Docket: A-221-15
Citation:
2016 FCA 200
CORAM:
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PELLETIER J.A.
DE MONTIGNY J.A.
GLEASON J.A.
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BETWEEN:
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CANADIAN HUMAN
RIGHTS COMMISSION
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
GLEASON J.A.
[1]
This appeal raises important issues about the degree
of deference to be afforded to the Canadian Human Rights Tribunal [the
Tribunal], when it interprets its constituent legislation, and about the
breadth of its jurisdiction to hear challenges to federal legislation that is
alleged to be discriminatory.
[2]
These issues arise in the context of complaints
filed under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 [the CHRA]
by several members of two First Nations. The complainants alleged that
provisions in the Indian Act, R.S.C. 1985, c. I-5 that preclude the
registration of their children as “Indians” under
that Act violate their human rights because the impugned provisions
constitute prohibited discrimination on the basis of race, national or ethnic
origin, sex or family status.
[3]
The CHRA prohibits a number of
discriminatory practices. One of them is discrimination in the provision of
services customarily available to the general public on one of the grounds
enumerated in the CHRA. Section 5 of the CHRA defines this
discriminatory practice in the following terms:
5 It is a discriminatory practice in the provision of goods,
services, facilities or accommodation customarily available to the general
public
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5 Constitue un acte discriminatoire, s’il est fondé sur un motif
de distinction illicite, le fait, pour le fournisseur de biens, de services,
d’installations ou de moyens d’hébergement destinés au public :
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(a) to deny, or to deny access to, any such good, service,
facility or accommodation to any individual, or
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a) d’en priver un individu;
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(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
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b) de le défavoriser à l’occasion de leur fourniture.
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[4]
In two very thoughtful and thorough decisions,
reported as 2013 CHRT 13 [Matson] and 2013 CHRT 21 [Andrews], the
Tribunal determined that the complaints in the present case were direct
challenges to provisions in the Indian Act and that, as such, did not
allege a discriminatory practice under section 5 of the CHRA because the
adoption of legislation is not a service “customarily
available to the general public” within the meaning of section 5 of the CHRA.
While sensitive to the merits of the complainants’ claims, the Tribunal ruled
that the challenge to the impugned provisions in the Indian Act may only
be brought under section 15 of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act, 1982 (UK), 1982, c. 11 [the Charter] and therefore needs to be
made to a court of law. In so deciding, the Tribunal relied on the decision in Public
Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7, 428 N.R.
240 [Murphy], where this Court held that the adoption of legislation is
not a service customarily available to the general public within the meaning of
section 5 of the CHRA. In result, the Tribunal dismissed the complaints.
[5]
The Canadian Human Rights Commission [the
Commission] participated in the hearings before the Tribunal and supported the complainants’
position. Following release of the Tribunal’s decisions, the Commission filed
two judicial review applications with the Federal Court, seeking to set the
Tribunal’s decisions aside. In a decision dated March 30, 2015, the Federal
Court (per Justice McVeigh) dismissed the Commission’s applications: Canada
(Human Rights Commission) v. Canada (Attorney General), 2015 FC 398, 252
A.C.W.S. (3d) 308. The Federal Court held that the reasonableness standard
applies to the review of the Tribunal’s decisions and concluded that the
decisions were reasonable, principally because they followed Murphy.
[6]
The Commission has appealed the Federal Court’s
decision to this Court and argues that it must be set aside for two reasons.
First, it says that the Federal Court erred in applying the reasonableness
standard of review because the controlling authority from the Supreme Court of Canada
indicates that the correctness standard is applicable to decisions like these, which
interpret the scope of rights protected by human rights legislation. Second, the
Commission says that the Tribunal’s decisions are incorrect as section 5 of the
CHRA must be interpreted as extending to complaints that directly
challenge federal legislation. The Commission recognizes that Murphy
holds otherwise, but says that we should conclude that Murphy was
wrongly decided or has been overtaken by subsequent jurisprudence of the
Supreme Court of Canada and is thus not good law.
[7]
For the reasons that follow, I disagree with the
Commission on both points and therefore would dismiss this appeal. However, I
would not grant the respondent the costs it seeks as the Commission brought this
appeal in the public interest to clarify the means to challenge federal
legislation that is alleged to be discriminatory. I thus believe that it is
appropriate to refrain from awarding costs against the Commission.
I.
Background
[8]
To place the issues in this appeal into context,
it is useful to begin by a review of the impugned provisions in the Indian
Act and of the facts which gave rise to the human rights complaints in the
present case.
A.
The Relevant Provisions in the Indian Act
[9]
Since Confederation, the federal government has
followed a policy of defining who is an “Indian”
for the purpose of regulating its relationship with indigenous peoples. For
some time, such status has been – and continues to be – governed by the Indian
Act, which sets out the criteria for determining whether an individual is
an “Indian” under the Act. (I refer to
such a determination in the balance of these Reasons as a grant of “Indian status” and am sensitive to the fact that many
indigenous people find this terminology offensive. It is, however, the
terminology that is used in the legislation and thus is relevant to the issues
in this appeal.)
[10]
It is common ground between the parties that a
grant of Indian status under the Indian Act confers a number of benefits,
such as entitlement to non-insured and health benefits, certain tax exemptions
and, in some instances, post-secondary education benefits. Status may also
confer intangible benefits related to acceptance within indigenous communities.
[11]
Prior to 1985, various provisions in the Indian
Act allowed for “enfranchisement”, a process
whereby individuals who had been granted Indian status through registration under
the Indian Act could be “enfranchised”
from registration, either voluntarily or involuntarily. The effect of enfranchisement
was to strip individuals and their descendants of the right to Indian status
under the Indian Act. As noted by the Tribunal at paragraph 2 of Andrews:
[g]enerally speaking, enfranchisement was a
process by which the federal government stripped an Indian, all of his or her
minor unmarried children and future descendants of Indian status and band
membership in exchange for incentives and various entitlements under the Indian
Act and otherwise, depending on the mechanisms in force at the time of
enfranchisement. At different times, these incentives included such things as
Canadian citizenship, the right to vote in Canadian elections, rights to hold
life and/or fee simple estates in reserve lands, or per capita shares of funds
held on behalf of the First Nation.
[12]
The assumptions behind the enfranchisement policy
were undoubtedly discriminatory: First Nations peoples were encouraged or
required to renounce their heritage and identity in order to benefit from some
of the advantages enjoyed by other members of Canadian society. Several courts
have commented on the discriminatory nature of the enfranchisement policy: see,
for example, Corbiere v. Canada (Minister of Indian and Northern Affairs),
[1999] 2 S.C.R. 203 at para. 88, 239 N.R. 1 and Canada (Attorney General) v.
Larkman, 2012 FCA 204, 433 N.R. 184 [Larkman]. In Larkman,
this Court noted:
“Enfranchisement” is a euphemism for one of
the most oppressive policies adopted by the Canadian government in its history
of dealings with Aboriginal peoples: Report of the Royal Commission on
Aboriginal Peoples: Looking Forward, Looking Backward, vol. 1 (Ottawa:
Canada Communication Group Publishing, 1996) at page 271.
Beginning in 1857 and evolving into
different forms until 1985, “enfranchisement” was aimed at assimilating
Aboriginal peoples and eradicating their culture or, in the words of the 1857
Act, encouraging “the progress of [c]ivilization” among Aboriginal peoples: An
Act to Encourage the Gradual Civilization of Indian Tribes in the Province and
the Amend the Laws Respecting Indians, S. Prov. C. 1857, 20 Vict., c. 26
(initial law); An Act to Amend the Indian Act, S.C. 1985, c. 27 (the
abolition).
