Canada (Human Rights Commission) v. Gordon Band Council, docket T-4-97

Date: 19971230

Docket: T-4-97

BETWEEN:

     CANADIAN HUMAN RIGHTS COMMISSION

                                             Applicant

AND:

     GORDON BAND COUNCIL

                                             Respondent

AND:

     SARAH LASLO

                                             Respondent

     REASONS FOR DECISION

GIBSON J.:

BACKGROUND

    

[1]      These reasons arise out of a decision of a Human Rights Tribunal ("the Tribunal"), communicated to the applicant on the 4th of December, 1996 which dismissed the complaint of the respondent Sarah Laslo ("Mrs. Laslo") against the Gordon Band Council. The complaint was made on grounds of discrimination proscribed by the Canadian Human Rights Act¹, namely, sex, race and marital status. The discrimination was alleged to have taken place in the provision of a service, contrary to section 6 of the Canadian Human Rights Act.

[2]      In its Originating Notice of Motion, the Canadian Human Rights Commission (the "applicant") seeks an order setting aside the decision of the Tribunal and remitting the complaint of Mrs. Laslo to a differently constituted Tribunal, with directions.

[3]      The factual background may be briefly summarized as follows. Mrs. Laslo was born a member of the Gordon Band (the "Band"). She lost her status as an indian and at least certain of her rights as a member of the Band when, in November of 1978, she married a non-indian. Mrs. Laslo regained her indian status and Band membership effective the 15th of April, 1985² when amendments to the Indian Act³, generally known as Bill C-31, and directed to the removal from the Indian Act of discrimination against indian women who married non-indian men, came into force. After her reinstatement, Mrs. Laslo applied to the Band for new housing on the reserve in each year from 1985 to 1992. New housing on the reserve was in short supply and Mrs. Laslo was never allocated a new house on the reserve in which she could live with her family, including her non-indian husband. In the result, Mrs. Laslo filed her complaint with the applicant alleging discrimination against her in the provision of residential accommodation on the Band reserve on the basis of her sex, marital status and race.

THE TRIBUNAL DECISION

[4]      Before the Tribunal, the Band took no position on the question of whether Mrs. Laslo had been discriminated against by it in the provisions of on-reserve new housing. It focussed its representations entirely on the issue of jurisdiction, the sole question which is now before this Court.

[5]      The Tribunal found that the Band refused to allocate new housing to Mrs. Laslo for the following reasons:

(a)      the Band refused to allocate housing to her unless the Department of Indian and Northern Development allocated additional funds to build housing for persons reinstated to status under Bill C-31;

(b)      the Band had decided to ignore rights reinstated to indian women by Bill C-31;

(c)      the Band's housing policy established a residency requirement on the reserve of two years for new housing, a condition that reinstated women were highly unlikely to meet;

(d)      the housing policy stated that persons living with a non-indian person would not, or were not likely to be, given priority in the allocation of housing on the reserve; and

(e)      the Chief of the Band of the day told Mrs. Laslo that the only way that she could obtain new housing on the reserve was if her non-indian husband died or she divorced him.

[6]      The Tribunal determined that Mrs. Laslo had been discriminated against, on a prohibited ground. It wrote in its decision:

...the former status of reinstated Indian women should not be a factor in determining their entitlement in matters such as residential accommodation on reserves. If a band does take their former status into account in making a decision not to allot housing to reinstated women, it discriminates on a prohibited ground under s.6 of the Act.

[7]      Nonetheless, the Tribunal went on to examine its jurisdiction and concluded that it did not have jurisdiction to remedy this discrimination. The Tribunal found that the discrimination was the result of decisions made by the Band pursuant to section 20 of the Indian Act. On that basis, the Tribunal concluded, section 67 of the Canadian Human Rights Act precluded it from jurisdiction.

[8]      The substance of the Tribunal's decision on the question of jurisdiction is quoted at length as the Tribunal's reasoning on jurisdiction was central to the positions of the parties before me and to my analysis that follows:

As noted in the "Introduction", the Respondent [the Band] submitted that this Tribunal had no jurisdiction to hear Mrs. Laslo's complaint under the Canadian Human Rights Act. S. 67 of that Act states:

Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.

