Dockets: T-1088-13
T-1777-13
Citation:
2015 FC 398
Ottawa, Ontario, March 30, 2015
PRESENT: The
Honourable Madam Justice McVeigh
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Docket: T-1088-13
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BETWEEN:
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CANADIAN HUMAN RIGHTS COMMISSION
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
REPRESENTING INDIAN AND NORTHERN AFFAIRS CANADA
(NOW ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT CANADA)
AND
JEREMY MATSON, MARDY MATSON AND MELODY SCHNEIDER
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Respondents
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Docket:
T-1777-13
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AND BETWEEN:
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CANADIAN HUMAN RIGHTS COMMISSION
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
REPRESENTING INDIAN AND NORTHERN
AFFAIRS CANADA
(NOW ABORIGINAL AFFAIRS AND
NORTHERN DEVELOPMENT CANADA)
AND
ROGER WILLIAM ANDREWS AND
MICHELLE DOMINIQUE ANDREWS
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Respondents
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JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the
Canadian Human Rights Tribunal (the “Tribunal”) dismissing the human rights
complaints of Jeremy Matson, Mardy Matson and Melody Schneider (the “Matson
siblings”, (T-1088-13)) and Roger Andrews (“Mr. Andrews”, (T-1777-13)). The
Canadian Human Rights Commission (the “Commission”), brings these Judicial
Reviews.
[2]
Both the Matson siblings and Mr. Andrews alleged
before the Tribunal that the application of section 6 of the Indian Act,
RSC 1985, c I-5 by Indian and Northern Affairs Canada (now Aboriginal Affairs
and Northern Development Canada (“AAND”), is discriminatory because it denies
them the ability to pass Indian status to their children.
[3]
The Tribunal found it did not have jurisdiction
to hear a complaint under the Canadian Human Rights Act, RSC 1985, c H-6
(“CHRA”) because the complaint was directed against legislation. The Tribunal
held Section 6 of the Indian Act should be dealt with as a Charter
challenge to the legislation and further found that section 6, as legislation,
was not a “service” pursuant to section 5 of the CHRA. The Tribunal relied on
the Federal Court of Appeal’s decision in Public Service Alliance of Canada
v Canada (Revenue Agency), 2012 FCA 7 (“Murphy”), leave to appeal
not granted ref'd [2012] SCCA No 102.
[4]
On February 10, 2014, this Court ordered that
the Application for judicial review in T-1088-13 be heard together with the
Application for judicial review in T-1777-13. The two decisions are being heard
together as the arguments are the same, though factually there are some
distinctions. At the Tribunal hearings, the parties proceeded on an agreed
statement of facts so there is no disagreement as to the facts considered by
the Tribunal.
I.
Facts and History of the Decisions
A.
T-1088-13
[5]
Jeremy Matson, Mardy Matson and Melody Schneider
are siblings and each registered as “Indians” under subsection 6(2) of the Indian
Act. Each of the siblings married an individual who is not registered or
entitled to be registered under the Indian Act. Each couple has two
children.
(1)
Original Complaints
[6]
In 1986 and 1994, the Matson siblings’ mother
submitted applications for registration on their behalf. These applications
were refused. Between 2000 and 2008, the Matson siblings made applications for
registration on their own behalf but all their applications were refused. In
November and December 2008, the Matson siblings filed the present complaints
with the Tribunal.
(2)
2011 Amendments to Indian Act; Matson
siblings registered
[7]
On April 6, 2009, the British Columbia Court of
Appeal rendered its decision in McIvor v Canada (Registrar, Indian and
Northern Affairs), 2009 BCCA 153 (“McIvor”) wherein it declared
paragraphs 6(1)(a) and 6(1)(c) of the Indian Act to be of no force or
effect pursuant to section 15 of the Charter.
[8]
On January 31, 2011, the Gender Equity in
Indian Registration Act (“GEIRA”) came into force. It amended the
registration provisions of the Indian Act such that the Matson siblings
became eligible to be registered under subsection 6(2). In 2011, the Matson
siblings were registered under section 6(2) of the Indian Act.
(3)
Matson siblings’ children cannot be registered
[9]
Between 2010 and 2012, the Matson siblings
applied for registration on behalf of their children. These applications were
refused. The Matson siblings amended their Statements of Particulars so that
the complaints were directed at the denial of the opportunity to pass status to
their children with one non-Indian parent.
(4)
Matson siblings file Notice of Constitutional
Question
[10]
On January 19, 2012, the Matson siblings filed a
Notice of Constitutional Question (“NCQ”) with the Tribunal challenging the
constitutional validity of section 6 of the Indian Act. On July 20,
2012, the AAND brought a motion for an order striking out the whole of the NCQ.
On September 6, 2012, the Tribunal allowed the AAND’s motion and ordered that
the whole of the Matson siblings’ NCQ be struck out. The Tribunal found that
the constitutional question was not linked to determining whether a
discriminatory practice has occurred within the meaning of the Act.
(5)
Tribunal Decision
[11]
On January 30 and 31, 2013, the Tribunal held a
hearing to address whether the complaint was impugning a discriminatory
practice in the provision of services customarily available to the general public.
On May 24, 2013, the Tribunal dismissed the complaint.
[12]
A draft order on consent was filed that set out
the questions that the parties needed answered. The Tribunal decision is
structured to reflect those questions and to answer them.
[13]
The Tribunal considered three issues. First, it
considered whether the complaint was a challenge to legislation. Secondly,
whether the Tribunal was bound to follow the Federal Court of Appeal decision
in Murphy. The final of the three it considered was whether the complaint
was impugning a discriminatory practice in the provision of services
customarily available to the general public.
