Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 SCR 667

                                                 SUPREME COURT OF CANADA

Between:

House of Commons and the Honourable Gilbert Parent

Appellants

v.

Satnam Vaid and Canadian Human Rights Commission

Respondents

‑ and ‑

Attorney General of Canada, the Honourable Senator Serge

Joyal, the Honourable Senator Mobina S.B. Jaffer, Canadian

Association of Professional Employees, Communication,

Energy and Paperworkers Union of Canada and Speaker

of the Legislative Assembly of Ontario

Interveners

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30

House of Commons and the Honourable Gilbert Parent                              Appellants

v.

Satnam Vaid and Canadian Human Rights Commission                           Respondents

and

Attorney General of Canada, the Honourable Senator

Serge Joyal, the Honourable Senator Mobina S. B. Jaffer,

Canadian Association of Professional Employees, Communications,

Energy and Paperworkers Union of Canada and Speaker

of the Legislative Assembly of Ontario                                                        Interveners

Indexed as:  Canada (House of Commons) v. Vaid

Neutral citation:  2005 SCC 30.

File No.:  29564.

2004:  October 13; 2005:  May 20.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the federal court of appeal

Constitutional law — Parliamentary privilege — Existence of privilege — Former chauffeur to Speaker of House of Commons filing discrimination and harassment complaints against Speaker and House after his position declared surplus — House and Speaker asserting parliamentary privilege in relation to “management of employees” to challenge jurisdiction of Canadian Human Rights Commission to investigate chauffeur’s complaints — Whether claimed parliamentary privilege exists — Constitution Act, 1867, s. 18  — Parliament of Canada Act, R.S.C. 1985, c. P‑1, s. 4 .

Human rights — Human rights legislation — Application — Parliamentary employees — Whether Canadian Human Rights Act applicable to employees of Senate and House of Commons — Canadian Human Rights Act, R.S.C. 1985, c. H‑6, s. 2 .

Administrative law — Human rights tribunal — Jurisdiction — Parliamentary employees — Workplace complaints raising human rights issues — Chauffeur to Speaker of  House of Commons declared surplus and filing discrimination and harassment complaints against Speaker and House — Whether Canadian Human Rights Commission has jurisdiction to investigate chauffeur’s complaints — Whether chauffeur’s complaints should proceed by way of grievance under the Parliamentary Employment and Staff Relations Act  — Canadian Human Rights Act, R.S.C. 1985, c. H‑6, s. 2  — Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd Supp .), s. 2.

Following a grievance under the Parliamentary Employment and Staff Relations Act  (“PESRA ”), V was reinstated as chauffeur to the Speaker of the House of Commons.  He returned to work, but was not allowed to resume his duties.  He was subsequently informed by the Speaker’s office that, because of a reorganization, his former position would be made surplus.  V complained to the Canadian Human Rights Commission against the Speaker and the House of Commons alleging refusal to continue his employment, harassment and discrimination on the basis of race, colour, and national or ethnic origin.  The Commission accepted V’s complaints and referred them to a tribunal.  The Speaker and the House of Commons challenged the human rights tribunal’s jurisdiction, claiming that the Speaker’s power to hire, manage and dismiss employees was privileged and therefore immune to external review.  The tribunal dismissed the challenge.  On an application for judicial review, both the Federal Court, Trial Division, and the Federal Court of Appeal upheld the tribunal’s decision.

Held:  The appeal should be allowed.

The party who seeks to rely on the immunity provided by parliamentary privilege has the onus of establishing its existence.  Within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts.  A finding that a particular area of parliamentary activity is covered by privilege therefore has very significant legal consequences for non‑Members who claim to be injured by parliamentary conduct. [29-30]

The appellants have failed to establish the privilege in the broad and all‑inclusive terms asserted.  The Canadian Human Rights Act  does apply to employees of Parliament.  However, V is obliged by PESRA  to pursue his complaints by way of a grievance under that Act.  This conclusion, which rests entirely on administrative law principles and has nothing to do with parliamentary privilege, entitles the appellants to succeed. [6] [76] [82-83]

Legislative bodies created by the Constitution Act, 1867  do not constitute enclaves shielded from the ordinary law of the land.  The framers of the Constitution, and Canadian Parliamentarians in passing the Parliament of Canada Act , thought it right to use the House of Commons at Westminster as the benchmark for parliamentary privilege in Canada.  Accordingly, to determine whether a privilege exists for the benefit of the Senate or House of Commons, or their members, a court must decide whether the category and scope of the claimed privilege have been authoritatively established in relation to our own Parliament or to the House of Commons at Westminster.  If so, the claim to privilege ought to be accepted by the court.  However, if the existence and scope of a privilege have not been authoritatively established, the court will be required to test the claim against the doctrine of necessity — the foundation of all parliamentary privilege.  In such a case, in order to sustain a claim of privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their legislative work with dignity and efficiency.  Once a claim to privilege is made out, the court will not enquire into the merits of its exercise in any particular instance. [29] [37-40] [46-48]

In this case, the appellants identified the claimed privilege as “management of employees”.  The privilege is said to cover with immunity all dealings with all employees without exception who work for the legislative branch of government.  The wide‑ranging privilege asserted by the appellants has not been authoritatively established in the courts of Canada or the United Kingdom and is not supported as a matter of principle by the necessity test.  While a privilege no doubt attaches to the House’s relations with some of its employees, the scope of the appellants’ claim clearly exceeded what is considered necessary at Westminster; it is not established by historical precedent in Canada; and it is not consistent with the classic definition of privilege as being the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, “without which they could not discharge their functions”. [29] [50-52] [53-56]

The Canadian Human Rights Act  applies to all employees of the federal government, including those working for Parliament.  However, the fact that V claims a violation of his human rights does not automatically steer the case to the Canadian Human Rights Commission.  Rather, in this case, V’s complaints of discrimination and harassment contrary to the provisions of the Canadian Human Rights Act  arose in the context of his claim of constructive dismissal and therefore fall within the grievance procedure established under the PESRA .  The PESRA  created a specific regime governing the labour relations of parliamentary employees.  Its system of redress, which covers complaints about violations of statutory standards such as those found in the Canadian Human Rights Act , runs parallel to the enforcement machinery provided under the Canadian Human Rights Act .  While not all potential claims to relief under the Canadian Human Rights Act  would be barred by s. 2  of the PESRA , there is clearly a measure of duplication in the two statutory regimes, and the purpose of s. 2  of PESRA  is to avoid such duplication.  Since Parliament has determined that workplace grievances of employees covered by the PESRA  are to be dealt with under the PESRA , and as PESRA  includes grievances related to violations of standards established by the Canadian Human Rights Act , V is obliged to seek relief under the PESRA .  There is nothing in V’s complaints to lift his grievance out of its specific employment context. [79-82] [89-95]

Cases Cited

Applied:  Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112; not followed:  R. v. Graham‑Campbell; Ex parte Herbert, [1935] 1 K.B. 594; considered:  New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; referred to:  Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; Duke of Newcastle v. Morris (1870), L.R. 4 H.L. 661; Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; Telezone Inc. v. Canada (Attorney General) (2004), 69 O.R. (3d) 161; Samson Indian Nation and Band v. Canada, [2004] 1 F.C.R. 556, 2003 FC 975; Fielding v. Thomas, [1896] A.C. 600; Kielley v. Carson (1842), 4 Moo. P.C. 63, 13 E.R. 225; Burdett v. Abbot (1811), 14 East 1, 104 E.R. 501; Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) 595; Martin v. Ontario, [2004] O.J. No. 2247 (QL); R. v. Richards; Ex parte Fitzpatrick and Browne (1955), 92 C.L.R. 157; Egan v. Willis (1998), 158 A.L.R. 527; Huata v. Prebble, [2004] 3 NZLR 359, [2004] NZCA 147; Stopforth v. Goyer (1979), 23 O.R. (2d) 696; Re Clark and Attorney‑General of Canada (1977), 17 O.R. (2d) 593; Prebble v. Television New Zealand Ltd., [1995] 1 A.C. 321; Hamilton v. Al Fayed, [2000] 2 All E.R. 224; Zündel v. Boudria (1999), 46 O.R. (3d) 410; R. v. Behrens, [2004] O.J. No. 5135 (QL), 2004 ONCJ 327; Tafler v. British Columbia (Commissioner of Conflict of Interest) (1998), 161 D.L.R. (4th) 511; Morin v. Crawford (1999), 29 C.P.C. (4th) 362; Payson v. Hubert (1904), 34 S.C.R. 400; Ainsworth Lumber Co. v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 93, 2003 BCCA 239; Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73; Landers v. Woodworth (1878), 2 S.C.R. 158; Bear v. State of South Australia (1981), 48 S.A.I.R. 604; Thompson v. McLean (1998), 37 C.C.E.L. (2d) 170; Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Bradlaugh v. Gossett (1884), 12 Q.B.D. 271; Temple v. Bulmer, [1943] S.C.R. 265; Carter v. Alberta (2002), 222 D.L.R. (4th) 40, 2002 ABCA 303, leave to appeal refused, [2003] 1 S.C.R. vii; R. v. Bunting (1885), 7 O.R. 524; Penikett v. Canada (1987), 45 D.L.R. (4th) 108; Sibbeston v. Northwest Territories (Attorney General), [1988] 2 W.W.R. 501; Pickin v. British Railways Board, [1974] A.C. 765; House of Commons v. Canada Labour Relations Board, [1986] 2 F.C. 372; Walker v. Jones, 733 F.2d 923 (1984); Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Quebec (Attorney General) v. Quebec (Human Rights Tribunal), [2004] 2 S.C.R. 223, 2004 SCC 40; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; Auclair v. Library of Parliament (2002), 222 F.T.R. 124, 2002 FCT 777; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Canada (Human Rights Commission) v. Canadian Airlines International Ltd., [2004] 3 F.C.R. 663, 2004 FCA 113.

Statutes and Regulations Cited                                                                                     

Act respecting the internal Economy of the House of Commons, and for other purposes, S.C. 1868, c. 27.

Bill of Rights (Eng.), 1 Will. & Mar. sess. 2, c. 2, art. 9.

Canadian Charter of Rights and Freedoms , ss. 2( b ) , 32(1) .

Canadian Human Rights Act , R.S.C. 1985, c. H‑6, ss. 2 , 11 , 41 , 43(2) , 47(1) , 48.9 , 54.1(2) .

Constitution Act, 1867 , preamble, s. 18.

House of Commons (Offices) Act, 1812 (U.K.), 52 Geo. 3, c. 11.

Interpretation Act , R.S.C. 1985, c. I‑21, s. 12 .