The Respondent argued in its application before the Federal Court [an earlier application] that this section excluded a review of any decision of the Gordon Band Council "made under or pursuant to" the Indian Act, and that refusal to allot housing to Mrs.Laslo was such a decision. Mr. Justice Campbell dismissed the application and held that in order to determine whether there was jurisdiction, it was first necessary that the Tribunal conduct "a full hearing of the evidence" of the circumstances. We have concluded that the hearing has disclosed sufficient evidence for this purpose.

It is well established that the Canadian Human Rights Act has a special status in our constitutional scheme, to protect those vulnerable to discrimination, and accordingly, any restrictions on its application should be read strictly so as to interfere as little as possible with the rights that the Act protects4. As described in "The Facts" above, the Gordon Band Council made a series of decisions refusing to allot housing to Mrs. Laslo. Keeping in mind the words of Mr. Justice Sopinka in footnote 3, below, we must ask whether each of these decisions necessarily constituted a "provision made under or pursuant to... ([the Indian] Act") as described in s. 67 of the Canadian Human Rights Act, and were therefore excluded from the requirements of the latter Act.

S. 81(1), of the Indian Act states that:

The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely,

(i)      the survey and allotment of reserve lands among the members of the band...

(p.1)      the residence of band members and other persons on the reserve;

(p.2)      to provide for the rights of spouses and children who reside with members of the band on the reserve...

In our view, it is clear that a by-law passed pursuant to any of the subsections of s. 81, quoted above, would constitute a "provision made under or pursuant to" the Indian Act, and accordingly, would fall within the meaning of s. 67 of the Canadian Human Rights Act. The only evidence presented to the Tribunal that might be related to by-laws passed pursuant to s. 81 of the Indian Act, was the "Housing Policy" document of 1987. However, we received no indication of how the "Housing Policy" document came into existence: there was no evidence that it was passed as a by-law. With no evidence of other by-laws passed by the Gordon Band Council on this subject, the decisions of the Council not to allot to Mrs. Laslo were not made pursuant to s. 81.

In the absence of such by-laws does the Council have authority to make decisions to allot housing under other sections of the Indian Act? Two subsections of s. 20 of the Act refer to this subject:

(1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of land has been allotted to him by the council of the band. [italics added]

(4)      Where possession of land in a reserve has been allotted to an Indian by the council of the band, the Minister may, in his discretion, withhold his approval... [italics added]

By necessary implication from the italicized words in the two subsections above, the Council does have authority under the Act to allot land. Otherwise the subsections would have no effective meaning. In our view, this authority to allot land must include a power to decide whether and when the Council may use its authority. That is, the Council may choose among those band members who will, and those who will not, be granted possession of reserve land. If this were not so, the Council would have to make allotments automatically at the request of a band member, without any decision-making power left to the Council itself. Such an interpretation would be unworkable, especially whenever there were more requests for land allotments than there were lots available. Accordingly, it is our opinion that by necessary implication, s. 20 recognizes the authority of band councils to decide whether or not to allot land on the reserve; such decisions would be "made under or pursuant to" the Indian Act.

There remains the question of whether such a "decision", although made pursuant to s. 20, would also fall within the meaning of the word "provision" as it is used in s. 67 of the Canadian Human Rights Act. The Commission has argued that "provision" refers only to acts of a legislative nature such as regulations, and does not include specific decisions such as whether to allot land; the latter are not provisions. This issue was considered by the Federal Court of Appeal in Re Desjarlais5. Although the complaint in that case was based on a decision to terminate employment, Madam Justice Desjardins, speaking for a unanimous court, discussed in detail the meaning of the word "provision" as used in s.67. It is useful here to quote her analysis extensively.

The word "provision" in the expression "any provision of the Indian Act" has a legislative connotation and refers both to the Indian Act and regulations adopted thereunder. This interpretation is confirmed by the French version.

The word "provision" in the expression "or any provision made under or pursuant to [the Indian Act]" cannot have the same meaning as the first word "provision" and cannot refer exclusively to a legislative enactment of general application as counsel for the Commission submits. Such interpretation is made possible by the French version. The word "dispositions" in that version might have the meaning of "mesures législatives" but it encompasses as well the very wide connotation of "décisions", "mesures". So that the words "or any provision made under or pursuant to that Act" mean more than a mere stipulation of a legal character. I interpret such words as covering any decision made under or pursuant to the Indian Act. [underlining added]

With regard to hiring and firing staff, there are no by-laws properly registered under the Indian Act which would have been adopted by...[the respondent]

The adoption of by-laws is however not the only way a band council can made decisions under the Indian Act... Other provisions of the Act indicate that the band council has authority to take decisions but they do not specify the way in which these decisions are to be expressed. For example... s.20(1)... dealing with the allotment of land on the reserve... Presumably, the procedure laid out in the Indian Band Council procedure regulations apply. Undoubtedly, in my view any decisions taken by a band council under those sections, would be made under or pursuant to the Indian Act. [underlining added]6

Although obiter dicta, the underlined portions in the second and fourth paragraphs of the above quotation make it clear that the Court would have found a decision by a council to allot land within the reserve as being a "provision made under or pursuant to" the Indian Act, and thereby excluded by s.67 from the jurisdiction of a Human Rights Tribunal.