Under one form of “enfranchisement” … Aboriginal
peoples received Canadian citizenship and the right to hold land in fee simple.
In return, they had to renounce – on behalf of themselves and all their
descendants, living and future – their legal recognition as an “Indian,” their
tax exemption, their membership in their Aboriginal community, their right to
reside in that community, and their right to vote for their leaders in that
community.
[Larkman at paras. 10-12]
[13]
Prior to 1985, the Indian Act also
enshrined a patrilineal concept of descent that was foreign to many indigenous traditions:
Corbiere at para. 86, quoting from the Report of the Royal Commission
on Aboriginal Peoples (1996), vol. 4, Perspectives and Realities at
26. Under the rules enshrined in the Indian Act prior to 1985, Indian status
was based almost entirely on lineage stemming from a man who had such status. The
children of men with Indian status, who married and had offspring with women without
status, were granted Indian status under the pre-1985 legislation. Conversely, women
who possessed Indian status but who had children with a man without status were
unable to pass Indian status on to their children. In addition, their own status
was dependent on that of the men they married.
[14]
In 1985, Parliament repealed the enfranchisement
provisions in the Indian Act and changed the rules governing the acquisition
of status, in an attempt to remove gender-based discrimination.
[15]
On the latter point, the amendments introduced what
is often called the “second generation cut-off rule”
in subsection 6(1) and 6(2) of the Indian Act. Generally speaking, these
provisions contemplate that individuals born of only one parent with Indian
status are considered to be second generation and are granted status under
subsection 6(2). If they have children with a person without status, they cannot
transmit Indian status to their children. Conversely, people born of two
parents with Indian status are generally speaking considered to be first
generation and are granted status under subsection 6(1) of the Indian Act.
They can transmit Indian status to their children, irrespective of whether the
other parent possesses Indian status. The second generation cut-off rule
functions as follows:
•
6(1) has child with 6(1) = 6(1) child
•
6(1) has child with 6(2) = 6(1) child
•
6(2) child has child with 6(2) = 6(1) child
•
6(1) has child with a person without Indian
status = 6(2) child
•
6(2) has child with a person without Indian
status = child has no status
[16]
In terms of the repeal of enfranchisement, the
1985 amendments provided an entitlement to registration under subsection 6(1)
of the Indian Act to those who had been enfranchised and whose names
appeared in an Order in Council issued under the former enfranchisement provisions.
However, the amendments also provided in section 7 that women were not entitled
to be registered if they had: (i) no claim to Indian status by virtue of their own
ancestry; (ii) acquired such status only via a pre-1985 marriage to a man with
status; and (iii) lost such status by virtue of enfranchisement.
[17]
The interplay of the 1985 amendments to the Indian
Act repealing enfranchisement with those creating the second generation
cut-off rule resulted in differential treatment depending on whether one’s
enfranchised forbearer was a man or a woman. Where an individual’s only
forbearer with Indian status was a mother, who lost her status due to marriage
with a non-Indian but regained it as a result of the 1985 amendments, offspring
could be registered only under subsection 6(2) of the Indian Act. In
result, they could not pass status on to children they had with a non-status
person as such children fell within the third generation under the rules then
enshrined in the Indian Act. However, the result was the opposite if the
forbearer with status was an individual’s father. In those circumstances, the
individual was entitled to registration under subsection 6(1) of the Indian
Act, was deemed to be within the first generation, and accordingly could
pass status on to children the individual had with a non-status person.
[18]
This situation was addressed by the British
Columbia Court of Appeal in McIvor v. Canada (Registrar of Indian and
Northern Affairs), 2009 BCCA 153, 177 A.C.W.S. (3d) 2 [McIvor], where
the Court found that paragraphs 6(1)(a) and 6(1)(c) of the Indian
Act infringed section 15 of the Charter in a manner that was not
justified by section 1 of the Charter. More specifically, the Court
determined that the impugned provisions of the Indian Act created a
discriminatory distinction between individuals who inherited their indigenous
heritage through their grandfather (who would also inherit Indian status) and
those who inherited their heritage through their grandmother (who lost their
status).
[19]
In response to the decision in McIvor, Parliament
enacted the Gender Equity in Indian Registration Act, S.C. 2010, c. 18 [the
GEIRA] on January 31, 2011. Among other things, this legislation added a
new paragraph 6(1)(c.1) to the Indian Act. This new paragraph provides
an entitlement to registration under subsection 6(2) of the Indian Act for
individuals whose grandmothers lost their status by marrying non-Indians before
April 17, 1985.
[20]
Having outlined the relevant legislative
backdrop to the two complaints, I turn now to discuss the particular facts
involved in each complaint.
B.
The Andrews Complaints
[21]
Roger William Andrews filed two human rights
complaints that centred on the difference in the way he was treated, with
respect to Indian status, as compared to his sister, who was several years
older. He was registered under subsection 6(2) of the Indian Act
but his sister was registered under subsection 6(1). She could therefore pass
Indian status on to the children she had with a non-status individual but Mr. Andrews
could not.
[22]
Their father was recorded at birth as a member
of the Naotkamegwanning First Nation (also known as the Whitefish Bay Indian Band)
and was registered as a status Indian. He married a woman who had no aboriginal
ancestry, but who became a status Indian upon her marriage by virtue of the
provisions of the Indian Act then in force. The complainant’s father subsequently
applied for and was granted enfranchisement in exchange for various incentives.
In result, he, his wife and their unmarried child (the complainant’s sister) lost
their Indian status by virtue of the enfranchisement order.
[23]
Some years later, following his enfranchisement,
the complainant’s father had another child – the complainant – with another
woman who did not have Indian status and who had never been entitled to such a
status. At birth, the complainant was not entitled to be registered as a status
Indian because his father had been granted enfranchisement.
[24]
As a result of the 1985 amendments, the
complainant became eligible for registration under subsection 6(2) of the Indian
Act as he was the child of a parent eligible under subsection 6(1) and a
non-Indian parent. He was not eligible for registration under subsection 6(1)
because his birth occurred after his father’s enfranchisement and the
complainant’s name therefore did not appear in an enfranchisement order. Had the
complainant been born before his father was enfranchised, the 1985 amendments
to the Indian Act would have provided him entitlement to registration
under paragraph 6(1)(d) of the Indian Act. The complainant’s sister, who
was born before their father was enfranchised, was named in the enfranchisement
order and therefore was entitled to registration under paragraph 6(1)(d) of the
Indian Act even though her mother, like the complainant’s, had no
aboriginal ancestry. Both she and the complainant had children with individuals
without Indian status. In result, the complainant’s child could not be
registered as a status Indian but his nieces and nephews could be registered.
[25]
In the two complaints he filed, one on his own
behalf and the other on behalf of his child, Mr. Andrews alleged that this
differential treatment between himself and his half-sister and between their
offspring under the provisions in the Indian Act constitutes prohibited
discrimination on the grounds of race, national or ethnic origin and family
status.
C.
