Date: 19991215
Docket: T-2411-98
OTTAWA, ONTARIO, THIS 15th DAY OF DECEMBER 1999
PRESENT: MR. JUSTICE J.E. DUBÉ
BETWEEN :
THE GOVERNMENT OF THE NORTHWEST TERRITORIES
Applicant
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
-and-
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
ORDER
The motion is allowed and the application for judicial review is dismissed.
Judge
Date: 19991215
Docket: T-2411-98
BETWEEN :
THE GOVERNMENT OF THE NORTHWEST TERRITORIES
Applicant
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
-and-
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR ORDER
DUBÉ J. :
[1] This application by the respondent, the Canadian Human Rights Commission ("the CHRC"), seeks an order from this Court denying the standing and/or authority of the applicant, the Government of the Northwest Territories ("the GNWT") to bring an application for judicial review of a decision of the CHRC, dated December 4, 1998, holding that it had the institutional independence and impartiality required to provide a fair hearing.
1. Historical background
[2] More than ten years ago, on March 28, 1989, the Public Service Alliance of Canada ("the PSAC") filed a complaint against the GNWT maintaining it had discriminated in the classification and pay of employees in female dominated groups and subgroups contrary to sections 7, 10 and 11 of the Canadian Human Rights Act1 ("the Act").
[3] Shortly after the complaint was filed, the Union of Northern Workers, a component of the PSAC, and the GNWT agreed to conduct a joint equal pay study. Both parties signed the study upon completion. At the same time, the CHRC appointed two investigators to look into the complaint. They presented an Investigator"s Report on April 23, 1993. In July of 1993, the CHRC advised the parties of its decision to refer the section 7 and 11 aspects of the complaint to a conciliator. On August 25, 1993, the GNWT commenced an application for judicial review in which it maintained that the CHRC had no jurisdiction to deal with the complaint, or, in the alternative, that there existed a reasonable apprehension of bias on the part of one of the investigators. The application was dismissed2.
[4] In due course, the conciliation report was completed and on the basis of that report, the CHRC decided on May 27, 1997, that it would seek the appointment of a Human Rights Tribunal Panel ("the Panel") to inquire into the section 7 and 11 aspects of the complaint. The CHRC would continue the investigation on the section 10 aspect of the claim.
[5] On June 17, 1997, before the Panel was appointed, the GNWT filed a second application for judicial review before the Federal Court seeking to quash the CHRC's decision to refer the complaint to the Panel. It was alleged that the CHRC lacked statutory jurisdiction to split the complaint by sending a portion to the Tribunal, and continuing to investigate the other portion. The GNWT further argued that the CHRC's decision was contrary to the requirements of natural justice and procedural fairness. The application was dismissed by Richard A.C.J. in a decision dated January 13, 1999. This decision is currently being appealed (A-79-99). A hearing date has not yet been scheduled.
[6] On August 7, 1997, the President appointed a Panel to look into the section 7 and 11 aspects of the complaint. The inquiry was delayed due to the inability of the GNWT to retain counsel. Following the resignation of one of the original Panel members, a second Notice of Appointment was issued on February 20, 1998. Finally, a pre-hearing was scheduled for May 21, 1998.
[7] However, on March 23, 1998, Madame Justice McGillis rendered her decision in Bell Canada v. C.T.E.A.3, in which she held that a reasonable apprehension of bias existed due to the Panel's lack of institutional independence under the Act. On May 5, 1998, the Panel adjourned the matter sine die pending amendments to the Act. Bill S-54 came into force on June 30, 1998. Pursuant to these amendments, the Human Rights Tribunal Panel is now called the Canadian Human Rights Tribunal ("the Tribunal"). The President of the Panel is now called the Chairperson of the Tribunal. As before, the CHRC remains a party in every hearing before the Tribunal. Its role is to adopt a position which reflects the public interest with regard to the nature of the complaint (section 51).