The Court went on to find on the facts in Re Desjarlais, that, in the absence of properly registered by-laws dealing with employment, there was no section of the Indian Act, that gave implied authority to dismiss the Complainant. As result, the Court held that s.67 of the Canadian Human Rights Act did not preclude the jurisdiction of the Canadian Human Rights Commission to deal with the complaint:

In the case at bar, the motion of the Band Council... is nowhere expressly or by implication, provided for by the Indian Act; accordingly it is not a "provision made under or pursuant to that Act"...[underlining added]7

The Court thus indicated that if it had found that a section of the Indian Act provided for the band council to pass a motion by implication - as was found existed in s.20, to allot land - the Court would have held it sufficient to invoke s. 67 of the Canadian Human Rights Act.

Accepting the reasoning of Madam Justice Desjardins, we find that decisions made by the Gordon Band Council whether or not to allot land are provided for by s.20 of the Indian Act, and are sufficient to invoke s. 67 of the Canadian Human Rights Act thereby excluding application of the latter Act to those decisions.

The above interpretation of s.67 is supported and enlarged upon by Mr. Justice Muldoon in Re Prince v. Dept. of Indian Affairs and Northern Development8. He found that a decision by the Respondent not to pay extra school expenses for the Complainant's daughter was within the Respondent's authority under s.115 of the Indian Act, and accordingly, was a "provision made under or pursuant to the Act" as required by s. 67. Moreover he stated:

...it is no concern of the Court whether the Minister and DIAND made an error or not in applying the provisions of the Indian Act and in making policy pursuant to it...[underlining added]9

Section 67 of the CHRA immunizes not only the legislative provisions of the Indian Act, but also that which is done by the Minister and DIAND pursuant to the Indian Act, legally or illegally. [underlining added]10

Thus, even illegal decisions, so long as they are made pursuant to the Indian Act, are immune from review by a Human Rights Tribunal. In our view, there is no basis for distinguishing between decisions made by DIAND pursuant to the Indian Act and those made by a band council pursuant to the Act: Mr. Justice Muldoon's statement applies equally to both.

The Commission argued that, nevertheless, the Indian Act itself, as amended by Bill C-31, "does not contemplate that these powers [conferred by the Act, including the power to allot land under s.20] include the power to differentiate adversely against Bill C-31 women on the basis of sex, marital status or race." [emphasis added]. That is to say, it is beyond the powers of a band council, as authorized by the Indian Act, to decide adversely against Bill-C-31 women, and therefore, such decisions are not protected by s. 67 of the Canadian Human Rights Act.

The difficulty with this argument is that, on the one hand, as observed by Mr. Justice Muldoon, decisions in general made pursuant to the Indian Act, even if illegal, are within a band's powers "contemplated" by the Indian Act, and they are "immunized" by s. 67; on the other hand, the Commission argues that similar decisions -- if they "differentiate adversely" contrary to the Bill C-31 amendments to the Act -- would be beyond a band's powers "contemplated" by the Indian Act, and would fall outside the scope of the exclusion in s.67 of the Canadian Human Rights Act. We find it difficult to accept this distinction: if illegal decisions remain within the powers granted by the Act, so long as the Act authorizes decisions on the specified subject matter, we find it to be inconsistent to conclude that decisions on the very same subject matter, but illegal because they are contrary to the amendments contained in Bill C-31, are beyond those powers.

This distinction is all the more unsustainable when we acknowledge that the intent of s.67 of the Canadian Human Rights Act is to exclude from the Act's requirements of non-discrimination "any provision made under or pursuant to" the Indian Act. To accept the distinction proposed by the Commission would mean that all breaches of these requirements of non-discrimination would continue to be immunized from the Canadian Human Rights Act, except those related to Bill C-31. Yet the Parliament of Canada, when it passed Bill C-31, did not choose to repeal or amend s. 67 of the Canadian Human Rights Act, in order to limit the general exemption of the Indian Act to forms of discrimination other than might occur as a result of the new equality provisions. For these reasons, we disagree with the submission of the Commission on this point.

