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.
Reasons for
Judgment:
(paras. 1 to 101)
|
Binnie J. (McLachlin C.J. and Major, Bastarache, LeBel,
Deschamps, Fish, Charron and Abella JJ. concurring)
|
______________________________
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.