Parliament of Canada Act , R.S.C. 1985, c. P‑1, s. 4 .

Parliamentary Employment and Staff Relations Act , R.S.C. 1985, c. 33 (2nd Supp .), ss. 2, 4(1), 5(1), 14, 62(1).

Public Service Staff Relations Act , R.S.C. 1985, c. P‑35 .

Standing Orders of the House of Commons, Standing Order 151 [adopted in 1867 as Standing Order 83].

United States Constitution, art. 1, § 6, cl. 1.

Authors Cited

Anson, William Reynell.  The Law and Custom of the Constitution, 5th ed., vol. I.  Oxford:  Clarendon Press, 1922.

Australia.  Parliament of the Commonwealth of Australia.  Final Report of the Joint Select Committee on Parliamentary Privilege, Parliamentary Paper No. 219/1984. Canberra:  Commonwealth Government Printer, October 1984.

Bourinot, John George.  Parliamentary Procedure and Practice in the Dominion of Canada, 4th ed.  Toronto:  Canada Law Book, 1916.

Canada. House of Commons. House of Commons Debates, vol. V, 3rd Sess., 28th Parl., p. 5338.

Canada.  Parliament.  House of Commons.  Beauchesne’s Rules & Forms of the House of Commons of Canada with Annotations, Comments and Precedents, 6th ed.  By Alistair Fraser, W. F. Dawson and John A. Holtby.  Toronto:  Carswell, 1989.

Canada.  Parliament.  House of Commons.  House of Commons Procedure and Practice.  Edited by Robert Marleau and Camille Montpetit.  Ottawa:  House of Commons, 2000.

Driedger, Elmer A.  Construction of Statutes, 2nd ed.  Toronto:  Butterworths, 1983.

Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 19th ed.  By David Lidderdale, ed.  London:  Butterworths, 1976.

Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 23rd ed.  By William McKay, ed.  London:  LexisNexis UK, 2004.

Heuston, R. F. V.  Essays in Constitutional Law, 2nd ed.  London:  Stevens & Sons, 1964.

Lock, G. F.  “Labour Law, Parliamentary Staff and Parliamentary Privilege” (1983), 12 Indus. L.J. 28.

Maingot, J. P. Joseph.  Parliamentary Privilege in Canada, 2nd ed.  Montréal:  McGill‑Queen’s University Press, 1997.

United Kingdom.  House of Commons.  First Report from the Committee of Privileges, “Speaker’s Order of 22 January 1987 on a Matter of National Security”.  Report, together with Proceedings of the Committee, Minutes of Evidence, and Appendices.  London:  H.M.S.O., 1987.

United Kingdom.  Parliament.  Joint Committee on Parliamentary Privilege.  Report and Proceedings of the Committee.  London:  H.M.S.O., 1999.

APPEAL from a judgment of the Federal Court of Appeal (Létourneau, Linden and Rothstein JJ.A.), [2003] 1 F.C. 602, 222 D.L.R. (4th) 339, 296 N.R. 305, 46 Admin. L.R. (3d) 200, 22 C.C.E.L. (3d) 1, [2002] F.C.J. No. 1663 (QL), 2002 FCA 473, upholding a decision of Tremblay‑Lamer J., [2002] 2 F.C. 583, 203 F.T.R. 175, 208 D.L.R. (4th) 749, 38 Admin. L.R. (3d) 252, 14 C.C.E.L. (3d) 125, [2001] F.C.J. No. 1818 (QL), 2001 FCT 1332, dismissing an application for judicial review of a decision from the Human Rights Tribunal (2001), 40 C.H.R.R. D/229, [2001] C.H.R.D. No. 15 (QL).  Appeal allowed.

Neil Finkelstein, Jacques A. Emond and Lynne J. Poirier, for the appellants.

Andrew Raven and David Yazbeck, for the respondent Satnam Vaid.

Philippe Dufresne and R. Daniel Pagowski, for the respondent the Canadian Human Rights Commission.

Anne M. Turley, for the intervener the Attorney General of Canada.

Dale Gibson, for the interveners the Honourable Senator Serge Joyal and the Honourable Senator Mobina S. B. Jaffer.

Peter Engelmann and Raija Pulkkinen, for the interveners the Canadian Association of Professional Employees and the Communications, Energy and Paperworkers Union of Canada.

Catherine Beagan Flood, for the intervener the Speaker of the Legislative Assembly of Ontario.

The judgment of the Court was delivered by

1                                   Binnie J. _ The former Speaker of the House of Commons, the Honourable Gilbert Parent, is accused of constructively dismissing his chauffeur, Mr. Satnam Vaid, for reasons that amount to workplace discrimination and harassment under the Canadian Human Rights Act , R.S.C. 1985, c. H-6 .  The issue on this appeal is whether it is open to the Canadian Human Rights Tribunal to investigate Mr. Vaid’s complaint. 

2                                   The former Speaker denies any impropriety, but he joins the House of Commons in a preliminary objection that the hiring and firing of House employees are “internal affairs” which may not be questioned or reviewed by any tribunal or court outside the House itself.  This immunity, the appellants say, emerged from the struggle for independence by the House of Commons from the prerogatives of the King, the authority of the Royal courts of law, and the special rights of the House of Lords reaching back in part to the time of the Tudor Kings and Queens in the 16th century.  The appellants contend that these hard-won powers and immunities, collectively referred to as the privileges of Parliament, permit the Senate and the House to conduct their employee relations free from interference from the Canadian Human Rights Commission or any other body outside Parliament itself.

3                                   The respondent Canadian Human Rights Commission, which seeks to investigate Mr. Vaid’s allegations, says it is unthinkable that Parliament would seek to deny its employees the benefit of labour and human rights protections which Parliament itself has imposed on every other federal employer.

4                                   There are few issues as important to our constitutional equilibrium as the relationship between the legislature and the other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.  The resolution of this issue is especially important when the action of the Speaker sought to be immunized from outside scrutiny is directed against a stranger to the House (i.e., not a Member or official) who is remote from the legislative functions that parliamentary privilege was originally designed to protect.  The courts below held that parliamentary privilege does not include the freedom to discriminate on grounds prohibited by the Canadian Charter of Rights and Freedoms  or the Canadian Human Rights Act  because such discrimination is not necessary to the proper functioning of the Senate or House of Commons.  On this view, an allegation of discrimination destroys any privilege that might otherwise immunize the Speaker’s conduct from external review.  I do not agree.  The purpose of privilege is to recognize Parliament’s exclusive jurisdiction to deal with complaints within its privileged sphere of activity.  The proper focus, in my view, is not the grounds on which a particular privilege is exercised, but the prior question of the existence and scope of the privilege asserted by Parliament in the first place.

5                                   Focussing, then, on the scope of the claimed privilege, the respondents argue that the duties of the Speaker’s chauffeur appear too remote from the legislative function of the House and that the respondent Vaid’s dismissal is not immunized from external review by virtue of parliamentary privilege.  I will deal with this issue at some length in the reasons that follow.  My conclusion is that the onus was on the appellants to establish a privilege that immunizes their conduct from the ordinary law governing the resolution of disputes with support staff such as Mr. Vaid, and that the appellants have failed to do so.  I would therefore reject the appellants’ first ground of appeal based on an alleged parliamentary privilege.  I would hold that the language used by Parliament in the Canadian Human Rights Act  is wide enough to cover its own employees and that the sweeping exemption now asserted by the appellants has not been shown to be intended by Parliament nor, on general principles, is it necessary or justifiable as parliamentary privilege.

6                                   The appellants also put forward a narrower administrative law objection. They contend that the respondent Vaid falls within the group of employees for whom Parliament has enacted a special labour relations regime under the Parliamentary Employment and Staff Relations Act , R.S.C. 1985, c. 33 (2nd Supp .) (“PESRA ”).   Mr. Vaid, on this view, is entitled to invoke the principles of the Canadian Human Rights Act , but he must do so by the special procedure governing the bulk of parliamentary employees.  I agree that the respondent Vaid’s workplace complaints could have been adjudicated under PESRA  (as indeed his earlier complaints were dealt with in 1995) and that the appellant House of Commons is entitled to require him to utilize the statutory machinery that Parliament has enacted, which is clearly stated to be the exclusive method of dispute resolution for employees such as the respondent Vaid.  This conclusion, which rests entirely on administrative law principles and has nothing to do with parliamentary privilege, entitles the appellants to succeed. The appeal is therefore allowed.

I.  Facts

7                                   Satnam Vaid worked as a chauffeur to successive Speakers of the House of Commons between 1984 and 1994.  He was initially terminated on January 11, 1995 because it was said he refused to assume new duties under a changed job description and then refused alternative employment. He grieved the termination pursuant to PESRA . The matter was referred to adjudication and on July 27, 1995, the Board of Adjudication found in favour of Mr. Vaid and ordered that he be reinstated to his position as chauffeur ([1995] C.P.S.S.R.B. No. 74 (QL)).  The Board also concluded that there was evidence insufficient to support a finding of discrimination:

Mr. Vaid has alleged discrimination and suggested that he might have been asked to clean dishes because of the colour of his skin.  The evidence presented certainly does not permit me to reach that conclusion.

8                                   Mr. Vaid returned to work on August 17, 1995, at which time he was told that the chauffeur’s position had been designated “bilingual imperative”. Lacking the necessary French language skills to resume his former post, he was sent for French language training.

9                                   In a letter dated April 8, 1997, Mr. Vaid advised the appellant House of Commons that he wished to come back to work.  The Speaker’s office replied on May 12, 1997 that, because of reorganization, his former position would be made surplus effective May 29, 1997.

10                               Mr. Vaid then filed two complaints with the respondent Commission, both dated July 10, 1997, alleging separately that the appellant Speaker and the appellant House of Commons discriminated against him on the basis of his race, colour and national or ethnic origin.  He also complained of workplace harassment.  With respect to the appellant House of Commons, he alleged refusal of continued employment.

II.  Judicial History

11                               In response to these complaints, the appellants challenged the jurisdiction of the Canadian Human Rights Tribunal to inquire into their conduct.  The issue was heard by the Tribunal which, by a majority decision on April 25, 2001, ruled in favour of Mr. Vaid and the Commission ((2001), 40 C.H.R.R. D/229).  The appellants then sought a judicial review of this ruling.  Their application was refused by the Federal Court, Trial Division, [2002] 2 F.C. 583, 2001 FCT 1332, and this refusal was affirmed by a unanimous Federal Court of Appeal, [2003] 1 F.C. 602, 2002 FCA 473.