The Matson Complaints
[26]
Jeremy Matson, Mardy Matson and Melody Schneider
are siblings and have a grandmother who lost her Indian status when she married
a non-Indian before 1985 and regained that status under paragraph 6(1)(c)
of the Indian Act following the 1985 amendments. By virtue of those
amendments, the complainants’ father became eligible for registration under
subsection 6(2) of the Indian Act. He married a woman without Indian
status and the complainants, like one of the plaintiffs in McIvor, were
ineligible for status at the time of their birth. As a result, the
complainants’ children, conceived with non-status individuals, were also ineligible
for registration.
[27]
In November and December 2008, the complainants
filed complaints under section 5 of the CHRA, alleging that they would
have been entitled to registration under subsection 6(1) of the Indian Act
had their indigenous heritage been transmitted through their grandfather rather
than through their grandmother. They further alleged that in this patrilineal
scenario their children would have been eligible for registration under
subsection 6(2) of the Indian Act. They claimed that the treatment
afforded to them constituted discrimination in respect of the provision of
service on the prohibited grounds of race, sex, national or ethnic origin and
family status.
[28]
Following the British Columbia Court of Appeal’s
decision in McIvor and the coming into force of the GEIRA, the
complainants became eligible for registration under subsection 6(2) of the Indian
Act, and applied for and were granted registration in May and June 2011. However,
the Office of the Indian Registrar determined that their children are not
eligible for registration under any of the provisions of section 6 of the Indian
Act because the complainants are married to individuals who are not
eligible for Indian status and are themselves registered under subsection 6(2)
of the Indian Act.
[29]
In a preliminary decision, dated September 27,
2011, the Tribunal held that the portions of the Matson complaints
relating to the complainants’ own eligibility for registration under the Indian
Act were moot because the complainants had been successfully registered
under subsection 6(2) of the Act following the adoption of the GEIRA.
However, the Tribunal decided to proceed to a hearing on the remaining part of
the complaints relating to the opportunity to pass status on to any children
conceived with a non-Indian parent (Matson, Matson, and Schneider (née
Matson) v. Indian and Northern Affairs Canada, 2011 CHRT 14).
II.
The Tribunal’s Decisions
[30]
As noted, in both the Matson and Andrews
decisions under review, the Tribunal decided that the complaints did not allege
a discriminatory practice under section 5 of the CHRA because the adoption
of legislation is not a service customarily available to the general public and
thus dismissed the complaints.
A.
Matson
[31]
The Matson case was decided first. In it,
the Tribunal addressed three issues: first, whether the complaints involved a
direct challenge to provisions of the Indian Act; second, whether the
Tribunal was bound to follow the decision of this Court in Murphy; and,
finally, whether the complaints impugned a discriminatory practice in the
provision of services customarily available to the general public that could be
the subject of a complaint under section 5 of the CHRA.
[32]
In terms of the first issue, the Tribunal found
that the complaints sought to directly challenge provisions of the Indian
Act because the complainants were challenging their entitlements under the
legislation as opposed to the manner in which the respondent processed their
applications.
[33]
On the second issue, the Tribunal determined
that the decision in Murphy had not been overtaken by subsequent case
law from the Supreme Court of Canada and was therefore still binding on the
Tribunal. In reaching this conclusion, the Tribunal reviewed the Supreme Court
cases relied on by the Commission, which the Commission submitted support the
application of the CHRA or similar provincial legislation by human
rights tribunals to declare conflicting legislation inoperative: Insurance
Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, 43 N.R.
168; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150, 61
N.R. 241; CN v. Canada (Canadian Human Rights Commission), [1987] 1
S.C.R. 1114, 27 Admin. L.R. 172; Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143, 91 N.R. 255; Tranchemontagne v. Ontario (Director,
Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513.
[34]
The Tribunal noted that none of these cases stands
for the proposition that the adoption of legislation constitutes a service
customarily available to the general public, and that in those cases where
legislation had been declared inoperative by reason of a conflict with human
rights legislation, the Tribunal possessed jurisdiction on an alternate basis, often
because the complaint stemmed from an employment relationship where the
employer applied an impugned legislative provision. The Tribunal reasoned that
these cases did not undercut the holding in Murphy because they dealt
with different situations.
[35]
The Tribunal then went on to address and dismiss
the various other arguments advanced by the Commission as to why Murphy
should not be followed.
[36]
First, it accepted that prior to the decision in
Murphy there was a substantial body of jurisprudence under the CHRA
that was to the opposite effect and which held that legislation could be
challenged under section 5 of the CHRA as a service customarily
available to the general public. The Tribunal noted, though, that this
jurisprudence was premised on the decision of this Court in Canada (Attorney
General) v. Druken, [1989] 2 F.C. 24, 88 N.R. 150 (C.A.) [Druken]
where the respondent admitted that the adoption of the impugned legislation –
there provisions in the Unemployment Insurance Act – constituted a
service customarily available to the general public within the meaning of
section 5 of the CHRA. Because this point was admitted in Druken,
the Tribunal found it to be less persuasive than Murphy. Also, as Druken
was decided earlier, the Tribunal accepted that Murphy was the
binding authority on the point.
[37]
Next, the Tribunal discussed and dismissed as
unhelpful several cases decided under provincial human rights legislation
referred to by the Commission. In many of these cases, as in the cases from the
Supreme Court relied on by the Commission, jurisdiction over the discriminatory
practice in issue arose from another provision in the legislation, like the
provisions prohibiting discrimination in employment. Thus, in several of these
cases, where declarations of legislative invalidity were made, the underlying
complaints did not stem from a direct challenge to legislation.
[38]
The Tribunal also discussed section 2,
subsection 49(5) and 62(1) as well as the former section 67 of the CHRA
and found that none of these provisions required the result urged by the
Commission.
[39]
Section 2 of the CHRA provides:
The purpose of
this Act is to extend the laws in Canada to give effect, within the purview
of matters coming within the legislative authority of Parliament, to the
principle that all individuals should have an opportunity equal with other
individuals to make for themselves the lives that they are able and wish to
have and to have their needs accommodated, consistent with their duties and
obligations as members of society, without being hindered in or prevented
from doing so by discriminatory practices based on race, national or ethnic
origin, colour, religion, age, sex, sexual orientation, marital status,
family status, disability or conviction for an offence for which a pardon has
been granted or in respect of which a record suspension has been ordered.
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La présente loi a
pour objet de compléter la législation canadienne en donnant effet, dans le
champ de compétence du Parlement du Canada, au principe suivant : le droit de
tous les individus, dans la mesure compatible avec leurs devoirs et
obligations au sein de la société, à l’égalité des chances d’épanouissement
et à la prise de mesures visant à la satisfaction de leurs besoins,
indépendamment des considérations fondées sur la race, l’origine nationale ou
ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle,
l’état matrimonial, la situation de famille, la déficience ou l’état de
personne graciée.
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[40]
Subsection 49(5) provides that “if a complaint involves a question about whether another Act
or a regulation made under another Act is inconsistent” with the CHRA,
the Tribunal member (where a single person panel is appointed to hear the case)
or one of the members of the Tribunal (where there a three person panel is
appointed to hear the case) must be legally trained.
[41]
Subsection 62(1) provides that the portions of
the CHRA that create, prohibit and provide a remedy for discriminatory
practices “do not apply to or in respect of any superannuation
or pension fund or plan established by an Act of Parliament enacted before
March 1, 1978”.
[42]
Finally, the former section 67 of the CHRA,
which was repealed in 2008 (with immediate effect in some cases and a three
year delay in other cases), stated that nothing in the CHRA “affects any provision of the Indian Act or any
provision made under or pursuant to that Act”.
