA to employees of Parliament.

[112]        I would dismiss the appeal with costs.

                                                                                 "Marshall Rothstein"                 

                                                                                                              J.A.

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                           A-1-02

APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED DECEMBER 4, 2001, TRIAL DIVISION FILE NO. T-732-01.

STYLE OF CAUSE:                           HOUSE OF COMMONS ET AL. v. SATNAM

VAID ET AL.

PLACE OF HEARING:                                   Ottawa, Ontario

DATE OF HEARING:                                     June 19, 2002

REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.

CONCURRED IN BY:                                    LINDEN JA.

CONCURRING REASONS IN

RESULT ONLY BY:                           ROTHSTEIN J.A.

DATED:                                                              November 28, 2002

APPEARANCES:

Jacques A. Emond                                                FOR APPELLANTS

Lynne J. Poirier

Phillipe Dufresne                                                   FOR RESPONDENT, CANADIAN HUMAN RIGHTS COMMISSION

Peter Engelmann                                                   FOR INTERVENERS, SOCIAL SCIENCE

EMPLOYEES ASSOCIATION and COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA

David Yazbeck                                        FOR INTERVENER, THE PUBLIC SERVICE ALLIANCE OF CANADA

James L. Shields                                                   FOR INTERVENER, THE PROFESSIONAL

Allison Dewar                                           INSTITUTE FOR THE PUBLIC SERVICE OF CANADA

Neil Finkelstein                                       FOR INTERVENER, THE SPEAKER OF

Catherine Beagan Flood                                      THE LEGISLATIVE ASSEMBLY OF ONTARIO

SOLICITORS OF RECORD:

Emond Harden                                        FOR APPELLANTS

Ottawa, Ontario

Canadian Human Rights Commission     FOR RESPONDENT, CANADIAN HUMAN

Ottawa, Ontario                                                   RIGHTS COMMISSION

Caroline Engelmann Gottheil                   FOR INTERVENERS, SOCIAL SCIENCE

Ottawa, Ontario                                                   EMPLOYEES ASSOCIATION and

COMMUNICATIONS, ENERGY AND

PAPERWORKERS UNION OF CANADA

Raven, Allen, Cameron & Ballantyne     FOR INTERVENER, THE PUBLIC SERVICE

Ottawa, Ontario                                                   ALLIANCE OF CANADA

Shields & Hunt                                        FOR INTERVENER, THE PROFESSIONAL

Ottawa, Ontario                                                   INSTITUTE FOR THE PUBLIC SERVICE OF

CANADA

Blake, Cassels & Graydon LLP                          FOR INTERVENER, THE SPEAKER OF

Toronto, Ontario                                                  THE LEGISLATIVE ASSEMBLY OF

ONTARIO