12                               Létourneau J.A., with whom Linden J.A. concurred, noted the quasi-constitutional status of the Canadian Human Rights Act  and the fully constitutional status of parliamentary privilege.  In his view, however, the parliamentary privilege claimed by the appellants did not exist.

13                               He defined such privilege as “the powers of the House necessary to ensure its proper functioning and maintain its dignity and integrity” (para. 34).  Létourneau J.A. stated that both the existence and the exercise of any power asserted by the legislature must be shown to be necessary.

The Courts’ review function, in cases like the present where a parliamentary privilege is claimed, I believe, involves two steps: the first one to determine that the powers claimed need to exist and the second, when satisfied as to the necessity of their existence, to determine that their exercise was necessary to ensure the proper functioning of the House and maintain its dignity and integrity. [Emphasis added; para. 36.]

14                               In the majority view, an allegation of discrimination contrary to the Charter  or the Canadian Human Rights Act  was not immunized by parliamentary privilege because such discriminatory conduct, if proven, would actually diminish the integrity and dignity of the House, without improving its ability to fulfill its constitutional mandate.  The enactment by Parliament of PESRA would, in any event, prevent privilege from applying.

15                               On the administrative law point, Létourneau J.A. held that a clear legislative enactment is required to exempt an employer from the application of human rights obligations.  In his view, PESRA  is not such a clear legislative enactment.  Consequently, parliamentary employees are entitled to invoke the assistance of the Canadian Human Rights Commission.

16                               Rothstein J.A., concurring in the result, disagreed that the courts could review each exercise of a claimed privilege. “[I]t is the particular exercise of a valid privilege that is immune from the Court’s scrutiny. However, what constitutes the scope of a valid privilege is a preliminary jurisdictional question” (para. 76).  The appellants claimed that the right of the House of Commons to appoint and control its staff was immunized from any external review, but Rothstein J.A. concluded that no evidence or argument had been “put forward as to why a right to discriminate, contrary to the provisions of the CHRA” met the necessity test (para. 81).  Accordingly, “parliamentary privilege does not displace application of the CHRA to employees of Parliament” (para. 84).

17                               On the administrative law point, Rothstein J.A. noted that s. 2  of PESRA  displaces other tribunals that might otherwise have concurrent jurisdiction.  However, he was of the view that PESRA  does not provide the comprehensive rights regarding human rights complaints that the Canadian Human Rights Act  does, and as a result, the two statutes do not provide for “matters similar”.  As a matter of statutory interpretation, therefore, PESRA  would not exclude application of the Canadian Human Rights Act . 

18                               In the result, Rothstein J.A. agreed with the majority that neither parliamentary privilege nor PESRA  precluded the application of the Canadian Human Rights Act  to employees of either Chamber.

III.    Constitutional Question

19                               On December 2, 2003, the Chief Justice stated the following constitutional question:

Is the Canadian Human Rights Act , R.S.C. 1985, c. H‑6 , constitutionally inapplicable as a consequence of parliamentary privilege to the House of Commons and its members with respect to parliamentary employment matters?

IV.    Analysis

20                               It is a wise principle that the courts and Parliament strive to respect each other’s role in the conduct of public affairs.  Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule.  The courts, for their part, are careful not to interfere with the workings of Parliament.   None of the parties to this proceeding questions the pre-eminent importance of the House of Commons as “the grand inquest of the nation”.  Nor is doubt thrown by any party on the need for its legislative activities to proceed unimpeded by any external body or institution, including the courts.  It would be intolerable, for example, if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act , or to seek a ruling from the ordinary courts that the Speaker’s choice violated the member’s guarantee of free speech under the Charter .  These are truly matters “internal to the House” to be resolved by its own procedures.  Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper.

21                               Parliamentary privilege, therefore, is one of the ways in which the fundamental constitutional separation of powers is respected.  In Canada, the principle has its roots in the preamble to our Constitution Act, 1867  which calls for “a Constitution similar in Principle to that of the United Kingdom”.  Each of the branches of the State is vouchsafed a measure of autonomy from the others.  Parliamentary privilege was partially codified in art. 9 of the U.K. Bill of Rights of 1689, 1 Will. & Mar. sess. 2, c. 2, but the freedom of speech to which it refers was asserted at least as early as 1523 (Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (23rd ed. 2004), at p. 80).  Parliamentary privilege is a principle common to all countries based on the Westminster system, and has a loose counterpart in the Speech or Debate Clause of the United States Constitution, art. 1, § 6, cl. 1.

22                               The respondent Vaid does not quarrel either with the existence or the importance of parliamentary privilege.  His argument is that the Speaker’s attempt to treat his dismissal from his job as chauffeur as an expression of such lofty doctrine is to overreach, if not trivialize, its true role and function.  Even if the employment arrangements of some employees closely connected to the legislative process are covered by privilege, the respondents argue that the Speaker goes too far in attempting to throw the mantle of this ancient doctrine over the dealings of the House with such support staff as chauffeurs, picture framers, locksmiths, car park administrators, catering staff and others who play comparable supporting roles on Parliament Hill. 

23                               Over the years, the assertion of parliamentary privilege has varied in its scope and extent.  In the leading English case of Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112 (Q.B.), the court was advised that “[t]he most trifling civil injuries to members [of Parliament], even trespasses committed upon their servants, though on occasions unconnected with the discharge of any Parliamentary duty, have been repeatedly the subject of enquiry [by either Chamber of Parliament] under the head of privilege” (pp. 1116-17), including “[k]illing Lord Galway’s rabbits” and “[f]ishing in Mr. Joliffe’s pond” (p. 1117).  The court in Stockdale v. Hansard commented on this evidence that privilege “did not and could not extend to such a case” (p. 1156).  On the other hand, a leading Canadian authority, Beauchesne’s Rules & Forms of the House of Commons of Canada (6th ed. 1989), records at pp. 11-12 a ruling of the Speaker of the Canadian House of Commons on April 29, 1971 asserting a much narrower concept of privilege, as follows:

On a number of occasions I have defined what I consider to be parliamentary privilege.  Privilege is what sets hon. members apart from other citizens giving them rights which the public do not possess.  I suggest we should be careful in construing any particular circumstance which might add to the privileges which have been recognized over the years and perhaps over the centuries as belonging to members of the House of Commons.  In my view, parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a member to discharge his duties in the House as a member of the House of Commons. [Emphasis added.]

(House of Commons Debates, vol. V, 3rd Sess., 28th Parl., April 29, 1971, at p. 5338)

24                               It is evident that there have been variations in the extent of privilege asserted by Parliament over the years, as well as a difference on occasion between the scope of a privilege asserted by Parliamentarians and the scope of a privilege the courts have recognized as justified (as in Stockdale v. Hansard).  In resolving such conflicts it is important that both Parliament and the courts respect “the legitimate sphere of activity of the other”:

Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts.  It is fundamental to the working of government as a whole that all these parts play their proper role.  It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.

(New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, per McLachlin J., at p. 389)

To this, I would add the observation of Dickson C.J. in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at p. 91:

There is an array of issues which calls for the exercise of judicial judgment on whether the questions are properly cognizable by the courts.  Ultimately, such judgment depends on the appreciation by the judiciary of its own position in the constitutional scheme.

25                               At the same time, relations between Parliament and its employees are clearly matters within the legislative authority of Parliament.  The statutory language of the Canadian Human Rights Act , on its face, is broad enough to cover labour relations on Parliament Hill.  There is much to be said for the respondents’ view that Parliament should not be thought to intend to exempt its employees from access to human rights guarantees which Parliament itself has declared applicable to all “matters coming within the legislative authority of Parliament” (Canadian Human Rights Act , s. 2 ). 

26                               At this stage, a further constitutional point arises.  The appellants say it is a well-established principle that an express provision of a statute is necessary to abrogate a privilege of Parliament or its members (Duke of Newcastle v. Morris (1870), L.R. 4 H.L. 661).  The respondents reply that human rights law is to be broadly interpreted, and that short of “[the] legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises”, per Lamer J. in Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at p. 158; see also Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, at p.  339.  In my view, for the reasons to be explained, the Canadian Human Rights Act  does apply to the employees of the Senate and House of Commons of Canada.

27                               In order to resolve the issues raised by this appeal, it is first necessary to discuss whether or not the privilege asserted by the appellants is well founded, and if so, whether it precludes resort by the respondent Vaid to independent adjudication.

A.  General Principles of Parliamentary Privilege

28                               The contours of parliamentary privilege, and the relationship between Parliament and the courts relative to its exercise, have been dealt with by this Court in a number of cases, most recently in connection with the “inherent” privileges of provincial legislative assemblies in New Brunswick Broadcasting and Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876.

29                               While there are some significant differences between privilege at the federal level, for which specific provision is made in s. 18  of the Constitution Act, 1867 , and privilege at the provincial level, which has a different constitutional underpinning, many of the relevant issues concerning privilege were resolved in New Brunswick Broadcasting and earlier cases, and there is no need to repeat the analysis here.  For present purposes, it is sufficient to state a number of propositions that are now accepted both by the courts and by the parliamentary experts.

1.                Legislative bodies created by the Constitution Act, 1867  do not constitute enclaves shielded from the ordinary law of the land.  “The tradition of curial deference does not extend to everything a legislative assembly might do, but is firmly attached to certain specific activities of legislative assemblies, i.e., the so-called privileges of such bodies” (New Brunswick Broadcasting, at pp. 370-71).  Privilege “does not embrace and protect activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament”  (U.K., Joint Committee on Parliamentary Privilege, vol. 1, Report and Proceedings of the Committee (1999) (“British Joint Committee Report”), at para. 242 (emphasis in original)).

2.                Parliamentary privilege in the Canadian context is the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions (Beauchesne’s Rules & Forms, at p. 11; Erskine May, at p. 75; New Brunswick Broadcasting, at p. 380).

3.                Parliamentary privilege does not create a gap in the general public law of Canada but is an important part of it, inherited from the Parliament at Westminster by virtue of the preamble to the Constitution Act, 1867  and in the case of the Canadian Parliament, through s. 18 of the same Act  (New Brunswick Broadcasting, at pp. 374-78; Telezone Inc. v. Canada (Attorney General) (2004), 69 O.R. (3d) 161 (C.A.), at p. 165; and Samson Indian Nation and Band v. Canada, [2004] 1 F.C.R. 556, 2003 FC 975).

4.                Parliamentary privilege includes

the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces . . . in order for these legislators to do their legislative work. [Emphasis added.]