[43]
The Commission argued that these provisions must
lead to the conclusion that section 5 extends jurisdiction to the Tribunal to
declare legislation invalid as an opposite conclusion would contradict the
general purpose of the CHRA and would render subsections 49(5) and 62(1)
as well as former section 67 of the CHRA virtually meaningless.
[44]
The Tribunal disagreed and held that the foregoing
provisions do not necessarily require a finding that the adoption of
legislation is a service customarily available to the general public, within
the meaning of section 5 of the CHRA, as legislation could be declared
by the Tribunal to be inoperative in cases where the Tribunal possessed
jurisdiction under a provision other than section 5 of the CHRA. It
explained that such an issue could arise where the impugned legislation was
raised as a defence by the respondent; cases in the employment context where
the employer applied a legislative provision (like a provision in pension
legislation) that conflicted with the CHRA provide an example of such a
situation. The Tribunal reasoned that such cases are conceptually distinct from
a direct challenge to a law because in such other cases the jurisdiction of the
Tribunal is grounded in a provision governing the actions of the respondent and
the challenge to the legislation arises only collaterally. Such cases, in other
words, do not involve a direct challenge to the legislation. The Tribunal also
noted that the now-repealed section 67 of the CHRA could have been
explained by the former case law – overtaken by Murphy– that it was not
obliged to follow. The Tribunal therefore found that its interpretation of
section 5 of the CHRA was consistent with section 2, subsection 49(5)
and former section 67 of the CHRA.
[45]
Thus, after a thorough review of each of the
arguments advanced by the Commission on behalf of the complainants, the
Tribunal determined that it was bound to apply Murphy and that it was
required to dismiss the complaint.
[46]
This determination provided a negative answer to
the third question of whether the complaints impugned a discriminatory practice
in the provision of a service customarily available to the general public that
could be the subject of a complaint under section 5 of the CHRA. In
finding that the complaints did not raise such a question because the adoption
of legislation is not a service customarily available to the general public,
the Tribunal underscored the policy reasons why legislation should not be
subject to direct challenge under the CHRA as opposed to the Charter.
Citing from the decisions of the Supreme Court of Canada in Andrews and Alberta
v. Hutterian Brethren of Wilson Colony, 2009 CSC 37, [2009] 2 S.C.R. 567, the
Tribunal noted that a section 1 Charter justification would not be
available under the CHRA, where the only defence would be a bona fide
justification under subsection 15(2) of the CHRA.
[47]
The Tribunal noted that in Hutterian Brethren,
the Supreme Court of Canada held the two defences to be conceptually distinct, and
relied on the following passage from the majority decision at paragraphs 68 to
70, where Chief Justice McLachlin wrote:
Minimal impairment and reasonable
accommodation are conceptually distinct. Reasonable accommodation is a concept
drawn from human rights statutes and jurisprudence. It envisions a dynamic
process whereby the parties — most commonly an employer and employee — adjust
the terms of their relationship in conformity with the requirements of human
rights legislation, up to the point at which accommodation would mean undue
hardship for the accommodating party. In Multani, Deschamps and Abella
JJ. explained:
The process required by the duty of
reasonable accommodation takes into account the specific details of the
circumstances of the parties and allows for dialogue between them. This
dialogue enables them to reconcile their positions and find common ground
tailored to their own needs. [para. 131]
A very different kind of relationship exists
between a legislature and the people subject to its laws. By their very nature,
laws of general application are not tailored to the unique needs of individual
claimants. The legislature has no capacity or legal obligation to engage in such
an individualized determination, and in many cases would have no advance notice
of a law’s potential to infringe Charter rights. It cannot be expected
to tailor a law to every possible future contingency, or every sincerely held
religious belief. Laws of general application affect the general public, not
just the claimants before the court. The broader societal context in which the
law operates must inform the s. 1 justification analysis. A law’s
constitutionality under s. 1 of the Charter is determined, not by
whether it is responsive to the unique needs of every individual claimant, but
rather by whether its infringement of Charter rights is directed at an
important objective and is proportionate in its overall impact. While the law’s
impact on the individual claimants is undoubtedly a significant factor for the
court to consider in determining whether the infringement is justified, the
court’s ultimate perspective is societal. The question the court must answer is
whether the Charter infringement is justifiable in a free and democratic
society, not whether a more advantageous arrangement for a particular claimant
could be envisioned.
Similarly, “undue hardship”, a pivotal
concept in reasonable accommodation, is not easily applicable to a legislature
enacting laws. In the human rights context, hardship is seen as undue if it
would threaten the viability of the enterprise which is being asked to
accommodate the right. The degree of hardship is often capable of expression in
monetary terms. By contrast, it is difficult to apply the concept of undue
hardship to the cost of achieving or not achieving a legislative objective,
especially when the objective is (as here) preventative or precautionary.
Though it is possible to interpret “undue hardship” broadly as encompassing the
hardship that comes with failing to achieve a pressing government objective,
this attenuates the concept. Rather than strain to adapt “undue hardship” to
the context of s. 1 of the Charter, it is better to speak in terms of
minimal impairment and proportionality of effects.
[48]
Thus, in Matson, the Tribunal determined
that both the binding authority in Murphy and sound policy reasons
required it to find that the Matson complaints did not allege a
discriminatory practice in the provision of services customarily available to
the general public that could be the subject of a complaint under section 5 of
the CHRA. It accordingly dismissed the complaints.
B.
Andrews
[49]
Many of the same points were again made by the
Tribunal in the subsequent decision in Andrews. In addition, the
Tribunal in that case undertook a more detailed analysis of what is required
for something to constitute a service customarily available to the general public
within the meaning of section 5 of the CHRA.
[50]
The Tribunal began its analysis of the issue by
referring to the decisions of the Supreme Court of Canada and of this Court in Gould
v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, 194 N.R. 81 [Gould]
and Watkin v. Canada (Attorney General), 2008 FCA 170, 378 N.R. 268 [Watkin].
Both cases were decided prior to the 2008 decision of the Supreme Court of
Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir],
which brought about a sea change in administrative law. Under pre-Dunsmuir
principles, the standard of review applied in Gould and Watkin to
decisions of the Tribunal defining discrimination and the scope of the rights
protected under the CHRA was correctness. Thus, in Gould and Watkin,
the Supreme Court and this Court expressed their views on the proper
interpretation of what types of activities constitute services customarily
available to the general public within the meaning of section 5 of the CHRA.
[51]
In Gould, the Supreme Court established a
two-step analysis for the determination: first, one must determine what
constitutes the “service” based on the facts in
the complaint; second, one must assess whether this service “creates a public relationship between the service provider
and the service user” (at paragraph 68). The Tribunal noted that this
notion of “service” was further refined in Watkin,
where this Court rejected the notion that all governmental actions come within
the scope of section 5 of the CHRA and instead ruled that the section “contemplate[s] something of benefit being ‘held out’ as
services and ‘offered’ to the public” (at paragraph 31).
[52]
Thus, as noted by the Tribunal, a service
customarily available to the public requires the presence of two separate
components: first, something of benefit must be available and, second, this
benefit must be held out or offered to the public. Accordingly, to use the words
of the Tribunal, the language in section 5 of the CHRA requires “a transitive connotation” between the benefit and the
process by which it is provided. The Tribunal referred to the reasons of
LaForest, J. in Gould in support of this notion, where he noted at
paragraph 55:
[t]here is, therefore, a requisite public
relationship between the service provider and the service receiver, to the
extent that the public must be granted access to or admitted to or extended the
service by the service provider. There is a transitive connotation from the
language employed by the various provisions; it is not until the service,
accommodation, facility, etc., passes from the service provider and has been held
out to the public that it attracts the anti-discrimination prohibition.