PARTY POSITIONS

[9]      In written material filed and in oral argument before me, counsel for the applicant argued that the Tribunal erred in law in two respects: first, that the Tribunal erred in law in its interpretation and application of section 67 of the Canadian Human Rights Act; and secondly, that the Tribunal erred in law in its interpretation of section 20 and paragraph 81(1)(p.1) of the Indian Act, as enacted by Bill C-31. Thus, counsel argued, against the standard of review of correctness on issues of law¹¹, the relief requested should be granted.

[10]      Counsel for the Band, in written material and in argument before me, urged that the Tribunal made no reviewable error in its finding on jurisdiction and that therefore the application for judicial review should be dismissed.

[11]      Mrs. Laslo filed no material but appeared before me on her own behalf. She expressed deep sorrow at the manner in which she considered herself to have been discriminated against by the Chief and council of the Band and expressed deep concern over the amount of time that it was taking to have the matter resolved.

ANALYSIS AND CONCLUSIONS

[12]      I conclude that this application for judicial review must be granted, on a ground implicit in the arguments presented before me although it was not explicitly articulated by counsel. During the hearing before me, I expressed my interest in the principles and analysis which follow and invited submissions from counsel. I also offered an opportunity to provide further written submissions if counsel considered such might be required. Counsel for both the applicant and the Band addressed my expressed interests. Neither counsel requested an opportunity to make written submissions and thus I have proceeded entirely on the basis of the written material before me, my own expressed interests, and oral submissions of counsel.

[13]      I am guided in the interpretation of section 67 of the Canadian Human Rights Act by the extract from Zurich Insurance Co. v Ontario (Canadian Human Rights Commission), also relied upon by the Tribunal and quoted in a footnote to its reasons reproduced above.¹²

[14]      Also of importance in the context of this matter is the following extract from the reasons of Chief Justice Lamer in Cooper v Canada (Human Rights Commission)¹³:

As well, nothing I have said should be construed as detracting from the general duty to interpret statutes in light of Charter values. As I stated in Canada (Attorney General) v. Mossop, [1993] I S.C.R. 554, at pp. 581-82, if there is some ambiguity with respect to the meaning or scope of a statutory provision, then it should be interpreted in the manner which is most consistent with the Charter and the values underlying that document; also see, for example: Hills v Canada (Attorney General), [1988] 1 S.C.R. 513, at p. 558; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at p. 660.

[15]      There can be no question that we are here dealing with "Charter values".

[16]      At the same time, I am bound by the decision of the Federal Court of Appeal in Re Desjarlais¹⁴ which is quoted extensively and analyzed in its impact on this matter in the extract from the decision of the Tribunal quoted above. Madame Justice Desjardins, albeit in obiter as noted by the Tribunal, makes specific reference to decisions of a Band Council under section 21 of the Indian Act and concludes that they would be "provisions" made under or pursuant to the Indian Act. Thus, by the express terms of section 67 of the Canadian Human Rights Act, Band Council decisions under section 21 of the Indian Act would be unaffected by the provisions of the Canadian Human Rights Act.

[17]      But I conclude that the discrimination, if such it be and I am not required to make any determination in that regard, suffered by Mrs. Laslo did not emanate from a decision or decisions of the Gordon Band Council. There was certainly no evidence before me that the decisions were taken in accordance with the Indian Band Council Procedure Regulations¹⁵ or that they were a reflection of the Indian Act or a policy envisioned by that Act. Rather, any discrimination would appear to be the result of priorizing decisions of a five person Housing Authority Committee established by the Gordon Band, which decisions would likely have been guided, or at least influenced, by the Band Housing Policy. The source of that policy, as noted by the Tribunal, is not clear. Further, any discrimination suffered by Mrs. Laslo could equally be said to have resulted not from decisions or wholly from decisions, but rather, at least in part, from a course of conduct that involved either the ignoring of requests from Mrs. Laslo for allocation of new housing or a simple failure to either deal with those requests or to advise Mrs. Laslo of the results of any dealing with them. I conclude that these apparently informal decisions, or this course of conduct or both, simply cannot be said to be decisions of a nature contemplated by Madame Justice Desjardins in Re Desjarlais and that would amount to a provision or provisions made under or pursuant to the Indian Act that would thus trigger the application of section 67 of the Canadian Human Rights Act. Once again, I reach this conclusion taking into account the quotations from Zurich Insurance and Cooper referred to above which I regard as requiring me to construe section 67 of the Canadian Human Rights Act in a restrictive manner.