(J. P. J. Maingot, Parliamentary Privilege in Canada (2nd ed. 1997), at p. 12; New Brunswick Broadcasting, at p. 341; see Fielding v. Thomas, [1896] A.C. 600 (P.C.), at pp. 610-11; Kielley v. Carson (1842), 4 Moo. P.C. 63, 13 E.R. 225, at pp. 235-36.)  The idea of necessity is thus linked to the autonomy required by legislative assemblies and their members to do their job.

5.                The historical foundation of every privilege of Parliament is necessity.   If a sphere of the legislative body’s activity could be left to be dealt with under the ordinary law of the land without interfering with the assembly’s ability to fulfill its constitutional functions, then immunity would be unnecessary and the claimed privilege would not exist (Beauchesne’s Rules & Forms, at p. 11; Maingot, at p. 12; Erskine May, at p. 75; Stockdale v. Hansard, at p. 1169; New Brunswick Broadcasting, at pp. 343 and 382).

6.                When the existence of a category (or sphere of activity) for which inherent privilege is claimed (at least at the provincial level) is put in issue, the court must not only look at the historical roots of the claim but also to determine whether the category of inherent privilege continues to be necessary to the functioning of the legislative body today.  Parliamentary history, while highly relevant, is not conclusive:

The fact that this privilege has been upheld for many centuries, abroad and in Canada, is some evidence that it is generally regarded as essential to the proper functioning of a legislature patterned on the British model.  However, it behooves us to ask anew: in the Canadian context of 1992, is the right to exclude strangers necessary to the functioning of our legislative bodies? [Emphasis added.]

(New Brunswick Broadcasting, per McLachlin J., at p. 387)

7.                “Necessity” in this context is to be read broadly.  The time-honoured test, derived from the law and custom of Parliament at Westminster, is what “the dignity and efficiency of the House” require:

If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege.  All such questions will instead fall to the exclusive jurisdiction of the legislative body. [Emphasis added.]

(New Brunswick Broadcasting, at p. 383)

(In my view, the references to “dignity” and “efficiency” are also linked to autonomy.  A legislative assembly without control over its own procedure would, said Lord Ellenborough C.J. almost two centuries ago, “sink into utter contempt and inefficiency” (Burdett v. Abbot (1811), 14 East 1, 104 E.R. 501, at p. 559). “Inefficiency” would result from the delay and uncertainty would inevitably accompany external intervention.  Autonomy is therefore not conferred on Parliamentarians merely as a sign of respect but because such autonomy from outsiders is necessary to enable Parliament and its members to get their job done.)

8.                Proof of necessity may rest in part in “shewing that it has been long exercised and acquiesced in” (Stockdale v. Hansard, at p. 1189).  The party who seeks to rely on the immunity provided by parliamentary privilege has the onus of establishing its existence.

. . . The onus of shewing that it is so lies upon the defendants; for it is certainly primâ facie contrary to the common law. [Ibid., at p. 1189]

The burthen of proof is on those who assert it; and, for the purposes of this cause, the proof must go to the whole of the proposition . . . . [Ibid., at p. 1201]

9.                Proof of necessity is required only to establish the existence and scope of a category of privilege.  Once the category (or sphere of activity) is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate.  In other words, within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts: “Each specific instance of the exercise of a privilege need not be shown to be necessary” (New Brunswick Broadcasting, at p. 343 (emphasis added)).

See also Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) 595 (C.A.); Samson Indian Nation and Band, at para. 13; Martin v. Ontario, [2004] O.J. No. 2247 (QL) (S.C.J.), at para. 13; R. v. Richards; Ex parte Fitzpatrick and Browne (1955), 92 C.L.R. 157 (Austl. H.C.), at p. 162; Egan v. Willis (1998), 158 A.L.R. 527 (H.C.); and Huata v. Prebble, [2004] 3 NZLR 359, [2004] NZCA 147.

10.              “Categories” include freedom of speech (Stopforth v. Goyer (1979), 23 O.R. (2d) 696 (C.A.), at p. 700; Re Clark and Attorney-General of Canada (1977), 17 O.R. (2d) 593 (H.C.); U.K. Bill of Rights of 1689, art. 9; Prebble v. Television New Zealand Ltd., [1995] 1 A.C. 321 (P.C.); Hamilton v. Al Fayed, [2000] 2 All E.R. 224 (H.L.)); control by the Houses of Parliament over “debates or proceedings in Parliament” (as guaranteed by the Bill of Rights of 1689) including day-to-day procedure in the House, for example the practice of the Ontario legislature to start the day’s sitting with the Lord’s Prayer (Ontario (Speaker of the Legislative Assembly), at para. 23); the power to exclude strangers from proceedings (New Brunswick Broadcasting; Zündel v. Boudria (1999), 46 O.R. (3d) 410 (C.A.), at para. 16; R. v. Behrens, [2004] O.J. No. 5135 (QL), 2004 ONCJ 327); disciplinary authority over members (Harvey; see also Tafler v. British Columbia (Commissioner of Conflict of Interest) (1998), 161 D.L.R. (4th) 511 (B.C.C.A.), at paras. 15-18; Morin v. Crawford (1999), 29 C.P.C. (4th) 362 (N.W.T.S.C.)); and non-members who interfere with the discharge of parliamentary duties (Payson v. Hubert (1904), 34 S.C.R. 400, at p. 413; Behrens), including immunity of members from subpoenas during a parliamentary session (Telezone; Ainsworth Lumber Co. v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 93, 2003 BCCA 239; Samson Indian Nation and Band).  Such general categories have historically been considered to be justified by the exigencies of parliamentary work.

11.              The role of the courts is to ensure that a claim of privilege does not immunize from the ordinary law the consequences of conduct by Parliament or its officers and employees that exceeds the necessary scope of the category of privilege (Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73 (Que. Sup. Ct.), at p. 87).  Thus in 1839, almost three decades before Confederation in Canada, the English courts rejected the authority of a formal resolution of the House of Commons that the court believed  overstated the true limits of the privilege claimed (Stockdale v. Hansard, at p. 1156, per Denman C.J.; p. 1177, per Littledale J.; p. 1192, per Patteson J.; p. 1194, per Coleridge J.).  The jurisdiction of the courts in adjudicating claims of privilege has since been accepted by authorities on British parliamentary practice (see Erskine May, at pp. 185-86).  The same division of jurisdiction between the courts and the House was accepted by this Court in Landers v. Woodworth (1878), 2 S.C.R. 158, where Richards C.J., our first Chief Justice, had this to say at p. 196:

[T]he courts will see whether what the House of Commons declares to be its privileges really are so, the mere affirmance by that body that a certain act is a breach of their privileges will not oust the courts from enquiring and deciding whether the privilege claimed really exists.

This jurisdictional rule has been accepted by authorities on the law and custom of the Canadian Parliament as well (see Maingot, at p. 66) and is not challenged in this appeal.

12.              Courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly than at those which involve matters entirely internal to the legislature (New Brunswick Broadcasting, at p. 350; Bear v. State of South Australia (1981), 48 S.A.I.R. 604 (Indus. Ct.); Thompson v. McLean (1998), 37 C.C.E.L. (2d) 170 (Ont. Ct. (Gen. Div.)), at para. 21; Stockdale v. Hansard, at p. 1192).

30                               It should be emphasized that a finding that a particular area of parliamentary activity is covered by privilege has very significant legal consequences for non-members who claim to be injured by parliamentary conduct, including those whose reputations may suffer because of references to them in parliamentary debate, for whom the ordinary law will provide no remedy.  In New Brunswick Broadcasting itself, it was held that the press freedom guaranteed by s. 2( b )  of the Charter  did not prevail over parliamentary privilege, which was held to be as much part of our fundamental constitutional arrangements as the Charter  itself.  One part of the Constitution cannot abrogate another part of the Constitution (Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; New Brunswick Broadcasting, at pp. 373 and 390).  In matters of privilege, it would lie within the exclusive competence of the legislative assembly itself to consider compliance with human rights and civil liberties.  The House, “with one voice, accuses, condemns and executes”:  Stockdale v. Hansard, at p. 1171.

B.  Questions Left Open in the Earlier Cases

31                               As mentioned earlier, New Brunswick Broadcasting and Harvey dealt with the inherent privilege of provincial legislatures, i.e., the measure of autonomy that is “inherent” in the creation of a legislative body under the Constitution Act, 1867 .  There was little doubt on the facts that the activity under review in those cases fell within the privilege claimed.  The real dispute was over the legal status and effect of “inherent” privilege.

32                               This case raises two new considerations.  Firstly, does the “necessity” test apply to privilege enacted into law by Parliament pursuant to s. 18  of the Constitution Act, 1867 , or are such laws, by reason of their enactment under a specific constitutional power, conclusive proof of necessity?  In Harvey, McLachlin J., speaking for herself and L’Heureux-Dubé J., thought there was “much to recommend” such a necessity test in the provincial context (para. 73), but the Court was not called upon to decide the point and a majority of the judges decided the Harvey case on grounds unrelated to privilege.  Secondly, in the case of an acknowledged category of privilege, to what extent can the courts, rather than the legislative assembly, define its scope and limits without embarking on an impermissible review of the exercise of the privilege itself?

(1)   Inherent Versus Legislated Privilege

33                               The ruling in New Brunswick Broadcasting, read narrowly, affirmed constitutional status for privileges “inherent” in the creation of a provincial legislature.  However, unlike the provinces, the federal Parliament has an express legislative power to enact privileges which may exceed those “inherent” in the creation of the Senate and the House of Commons, although such legislated privileges must not “exceed” those “enjoyed and exercised” by the U.K. House of Commons and its members at the date of the enactment.  Section 18  of the Constitution Act, 1867  (as amended in 1875) provides:

18.  The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

In New Brunswick Broadcasting, Lamer C.J., writing separate concurring reasons, considered that such “legislated privilege” would lack the constitutional status of “inherent” privilege, and its exercise would be subject to Charter  review (p. 364).  His reasoning was that s. 32(1)  of the Charter  itself provides that “[t]his Charter  applies . . . to the Parliament and government of Canada in respect of all matters within the authority of Parliament”.  As s. 18  of the Constitution Act, 1867  places privilege within the authority of Parliament, therefore legislation affecting privilege, as any other legislation, will be subject to Charter  review.  However, the logic of the separate judgments written by McLachlin J. and La Forest J. points away from such a conclusion, their view was accepted as correct by a majority of the Court, and the point must now be taken as settled. 

34                               Historically, the legislative source of some privileges (e.g., art. 9 of the Bill of Rights of 1689) did not diminish the jurisdictional immunity they attracted.  In Bradlaugh v. Gossett (1884), 12 Q.B.D. 271, Stephen J. stated, at p. 278:

I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute-law which has relation to its own internal proceedings . . . . [Emphasis added.]