[14]
The Tribunal found that the complaint was a
challenge to section 6 of the Indian Act, and nothing else. They relied
on the Federal Court of Appeal’s decision in Murphy that held that section
6 of the Indian Act is legislation and is not a service pursuant to
section 5 of the CHRA.
[15]
The Tribunal rejected all of the Commission’s
arguments as to why the Tribunal was not bound to follow Murphy. The Tribunal
found that Murphy was not inconsistent with the Supreme Court of
Canada’s human rights jurisprudence that the Commission had argued in their
submissions. Further, the Commission raised several Federal and Provincial
superior court cases that the Tribunal found did not support the proposition
that legislation can be challenged under the CHRA. None of the sections of the
CHRA that the Commission raised, including the former section 67 of the CHRA,
explicitly provided that legislation could be challenged under the CHRA.
[16]
Therefore, the Tribunal found that it was bound
to follow Murphy and dismissed the complaint. The Tribunal noted that a
constitutional challenge would be the most appropriate avenue to seek the
result desired by the Matson siblings.
B.
T-1777-13
[17]
Roger Andrews is the father of Michelle Andrews.
Ms. Andrews’ mother is not entitled to registration as an Indian under the Indian
Act.
(1)
Complaints to the Human Rights Tribunal
[18]
On July 29, 2004, Mr. Andrews submitted an
application for registration under the Indian Act. On August, 21 2006,
the Office of the Indian Registrar advised Mr. Andrews that he was registered
under subsection 6(2) of the Indian Act.
[19]
The formulation for eligibility (the “second
generation cut-off rule”) at the time of the Tribunal decision set out below
refers to the Indian Act sections:
•
6(1) has a child with 6(1)= 6(1) child;
•
6(1) has a child with 6(2)= 6(1) child;
•
6(2) has a child with 6(2)= 6(1) child;
•
6(1) has a child with non-Indian= 6(2) child;
•
6(2) has a child with non-Indian= non-Indian
child
[20]
On October 19, 2006, Mr. Andrews filed an
application for registration on behalf of his daughter, Michelle Andrews. The
Registrar did not register Ms. Andrews since one of her parents was entitled to
be registered under subsection 6(2) and no information was provided about her
mother’s Indian status.
(2)
First complaint
[21]
On October 20, 2008, Mr. Andrews filed a complaint
to the Tribunal on behalf of his daughter. He claimed that AAND engaged in a
discriminatory practice within the meaning of section 5 of the CHRA when it
denied her application for Indian Status under the Indian Act.
(3)
Second complaint
[22]
On February 1, 2010, Mr. Andrews filed a second
complaint with the Tribunal. He claimed that the AAND engaged in a
discriminatory practice within the meaning of section 5 of the AAND when it
granted his own application for Indian status under subsection 6(2) rather than
subsection 6(1) of the Indian Act.
[23]
The complaints were consolidated for the purpose
of a single hearing, which was held in October and November of 2012 and on
September 30, 2013, the Tribunal dismissed the complaints.
(4)
Tribunal Decision
[24]
The Tribunal considered two issues: first,
whether the complaints involve the provision of services within the meaning of
section 5 of the AAND; and second, if the complaints were solely a challenge to
legislation, whether the AAND allows for such complaints.
[25]
The Tribunal found that there was no dispute
that the complaints were with regard to section 6 of the Indian Act.
Therefore, if the Tribunal accepted that it must follow Murphy that
would dispose of Mr. Andrews’ complaints in their entirety.
[26]
The Tribunal rejected all the Commission’s
arguments for why it should not rely on Murphy. The Tribunal reviewed
the recent Matson Tribunal decision. The Tribunal shared the view that Murphy
does not contradict the Supreme Court of Canada decisions. The Tribunal did not
believe that the Provincial jurisprudence refuted the conclusion that a
“service” must exist and the Tribunal dismissed the Commission’s arguments
regarding subsections 49(5), 62(1) and 67 of the CHRA.
[27]
The Tribunal concluded that the complaints were
solely a challenge to legislation, and that the CHRA does not allow for such
complaints. It stated that the Complainants could still consider a challenge to
the impugned section of the Indian Act pursuant to the Charter.
II.
Issues
[28]
The issues in this case are as follows:
A. Was the Tribunal’s conclusion reasonable that registration under
section 6 of the Indian Act is not a service?
B.
Did the Tribunal err when it applied Murphy
or should the Tribunal have “respectfully declined to follow” Murphy?
C.
Did the Tribunal err by undermining the primacy
of human rights law?
D. Did the Tribunal err by failing to properly interpret section 5
within the context of the former section 67 of the CHRA?
III.
Standard of Review
[29]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 at para 62, wrote that I must first determine whether
previous jurisprudence has already determined what the standard of review is
for this particular category of judicial review. Only if it is not settled,
should I conduct an analysis to find the appropriate standard of review
[30]
The Federal Court of Appeal in Murphy
determined the standard of review to be reasonableness when reviewing a
Tribunal decision regarding whether the provision of services pursuant to
legislation is a “service” under the CHRA (Murphy, at para 2).
[31]
The Commission argued that Air Canada Pilots
Association v Kelly, 2012 FCA 209 at para 40, said the standard should be
correctness as the doctrine of stare decisis is engaged on these issues or in
the alternative, that where there is statutory interpretation, the range of
reasonable outcomes may be so narrow that a question may only have one
reasonable outcome (Canada (Canadian Human Rights Commission) v Canada
(Attorney General), 2011 SCC 53 at paras 27, 32, 34, 42, and 64 (“Mowat”)).