[53]
The Tribunal also referred to the decision of
this Court in Canada (Attorney General) v. McKenna, [1999] 1 F.C. 401,
233 N.R. 52 [McKenna], where two members of the Court expressed doubt
that a grant of citizenship under the Citizenship Act, R.S.C. 1985, c.
C-29 constituted a service, and to the decision of the Tribunal in Forward
and Forward v. Citizenship and Immigration Canada, 2008 CHRT 5, 63 C.H.R.R.
346 [Forward], finding that the grant of citizenship is not a service
because nothing is held out or offered when legislation is applied. The
Tribunal further mentioned the decisions of the Tribunal and the Federal Court
in Dreaver v. Pankiw, 2009 CHRT 8 aff’d 2010 FC 555 [Pankiw FC]
and noted that these decisions “determined that a
service must require something of benefit or assistance being held out, [and]
that one may also inquire ‘whether that benefit or assistance was the essential
nature of the activity’” (Andrews at paragraph 49, citing from Pankiw
FC at paragraph 42).
[54]
Applying these principles to the facts of Mr.
Andrews’ complaints, as in Matson, the Tribunal held that the complaints
were a direct challenge to provisions in the Indian Act because they
alleged that these provisions were discriminatory. The Tribunal accepted that
the impugned provisions do confer a benefit on those granted Indian status and
thus meet the first component of a service customarily available to the public,
within the meaning of section 5 of the CHRA.
[55]
However, the Tribunal found the second component
was missing because in the act of legislating, Parliament does not hold out or
offer a service to the public; in short, the legislator is not a
service-provider.
[56]
The Tribunal further held that its conclusion
was supported by the modern principle of statutory interpretation, which
requires that the words of an Act be read in their entire context and in their
grammatical and ordinary sense, harmoniously with the scheme and object of the
Act and the intention of Parliament, citing Elmer A. Driedger, The
Construction of Statutes (Toronto: Butterworths, 1974) at 67. Also citing
the associated words rule applied in Forward, the Tribunal held
that the term “services”, as used in section 5
of the CHRA, is informed by its placement alongside the terms, “goods”, “facilities”
and “accommodations” and thus should be
understood to be of a similar character. According to the Tribunal, such a
reading confirms that the act of legislating is not encompassed as a possible
discriminatory practice within the meaning of section 5 of the CHRA.
[57]
Thus, in addition to the reasons offered in Matson,
the Tribunal in Andrews offered a more detailed analysis of the
jurisprudence and the legislation in support of its conclusion that the complaints
did not allege a discriminatory practice in the provision of services
customarily available to the general public that could be the subject of a
complaint under section 5 of the CHRA. And in result, it once again
dismissed the complaints.
III.
Analysis
[58]
With this background in mind, it is now possible
to move to review the two issues advanced by the Commission in this appeal,
namely, what standard of review is applicable to the Tribunal’s decisions and
whether the decision in Murphy should be found to have been wrongly
decided or to no longer be good law.
A.
Standard of Review
[59]
On the first issue, this Court is required to
step into the shoes of the Federal Court and determine whether it selected the
appropriate standard of review and whether it applied that standard correctly: Agraira
v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
S.C.R. 559 at paras. 45-47 [Agraira].
[60]
In the present case, discerning the appropriate
standard of review is not straightforward. The post-Dunsmuir case law of
this and other appellate courts as well as, arguably, that of the Supreme Court
of Canada is divided on the issue of what standard of review applies to
decisions of human rights tribunals when they are called upon to interpret the
scope of protection afforded under human rights legislation.
[61]
The starting point for the discussion is the
recognition that, under Dunsmuir and the volley of administrative law
cases subsequently decided by the Supreme Court, the reasonableness standard
presumptively applies to decisions of all administrative tribunals interpreting
their constituent statutes or statutes closely related to their functions: Dunsmuir
at para. 54; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1
S.C.R. 160 at para. 28 [Smith]; Canada (Canadian Human Rights
Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471
at para. 16 [Mowat]; Alberta (Information and Privacy Commissioner)
v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para.
30 [Alberta Teachers]; McLean v. British Columbia (Securities
Commission), 2013 SCC, [2013] S.C.R. 895 at para. 21; Martin v. Alberta
(Workers’ Compensation Board), 2014 SCC 25, [2014] 1 S.C.R. 546 at para.
11; Ontario (Community Safety and Correctional Services) v. Ontario (Information
and Privacy Commissioner), 2014 SCC 31, [2014] 1 S.C.R. 674 at para. 26; Canadian
Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014]
2 S.C.R. 197 at para. 13 [NGC]; Canadian National Railway Co. v.
Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 at para. 55 [CN];
Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3,
[2015] 1 S.C.R. 161 at para. 35; Mouvement laïque québécois v. Saguenay
(City), 2015 SCC 16, [2015] 2 S.C.R. 3 at para. 46 [Mouvement laïque];
Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44,
[2015] 3 S.C.R. 147 at para. 73; Commission scolaire de Laval v. Syndicat de
l’enseignement de la région de Laval, 2016 SCC 8 at para. 32, 481 N.R. 25.
[62]
However, this presumption is inapplicable if the
issue under review involves a constitutional question (other than an issue of
whether the exercise of discretion violates the Charter or does not
respect Charter values), a question of general importance to the legal
system that is outside the decision-maker’s specialized expertise, the
determination of the respective jurisdiction of two or more administrative
decision-makers or a so-called “true” question
of vires: Dunsmuir at paras. 58-61; Smith at para. 26; Mowat
at para. 18; Alberta Teachers at para. 30; NGC at para. 13; CN
at para. 55.
[63]
In addition, the presumption may be rebutted by
looking at contextual factors, including the purpose of the tribunal, the
nature of the question at issue and the expertise of the tribunal. The presence
or absence of a privative clause had been held to also be a key contextual
factor in many cases that pre-dated Dunsmuir, but after the decision of
the Supreme Court of Canada in Canada (Director of Investigation and
Research) v. Southam Inc., [1997] 1 S.C.R. 748, 209 N.R. 20 has been given
far less weight, as in that case and many subsequent Supreme Court decisions, the
reasonableness standard has been applied even in the absence of a privative
clause (see e.g. Dunsmuir at para. 52; Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paras.
25-26; Mowat at para. 17; and the non-labour decisions of the Supreme
Court post-Dunsmuir applying the reasonableness standard of review, in
many of which the relevant statutes lacked privative clauses).
[64]
The other three contextual factors identified in
the case law, involving the purpose of the tribunal, the nature of the question
at issue and the expertise of the tribunal, are interrelated and are aimed at
discerning whether the nature of the question being considered is such that the
legislator intended it be answered by the administrative decision-maker as
opposed to the Court. Indicia of such an intention include the role assigned to
the administrative decision-maker under the legislation, and the relationship
between the question decided and the institutional expertise of the
decision-maker as opposed to the institutional expertise of a court. Where
there is overlap between the two and the question at issue may be decided in
the first instance either by a court or by the tribunal, the Supreme Court has
indicated that correctness will apply: see, for example, Rogers
Communications Inc. v. Society of Composers, Authors and Music Publishers of
Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; and Canadian Broadcasting
Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615.