The same rule was adopted in Canada (Temple v. Bulmer, [1943] S.C.R. 265; Carter v. Alberta (2002), 222 D.L.R. (4th) 40, 2002 ABCA 303, at para. 20, leave to appeal refused, [2003] 1 S.C.R. vii).  The immunity from external review flowing from the doctrine of privilege is conferred by the nature of the function (the Westminster model of parliamentary democracy), not the source of the legal rule (i.e., inherent privilege versus legislated privilege).  The doctrine of privilege attaching to a constitution “similar in Principle to that of the United Kingdom” under the preamble to the Constitution Act, 1867  is not displaced by the wording of s. 32(1)  of the Charter .  As was pointed out in New Brunswick Broadcasting, parliamentary privilege enjoys the same constitutional weight and status as the Charter  itself.

(2)   Section 4  of the Parliament of Canada Act 

35                               Parliament has conferred on the Senate and House of Commons the full extent of the privileges permitted under the Constitution.  In doing so, however, our Parliament neither enumerated nor described the categories or scope of those privileges except by general incorporation by reference of whatever privileges were “held, enjoyed and exercised” by the U.K. House of Commons.  Section 4 reads in its entirety as follows:

Parliament of Canada Act , R.S.C. 1985, c. P-1 

4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise

(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867 , were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and

(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.

36                               The main body of the privileges of our Parliament are therefore “legislated privileges”, and according to s. 4  of the Parliament of Canada Act  must be ascertained by reference to the law and customs of the U.K. House of Commons which are themselves composed of both legislated (including the Bill of Rights of 1689) and inherent privileges.

37                               The task of defining such privileges is not straightforward.  The scope of parliamentary privilege in the U.K. is a matter of controversy in the U.K. itself (as described at some length in the British Joint Committee Report).  Parliamentary privilege in that country has evolved over time, and continues to evolve within a society, institutions, and constitutional arrangements different from our own.  As an Australian parliamentary committee noted, the privileges of the Parliament at Westminster are “a mirror of the times when they were gained” (Final Report of the Joint Select Committee on Parliamentary Privilege (October 1984), Parliamentary Paper No. 219/1984, at para. 3.9).  Nevertheless, the framers of the Constitution Act, 1867  thought it right to use Westminster as the benchmark for parliamentary privilege in Canada, and if the existence and scope of a privilege at Westminster is authoritatively established (either by British or Canadian precedent), it ought to be accepted by a Canadian court without the need for further inquiry into its necessity.  This result contrasts with the situation in the provinces where legislated privilege, without any underpinning similar to s. 18  of the Constitution Act, 1867 , would likely have to meet the necessity test (Harvey, at para. 73). 

38                               Nevertheless, while s. 18  of the Constitution Act, 1867  provides that the privileges of the Canadian Parliament and its members should not “exceed” those of the U.K., our respective Parliaments are not necessarily in lock step.  It seems likely that there could be “differences” consisting of parliamentary practices inherent in the Canadian system, or legislated in relation to our own experience, which would fall to be assessed under the “necessity” test defined by the exigencies and circumstances of our own Parliament.  This point would have to be explored if and when it arises for decision.

39                               Accordingly, the first step a Canadian court is required to take in determining whether or not a privilege exists within the meaning of the Parliament of Canada Act  is to ascertain whether the existence and scope of the claimed privilege have been authoritatively established in relation to our own Parliament or to the House of Commons at Westminster (Ainsworth Lumber, at para. 44).  In some matters, free speech in the House for example, the answer will readily be conceded.  Other claims to privilege are less well established.  Much of the U.K. law of privilege remains unwritten.  Being unwritten, it retains a good deal of flexibility to meet changing circumstances, which is considered by some commentators to be a virtue (G. F. Lock, “Labour Law, Parliamentary Staff and Parliamentary Privilege” (1983), 12 Indus. L.J. 28, at p. 34).  There has been little formal adjudication of the boundaries of U.K. privilege in the British courts, and Canadian courts are no more bound by a unilateral assertion of privilege by the British House of Commons than, as discussed earlier, would be the courts in Britain itself.  In that jurisdiction, the courts exercise due diligence when examining a claim of parliamentary privilege that would immunize the exercise by either House of Parliament of a power that affects the rights of non-Parliamentarians.  As stated in Stockdale v. Hansard, at p. 1192:

All persons ought to be very tender in preserving to the House all privileges which may be necessary for their exercise, and to place the most implicit confidence in their representatives as to the due exercise of those privileges.  But power, and especially the power of invading the rights of others, is a very different thing: it is to be regarded, not with tenderness, but with jealousy; and, unless the legality of it be most clearly established, those who act under it must be answerable for the consequences. [Emphasis added.]

See also W. R. Anson, The Law and Custom of the Constitution (5th ed. 1922), vol. I, at p. 196.  No less is expected of the courts in Canada.

40                               Thus, when a claim to privilege comes before a Canadian court seeking to immunize Parliamentarians from the ordinary legal consequences of the exercise of powers in relation to non-Parliamentarians, and the validity and scope of the privilege in relation to the U.K. House of Commons and its members have not been authoritatively established, our courts will be required (as the British courts are required in equivalent circumstances) to test the claim against the doctrine of necessity, which is the foundation of all parliamentary privilege.  Of course in relation to these matters, the courts will clearly give considerable deference to our own Parliament’s view of the scope of autonomy it considers necessary to fulfill its functions.  In the Telezone case, for example, the Ontario Court of Appeal stated:

The views of the two Speakers are not binding on this court.  However, given the experience and high reputation of these two parliamentarians, and in the context of a legal dispute that centres on the definition of a parliamentary privilege, it seems obvious that their careful and considered rulings should be accorded substantial respect.  I do so.  [MacPherson J.A., at para. 32]

Having said that, if a dispute arises between the House and a stranger to the House, as in the present appeal, it will be for the courts to determine if the admitted category of privilege has the scope claimed for it.  This adjudication, it must again be emphasized, goes to the existence and scope of the House’s jurisdiction, not to the propriety of its exercise in any particular case.

(3)  The Necessity Test

41                               Parliamentary privilege is defined by the degree of autonomy necessary to perform Parliament’s constitutional function.  Sir Erskine May’s leading text on the subject defines parliamentary privilege as

the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. [Emphasis added; p. 75.]

Similarly, Maingot defines privilege in part as “the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work” (p. 12 (emphasis added)).  To the question “necessary in relation to what?”, therefore, the answer is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.  To the same effect, see R. Marleau and C. Montpetit, eds., House of Commons Procedure and Practice (2000), where privilege is defined as “the rights and immunities that are deemed necessary for the House of Commons, as an institution, and its Members, as representatives of the electorate, to fulfil their functions” (p. 50 (emphasis added)). Reference may also be made to J. G. Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada (4th ed. 1916), at p. 37:

It is obvious that no legislative assembly would be able to discharge its duties with efficiency or to assure its independence and dignity unless it had adequate powers to protect itself and its members and officials in the exercise of their functions. [Emphasis added.]

42                               The British Joint Committee Report adopted a similar approach:

Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their members and officers possess to enable them to carry out their parliamentary functions effectively.  Without this protection members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished. [Emphasis added; para. 3.]

43                               While much latitude is left to each House of Parliament, such a purposive approach to the definition of privilege implies important limits.  There is general recognition, for example, that privilege attaches to “proceedings in Parliament”.  Nevertheless, as stated in Erskine May (19th ed. 1976), at p. 89, not “everything that is said or done within the Chamber during the transaction of business forms part of proceedings in Parliament.  Particular words or acts may be entirely unrelated to any business which is in course of transaction, or is in a more general sense before the House as having been ordered to come before it in due course” (emphasis added).  (This passage was referred to with approval in Re Clark.)  Thus in R. v. Bunting (1885), 7 O.R. 524, for example, the Queen’s Bench Division held that a conspiracy to bring about a change in the government by bribing members of the provincial legislature was not in any way connected with a proceeding in Parliament and, therefore, the court had jurisdiction to try the offence.  Erskine May (23rd ed.) refers to an opinion of “the Privileges Committee in 1815 that the re-arrest of Lord Cochrane (a Member of the Commons) in the Chamber (the House not sitting) was not a breach of privilege.  Particular words or acts may be entirely unrelated to any business being transacted or ordered to come before the House in due course” (p. 116).

44                               The purposive connection between necessity and the legislative function is also emphasized in the British Joint Committee Report:

The dividing line between privileged and non‑privileged activities of each House is not easy to define.  Perhaps the nearest approach to a definition is that the areas in which the courts ought not to intervene extend beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly.  [Emphasis added; para. 247.]

45                               Parliament’s sovereignty when engaged in the performance of its legislative duties is undoubted (Penikett v. Canada (1987), 45 D.L.R. (4th) 108 (Y.T.C.A.); Sibbeston v. Northwest Territories (Attorney General), [1988] 2 W.W.R. 501 (N.W.T.C.A.); Pickin v. British Railways Board, [1974] A.C. 765 (H.L.), at pp. 788-90).  While the British Joint Committee Report may not yet have been formally adopted by the U.K. Parliament, its reasoning in these passages reflects a considered parliamentary view of the appropriate limits to claims of privilege, which seems to me also to reflect the underlying principles of the common law.

46                               All of these sources point in the direction of a similar conclusion.  In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.

(4)  Once a Claim to Privilege Is Made Out, the Court Will Not Enquire Into the Merits of Its Exercise

47                               The distinction between defining the scope of a privilege, which is the function of the courts, and judging the appropriateness of its exercise, which is a matter for the legislative assembly, may sometimes be difficult to draw in practice, but can nevertheless be illustrated on the facts of this case.  The appellants claim privilege in respect of relations with all employees.  If the claim of privilege were justified, no court or body external to the House of Commons could enquire into the appellant Speaker’s reasons for the constructive dismissal of the respondent Vaid.  Such outside bodies would have no jurisdiction to do so.  Nevertheless the courts are required to determine the scope of the privilege claimed.  In this case, the inquiry is directed to whether the privilege extends to dealings with all categories of employees or just those categories of employees whose work is connected with the legislative and deliberative functions of the House.  More specifically, the issue is whether the privilege extends to the ranks of service employees (such as catering staff) who support MPs in a general way, but play no role in the discharge of their constitutional functions.

