Cooper v. Canada (Human Rights Commission), [1996] 3 SCR 854

Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854

David John Cooper                                                                            Appellant

v.

Canadian Human Rights Commission                                              Respondent

and

Canadian Airlines International Ltd.                                                Respondent

and between

Noel Edwin Bell                                                                              Appellant

v.

Canadian Human Rights Commission                                     Respondent

and

Canadian Airlines International Ltd.                                                Respondent

Indexed as:  Cooper v. Canada (Human Rights Commission)

File Nos.:  24135, 24134.

1996:  June 18; 1996:  November 21.

Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, McLachlin and Iacobucci JJ.

on appeal from the federal court of appeal                                            

Administrative law ‑‑ Commissions and tribunals ‑‑ Right to decide issues of law, including constitutional issues ‑‑ Human Rights Commission considering allegation of discrimination based on age ‑‑  Act providing that no age discrimination occurring if mandatory retirement set at industry standard ‑‑ Investigator appointed by Commission recommending that complaint not proceed to tribunal ‑‑ Whether provision  excusing age discrimination contrary to equality provisions of s. 15  of the Canadian Charter of Rights and Freedoms  ‑‑ Whether Commission implicitly empowered to refer the matter to a tribunal and so in essence rule on constitutionality of the provision ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 15 , 24(1)  ‑‑ Constitution Act, 1982, s. 52  ‑‑ Canadian Human Rights Act, R.S.C., 1985, c. H‑6, s. 15 (c). 

The appellants, who were being retired as airline pilots at age 60  pursuant to their collective agreement, alleged age discrimination, given that most employees in Canada are required to retire only at age 65.  They filed complaints with the Canadian Human Rights Commission in April and July 1990 and an investigator was appointed.  The employer submitted that no discrimination occurred in that the employment policy was a bona fide occupational requirement.  The investigator recommended that the Commission dismiss the appellants’ complaints.  Section 15 (c) of the Canadian Human Rights Act  (the Act ), which provided that no discrimination would occur if persons were retired at a normative industrially determined age, would effectively be struck by the Commission as being contrary to the Charter  if it were to refer the matter to a tribunal for determination.  The appellants applied for judicial review in the Federal Court Trial Division, seeking an order to quash the Commission’s decision and to direct it to request the President of the Human Rights Tribunal Panel to appoint a tribunal to inquire into their complaints.  The motion was dismissed and that finding was upheld on appeal.  The employer was granted party status after leave to appeal was granted.  After hearing oral submissions from the parties, who were all of the view that the Commission had at least a limited jurisdiction to question the constitutionality of the Act , the Court appointed an amicus curiae to present the argument against such a jurisdiction.  At issue was whether the Canadian Human Rights Commission or a tribunal appointed by it to investigate a complaint has power to determine the constitutionality of a provision of their enabling statute.  In particular, could the Commission ignore s. 15 (c) of the Act ?  

Held (L’Heureux‑Dubé and McLachlin JJ. dissenting):  The appeals should be dismissed.  

Per La Forest, Sopinka, Gonthier and Iacobucci JJ.:  The Canadian Human Rights Commission has no jurisdiction under the Act  to subject the Act ’s provisions to constitutional scrutiny.  The Commission is limited in its jurisdiction by the dictates of the Act .  Similarly, a tribunal appointed at the request of the Commission is also without jurisdiction to determine the constitutional validity of a limiting provision of the Act .

No administrative tribunal has an independent source of jurisdiction pursuant to s. 52(1)  of the Constitution Act, 1982 .  A court must, therefore, as a matter of statutory interpretation determine whether Parliament has granted the administrative tribunal through its enabling statute, either explicitly or implicitly, the power to determine questions of law.  If so, the administrative tribunal by the operation of s. 52(1) must be able to address constitutional issues, including the constitutional validity of its enabling statute. There is no need to determine if either the Commission or a tribunal under the Act  is a court of competent jurisdiction under s. 24(1)  of the Charter . 

In considering whether an administrative tribunal has the power to determine questions of law, various practical matters such as the composition and structure of the tribunal, the procedure before the tribunal, the appeal route from the tribunal, and the expertise of the tribunal can appropriately be taken into account.  These practical considerations, in so far as they reflect the scheme of the enabling statute, provide an insight into the mandate given to the administrative tribunal by the legislature.  At the same time there may be pragmatic and functional policy concerns that argue for or against the tribunal’s having constitutional competence, though such concerns can never supplant the intention of the legislature.

The Act  sets out a complete mechanism for dealing with human rights complaints.  Central to this mechanism is the Commission.  There is no provision in the Act  which explicitly gives the Commission power to determine questions of law and nothing in the scheme of the Act  implies that the Commission has this power.  Looking at the Act  as a whole, the role of the Commission is to deal with the intake of complaints and to screen them for proper disposition. The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act . The Commission’s striking down s. 15 (c) of the Act  (which is what a referral to a tribunal would amount to) would be an assumption by the Commission of an adjudicative role for which it has no mandate.  Administrative bodies and tribunals are creatures of statute; the will of the legislature as it appears in that statute must be respected.  The role of the Commission as an administrative and screening body, with no appreciable adjudicative role,  is a clear indication that Parliament did not intend the Commission to have the power to consider questions of law.