[32]
In First Nations Child and Family Caring
Society of Canada v Canada (Attorney General), 2013 FCA 75 at paras 13-15,
Justice Stratas writing for the Federal Court of Appeal held that when
interpreting statute, it is a reasonableness standard but sometimes the range
of reasonableness may be very narrow as it is “…a
matter constrained by the text, context and purpose of the statute”.
[33]
The Tribunal decisions before me were determined
on an agreed statement of facts and were statutory interpretations of a highly
specialized Tribunal’s own home statute. This Tribunal has greater expertise in
interpretation of section 5 of CHRA on this issue than the reviewing Court. Further,
the Tribunal was deciding an issue analogous to what was at issue in Murphy.
The standard of review has already been determined so I will do as the Federal
Court of Appeal in Murphy and the Supreme Court in Mowat and
review on a standard of reasonableness. The review will be detailed, but the Tribunal
is entitled to deference.
IV.
Analysis
[34]
For the reasons below, I find the underlying
decision of the Tribunal in T-1088-13 and T-1777-13, respectively, to be
reasonable.
[35]
This decision in no way deals with the merits of
any Charter challenge concerning section 6 of the Indian Act as this
is a judicial review of the Tribunal’s decision regarding jurisdiction.
A.
Was the Tribunal’s conclusion reasonable that
registration under section 6 of the Indian Act is not a service?
[36]
The Commission submits that federal case law
indicates that a “service” is something that is a benefit that is held out to
the public, in the context of a public relationship (Watkin v Canada
(Attorney General), 2008 FCA 170 at para 31 (“Watkin”). The argument
is that the Matson siblings and Andrews family were seeking access to a
“service” as they applied to AAND for a benefit. The Commission argues registration
as an Indian confers tangible and intangible benefits. As the Commission was
seeking to have the names of the Matson siblings and Mr. Andrews entered into
the Indian registry under a category of registration that would allow them to
pass on entitlements to the Commission that this amount to a service. If the Tribunal
had found registration under s. 6 of the Indian Act was a service, then
pursuant to section 5 of the CHRA, the Commission would have jurisdiction.
[37]
The Commission argues the Tribunal erred as they
did not follow the Supreme Court of Canada decisions holding that rights-granting
provisions must be given a broad, liberal and purposive interpretation to
obtain their objective. The Commission’s position is that unless there are
express words that bar complaints that challenge legislation, the Tribunal has
jurisdiction. The Commission said when Parliament conferred power on the
Tribunal, it would not have been envisioned that the Tribunal would restrict
people from human rights recourse. Further, the Commission submit that the SCC
warns that decision makers should not read limitations into human rights
legislation. Section 5 of the CHRA:
It is a discriminatory practice in the
provision of goods, services, facilities or accommodation customarily available
to the general public:
a) to deny, or to deny access to, any such
good, service, facility or accommodation to any individual, or
b) to differentiate adversely in relation to
any individual,
on a prohibited ground of discrimination.
[38]
The Commission argues that Murphy was
wrongly decided and the Tribunal should not have followed it.
[39]
The Attorney General submits that the Tribunal was
correct. The Attorney General relies on Murphy as the authority that
confirmation of Indian status is not a service. The Attorney General argues
that this is an attack on the legislation of the Indian Act and
consequently outside the scope of the CHRA leaving the Commission without
jurisdiction.
[40]
The Attorney General maintains that the
Tribunal’s decision was reasonable because Indian registration is simply not a
service within the meaning of section 5 of the CHRA. The Attorney General
analogizes this matter to Forward v Canada (Citizenship and Immigration),
2008 CHRT 5 (“Forward”), where the Tribunal determined that granting of
Canadian citizenship is not a service under section 5 of the CHRA.
[41]
To determine if the Tribunal was reasonable I look
to the Federal Court of Appeal and Supreme Court of Canada jurisprudence on
this issue.
(1)
Watkin
[42]
In Watkin, at para 31, the Federal Court
of Appeal found that Health Canada’s application of the Food and Drugs Act
to classify a substance as a “Class II Health Hazard” and a “New Drug” was not
a service because “enforcement actions are not “held
out” or “offered” to the public in any sense and are not the result of a
process which takes place “in the context of a public relationship””.
[43]
The Court stated at paragraph 31:
In this
respect, “services” within the meaning of section 5 contemplate something of
benefit being “held out” as services and “offered” to the public (Gould, supra,
per La Forest J., para 55).
[44]
At paragraph 28, the Court provided examples of
services provided by public authorities:
Public authorities can and do engage in the
provision of services in fulfilling their statutory functions. For example, the
Canada Revenue Agency provides a service when it issues advance income tax
rulings; Environment Canada provides a service when it publicizes weather and
road conditions; Health Canada provides a service when it encourages Canadians
to take an active role in their health by increasing their level of physical
activity and eating well; Immigration Canada provides a service when it advises
immigrants about how to become a Canadian resident. That said, not all
government actions are services. Before relief can be provided for
discrimination in the provision of “services” the particular actions complained
of must be shown to be “services”
[45]
I note that in Watkin at paragraph 33,
the Court of Appeal writes:
Regard must be had to the particular
actions which are said to give rise to the alleged discrimination in order to
determine if they are “services” (Gould, supra, per Iacobucci J., para.
16, per La Forest J., para. 60), and the fact that the actions are undertaken
by a public body for the public good cannot transform what is ostensibly not a
service into one. Unless they are “services”, government actions do not come
within the ambit of section 5.