48                               Once the issue of scope is resolved, it will be for the House to deal with the categories of employees who are covered by the privilege, and the courts will not enquire into its exercise in a particular case.  The limitation is of great practical importance.  If the courts below were correct about a “human rights exception”, for example, any person dealing with the House of Commons could circumvent the jurisdictional immunity conferred by privilege simply by alleging discrimination on grounds contrary to the Canadian Human Rights Act .  Such a rule would amount to an invitation to an outside body to review the reasons behind the exercise of the privilege in each particular case.  This would effectively defeat the autonomy of the legislative assembly which is the raison d’être for the doctrine of privilege in the first place.

49                               On the other hand, the respondents’ preliminary objection that the appellants have overstated the scope of their privilege by claiming exclusive and unreviewable authority over the hiring and firing of all employees working for the House of Commons goes to the scope of activity covered by the privilege, and as Rothstein J.A. pointed out in the court below, is a preliminary issue properly cognizable by the courts.

C.     Description of the Category of Privilege Claimed in This Case

50                               At the hearing of this appeal, the appellants identified the claimed privilege as “management of employees”.  I agree that this is a more appropriate category than one of the other terms suggested, “internal affairs”.  The latter is a term of great elasticity.  If interpreted precisely it refers “especially to [the House’s] control of its own agenda and proceedings” (Marleau and Montpetit, at p. 103).  This is also the view taken by the British Joint Committee Report:

. . . the privilege of each House to administer its own internal affairs in its precincts applies only to activities directly and closely related to proceedings in Parliament. [para. 251]

51                               On the other hand, if the term “internal affairs” were interpreted broadly as suggested by some of the interveners, it would duplicate most of the matters recognized independently as privileges, including the right to exclude strangers from the House (New Brunswick Broadcasting), the discipline of members (Harvey) and matters of day-to-day procedure in the House itself (Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (the “Lord’s Prayer” case).  The danger of dealing with a claim of privilege at too high a level of generality was also noted in the British Joint Committee Report:

“Internal affairs” and equivalent phrases are loose and potentially extremely wide in their scope. . . . [It] would be going too far if it were to mean, for example, that a dispute over the . . . dismissal of a cleaner could not be decided by a court or industrial tribunal in the ordinary way. [para. 241]

In light of the explicit link made in s. 18 of our Constitution Act, 1867  to the “privileges, immunities, and powers . . . enjoyed, and exercised by the Commons House of Parliament of the United Kingdom . . . and by the members thereof”, these words of disclaimer by a joint committee of British Parliamentarians deserve careful consideration.

52                               I therefore turn to the appellants’ contention that “the power of the Speaker of the House of Commons to hire, manage and dismiss House employees is among the constitutionally entrenched parliamentary privileges over which the House has exclusive jurisdiction.  This exclusive jurisdiction extends to the investigation and adjudication of workplace discrimination claims” (appellants’ factum, at para. 2).  The appellants’ position goes well beyond the more limited privilege outlined in the British Joint Committee Report and would cover with immunity all dealings with all employees without exception who work for the legislative branch of government.

D.     Proof of the Category of Privilege Claimed in This Case

53                               The onus lies on the appellants to establish that the category and scope of privilege they claim do not exceed those that “at the passing of [the Parliament of Canada ] Act  [were] held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom . . . and by the members thereof”.

54                               I will examine first whether this issue has been authoritatively resolved in the courts of Canada or the United Kingdom and, if not, I will proceed to measure the appellants’ claim against the test of necessity in relation to what is required “in order for these legislators to do their legislative work” (Maingot, at p. 12).

E.   Step One: Has the Existence of a General Privilege in Relation to the “Management of Employees” Been Established by Prior Authority?

(1)  Canadian Authority

55                               The appellants rely on the decision of the Federal Court of Appeal in House of Commons v. Canada Labour Relations Board, [1986] 2 F.C. 372.  In that case, the court set aside a decision of the Canada Labour Relations Board that had certified a union as the bargaining agent for a unit comprising employees of the House of Commons that included elevator operators and catering employees.  However the decision of the Federal Court of Appeal was based on an interpretation of the text of the Canada Labour Code.  Pratte J.A., for the majority, observed that “parliamentarians, rightly or wrongly, consider the right of the House and the Senate to appoint and control their staff as one of their privileges” (p. 384 (emphasis added)).  In the court’s view, however, the Houses of Parliament simply did not fall within the statutory definition of an “employer”.  (The statutory language of the Canadian Human Rights Act  presents no such obstacle.)

56                               The appellants can show that historically both the House of Commons in Britain and in Canada had the power to hire and fire employees, but this is not proof of the necessity that such hiring and firing be immunized from judicial review by the doctrine of parliamentary privilege.  Both s. 18  of the Constitution Act, 1867  and s. 4  of the Parliament of Canada Act  differentiate among the “privileges, immunities and powers” of Parliament. 

57                               Counsel referred the Court to several historical documents which, it was alleged, established the existence of such a privilege in Britain prior to 1867, as well as the existence of that privilege here in Canada.  In particular, the House of Commons (Offices) Act, 1812 (U.K.), 52 Geo. 3, c. 11, allows for complaints as to the “Misconduct or Unfitness of any Clerk, Officer, Messenger or other Person attendant on the House of Commons” to be made to the Speaker, and provides the Speaker with the power to suspend or remove those individuals found to be guilty of such misconduct.  This statute is said to codify the practice of the time.  In the Canadian context, we were referred to An Act respecting the internal Economy of the House of Commons, and for other purposes, S.C. 1868, c. 27, which incorporates much of the same language as the British Act just mentioned. 

58                               Standing Order 151 of the House of Commons, which has remained unchanged since its adoption in 1867, provides:

The Clerk of the House is responsible for the safe-keeping of all papers and records of the House, and has the direction and control over all the officers and clerks employed in the offices, subject to such orders as the Clerk may, from time to time, receive from the Speaker or the House. [Emphasis added.]

While the appellants cite this in support of their claim, the intervenors Senators Joyal and Jaffer point out that Standing Orders are not acts “of the Parliament of Canada” within s. 18  of the Constitution Act, 1867  and, in any event, Standing Order 151 refers to powers, not immunities.

59                               In any event, the powers conferred by this legislation and Standing Order 151 are equivalent to the sort of authority routinely conferred on Deputy Ministers to enable them to manage the departments of government.  There is nothing here that purports to immunize the exercise of those powers from the constraints imposed by the ordinary law of the land (which in the case of federally regulated employees is largely the creature of Parliament itself).

60                               The appellants argue that the “privilege” respecting labour relations is recognized and affirmed by s. 4(1)  of PESRA  which states:

4. (1)   Nothing in this Part abrogates or derogates from any of the privileges, immunities and powers referred to in section 4  of the Parliament of Canada Act .

But, as I see it, s. 4(1) simply begs the question of privilege.  If no privilege can be shown to exist, there is nothing from which PESRA  can abrogate or derogate.

(2)   British Authority

61                               We were not referred to any judicial authority in the U.K. on this point, and the British Joint Committee Report does not support the existence of a compendious privilege over “management of employees”.  On the contrary, the Joint Committee of Parliamentarians at Westminster writes:

The Palace of Westminster is a large building; it requires considerable maintenance; it provides an extensive range of services for members; it employs and caters for a large number of staff and visitors.  These services require staff and supplies and contractors.  For the most part, and rightly so, these services are not treated as protected by privilege.  [Emphasis added; para. 246.]

. . .

It follows that management functions relating to the provision of services in either House are only exceptionally subject to privilege. [Emphasis added; para. 248.]

I have already referred to the British Joint Committee’s view that it “would be going too far” to hold that “a dispute over the . . . dismissal of a cleaner could not be decided by a court or industrial tribunal in the ordinary way” (para. 241).

62                               It is clear from these observations that, in the U.K., the management of some employees would be covered by privilege but only if a connection were established between that category of employees and the exercise by the House of its functions as a legislative and deliberative assembly, including its role in holding the government to account.  A privilege in those terms would be considerably narrower than that claimed by the appellants.

63                               The appellants also rely on the opinion of the English Court of King’s Bench in R. v. Graham-Campbell; Ex parte Herbert, [1935] 1 K.B. 594.  In that case, the satirist A. P. Herbert (author of Uncommon Law and other parodies) laid an information against fifteen Members of Parliament, and a House employee, for serving alcohol in the Palace of Westminster without a licence.  In a brief five paragraph judgment, Lord Hewart stated that the “internal affairs” of the House included the service of alcohol and that in any event the Licensing Acts were, in their terms, “quite inapplicable to the House of Commons” (p. 602).  In so holding, Lord Hewart “departed”, as he admitted at p. 602, from the “observations of my illustrious predecessor, Lord Russell C.J., in Williamson v. Norris [[1899] 1 Q.B. 7, 12]”.  The facts of the case are readily distinguishable, of course.  The impact of liquor services would be felt only by members of Parliament and their guests.  The Ex parte Herbert case did not involve the exercise of powers to the disadvantage of non-members, where Stockdale v. Hansard, at p. 1192, requires more careful scrutiny.

64                               The appellants read Ex parte Herbert as authority for treating the precincts of Parliament as an “enclave” or “statute-free zone” immune, at least for purposes of the liquor licensing laws, from the ordinary laws of the land.  I think this goes too far.  The “enclave” theory was explicitly rejected by this Court in New Brunswick Broadcasting, as well as by the British Joint Committee Report, at para. 242.

65                               Nevertheless, it is the decision of the Court of King’s Bench in the Ex parte Herbert case that is cited by Maingot as the basis for his assertion that parliamentary privilege covers the management of all employees.  Maingot writes:

The courts, however, accept that they do not have any jurisdiction over the “internal proceedings” of the House of Commons or of the Senate or of a legislature.  Apart from what takes place officially in the House and in committee, this also includes areas of administrative concern, such as the sale of liquor on the premises and the rights of employees in their relations with the House of Commons or Senate . . . . [p. 301]

66                               In my view, with respect, Maingot’s statement is too broad.  It overgeneralizes from a case dealing with the authority of Members of Parliament to make their own arrangements for drinking alcohol, which is really of concern only to themselves, to an immunity in relation to the exercise of powers of dismissal over all categories of employees, whether in violation of the human rights standards established by Parliament itself, or otherwise.  As noted in the British Joint Committee Report, while privilege is said to extend to the “internal affairs” of the House, “[t]his heading of privilege best serves Parliament if not carried to extreme lengths” (para. 241).