[8] The GNWT felt that the Tribunal still lacked institutional independence and impartiality. On September 15, 1998, it filed a notice of motion with the Tribunal requesting it to refer the questions of its institutional independence and impartiality to the Federal Court. In the alternative, it requested the Tribunal to rule of the question itself. The Tribunal chose the latter course. The hearing took place from September 23 to 25, 1998. The Tribunal reserved its decision. While the decision was under reserve, the Tribunal's Registrar informed the parties by letter dated October 1, 1998, that a member of the Tribunal had made a claim on September 30, 1998, for remuneration for work performed before June 30, 1998. After receiving this letter, counsel for the GNWT filed written representations with regard to this letter.
[9] The Tribunal rendered its decision on December 4, 1998. It held that it had the requisite institutional independence and impartiality.
[10] The GNWT's application for judicial review was heard by me in Montréal, Qc., on September 8, 9 and 10, 1999. At the end of the second day of the hearing, counsel for the CHRC opened his submission by challenging the standing or authority of the GNWT to bring an application for judicial review before this Court. He claimed that the GNWT cannot be distinguished from the Crown in right of Canada and therefore lacks the requisite standing to challenge a federal Act.
[11] As no advance notice was given by the CHRC to the GNWT with regard to the CHRC's objection to the standing or authority of the GNWT to bring the application, the matter was adjourned by me to October 14, 1999, in order to afford both sides an opportunity to prepare written submissions on the point raised by counsel.
2. Point in issue
[12] It is common ground that the issue now to be addressed is as follows:
| Does the Government of the Northwest Territories, by reason its constitutional status and section 66 of the Canadian Human Rights Act, have the authority and/or lack standing to argue that provisions of the Canadian Human Rights Act or a statutory instrument issued thereunder create a scheme which is contrary to the requirements of natural justice? |
3. The CHRC's submissions
[13] The CHRC submits that the Northwest Territories ("the NWT") are a federal territory and not a province. Section 4 of the Constitution Act, 1871, confers upon the Parliament full, all-encompassing legislative authority over the federal territories. The "constitution" of the NWT is the Northwest Territories Act5, a federal statute which Parliament may amend as it sees fit. Unlike the provinces which, pursuant to section 45 of the Constitution Act, 1982, may amend their constitution, only Parliament has the right to amend the provisions of the Northwest Territories Act.
[14] The Legislative Assembly of the NWT is the creation of the Northwest Territories Act and has no entrenched constitutional status, as do the federal Parliement and the provincial legislatures. Any doubts left on this issue would be dispelled by section 66 of the Act which clearly establishes that the GNWT is Her Majesty the Queen in right of Canada. It provides as follows:
| 66. (1) This Act is binding on Her Majesty in right of Canada, except in matters respecting the Government of the Yukon Territory, the Northwest Territories or Nunavut. |
| (2) The exception referred to in subsection (1) shall come into operation in respect of the Government of the Yukon Territory on a day to be fixed by proclamation. |
| (3) The exception referred to in subsection (1) shall come into operation in respect of the Government of the Northwest Territories on a day to be fixed by proclamation. |
| (4) The exception referred to in subsection (1) shall come into operation in respect of the Government of Nunavut on a day to be fixed by order of the Governor in Council. |
[15] With reference to subsection 66(2), a proclamation was issued in 1987 exempting the Government of the Yukon Territory from the application of the Act. However, no such proclamation has yet been issued with respect to the NWT. It is to be recalled that the Government of the Yukon Territory has enacted human rights legislation whereas the GNWT has not.
[16] Moreover, the Crown in right of Canada must be represented by the Attorney General of Canada. By virtue of section 66 of the Act, the GNWT is the federal Crown, which is bound by the Act. It follows that the GNWT must be represented by the Attorney General of Canada who, pursuant to the federal Department of Justice Act6, "shall have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada".
[17] By contrast, pursuant to the NWT Department of Justice Act7, the Attorney General for the Territories "shall superintend and conduct all litigation for or against the GNWT or any department of the GNWT in respect of any subject within the authority or jurisdiction of the Legislature".