(2)
Murphy
[46]
The Tribunal relied on Murphy as binding
jurisprudence when they analysed whether section 6 of the Indian Act was
a service, however the Commission submits that Murphy is wrong and
should not have been relied on.
[47]
Murphy was a
judicial review of a Canada Revenue Agency (“CRA”) decision applying sections
of the Income Tax Act regarding Qualifying Retroactive Lump Sum Payment (“QRLSP”).
When a taxpayer received a lump sum payment, the CRA would calculate the amount
of tax owing according to two methods: first, by using the QRLSP mechanism
which would calculate tax based on the year the income would have been received;
second, by taxing the whole lump sum in the year in which it was actually
received. The CRA would then compare the two results. It would apply the method
that would most benefit the taxpayer
[48]
In 2000, Ms. Murphy was awarded a lump sum
payment from a successful pay equity complaint. The CRA compared the amount of
tax she would owe using the QRLSP calculation to the amount of tax she would
owe if the lump sum was taxed in the year it was received. CRA determined that
the latter method was more beneficial. Therefore, CRA declined to apply the
QRLSP.
[49]
Ms. Murphy wanted the CRA to apply the QRLSP
method to her, so that the lump sum would be spread out over previous tax
years. The CRA included notional tax in her calculation, which was interest on
the tax that would have been paid, but was delayed. She knew that if the
interest component of the QRLSP were not included, it would be the method that
would most benefit her. Ms. Murphy filed a human rights complaint before the
Tribunal alleging that by including interest in the calculation of tax under
the QRLSP, the CRA was perpetuating the pay gap that had been the very subject
of her pay equity complaint that created the lump sum payment.
[50]
The Tribunal dismissed her complaint, as did
the Federal Court and the Federal Court of Appeal. The Supreme Court of Canada
dismissed the application for leave to appeal without reasons ([2012] SCCA No.
102 (QL)).
[51]
At paragraph 3 of the Federal Court of Appeal
decision, Justice Noel (now Chief Justice of the Federal Court of Appeal) on
behalf of the Court found that the QRLSP calculation was not a “service” as
defined in section 5 of the CHRA. The Court stated that the CRA’s application
of the Income Tax Act based on undisputed facts was not a service. At
paragraph 6, the Federal Court of Appeal stated:
This is a direct attack on sections 110.2
and 120.31 of the ITA … [T]his type of attack falls outside the scope of the
CHRA since it is aimed at the legislation per se, and nothing else. …[T]he CHRA
does not provide for the filing of a complaint directed against an act of
Parliament (see subsection 40(1) which authorizes the filing of complaints and
sections 5 to 14.1 which sets out the “discriminatory practices” against which
complaints may be directed).
[52]
In Murphy, the Federal Court of Appeal
found that when the CRA was applying a provision regarding the calculation of
tax, it was not providing a service. The FCA found that this was a direct
attack on legislation and as was found in Forward and Wignall v
Canada (Department of National Revenue (Taxation), 2003 FC 1280, Justice
Noel concluded that:
In our view, the opinion expressed in these
cases is the correct one since the CHRA does not provide for the filing of a
complaint directed against an act of Parliament (see subsection 40(1) which
authorizes the filing of complaints and sections 5 to 41 which sets out the
“discriminatory practices” against which complaints may be directed”).
[53]
In coming to this conclusion, the Federal Court
of Appeal referenced its earlier decision in Canada (Attorney General) v
Druken, [1989] 2 FC 24; [1988] FCJ No. 709 (QL) (FCA); leave to appeal to
SCC denied, [1988] SCCA No. 433(QL) (“Druken”). In Druken, the
Federal Court of Appeal found that application of mandatory eligibility
provisions under the Unemployment Insurance Act was a service under the
CHRA. The Court found that the refusal of unemployment insurance benefits in
the circumstances in Druken were expressly mandated by provisions of the
Unemployment Insurance Act.
[54]
In Druken, the Attorney General raised
arguments in its factum but did not argue that the provision of unemployment
insurance benefits was not a service.
[55]
In Canada (Attorney General) v McKenna,
[1999] 1 FC 401 (FCA) (“McKenna”), Robertson JA commented on Druken
in obiter. He questioned the correctness of the finding that the government’s
application of the eligibility provisions of a statute providing benefits was a
service, commenting that the only reason the provision of employment insurance
was found to be a “service” in Druken was because the Attorney General
conceded the point.
[56]
In Murphy Justice Noel at para 7 points
out the caveat expressed by Robertson J.A. in McKenna, that the
complaint was directed to the operability of the act and regulations and
following the analysis the Court employed, would not come within the “practises that may form the object of the complaint under
the CHRA.”
(3)
Analysis
[57]
The concession regarding whether the
government’s application of a statute was a service by the Attorney General in Druken
was discussed in Watkin in 2008 and in Murphy by the FCA. The
Federal Court of Appeal tells us that the actual complaint must be examined as
to whether it is a service and not simply the application of an eligibility
provision by government.
[58]
Parliament’s jurisdiction given under section
91(24) of the Constitution Act, 1867 allows it to create and delineate the
legal category between a subset of Aboriginal peoples and the state. The
legislative criteria that were determined by Parliament to identify an
individual as an Indian is not a “service” as envisioned under section 5 of CHRA;
processing applications for registration may constitute a “service” under
section 5 of the CHRA but not the criteria that needs met to be registered as
an Indian under the Indian Act.
[59]
A challenge to the way in which that formula is
applied is a challenge to the law itself. In the present case, the Commission
is alleging the eligibility provisions of the Indian Act are
discriminatory. Therefore, applying the mandatory eligibility provisions of the
Indian Act is an act of enforcing the law, even though the statute
provides a benefit. It is the law which denies access to the benefit, not the
government agency.