[65]
Applying the foregoing general principles to
decisions of human rights tribunals has resulted in conflicting decisions.
[66]
In Mowat, the first case involving a
human rights issue decided by the Supreme Court of Canada post-Dunsmuir,
the Court held that the reasonableness standard applied to review of a decision
of the federal human rights tribunal as to its authority to award costs to a
successful complainant under the CHRA. The reasoning in Mowat
focussed both on the presumptive application of the reasonableness standard to
tribunals interpreting their constituent statutes and on the nature of the
question, which was found to not be one of general importance to the legal
system as a whole and outside the tribunal’s expertise. However, Justices Lebel
and Cromwell, who wrote for the Court, left open the possibility that other
sorts of issues that come before human rights tribunals might be subject to
review on the correctness standard. They wrote as follows at paragraph 23:
There is no doubt that the human rights
tribunals are often called upon to address issues of very broad import. But,
the same questions may arise before other adjudicative bodies, particularly the
courts. In respect of some of these questions, the application of the Dunsmuir
standard of review analysis could well lead to the application of the standard
of correctness. But, not all questions of general law entrusted to the Tribunal
rise to the level of issues of central importance to the legal system or fall
outside the adjudicator’s specialized area of expertise.
[67]
Next, in Saskatchewan (Human Rights
Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, the Supreme
Court held that the reasonableness standard applied to review of a decision
made by the Saskatchewan Human Rights Tribunal, interpreting and applying the
hate speech provisions in the Saskatchewan Human Rights Code, S.S. 1979,
c. S-24.1. In so deciding, Justice Rothstein, who penned the unanimous ruling,
stated at paragraph 168 that:
the decision was well within the expertise
of the Tribunal, interpreting its home statute and applying it to the facts
before it. The decision followed [the applicable leading authority] and
otherwise did not involve questions of law that are of central importance to
the legal system outside its expertise.
[68]
Two years later, in Mouvement laïque, the
majority of the Supreme Court held that both the reasonableness and the
correctness standards applied to different aspects of the Quebec Human Rights
Tribunal’s interpretation of the scope of protection afforded under the Quebec
Charter of Human Rights and Freedoms, C.Q.L.R. c. C-12 [Quebec Charter]
to freedom of religion. More specifically, the Court ruled that the correctness
standard applied to discerning the scope of the state’s duty of religious
neutrality. However, it held that the reasonableness standard applied to the
rest of the Tribunal’s decision, including the issues of whether the impugned
prayer before a council meeting was of a religious nature, whether it
interfered with the complainant’s freedom of religion and whether the prayer
was discriminatory. The Court held that these latter questions fell “squarely within the Tribunal’s area of expertise” and
were therefore entitled to deference (at paragraph 50). On the religious
neutrality question, the majority of the Court found that “the importance of this question to the legal system, its
broad and general scope and the need to decide it in a uniform and consistent
manner” militated in favour of the correctness standard (at paragraph
51).
[69]
From the foregoing, it is difficult to draw a
bright line as to when the reasonableness or the correctness standard will
apply to decisions of human rights tribunals interpreting the scope of the
protections afforded in their constituent legislation.
[70]
Turning to the case law of this Court, in Murphy,
Chief Justice Noël, writing for the panel, applied the reasonableness standard
to review of the Tribunal’s decision interpreting the meaning to be given to
services “customarily available to the general public”
in section 5 of the CHRA. Similarly, in Canada (Attorney General) v.
Canadian Human Rights Commission et al., 2013 FCA 75, 444 N.R. 120,
Justice Stratas, writing for the panel, applied the reasonableness standard to
review the Tribunal’s decision interpreting the meaning to be given to “discrimination” in the context of a claim alleging
that schools and child welfare on Indian reserves were under-funded.
[71]
On the other hand, in Canada (Attorney
General) v. Johnstone, 2014 FCA 110, 459 N.R. 82, Justice Mainville, who
wrote for the panel, found that the correctness standard applied to review of
the Tribunal’s interpretation of family status discrimination. He based this
conclusion on: i) the fact that pre-Dunsmuir case law had applied this
standard; ii) human rights statutes are quasi-constitutional and therefore
their interpretation raises questions of fundamental importance; and iii) a
multiplicity of courts and tribunals are called upon to interpret human rights
statutes, which favours full curial review to avoid inconsistency in the
interpretation of fundamental rights. The approach in Johnstone was
followed by this Court in Canadian National Railway Company v. Seeley,
2014 FCA 111, 458 N.R. 349.
[72]
In Ontario, both the Court of Appeal and the
Divisional Court have applied the reasonableness standard of review in the
post-Dunsmuir case law to decisions of the provincial human rights
tribunal interpreting provisions in the Ontario Human Rights Code,
R.S.O. 1990, c. H.19 that define the scope of anti-discrimination protection:
see, for example, Taylor-Baptiste v. OPSEU, 2015 ONCA 495, 126 O.R. (3d)
481; Shaw v. Phipps, 2012 ONCA 155, 289 O.A.C. 163; Grogan v. Ontario
(Human Rights Tribunal), 2012 ONSC 319, 214 A.C.W.S. (3d) 531; Visc v.
HRTO and Elia Associates Professional Corporation, 2015 ONSC 7163,
343 O.A.C. 318.
[73]
In Alberta, the Court of Appeal has taken the
opposite approach and applied the correctness standard to review the human
rights tribunal’s interpretation of the provisions in human rights legislation
that define discrimination and the scope of protection afforded under the
legislation: Stewart v. Elk Valley Coal Corp., 2015 ABCA 225, 602 A.R.
210. A similar approach has been taken by the Prince Edward Island Court of
Appeal: Eastern School Board v. Prince Edward Island (Human Rights
Commission), 2008 PESCAD 10, 168 A.C.W.S. (3d) 148.
[74]
In Nova Scotia, post-2008, the Court of Appeal
initially applied the reasonableness standard to review of Human Rights Board
of Inquiry decisions interpreting the scope of protections provided under the
legislation: Tri-County Regional School Board v. Nova Scotia (Human Rights
Board of Inquiry), 2015 NSCA 2, 248 A.C.W.S. (3d) 695; Foster v.
Nova Scotia (Human Rights Board of Inquiry), 2015 NSCA 66, 256 A.C.W.S.
(3d) 895. However, following the decision of the Supreme Court of Canada in Mouvement
laïque, the Nova Scotia Court of Appeal modified its approach and
applied the correctness standard to the Board of Inquiry’s interpretation of “discrimination” in International Association of
Fire Fighters, Local 268 v. Adekayode, 2016 NSCA 6, 262 A.C.W.S. (3d) 456.
[75]
In Quebec, as noted in Mouvement laïque,
the Quebec Court of Appeal had often applied the appellate standards of review
to decisions of the Quebec Human Rights Tribunal under the Quebec Charter
and, accordingly, reviewed legal determinations of the Tribunal on the
correctness standard. In Mouvement laïque the Supreme Court overturned
this approach in favour of administrative law review on the principles outlined
above. Subsequently, the Quebec Court of Appeal has reviewed decisions of the
Quebec Human Rights Tribunal in Université de Sherbrooke c. Commission des
droits de la personne et des droits de la jeunesse, 2015 QCCA 1397, 260
A.C.W.S. (3d) 594 and Commission des droits de la personne et des droits de
la jeunesse c. Côté, 2015 QCCA 1544, 260 A.C.W.S. (3d) 328. In those cases
it applied the reasonableness standard to review of the Tribunal’s finding that
the clause of a collective agreement was discriminatory on the basis of age (Université
de Sherbrooke at paragraphs 31-33), and of the Tribunal’s interpretation of
the expression “the use of any means to palliate a
handicap” provided in section 10 of the Quebec Charter (Côté at
paragraphs 19-21).