[18] Furthermore, Her Majesty the Queen in right of Canada cannot challenge the validity of one of her own statutes under the Bill of Rights. The GNWT's attempt at judicial review to challenge the validity of the Act under the Bill of Rights is tentamount to Her Majesty the Queen contesting the validity of a statute she has herself enacted and has specifically made binding upon herself so as to avoid liability under it.
[19] Thus, in the CHRC's submission, the GNWT's application for judicial review is "a spectacle not ordinarily contemplated in our judicial traditions"8. Should the Attorney General of Canada entertain doubts as to the validity of a federal statute under the Bill of Rights, he ought to proceed by way of reference to the Supreme Court of Canada pursuant to section 53 of the Supreme Court Act and not by way of judicial review under section 18.1 of the Federal Court Act.
4. The submissions of the respondent Public Service Alliance of Canada
[20] It is also the position of the PSAC that it is not open to the GNWT to argue that the provisions of the Act create a scheme which does not meet the requirements of institutional independence or institutional impartiality. To allow it to do so would be tentamount to authorizing the Crown to engage in an attack upon her own legislation.
[21] Madame Justice Simpson of this Court in Northwest Territories v. Public Service Alliance of Canada9 concluded that the GNWT is bound by the Act. She said as follows:
| In conclusion on this issue, I am not prepared to interpret the section in a manner which has the effect of exempting the G.N.W.T. from the operation of the CHRA in respect of its public service employees. Even though, in practice, the G.N.W.T. manages its public service in all respects as if it were a province, the fact remains that it is not a province. It is a federal territory and the CHRA has always bound the Crown. I am not willing to accept an approach to statutory interpretation which ignores the G.N.W.T.'s legal status. In addition, the G.N.W.T. has not passed a human rights act and I am satisfied that Parliament did not intend the CHRA to operate in a fashion that leaves G.N.W.T. employees without the benefit of human rights legislation. [Emphasis added.] |
[22] In a unanimous decision rendered on February 5, 1997, the Federal Court of Appeal agreed with the trial judge10.
[23] The GNWT is a creation of Parliament and it follows that it is to be considered part of the Crown. This conclusion is also apparent from the language already referred to in section 66 of the Act itself. If it were otherwise, it would not be necessary to create an exemption to the application of the Act to the Crown in respect of the GNWT.
[24] It is well established that the Crown is not bound by legislation unless the legislation expressly says so, as provided under section 17 of the Interpretation Act11. However, where Parliament specifies, as it does in the Act, that the Act is binding upon the Crown, it is not open to the Crown to attack the legislation in question by reason of its alleged inconsistency with the requirements of institutional independence or institutional impartiality.
5. The submissions of the GNWT
[25] The GNWT submits that the NWT is a separate entity from Her Majesty the Queen in right of Canada. The Canadian federal system is a decentralized model of government, with authority resting in both the federal and provincial Crowns12.
[26] Professor Peter W. Hogg noted in his book Liability of the Crown that the concept that the Crown is one and indivisible is inconsistent with the colonial strategy of the United Kingdom, and later the Commonwealth, which opted to decentralize power, and to award to a territory law making capacity once it achieved a degree of independence. Lord Denning, M.R., noted that the law on divisibility of the Crown changed in the early part of this century13.
[27] Under the Constitution Act, 1871, the Government of Canada obtained clear authority to legislate in relation to any territory in Canada that is not included in any province. Under section 16 of the Northwest Territories Act, the Parliament of Canada provides the Commissioner in Council with the jurisdiction to make ordinances for the GNWT in relation to broad classes of subjects. These classes of subjects are very similar to those under provincial jurisdiction under section 92 of the Constitution Act, 1867.
[28] There are many indicia to demonstrate that the NWT is a separate and distinct entity from Her Majesty the Queen in right of Canada although still subject to the legislative authority of Parliament. These include representative and responsible government, responsibility for the administration of justice, a separate treasury and the day to day operation of the GNWT in respect of its legal and political dealings with other governments. At the present time, the NWT has a fully functioning representative legislature and responsible government which was not always the case.