[60]
In my opinion, the findings from Forward are
equally applicable to the present case. At paragraph 54, referring to Forward,
the Tribunal found that citizenship under the Citizenship Act was not a
service, because the sole source of the alleged discrimination is the
legislative language of the Citizenship Act. Forward adopted the
obiter from McKenna which said that Druken was wrongly decided (Forward,
at paras 32-34).
[61]
Moreover, the fact that Matson and Andrews
are analogous to Murphy is supported by the fact that the Federal Court
of Appeal in Murphy specifically addressed Druken. I think it is
clear that the Federal Court of Appeal intended its conclusions to apply to
cases of the government applying the mandatory provisions of a statute,
particularly when reading the Court’s comments in paragraph 7, as described
above. The circumstances of T-1088-13 and T-1777-13 are arguably analogous to
those in Murphy. In both instances, the legislature set out a mandatory
scheme or formula which a government organization applies without discretion.
[62]
I think the detailed analysis of the Tribunal is
reasonable and I find that the Tribunal’s reliance on Murphy was reasonable.
Murphy was a decision by a higher court that legislation was not a
“service” as defined in section 5 of the CHRA. The interpretation of section 5
from Murphy was consistent with the language of section 5 of the Indian
Act. Further, Murphy also addressed the conflicting jurisprudence
from Druken.
[63]
The Tribunal decision at paragraph 52 of T-1777-13
clearly stated that the facts agreed between the parties are not in dispute and
that the registration provisions pursuant to the Indian Act are at issue
consequently it was reasonable for the Tribunal to rely on Court decisions
directly on this point.
B.
Did the Tribunal err when it applied Murphy or
should the Tribunal have “respectfully declined to follow” Murphy?
[64]
The Commission concedes that the Tribunal is
consistent with the decision of the Federal Court of Appeal in Murphy
and that on its face, Murphy is the answer to these complaints. But the
Commission submits that the Federal Court of Appeal in Murphy is
inconsistent with case law from the Supreme Court of Canada concerning the
quasi-constitutional nature of human rights laws. The Commission argues that
the Tribunal and I should decline to follow Murphy and lists Canada v
Craig, 2012 SCC 43 at paras 18-23 (“Craig”) as the authority.
[65]
The Commission raised the following cases: Insurance
Corp of British Columbia v Heerspink, [1982] 2 S.C.R. 145 (“Heerspink”); Winnipeg
School Division No. 1 v Craton, [1985] 2 S.C.R. 150; CNR v Canada (Human Rights
Commission), [1987] 1 S.C.R. 1114; Quebec (Commission des droits de la personne et
des droits de la jeunesse) v Communauté urbaine de Montréal, 2004 SCC 30 (“Larocque”)
and Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC
14 (“Tranchemontagne”). The record will support the extensive submissions on
each of these authorities.
[66]
The Commission submitted that if I conclude Murphy
is binding then I may still be persuaded that the application be granted but
asks that I “…outline any problematic aspects of the
decision in its reasons for judgment”. The purpose being that if a
further appeal is filed and the Court of Appeal is invited to reconsider its
approach in Murphy, it will have the benefit of this Court’s reasoned
opinion concerning the issues.
[67]
For the reasons below, I find Murphy is
binding and not inconsistent with Supreme Court of Canada jurisprudence.
[68]
In this matter, as in the Murphy decision,
the Commission argued the same position at the Tribunal level as they did at
the Federal Court level.
[69]
I fail to see how the Commission can still argue
that Murphy is inconsistent with the Supreme Court of Canada
jurisprudence when those arguments were made by the same counsel that appeared
today for the Commission that represented the Commission at the Murphy leave
application before the SCC where it was dismissed. The SCC did not grant leave
to hear Murphy so unless it is distinguishable, then Murphy is
the jurisprudence that both the Tribunal and I must follow.
[70]
The Attorney General submits that the cases
cited by the Commission as being in conflict with Murphy are in fact not
in conflict. None of the Supreme Court of Canada jurisprudence considered
whether the application of a mandatory legislative provision was a “service”
under section 5 of the CHRA or a related statute. All of it related to the
primacy of human rights legislation over other acts. The cases all show that if
there is a conflict between human rights legislation and other legislation, the
human rights acts will govern. The cases show that it is possible for a
provision to be declared inoperable pursuant to the CHRA.
[71]
I agree that the jurisprudence cited by the
Commission does not show that the application of a law is a “service” under
section 5 of the CHRA. The Tribunal in great detail explained that Murphy
is consistent with the Supreme Court’s approach in those cases. Therefore, the
Tribunal did not err by failing to rely on Murphy.
[72]
Commission counsel’s argument is that the Murphy
decision is wrong. Counsel criticized the Federal Court of Appeal for not
analysing all of the Supreme Court of Canada jurisprudence in their brief oral
decision. The Commission submitted that the Tribunal said it was bound by Murphy
and part of its role is to create a record so the Federal Court of Appeal and
the Supreme Court of Canada can clarify the issue. Without a lengthy decision
and review of jurisprudence from the Federal Court of Appeal, the Commission
argues it is very difficult to show the Tribunal and this Court how the Federal
Court of Appeal got it wrong and how that decision did not follow the Supreme
Court.
[73]
The Commission relied on Craig to say
that the Tribunal and now I can respectfully decline to follow Murphy.
Contrary to the Commission’s contention, the Supreme Court of Canada’s decision
in Craig did not state that a lower court is entitled to overrule an
applicable precedent to follow the Supreme Court of Canada. Rather, it held
that a lower court must follow binding precedent.