67                               Lord Hewart’s judgment has been the subject of considerable criticism.  Professor R. F. V. Heuston calls the decision a “somewhat unsatisfactory judgment” (Essays in Constitutional Law (2nd ed. 1964), at p. 94).  Erskine May comments that “Lord Hewart CJ took a much more liberal view of the proper extent of the internal proceedings of the House than his predecessor in 1899” (23rd ed., at p. 189).  The British Joint Committee Report itself commented as follows:

This decision, which has not escaped criticism, has spawned difficulties and anomalies, mainly but not solely in the field of employment. . . . Parliamentary privilege exists to enable members to discharge their duties to the public.  It cannot be right that this privilege should have the effect that Parliament itself, within the place it meets, is not required to comply with its own laws on matters such as health and safety, employment, or the sale of alcohol. [para. 250]

. . .

Whether the decision in the A P Herbert case was in accordance with earlier cases is not a matter we need pursue.  The decision has never been considered in a higher court.  For the purposes of this review, it is the practical consequences that matter.  We consider the practical consequences of this decision are not satisfactory. [para. 251]

(It is useful at this point to note that the Chairman of the British Joint Committee was Lord Nicholls of Birkenhead, one of the Law Lords.)

68                               An earlier Commons Privileges Committee looking into the showing of a film at Westminster, that was said to be banned on national security grounds (the Zircon affair), took a similarly dim view of the enclave theory:

It might be thought . . . that the fact that something is done within the precincts of the House might afford that action some kind of immunity or protection of privilege.  This would mean that the precincts of the House would somehow be treated as a sanctuary from the operation of the law, irrespective of whether the activities concerned were a proceeding in Parliament. . . . Your Committee can find no precedent for the House affording its Members any privileges on the sole ground that their activities were within the precincts . . . .  The fact that the Zircon film was to be shown in the precincts therefore gave those responsible no privileged protection.  [Emphasis in original.]

(U.K., House of Commmons, First Report from the Committee of Privileges, “Speaker’s Order of 22 January 1987 on a Matter of National Security”, at para. 17)

69                               In my view, with respect, we should not accept as authoritative the Ex parte Herbert case as establishing an immunity covering all rights of all employees “in their relations with the House of Commons or Senate”, as Maingot contends (p. 301).  This is a point that Lord Hewart did not purport to decide and, given the criticism the Ex parte Herbert decision has received in the U.K. by Parliamentarians themselves (in some sense an admission against interest), I do not think it should be accepted here as resolving the point in dispute.

70                               I conclude that British authority does not establish that the House of Commons at Westminster is immunized by privilege in the conduct of all labour relations with all employees irrespective of whether those categories of employees have any connection (or nexus) with its legislative or deliberative functions, or its role in holding the government accountable.

F.   Step Two: Can the Privilege Claimed by the Appellants Be Supported as a Matter of Principle Under the Necessity Test?

71                               I have already discussed the necessity test in an earlier section of this judgment and will not repeat that discussion here.

72                               The employment roster of the House of Commons in 2005 is very different from that of 1867.  In the early period, the House of Commons had only 66 permanent staff and 67 sessional employees.  At present, according to the Human Resources Section of the House of Commons, there are 2377 employees.  These include many departments and services unknown in 1867.  The Library of Parliament alone employs 298 people, more than twice the total number of House employees in 1867.  The Information Services for the House now has 573 employees.  Not all of these greatly expanded services relate directly to the House’s function as a legislative and deliberative body.  Parliamentary Precinct Services employs over 800 staff including a locksmith, an interior designer, various curators, five carpenters, a massage therapist, two picture framers, a chief of parking operations and two traffic constables.  Parliamentary Corporate Services includes several kitchen chefs, lesser cooks and helpers, three dishwashers/potwashers and other catering support staff.  There is no doubt that the House of Commons regards all of its employees as helpful but the question is whether that definition of the scope of the privilege it asserts is too broad.  Is the management of all employees, to use the words of the British Joint Committee Report, “so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly”? (para. 247)  In other words, can it be said that immunity from outside scrutiny in the management of all service employees is such that without it, in the words of Erskine May, the House and its members “could not discharge their functions”? (23rd ed., at p. 75)  As stated earlier, this is not the view from Westminster where the British Joint Committee Report said that “. . . [it] would be going too far if [privilege] were to mean, for example, that a dispute over the . . . dismissal of a cleaner could not be decided by a court or industrial tribunal in the ordinary way” (para. 241).

73                               Nor is it the view from Australia where it was held that an injury to a waitress in a parliamentary restaurant was not part of the internal business of Parliament and was not protected by privilege: Bear.

74                               Nor is it the view in the United States, whose Constitution guards the separation of powers at least as strictly as does our own.  In Walker v. Jones, 733 F.2d 923 (1984), the U.S. Court of Appeals for the District of Columbia Circuit considered the application of the Speech or Debate Clause of the United States Constitution in the context of an employment-related discrimination complaint.  Ms. Walker managed the House of Representatives’ restaurants and claimed that she was terminated on the basis of sex discrimination.  Ginsburg J., now of the U.S. Supreme Court, writing for the majority of the Federal Court of Appeals, stated that the purpose of the Speech or Debate Clause is “to secure against executive or judicial interference the processes of the nation’s elected representatives leading up to the formulation of legislative policy and the enactment of laws” (p. 928).  In finding that Ms. Walker’s claim could proceed, the majority found that personnel actions relating to the management of congressional food services were “too remote from the business of legislating to rank ‘within the legislative sphere’” (p. 928).  Ginsburg J. pointed out that the work of this category of employees may advance a member’s general welfare, but did not relate to his or her legislative functions.  One must make due allowance, of course, for the fact that the United States has a congressional rather than a parliamentary system, but the conclusion that the claim exceeded what was necessary to a legislative body is consistent with the view taken in parliamentary jurisdictions.

75                               I have no doubt that privilege attaches to the House’s relations with some of its employees, but the appellants have insisted on the broadest possible coverage without leading any evidence to justify such a sweeping immunity, or a lesser immunity, or indeed any evidence of necessity at all.  We are required to make a pragmatic assessment but we have been given no evidence on which a privilege of more modest scope could be delineated.  As pointed out 166 years ago in Stockdale v. Hansard:

The burden of proof is on those who assert [the privilege] and, for the purposes of this cause, the proof must go to the whole of the proposition . . . . [Emphasis added; p. 1201.]

In any event, it would not be fair to the respondent Vaid to substitute at this stage a description of a narrower privilege that he was not called upon to address.

76                               The appellants having failed to establish the privilege in the broad and all-inclusive terms asserted, the respondents are entitled to have the appeal disposed of according to the ordinary employment and human rights law that Parliament has enacted with respect to employees within federal legislative jurisdiction.

G.  Do Parliamentary Employees Fall Within the Scope of the Canadian Human Rights Act ?

77                               The Canadian Human Rights Act  is the Act dealing with prohibitions and enforcement and is divided into four parts.  Part I sets out the prohibited grounds of discrimination.  Part II establishes the Canadian Human Rights Commission.  Part III describes discriminatory practices and sets out general provisions for investigation, conciliation, settlement, adjudication, compensation and punishment.  Part IV makes the Act “binding on Her Majesty in right of Canada”. 

78                               Part III is of particular relevance, because it is these investigative and enforcement provisions that give rise to the appellants’ concern about the potential intrusion of strangers into the workings of the House of Commons.  Under s. 43(2), an investigator is designated to investigate the complaint.  If the investigator is unable to resolve the issues, the Commission may refer the dispute to a “conciliator” under s. 47(1).  If there is no settlement, the matter then goes on to a Canadian Human Rights Tribunal which has broad powers under s. 48.9 to enforce an employer’s participation in its hearings.  Under s. 54.1(2), a tribunal could require the House of Commons “to adopt a special program, plan or arrangement” containing “(a) positive policies and practices designed to ensure that members of designated groups achieve increased representation in the employer’s workforce; or (b) goals and timetables for achieving that increased representation”. 

79                               On the face of it, the Canadian Human Rights Act  applies to all employees of the federal government including those working for Parliament.  Section 2 provides as follows:

2.  The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

80                               The appellants argue that the Canadian Human Rights Act  “has no application to the House of Commons and its members because it does not so expressly provide” (Duke of Newcastle v. Morris).  This argument cannot be accepted for a number of reasons.  Firstly, the argument presupposes the prior establishment of a parliamentary privilege, which has not been done.  Secondly, the “presumption” suggested by Lord Hatherley 135 years ago is out of step with modern principles of statutory interpretation accepted in Canada, as set out in Driedger’s Construction of Statutes (2nd ed. 1983):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [p. 87]

This approach was recently affirmed in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, and R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33, and is reinforced by s. 12  of the Interpretation Act , R.S.C. 1985, c. I-21 , which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”.  Such interpretative principles apply with special force in the application of human rights laws.

81                               There is no indication in the language of s. 2  that the Canadian Human Rights Act  was not intended to extend to employees of Parliament.  There is no reason to think that Parliament “intended” to impose human rights obligations on every federal employer except itself.  There is no indication that Parliament intended to exclude its own employees when it stated, in s. 2  of the Canadian Human Rights Act , that

all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

As stated earlier, the Canadian Human Rights Act  is a quasi-constitutional document and we should affirm that any exemption from its provisions must be clearly stated.

82                               I conclude therefore that the Canadian Human Rights Act  does apply to employees of the Senate and House of Commons.  That is not an end to the matter, of course.  The appellants contend that Parliament has created a specific regime governing the labour relations of its own employees under PESRA .  The appellants argue that the complaint of the respondent Vaid falls within the terms of PESRA , to which Parliament has granted exclusive authority in such matters.  This is what I referred to earlier as the administrative law argument.

H.  Application of the Parliamentary Employment and Staff Relations Act

83                               PESRA  confers labour relations’ jurisdiction over employees like the respondent Vaid, the subject matter of his grievance (discrimination) and the remedial powers to resolve such a grievance.  The issue is whether PESRA ’s system of redress, which runs parallel to the enforcement machinery provided under the Canadian Human Rights Act , manifests a parliamentary intention to oust the dispute resolution machinery of the Canadian Human Rights Commission.  I conclude that it does.

(1)  Jurisdiction Over Parliamentary Employees in the Position of Mr. Vaid

84                               Section 2  of PESRA  in its terms applies to all parliamentary employees with some exceptions (s. 4) not here relevant.  Section 2 provides:

2.  Subject to this Act, this Act applies to and in respect of every person employed by, and applies to and in respect of,

(a)    the Senate, the House of Commons or the Library of Parliament, and

(b)    a Member of Parliament who, in that capacity, employs that person or has the direction or control of staff employed to provide research or associated services to the caucus members of a political party represented in Parliament . . . .

The respondent Vaid is such an employee.