[76]
In Saskatchewan, the Court of Appeal applied the
correctness standard in Whatcott v. Saskatchewan (Human Rights Tribunal),
2010 SKCA 26, 346 Sask. R. 210 to review of the Tribunal’s ruling on whether
the offensive flyers constituted prohibited hate speech as defined in the human
rights legislation, but was overturned on this point by the Supreme Court of
Canada, as noted above.
[77]
The issue does not arise in British Columbia as
legislation in that province determines the applicable standard of review: Administrative
Tribunals Act, S.B.C. 2004, c. 45, ss. 58-59. Finally, appellate courts in
Manitoba, Newfoundland and Labrador and New Brunswick do not appear to have
considered the issue.
[78]
The foregoing survey highlights the sorry state
of the case law and its lack of guidance on when decisions of human rights
tribunals interpreting provisions in human rights legislation will be afforded
deference. Fortunately, it is not necessary to decide between the conflicting
lines of authority in this case, as this matter can be decided on a narrower
basis in application of the following general principles that emerge from the
Supreme Court’s case law.
[79]
First, one cannot turn to the pre-Dunsmuir
case law as satisfactorily settling the standard of review applicable to
Tribunal decisions interpreting the CHRA. In Agraira, the Supreme
Court indicated that one cannot necessarily rely on pre-Dunsmuir
precedents “if [they] appear to be inconsistent with
recent developments in the common law principles of judicial review” (at
paragraph 48), which include the presumptive application of the reasonableness
standard to review of a tribunal’s interpretation of its constituent statute.
This conclusion was applied by this Court in Canada (Citizenship and
Immigration) v. Kandola, 2014 FCA 85 at paragraph 35, 456 N.R. 115. Thus,
one of the reasons offered in Johnstone for selection of the correctness
standard no longer holds in light of Agraira.
[80]
Second, the interpretation of human rights
legislation does not involve a constitutional question, within the meaning of
the Supreme Court’s administrative law jurisprudence, which leaves the courts
as final arbiter of constitutional issues due to the role assigned to them
under the constitution to enforce the Charter and the Constitution
Act, 1867. The rights afforded under human rights legislation – while
important and fundamental – are statutory and therefore fundamentally different
from constitutional rights.
[81]
Third, the presumptive application of the
reasonableness standard is not rebutted by the mere fact that human rights
tribunals are called upon to decide important issues of broad import that
possess quasi-constitutional dimensions. In the Supreme Court’s case law, the
exception to the reasonableness standard due to the importance of the issue
under review to the legal system is double-pronged: to merit correctness
review, the issue must both be one of importance to the legal system as
a whole and must be outside the expertise of the tribunal.
[82]
Interpretation of human rights legislation is
the core competency of human rights adjudicators and thus falls squarely within
their expertise. Indeed, the decisions in the present case eloquently attest to
this. Thus, the fact that discrimination protection is of broad general
importance to the legal system is not enough to merit correctness review.
[83]
An analogy may be drawn in this regard to some
of the issues that come before labour boards, which in terms of review do not
differ in any meaningful way from the sorts of issues considered by human
rights tribunals. Labour boards are called upon to interpret labour legislation
and the breadth of legislative provisions governing the grant of bargaining
rights, which the Supreme Court has confirmed possess a constitutional aspect: Saskatchewan
Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245. The
reasonableness standard of review undoubtedly applies to labour board decisions
of this nature; the importance of the issues decided by a labour board or such
issues’ quasi-constitutional dimension does not give rise to correctness
review. Similarly, the nature of the issues decided by human rights tribunals
when they interpret the scope of protection afforded under their constituent
statutes cannot, in and of itself, merit application of the correctness
standard.
[84]
It thus follows that, if the correctness
standard applies, justification must be found on some other basis. An alternate
justification may arise through application of the contextual factors,
discussed above, and, more specifically, through the fact that in many
instances issues decided by certain human rights tribunals may also arise
before the courts or labour arbitrators.
[85]
In Quebec, both the courts and the Human Rights
Tribunal possess jurisdiction to remedy breaches of the Quebec Charter
and both are thus called upon to interpret it: Mouvement laïque at
paragraph 51. In my view, the decision in Mouvement laïque must be
understood in this context – it is this overlapping jurisdiction combined with
the overarching importance of defining the bounds of the state’s role in
assuring freedom of religion that explains the selection of the correctness
standard in that case.
[86]
Likewise, in the employment context, labour
adjudicators now have jurisdiction to apply human rights legislation: see Parry
Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324,
2003 SCC 42, [2003] 2 S.C.R. 157 and for example, paragraph 226(2)(a) of
the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 and
paragraph 60(1)(a.1) of the Canada Labour Code, R.S.C. 1985, c. L-2.
Thus, several tribunals may be called upon to interpret concepts like what
constitutes discrimination and the bounds of the bona fide justification
defence. This overlap might provide a sound basis for selection of the
correctness standard of review under general principles that flow from the
Supreme Court’s jurisprudence.
[87]
Even if this is so, there is no such overlap in
the present case. The issue of what constitutes a service customarily available
to the general public within the meaning of section 5 of the CHRA can
only ever be decided by the Tribunal. It will not ever come before a labour
adjudicator or arbitrator as employers do not provide such services to their
employees. Similarly, the issue cannot come before a court as there is no cause
of action arising from a breach of the CHRA: Seneca College of
Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181 at 194-195,
37 N.R. 455; Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362
at paras. 63-65; Chopra v. Canada (Attorney General), 2007 FCA 268 at
para. 36, 369 N.R. 207.
[88]
In the absence of any possible overlapping
jurisdiction in the present case, the presumptive application of the
reasonableness standard of review is not rebutted. Thus, the interpretation
given by the Tribunal to section 5 of the CHRA and, more specifically,
to its determination that the adoption of legislation is not a service
customarily available to the general public is reviewable on the reasonableness
standard. Likewise, its application of that interpretation to the facts of the Matson
and Andrews complaints is reviewable on the reasonableness standard as a
matter of mixed fact and law.
B.
Are the Tribunal’s Decisions Reasonable?
[89]
In determining whether the Tribunals’ decisions
in Matson and Andrews should be set aside, this Court must assess
both the reasons given by the Tribunal and the result reached. The requisite
inquiry involves asking whether the decisions are transparent, justified and
intelligible and whether the result reached falls within the range of possible,
acceptable outcomes that are defensible in light of the facts and applicable
law: Dunsmuir at para. 47.
[90]
Here, both the reasons given and the result
reached are reasonable.
[91]
The Tribunal’s reasons in both Matson and
Andrews are entirely adequate as they fully set out why the Tribunal
reached its conclusions and thoroughly canvass the evidence, the parties’
arguments and the applicable case law. The decisions are therefore transparent
and intelligible.
[92]
Similarly, the result reached by the Tribunal is
justifiable and defensible because its characterization of the Matson
and Andrews complaints as being direct challenges to the impugned
provisions in the Indian Act is reasonable, and the Tribunal’s interpretation
of section 5 of the CHRA is one that the section can reasonably bear.