[18]      In Chief and Council of the Shubenacadie Indian Band v Canadian Human Rights Commission et al¹⁶, Mr. Justice Rothstein both followed Re Desjarlais and interpreted section 67 of the Indian Act in a restrictive manner. On the basis of facts significantly different from those before me, he wrote:

I do not think that the decision in this case is one contemplated by section 67 of the Canadian Human Rights Act. While there is no doubt that a decision was made by the Band Council, and it may well have been made under the Indian Band Council Procedure Regulations, there is no evidence to suggest that the decision was made pursuant to a provision of the Indian Act. While undoubtedly section 67 recognizes that certain provisions of the Indian Act and Regulations may conflict with the Canadian Human Rights Act and in such cases the Indian Act and Regulations will prevail, I do not think section 67 is to be interpreted as taking out of the scope of the Canadian Human Rights Act all decisions of Indian Band Councils provided they are made under the Indian Band Council Procedure Regulations. If it was Parliament's intention to immunize all decisions of Indian band councils from overview by the Human Rights Commission, Parliament would have expressly so provided rather than enacting section 67. Section 67 immunizes decisions authorized by the Indian Act and Regulations, but not all decisions made by Indian band councils. I think that this conclusion is consistent with the dicta in Re Desjarlais. Section 67 therefore does not assist the applicant in this case. [underlining added by me for emphasis]

[19]      Here the decisions in question or the course of conduct or both, on the evidence before me, were not taken by the Band Council. There was certainly no evidence that they were taken in accordance with the Indian Band Council Procedure Regulations. That being said, the decisions, or some of them, may well be said to have been taken or made pursuant to section 20 of the Indian Act. Whether that be the case or not, on the facts before me, I reach the same conclusion as did Justice Rothstein: section 67 simply cannot be said to assist the Band in this case.

[20]      Thus, I conclude that the Tribunal erred in law, in a reviewable manner, in concluding that it lacked jurisdiction by virtue of section 67 of the Canadian Human Rights Act, to deal with Mrs. Laslo's complaint. This application for judicial review will be allowed, the decision under review will be set aside and the matter will be remitted to the Human Rights Tribunal for rehearing and redetermination, in a manner not inconsistent with these reasons, by a differently constituted Tribunal.

                             ____________________

                             Judge

Ottawa, Ontario

December 30, 1997

__________________

     ¹      R.S.C. 1985, c. H-6

     ²      The same day that section 15, the "equality rights" section of the Canadian Charter of Rights and Freedoms came into effect. Constitution Act, 1982 (R.S.C. 1985. Appendix II, No. 44), being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

     ³      R.S.C. 1985, c. I-5

     ⁴      "In approaching the interpretation of a human rights statute, certain special principles must be respected. Human rights legislation is amongst the most pre-eminent category of legislation. It has been described as having a 'special nature, not quite constitutional but certainly more than ordinary'... One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and the disenfranchised. As a last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed.", per Sopinka, J., Zurich Insurance Co. V. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, at 339.
     [Footnotes 4 to 10 are footnotes of different number to the decision of the Tribunal]

     ⁵      [1989] 3 F.C. 605 (C.A.)

     ⁶      Ibid, at 608 to 10.

     ⁷      Ibid, at 610

     ⁸      (1993), 20 C.H.R.R. D/376 (Cdn.H.Rts. Trib.), Aff'd December 30, 1994 (unreported) F.C.T.D.

     ⁹      Ibid, Judgment of Muldoon J., at 13.

     ¹⁰      Ibid, at 15.

     ¹¹      See Canada (Attorney General) v Mossop , [1993] 1 S.C.R. 554 and Ross v New Brunswick School District No. 15 [1996] 1S.C.R. 826

     ¹²      See footnote 4. For ease of reference section 67 of the Indian Act is repeated here:              67. Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.     

     ¹³      [1996] 3 S.C.R. 854 at 876

     ¹⁴      [1989] 3 F.C. 605 (C.A.)

     ¹⁵      C.R.C. 1978, c. 950

     ¹⁶      [1997] F.C.J. No. 1481