[29] The NWT has an Attorney General who is separate from the Attorney General of Canada. Under its legislative authority to provide for the administration of justice, the Legislature Assembly of the NWT is responsible for the Judicature Act14, from which the Supreme Court of the NWT, a superior court of record, derives its statutory authority. Finally, the Government of the NWT has standing to invoke the provisions of the Act to get at a scheme which is contrary to the requirements of natural justice.
[30] Section 18.1 of the Federal Court Act provides that an application for judicial review may be made by the Attorney General of Canada or "by anyone directly affected by the matter in respect of which relief is sought". Clearly, the GNWT is directly affected by the matter in question. Were the Tribunal decide that any persons covered by the complaint should be awarded damages, it is the Legislative Assembly of the NWT, and not the Parliament of Canada, which would have to appropriate the necessary sums.
6. Analysis
[31] I cannot accept the argument of the GNWT that there was an evolution to a separate Crown in the NWT and that this evolution towards responsible government would give rise to a separate entity placing the NWT on the same footing as the ten Canadian provinces. As mentioned by counsel for the CHRC, such a theory would create "constitutional Darwinism". In biology, the theory of evolution teaches that a species is born out of a rudimentary species and becomes a different and more complex entity.
[32] Undoubtedly, the powers and authority of the GNWT have increased over the years, but the source of its increased powers and authority remains the Federal Crown. The English Crown has divested itself of its power and authority over Canada in favour of Parliament and the Legislatures of the provinces but not in favour of the territories until they have achieved full provincial status. The Northwest Territories Act is purely a federal statute providing for a local government headed by a federal appointee. The NWT has not become a province by evolution but it is still a territory under simple delegation of power.
[33] As argued by the CHRC and the PSAC, the Act clearly spells out that it is binding on Her Majesty in right of Canada, except for the Yukon Territory, the NWT and Nunavut. Obviously, if there is a need for the exceptions, the rule must be that the three territories are part of the Crown. However, the exceptions only come into operation on a day to be fixed by proclamation. There was such a proclamation with reference to the Yukon Territory but not yet for the NWT. (The NWT has not yet passed any human rights legislation as mentioned by my colleague Simpson J. in Northwest Territories v. Public Service Alliance of Canada15.)
[34] In any event, the issue of institutional independence and impartiality of the CHRC is presently before the Court under a judicial review launched by another party. The matter will eventually be resolved.
[35] Consequently, the instant motion is allowed and the application for judicial review is dismissed as the GNWT has neither the authority nor the standing to launch such a review.
OTTAWA, Ontario
December 15, 1999
Judge
__________________
1 R.S.C. 1985, c. H-6.
2 Northwest Territories v. Public Service Alliance of Canada, [1996] 3 F.C. 182, rev'd (1997), 208 N.R. 385, leave to appeal to the Supreme Court denied on August 28, 1997.
3 [1998] 3 F.C. 244.
4 An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act with respect of persons with disabilities and other matters and to make consequential amendments to other Acts, S.C. 1998, c. 9.
5 R.S.C. 1985, c. N-27.
6 Department of Justice Act, R.S.C., c. J-2, s. 5, s. 5(d).
7 Department of Justice Act, R.S.N.W.T., c. 97 (Supp.), s. 5(c).
8[1979] 1 S.C.R. 684"> Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684 at 710.
9 [1996] 3 F.C. 182 (T.D.) at 201.
10 Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.) at 387.
11 R.S.C. 1985, c. I-21.
12 Maritime Bank of Canada (Liquidators of) v. Receiver-General of New Brunswick, [1892] A.C. 437 at 441-442.
13 R. Secretary of State for Foreign and Commonwealth Affairs: Ex parte Indian Association of Alberta., [1982] Q.B. 892 (C.A.) at 916-917.
14 R.S.N.W.T., 1988, c. J-1.
15 see note 9.
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