[93]
More specifically, it is reasonable to conclude
that both complaints were aimed at challenging the provisions in the Indian
Act under which the complainants’ children were ineligible for a grant of
Indian status. The complaints seek to expand the statutory grounds for the
grant of Indian status by arguing that the legislation is impermissibly
under-inclusive because it makes discriminatory distinctions based on the
prohibited grounds of race, national or ethnic origin, sex or family status.
Thus, what was impugned in the complaints are the provisions of the Indian
Act themselves. The Tribunal therefore reasonably (and, indeed, correctly)
characterized the nature of the complaints.
[94]
As for the interpretation of section 5 of the CHRA
to the effect that the adoption of legislation does not give rise to a service
customarily available to the general public, this interpretation was likewise
reasonably open to the Tribunal for several reasons.
[95]
First, the Tribunal followed the authority from
this Court and the Supreme Court of Canada on what sorts of activities
constitute services customarily available to the general public, within the
meaning of section 5 of the CHRA. As noted, flowing principally from the
decisions in Gould and Watkin, such a service requires the
presence of two separate components: first, something of benefit must be
available and, second, the benefit must be held out or offered to the public or
a segment of the public.
[96]
Second, there is certainly a reasonable basis
for concluding that in passing legislation, a legislator is not “holding out” or “offering”
something of benefit to the public or to those who might benefit from the
legislation. One simply cannot equate the act of legislating with a service. As
the Tribunal aptly noted at paragraph 57 of Andrews:
Law-making is one of Parliament’s most
fundamental and significant functions and sui generis in its nature.
This is confirmed by the powers, privileges and immunities that Parliament and
the Legislatures possess to ensure their proper functioning, which are rooted
in the Constitution, by virtue of the preamble and section 18 of the Constitution
Act, 1867, 30 & 31 Victoria, c 3, [Constitution Act] and in
statute law, in sections 4 and 5 of the Parliament of Canada Act, R.S.C.
1985, c. P-1: Telezone Inc. v. Canada (Attorney General), (2004), 2004
CanLII 36102 (ON CA), 235 D.L.R. (4th) 719 at paras. 13-17. Indeed, the
dignity, integrity and efficient functioning of the Legislature is preserved
through parliamentary privilege which, once established, is afforded
constitutional status and is immune from review: Harvey v. New Brunswick
(Attorney General), (1996), 1996 CanLII 163 (SCC), 137 D.L.R. (4th) 142,
[1996] 2 S.C.R. 876; Canada (House of Commons) v. Vaid, 2005 SCC 30
(CanLII) at para. 33 [Vaid]. To consider the act of legislating along
the same lines as that of delivering Householders as in Pankiw or to
processing a citizenship application as in Forward is fundamentally problematic
and emblematic of an approach which ignores the special role law-making
possesses in our society. In legislating, Parliament is not a service provider
and there is no “transitive connotation” to this function. Rather, it is
fulfilling a constitutionally mandated role, at the very core of our democracy.
As such, while law-making is an activity that could be said to take place “in
the context of a public relationship” (Gould at para. 16) or “creates a
public relationship” (Gould at para. 68, cited above) as per the second
part of the Gould test, to characterize it as a service would ignore
this sui generis quality.
[97]
Third, in ruling as it did, the Tribunal applied
the decision of this Court in Murphy and provided a rational basis for
distinguishing Druken and the earlier case law of the Tribunal. It
therefore reasonably concluded that the binding precedent supported the result
it reached, as Murphy decides that one may not challenge legislation as
being discriminatory under section 5 of the CHRA because the adoption of
legislation is not a service customarily available to the general public.
[98]
Fourth, contrary to what the Commission asserts,
the Tribunal’s interpretation is not at odds with the case law from the Supreme
Court of Canada or other jurisdictions that recognizes that, in appropriate
cases, a human rights tribunal may declare inoperative a piece of legislation
that conflicts with the human rights legislation due to the primacy of the
latter. As the Tribunal correctly noted, none of the cases relied on by the
Commission held that the act of passing legislation constitutes a service
customarily available to the general public, within the meaning of section 5 of
the CHRA or other similar provisions in provincial human rights
legislation.
[99]
Moreover, the principle of the primacy of human
rights legislation is not at odds with the Tribunal’s interpretation of section
5 of the CHRA because one must not conflate the scope of the Tribunal’s
jurisdiction with the extent of its remedial authority once it is validly
seized of a complaint. Section 5 defines the type of matters over which the
Tribunal has jurisdiction; there is no reason to read the provision as
providing jurisdiction to hear legislative challenges merely because in cases
where the Tribunal otherwise possesses jurisdiction it may declare conflictual
legislation inoperative.
[100] Rather, as the Tribunal noted, under the modern approach to
statutory interpretation and the associated words rule, the term “services” should be read in context to mean an action
of a nature similar to providing goods, facilities or accommodation. The
passing of legislation bears no similarity to these sorts of activities.
[101] In addition, in these complaints, the complainants did not merely
seek to have provisions in the Indian Act declared inoperative. Rather,
their complaints of under-inclusiveness are ultimately aimed at having the
provisions in section 6 of the Indian Act broadened to include the
complainants’ children and those who are similarly situated to them. However,
the Tribunal is not empowered to issue a declaration of invalidity or to read
in additional language into the Indian Act to broaden those entitled to
Indian status as this type of remedy is only available to a court under sections
24(1) of the Charter and 52 of the Constitution Act, 1982. The
inability of the Tribunal to grant the remedy sought by the complainants
militates in favour of the conclusion reached by the Tribunal.
[102] Fifth, there is no reason to consider that section 2, subsections
49(5) and 62(1) or the former section 67 of the CHRA necessitate reading
section 5 of the CHRA in the way the Commission advocates. As the
Tribunal convincingly noted, section 2 of the CHRA – the statutory
purpose clause – is in no way violated if the Tribunal were to decline to
accept that it is entitled to rule on direct challenges to federal legislation.
Similarly, subsection 49(5) and 62(1) are consistent with the Tribunal’s
interpretation for the reasons given by the Tribunal. The Tribunal’s reasoning
regarding former section 67 of the CHRA is likewise persuasive.
[103] Finally, I believe that the policy reasons advanced by the Tribunal
are unassailable. Simply put, there is no reason to find that the Tribunal
should be an alternate forum to the courts for adjudicating issues regarding
the alleged discriminatory nature of legislation when a challenge may be made
to a court under section 15 of the Charter. Contrary to what the
Commission asserts, I am far from convinced that proceeding before a human
rights tribunal would afford complainants greater access to justice, especially
given the lengthy delays that are all too often seen in human rights
adjudications and that were apparent to a certain extent in these cases.
Moreover, the availability of the section 1 defence before the courts but not
before the Tribunal provides the ultimate support for the Tribunal’s conclusion
as section 1 of the Charter is meant to provide a possible defence when
legislation is impugned as being discriminatory. It therefore follows that
challenges of this nature should proceed before the courts, where a section 1
defence is available.
[104] I therefore conclude that the Tribunal’s decisions in Matson
and Andrews are reasonable and that there is no basis upon which to
declare that Murphy is no longer good law.
IV.
Proposed Disposition
[105] For the foregoing reasons, I would dismiss this appeal, without
costs.
“Mary J.L. Gleason”
“I agree
J.D. Denis Pelletier J.A.”
“I agree
Yves de
Montigny J.A.”