(2)  PESRA Applies to the Subject Matter of the Respondent Vaid’s Grievance

85                               PESRA  is intended to enforce a full range of employee rights and benefits.  Section 5(1) announces that

5. (1) The purpose of this Part is to provide to certain persons employed in Parliamentary service collective bargaining and other rights in respect of their employment.

86                               Section 62(1) (a)(i) of PESRA  permits any employee who feels aggrieved by the interpretation or application of “a provision of a statute” to present a grievance.   Reference to a “provision of a statute” would include the human rights norms set out in the Canadian Human Rights Act .   For ease of reference, s. 62(1) in its entirety reads as follows:

62. (1)  Where any employee feels aggrieved

(a)    by the interpretation or application, in respect of the employee, of

(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or

(ii)    a provision of a collective agreement or an arbitral award, or

(b)    as a result of any occurrence or matter affecting the employee’s terms and conditions of employment, other than a provision described in subparagraph (a)(i) or (ii),

the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Part.

87                               It was therefore open to the respondent Vaid to submit a grievance under PESRA  in 1997 as did in 1995 (with partial success) to pursue his workplace complaints.

(3)  The Remedial Powers of a PESRA Adjudicator

88                               While the respondent Vaid’s complaints do not specify the relief he seeks (appellants’ record, at pp. 247-50), PESRA  adjudicators are invested with broad powers to resolve workplace grievances.  The relief sought by the respondent Vaid in 1995 was reinstatement.  The PESRA  adjudicator ordered reinstatement once.  If the respondent Vaid’s complaint of constructive dismissal is well-founded, a PESRA  adjudicator has authority to do so again.  The PESRA  adjudicator also considered (and rejected) the respondent Vaid’s earlier complaints of discrimination and harassment, as mentioned above.  Those, too, were issues that could be and were dealt with under PESRA .

(4)  PESRA Jurisdiction Is Exclusive

89                               Section 2  of PESRA  provides that where other federal legislation deals with “matters similar to those provided for under” PESRA , PESRA  prevails, i.e., 

. . . except as provided in this Act, nothing in any other Act of Parliament that provides for matters similar to those provided for under this Act . . . shall apply . . . .

I.    Does Labour Adjudication Under PESRA Oust the Investigative and Dispute Resolution Machinery of the Canadian Human Rights Act  on the Facts of This Case?

90                               I have concluded, as stated, that the Canadian Human Rights Act  anti-discrimination norms are applicable to parliamentary employees.  The remaining question is whether the investigatory and adjudicatory Canadian Human Rights Act  procedures also apply as the respondents contend, or whether the respondent Vaid is obliged to seek relief under PESRA .

91                               The Court has in a number of cases been required to examine competing  legislative schemes to determine which of the potential adjudicative bodies is intended by the legislature to resolve a dispute.  Mr. Vaid’s claim of workplace discrimination and harassment could potentially fall under both PESRA and the Canadian Human Rights Act .  The allegation of jurisdiction in such circumstances is a familiar administrative law problem, even in the context of human rights tribunals (see Quebec (Attorney General) v. Quebec (Human Rights Tribunal), [2004] 2 S.C.R. 223, 2004 SCC 40 (“Charette”), and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39 (“Morin”)).

92                               In the Morin case, the Chief Justice said, at para. 14:

. . . the question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute.

93                               The fact that the respondent Vaid claims violations of his human rights does not automatically steer the case to the Canadian Human Rights Commission because “one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute” (Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at para. 49; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, at p. 721).

94                               In this case, the complaint against the House of Commons alleges  dismissal and discrimination.  The “facts giving rise to the dispute”, as set out in the complaint, make only one explicit reference to the respondent Vaid’s ethnic origin, namely that “[the Speaker] initiated a conversation about the caste system in India.  He pressed me to tell him into which caste I had been born” (appellants’ record, at p. 247).  Other than that, the respondent Vaid relates a number of events in the course of his employment which, on the face of it, allege demeaning or unreasonable treatment inconsistent with the alleged terms of employment.  The respondent Vaid takes the view that this behaviour was motivated by racial prejudice.  His allegations are specific to the former Speaker and his Executive Assistant, i.e.:

-     [The appellant Speaker] suggested that I was overqualified for the position.

-     [The appellant Speaker] questioned my wife regarding her employment and made her feel as though he was trying to assess whether she could financially support me in the event that I lost my job.

-     While I was driving the [appellant Speaker] in February 1994, he initiated a conversation about the caste system in India.  He pressed me to tell him into which caste I had been born.

-     [The Speaker’s Executive Assistant] indicated that because of budgetary cuts, he wanted to place me on a split shift and asked me to take on additional duties, including washing dishes.  I responded that I would work a split shift, and I would wash dishes if he could demonstrate that other chauffeurs were also asked to take on this duty.

-     In March 1994, I started wearing a soft cervical collar on the job, necessitated by a whiplash injury suffered earlier in the year.  On March 25, 1994, the Executive Assistant advised me that I was not to drive the [appellant Speaker] while wearing the collar.  My driving duties were taken away and assigned to a white, unilingual (English) employee.

-     On October 14, 1994, the [appellant House of Commons] contacted me to offer me work as a photocopier operator, a messenger or a mini-van operator.  Alternatively, I was offered a severance package.  I advised the [appellant House of Commons] that I wished to be reinstated to my position as chauffeur to the Speaker immediately.

-     Since my driving duties were taken away from me in March 1994, they have been carried out by two other employees, both of whom are white.

-     I believe that my right to equal treatment in employment has been infringed upon by the respondent because of my race, colour and ethnic or national origin. [Appellants’ record, at pp. 247-50]

There is nothing here, in my respectful opinion, to lift these complaints out of their specific employment context. 

95                               It is true, as the respondents submit, that PESRA  is essentially a collective bargaining statute rather than a human rights statute.  The substantive human rights norms set out in the Canadian Human Rights Act  are not set out in PESRA .  Nevertheless, PESRA  permits employees who complain of discrimination to file a grievance and to obtain substantive relief.  I do not suggest that all potential claims to relief under the Canadian Human Rights Act  would be barred by s. 2  of PESRA , but in the present type of dispute, there is clearly a measure of duplication in the two statutory regimes and the purpose of s. 2 is to avoid such duplication.  Parliament has determined that grievances of employees covered by PESRA  are to be dealt with under PESRA .  A grievance that raises a human rights issue is nevertheless a grievance for purposes of employment or labour relations (see Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42). 

96                               The respondents point out some drawbacks, from the employee’s perspective, in PESRA .  For example, while judicial review is available (see, e.g., Auclair v. Library of Parliament (2002), 222 F.T.R. 124, 2002 FCT 777), enforcement of a valid award is done by filing a copy of the adjudicator’s or Board’s order, a report of the circumstances and all pertinent documents with the relevant House of Parliament  (PESRA, s. 14 ).  It is ultimately up to that House to enforce such orders.  A similar system operates for federal public servants generally (see Public Service Staff Relations Act , R.S.C. 1985, c. P-35 ).  This may be considered an unsatisfactory arrangement by the respondents but Parliament has provided in PESRA  how it intends its staff employment grievances to be dealt with.  Under our jurisprudence, Parliament is entitled to have that assignment of jurisdiction respected (Weber; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners,  [2000] 1 S.C.R. 360, 2000 SCC 14; Parry Sound (District) Social Services Administration Board; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14).

97                               The respondents also contend that while PESRA  may be able to respond to Mr. Vaid’s particular complaint of workplace discrimination and harassment, the Canadian Human Rights Tribunal is better placed than a PESRA  adjudicator to address broader issues such as systemic discrimination, including compliance with the pay equity requirements of s. 11  of the Canadian Human Rights Act .  They cite Canada (Human Rights Commission) v. Canadian Airlines International Ltd., [2004] 3 F.C.R. 663, 2004 FCA 113, where this provision of the Canadian Human Rights Act  was considered.  That is not this case.  Such an argument raises a different issue in a different context.  In Morin itself, the terms of the collective agreement were under attack as discriminatory.  The dispute was therefore allowed to proceed before the Quebec Human Rights Tribunal.  In Charette, the nature of the dispute was different, the statutory language more specific, and the proceedings before the Quebec Human Rights Tribunal were stopped.  Instead, the dispute was referred to the Commission des affaires sociales.  This is not an area of the law that lends itself to overgeneralization.

98                               In this case, we are not dealing with an allegation of systemic discrimination.  We are dealing with a single employee who says he was wrongfully dismissed against a background of alleged discrimination and harassment.  A different dispute may involve different considerations that may lead to a complaint properly falling under the jurisdiction of the Canadian Human Rights Commission.  But that is not this case.

99                               The respondents also submit that, under s. 41(1)  of the Canadian Human Rights Act , it is for the Commission not Parliament to determine whether “the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act”.  However, this approach presupposes that the enforcement machinery of the Canadian Human Rights Act  applies.  If, as I conclude, it has been ousted by s. 2  of PESRA  with respect to this dispute, then s. 41, along with the other enforcement mechanisms of the Canadian Human Rights Act , simply do not apply to the respondent Vaid’s present complaint.

100                           In the result Mr. Vaid’s workplace complaints ought to have been considered in 1997 as they were (with partial success) in 1995, by way of a grievance under PESRA . 

V.  Disposition

101                           The appeal is allowed without costs.  The constitutional question is answered as follows:

Q.   Is the Canadian Human Rights Act , R.S.C. 1985, c. H-6 , constitutionally inapplicable as a consequence of parliamentary privilege to the House of Commons and its members with respect to parliamentary employment matters?

A.   Given the broad terms in which this question is put, the answer is no.  The definition of a more limited category of privilege, and the extent to which it may provide immunity from the Canadian Human Rights Act , if at all, must await a case in which the question truly arises for a decision.

Appeal allowed.

Solicitors for the appellants:  Blake, Cassels & Graydon, Toronto.

Solicitors for the respondent Satnam Vaid:  Raven, Allen, Cameron, Ballantyne & Yazbeck, Ottawa.

Solicitor for the respondent the Canadian Human Rights Commission:  Canadian Human Rights Commission, Ottawa.

Solicitor for the intervener the Attorney General of Canada:  Deputy Attorney General of Canada, Ottawa.

Solicitor for the interveners the Honourable Senator Serge Joyal and the Honourable Senator Mobina S. B. Jaffer:  Dale Gibson, Edmonton.

Solicitors for the interveners the Canadian Association of Professional Employees and the Communications, Energy and Paperworkers Union of Canada:  Engelmann Gottheil, Ottawa.

Solicitors for the intervener the Speaker of the Legislative Assembly of Ontario:  Blake, Cassels & Graydon, Toronto.