[74]
I do not believe that the Tribunal could have
respectfully declined to follow Murphy. Justice Rothstein (as he then was)
in Canada (Commissioner of Competition) v Superior Propane Inc, 2003 FCA
53 at para 54 speaks to stare decisis:
The principle of stare decisis is, of
course, well known to lawyers and judges. Lower courts must follow the law as
interpreted by a higher co-ordinate court. They cannot refuse to follow it: Canada
Temperance Act (The), Re, [1939] 4 DLR 14 at 33 (Ont CA), affd [1946] 2 DLR
1 (SCC); Woods v. The King, [1951] S.C.R. 504, at page 515 (QL). This
principle applies equally to tribunals having to follow the directions of a
higher court as in this case. On redetermination, the duty of a tribunal is to
follow the directions of the reviewing court.
[75]
Craig dealt with
a situation where the Federal Court of Appeal purported to overrule a Supreme
Court of Canada precedent that it viewed as wrongly decided. Instead, the
Federal Court of Appeal followed one of its own prior decisions. At paragraph
21, Justice Rothstein for the Supreme Court of Canada stated that the Federal
Court of Appeal was bound to follow the Supreme Court of Canada precedent.
Again, the Supreme Court in Craig held that a court may write reasons
why the decision was problematic, but cannot overrule it. That was the
preliminary issue and the main issue in Craig was whether the Supreme
Court could overrule one of its own prior decisions. Rothstein J confirmed that
lower courts and tribunals must follow the directions of a higher court. The Tribunal
in Craig “did not just pay lip service to the
directions of the Court, nor did it defy its direction” (paras 53-59).
[76]
On these facts in the case at bar, Craig
is applicable because it instructs that stare decisis applies. The Tribunal
and I must follow the “vertical convention of precedent” as Justice Rothstein
called it at paragraph 27. I do not think Murphy was decided wrongly and
therefore I do not need to write in my reasons why I think Murphy was
decided incorrectly.
[77]
I find no fault with the Federal Court of Appeal
for giving a concise, oral decision in Murphy. A concise decision, where
the analysis has already been done may be a display of how justice is best
served. The Tribunal decision in Murphy was very detailed and the FCA made
note of that and then stated that they were adopting it.
[78]
I too will decline the request to go into a
detailed analysis of each of the cases presented by the Commission and will rely
on the Tribunal decision. The jurisprudence presented by the Commission was not
relevant to the issue of the definition of “service” under section 5 of the
CHRA. The Commission sought leave in the Murphy case and the SCC did not
grant leave. This Tribunal could not disregard binding jurisprudence on point
from the Federal Court of Appeal and nor will I decline to follow the FCA in Murphy.
C.
Did the Tribunal err by undermining the primacy
of human rights law?
[79]
The Commission submits the Tribunal improperly
limited the application of primacy by finding that the CHRA can only render
inconsistent legislation inoperable where the application of that legislation
arises in a complaint filed about some other form of discriminatory practice.
[80]
For support of this position, the Commission
says the foundational Supreme Court of Canada cases did not place any such
limits on the scope of the principle: Heerspink, Craton, Tranchmontagne,
Larcoque. The Commission’s position is that it is absurd to adopt an
interpretation that would prevent claimants from challenging legislation under
human rights law in the same way as they would in a constitutional challenge.
[81]
The Commission submits that the Tribunal’s
reliance on obiter from Alberta v Hutterian Brethren of Wilson Colony,
2009 SCC 37 (“Hutterian Brethren”) was misplaced because the Supreme
Court’s comments were intended to explain why undue hardship principles should
not be incorporated into the analysis under section 1 of the Charter.
Moreover, the Tribunal’s finding that the complaints should not proceed because
the government should not have to defend the operation of legislation using the
bona fide justification test conflicts with its earlier findings that
the operation of legislation can be challenged in indirect ways under the CHRA.
[82]
The Commission raised two further arguments in
the T-1777-13 pleadings:
a.
A finding of constitutional invalidity under the
Charter is “clearly more offensive to the legislature” than a finding of
inoperability under a human rights statute: Tranchemontagne at para 31.
Given this difference it is not surprising that different justificatory
frameworks were adopted in each context;
b.
In addition, the legislation would not be
declared inoperative without first giving the respondent and/or the Attorney
General of Canada an opportunity to argue that the legislation should continue
to be applied: CHRA Review Panel Report.
[83]
I will summarize the lengthy detailed technical
arguments that were before the Tribunal and were before me. The Commission
argues that the Supreme Court of Canada has found that human rights legislation
has quasi - constitutional status. This status means that it should be
interpreted in a “broad, liberal and purposive manner
that best advances its broad underlying policy considerations”. The
CHRA’s purpose and goals have been interpreted by the Supreme Court such that
they are to be interpreted broadly however to narrowly construe the exceptions
and defences. With that background, the Commission states that human rights
laws have primacy and if there is a conflict between human rights law and other
legislation, then human rights law will govern as a quasi- constitutional
statement of public policy and render inconsistent laws inoperable. The
Commission uses Tranchemontagne as authority of the notion of
inoperability, though the legislation at issue was not held inoperable, but had
been two years earlier where damages had been sought where an employer had
screened out a candidate for failing to meet hearing standards in a municipal
by-law (Larocque, above).
[84]
The Commission admits that a majority decision
of the Supreme Court of Canada has not used the CHRA to render other
legislation inoperable. But they argued that the 1985 dissent in Bhinder v
Canadian National Railway Co, [1985] 2 S.C.R. 561, said that federal
legislation is inoperative to the extent it conflicts with the CHRA.
MacLachlin, CJ and L’Heureux-Dube, J in Bell v Canada (Canadian Human Rights
Commission); Cooper v Canada (Canadian Human Rights Commission),
[1996] 3 S.C.R. 854, also in dissent found that the Tribunal and Commission have
the power to consider the Charter when carrying out their mandates and
drew the analogy to Druken above which confirmed the Tribunal’s
jurisdiction to find discriminatory enactments to have been implicitly repealed
by the CHRA.
[85]
With that background, the Commission says that
CHRA has primacy and renders inconsistent legislation inoperable and for final
support rely on a 2000 report of the CHRA Review Panel.
[86]
In response, the Attorney General states that in
Hutterian Brethren, the Supreme Court of Canada noted that the standard
of reasonable accommodation is not appropriate for laws of general application
and is only helpful where a government action or administrative action is
impugned. Where a law is challenged, the government is entitled to justify it
pursuant to the Oakes test. In the case of Indian registration, we are
not dealing with a discretionary application of a general standard in individual
circumstances. Therefore, the justificatory framework of reasonable
accommodation is inapt. Accordingly, it is reasonable to conclude that
Parliament, in limiting the CHRA’s application to services, did not intend the
reasonable accommodation test to apply to laws of general application, such as
the Indian Act’s definition of Indian.
[87]
The Attorney General submits that the Tribunal
recognized the inappropriateness of the undue hardship analysis. The
Commission’s position, that Canada should be permitted to justify its
delineation of the Indian status population based only on considerations of
“health, safety and cost” is unreasonable.
(1)
Analysis
[88]
The Tribunal did not dispute that human rights
legislation can render other legislation inoperable. The Tribunal did not
dispute that it is within its power to grant a remedy of declaring legislation
inoperable. Rather, it found that it did not have jurisdiction to consider
legislation as a service in section 5 of the CHRA. For that reason I do not see
that primacy is at issue in this case.
[89]
The Tribunal’s consideration of Hutterian
Brethren was not unreasonable. In the passages cited, the Supreme Court of
Canada was comparing two different situations: where the operation of a law of
general application violates the Charter, and where government action or
practice with respect to a particular individual violates the Charter (Hutterian
Brethren, paragraphs 66-67).
[90]
In the context of that analysis, the Supreme
Court of Canada considered the defences that government can bring in response
to each type of challenge. The Supreme Court of Canada noted that where the
operation of law is being challenged, the government has the ability to defend
its constitutionality with a consideration of its overall impact. This is
distinct from circumstances where the law’s impact on individual claimants is
at stake, and the government must consider whether it accommodated individuals
to the point of undue hardship. The Court noted the difficulty in applying the
undue hardship test to situations where the issue is the operation of law. It
mentioned human rights legislation because the undue hardship analysis is drawn
from human rights legislation (Hutterian Brethren, paragraphs 69-70).
[91]
The Supreme Court’s comments comparing the
section 1 analysis to the reasonable accommodation test reinforced the
Tribunal’s conclusion that it was a complaint against the mandatory eligibility
requirements. It was not unreasonable for the Tribunal to cite Hutterian
Brethren.
[92]
Secondly, the Tribunal’s consideration of Hutterian
Brethren at paragraph 153 was in obiter. The Tribunal made the
decision to rely on Murphy for the proposition that the Complainants
could not challenge the application of legislation. It went on to make
additional observations about the applicability of the bona fide justification
defence to the operation of legislation. It was in this context that it cited Hutterian
Brethren. Therefore, even if it erred in its consideration of Hutterian
Brethren, it would not change the outcome of the decision.
[93]
I find the Tribunal did not err in its
consideration of primacy.
D.
Did the Tribunal err by failing to properly
interpret section 5 within the context of the former section 67 of the CHRA?
(1)
Relevant Provisions
[94]
Canadian Human Rights Act, Former s. 67 (Repealed 2008-06-17):
67. Nothing
in this Act affects any provision of the Indian Act or any provision made under
or pursuant to that Act.
[95]
The Commission submits that the Tribunal did not
take a contextual approach when interpreting the former section 67 (originally section
63(2)) of the CHRA). The Commission argues that Parliament intended to shield
the registration provisions of the Indian Act from the CHRA by enacting
section 67 of the CHRA. If the registration provisions of the Indian Act
could not be challenged by the CHRA, the repeal of section 67 of the CHRA would
be meaningless.
[96]
This argument is not persuasive and I find that
the Commission has not shown that the Tribunal’s interpretation of the repeal
of section 67 was unreasonable for the reasons below.
(2)
Principle against tautology
[97]
The Commission’s argument that section 67 would
be redundant if it was not meant to immunize challenges to the operability of
the Indian Act must fail. This is because section 67 also immunized
challenges made “pursuant to or under” the Indian Act. This would
include a host of other decisions besides the registration provisions, such as
decisions made by bands pursuant to the Act. For example, in Laslo v Gordon
Band (Council), [2000] FCJ No. 1175 at para 23 (FCA) (Laslo), section
67 of the CHRA barred a complaint against a Band housing committee’s decision
to deny housing on a reserve to a woman who regained status and band membership
following the 1985 amendments to the Indian Act.
(3)
Jurisprudence
[98]
The Commission submits that Federal Court
jurisprudence indicates that section 67 functioned to shield the provisions of
the Indian Act from the CHRA: Laslo at para 23; Desjarlais v
Piapot Band No. 75 [1989] FCJ No. 412 at para 3 (CA)(QL) (Desjarlais);
Shubenacadie Indian Band v Canada (Human Rights Commission) [1998] 2 FC
198 (TD)(QL) at para 31 (Shubenacadie). The Commission submits that Laslo
is particularly relevant because it links section 67 of the CHRA with the
registration provisions of the Indian Act.
[99]
The Commission’s above cited jurisprudence does
not show that the Tribunal’s interpretation of section 67 was unreasonable. In
each of the three cases, Laslo, Desjarlais and Schubenacadie the issue
was whether a band council’s decision was made “under or pursuant” to the Indian
Act. None of the three cases address a situation where there was a
complaint made against the operability of the eligibility provisions of the Indian
Act.
(4)
Legislative History
[100] Legislative history is an appropriate tool to determine the
intention of the legislature (Rizzo & Rizzo Shoes Ltd. (Re), [1998]
1 SCR 27, at para 31). Some of the legislative history that the Commission
provided suggests that Parliament intended that, but for section 67, the
registration provisions of the Indian Act would be subject to scrutiny
under the CHRA. However, the linkage is not strong enough to conclude that the
Tribunal’s decision was unreasonable.
[101] I will briefly analyze each of the sources of legislative history
that the Commission cites.
(a)
2006 Aboriginal Affairs and
Northern Development Canada (AANDC) Backgrounder
[102]
The Commission cites an AANDC Backgrounder from
2006 on the repeal of section 67. That Backgrounder states:
Section 67
was part of the Canadian Human Rights Act when the Act was introduced in
1977. At the time, discussions were underway with Aboriginal groups about
possible reforms to the Indian Act. Section 67 was originally adopted as
a temporary measure because it was recognized that the application of the Canadian
Human Rights Act to all matters falling under the Indian Act could
have resulted in certain provisions of the Indian Act being found
discriminatory before the discussions with Aboriginal groups about reforming
the Indian Act had concluded.
[103] There is nothing in the Backgrounder stating that section 67 was
intended to shield the registration provisions of the Indian Act
specifically.
(b)
Laslo
[104] In Laslo, the Federal Court of Appeal linked the legislative
history of section 67 with the provisions in registration for band membership.
In Laslo, at paras 23-24, the Federal Court of Appeal commented briefly
on the purpose of section 67 of the Indian Act:
[23] Section 67 was part of the Canadian
Human Rights Act when it was enacted by SC 1976-77, c 33. At that time, the
Indian Act still contained provisions such as section 14 that were
recognized as discriminating against women. The original objective of section
67 was to immunize the Indian Act and its regime from scrutiny under the
Canadian Human Rights Act.
[24] In 1985, the discriminatory effect of
section 14 of the Indian Act was abolished by Bill C-31. However,
section 67 of the Canadian Human Rights Act was not amended or repealed.
There is no basis for concluding, as the Commission contends, that the
objective or intended scope of section 67 changed in 1985 when Bill C-31 was
enacted.
[105] Section 14 was the section that related to eligibility for band
membership.
[106] However, this comment is not sufficient to show that Parliament’s
intent was to exclude the registration provisions of the Indian Act from
scrutiny under the CHRA. Indeed, it suggests that the “Indian Act and
its regime” was to be immunized from scrutiny. This suggests that the intended
impact of section 67 was broader than the registration provisions.
(c)
Speaking Notes, 1979
[107] The Commission also cites speaking notes from 1979 on proposals to
revise the Indian Act. At page 5, the speaking notes considered the
revision of section 12(1)(b), which related to registration. After noting that
section 12(1)(b) must be revised, the speaking notes state:
The Indian Act was excluded from the
operation of the federal Human Rights Act. The exclusion section was
included in the Human Rights Act on the specific request and
recommendation of the then Minister of Indian Affairs and Northern Development
for the specific purpose of preserving the government’s commitment to the
Indian people about consulting them about changes in the Indian Act. At
the time, discussions were just getting under way on the Indian Act
revision.
Consideration of the membership issue began
with a cabinet commitment in 1977 to end discrimination on the grounds of sex
in the Indian Act with particular reference to section 12(1)(b)…
[108] This passage does not say that the exclusion section was included
specifically regarding the membership issue, but rather because of the
government’s desire to consult about changes to the Indian Act
generally. The exclusion provision was intended to exempt other sections of the
Indian Act from review as well.
(d)
Statement by Minister of Justice to Justice and
Legal Affairs Committee, March 10, 1977
[109] The Commission also refers to a statement made by the Minister of
Justice on March 10, 1977, to the Justice and Legal Affairs Committee. This
statement was made regarding Bill C-25, which was the CHRA. In the comments
regarding section 63(2) the Minister’s comments were general and did not link
the Act with the registration provisions:
Subclause (2) has been criticized because it
ensures that the Indian Act will not, in effect, be modified by this
Act. Indian representatives have asked that there be no revision of any aspects
of the Indian Act except after full consultation with them. Those
consultations are still continuing. It should be noted, however, that like all
other Canadians, Indians will have the general protection of the Canadian
Human Rights Act in all except the special situations where their rights
and status are governed by the Indian Act.
[110] There is no direct linkage between the registration provisions and
section 67. Indeed, the passage suggests that section 67 was intended to have a
broad effect to insulate the Indian Act from the purview of the CHRA.
(e)
Parliamentary Memorandum
[111]
The Commission cites a Parliamentary memorandum
from July 1, 1978. This source provides support to the contention that the
purpose of section 67 was to insulate the registration provisions of the Indian
Act. It is not clear who wrote this memorandum, but the object was to seek
Cabinet guidance to proceed with amendments to the Indian Act in certain
areas. I note that
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