Sections 27 , 40  and 41  of the Act  do no more than enable the Commission  to interpret and apply its enabling statute.  It does not follow that it then has a jurisdiction to address general questions of law.  Every administrative body, to one degree or another, must have the power to interpret and apply its own enabling statute. Determining jurisdiction over a given complaint through reference to the provisions of the Act  is conceptually different from its subjecting the same provisions to Charter  scrutiny.  The former represents an application of Parliament’s intent as reflected in the Act  while the latter involves ignoring that intent.

The practical advantages in having the Commission consider the constitutionality of its own statute are limited.  First, since the Commission is not an adjudicative body it cannot be considered a proper forum in which to address fundamental constitutional issues.  Allowing the parties to raise such issues would of necessity require a more involved and lengthy process that would interfere with the Commission’s screening process.  Second, the Commission has no special expertise with respect to questions of law. Having the complainant seek a declaration of constitutional invalidity in either the Federal Court or a provincial superior court would be more efficient, both to the parties and to the system in general, given that any ruling of the Commission on the constitutional validity of a provision of the Act  would be the subject of judicial review proceedings.  In such a setting, the question can be debated in the fullness it requires in such a setting and the proper expertise can be brought to bear on its resolution. 

Given the limited jurisdiction of the Commission it logically follows that a tribunal appointed under the Act  must also lack the jurisdiction to declare  unconstitutional a limited provision of the Act .  It could not have been the intent of Parliament to grant a tribunal a jurisdiction that could never be exercised.

Sections 50(1)  and 53(2)  of the Act  empower a tribunal appointed under the Act  to inquire into a complaint referred by the Commission.  This is primarily and essentially a fact-finding inquiry.  In the course of such an inquiry a tribunal has the jurisdiction to consider questions of law, including questions of statutory interpretation and constitutional questions.  Where a tribunal does make legal findings it is not entitled to deference by a reviewing court.

Per Lamer C.J.:  Judicial review, while necessary to preserve important constitutional values, is inherently controversial in a democracy like Canada  because it confers on unelected officials the power to question decisions arrived at through the democratic process.  As a matter of constitutional principle that power  must accordingly  be reserved to the courts and should not be given over to bodies that are mere creatures of the legislature, whose members are usually vulnerable to removal with every change of government, and whose decisions in some circumstances are made within the parameters of guidelines established by the executive branch of government. The previous judgments of this Court may have misunderstood and distorted the web of institutional relationships between the legislature, the executive and the judiciary by giving administrative tribunals access to s. 52  of the Constitution Act, 1982 .  The application of  this section should be reserved to the courts because the task of declaring invalid legislation enacted by a democratically elected legislature is within the exclusive domain of the judiciary.  (The role of administrative tribunals in relation to s. 24(1) was not  addressed.)

The premise relied on by the other members of the Court -- that the intent to confer a power to interpret general law  on tribunals implies an intent to confer on tribunals a power to refuse systematically to apply laws which violate the Charter  -- is suspect.  Firstly, this inference is  artificial.  Many, if not most of the tribunals which have been set up by Parliament and the provincial legislatures were created before the enactment of the Charter  in 1982.  Granting the power to tribunals to refuse systematically to apply laws which violate the Charter  could not have possibly been within the contemplation of Canada’s legislatures.  Secondly, this inference is profoundly illogical.  A legislature could only intend to confer on a tribunal the power to judge the constitutionality of that tribunal’s enabling legislation if the legislature had knowingly passed a constitutionally suspect law; otherwise, the conferral of the power would be unnecessary.  A legislature would  not knowingly pass constitutionally suspect legislation.  The presumption of constitutionality suggests that legislatures assume the constitutionality of their enactments.  In any event, if the legislature did know that a piece of legislation was constitutionally suspect, and nonetheless enacted it into law, it is not readily apparent why the legislature would also confer on the tribunal to which the legislature assigns the responsibility of giving effect to the legislation the power to hold various provisions of the legislation inoperative.

First principles of the Constitution must be revisited in order to comprehend properly the relationship between s. 52 and administrative tribunals. 

Douglas College, Cuddy Chicks and Tétreault‑Gadoury offend the constitutional principle of separation of powers which is one of the defining features of the Canadian Constitution. Although the separation of powers under the Canadian Constitution is not strict, Canadian constitutional law  recognizes some notion of the separation of powers.  The existence of courts flows from the separation of powers  as is evidenced from the jurisprudence on s. 96  of the Constitution Act, 1867  and from the case law interpreting the preamble of the Constitution Act, 1867  which states that Canada is to have “a Constitution similar in Principle to that of the United Kingdom”. 

The constitutional status of the judiciary, flowing as it does from the separation of powers, requires that certain functions be exclusively exercised by judicial bodies.  The judiciary, while it does not have an interpretive monopoly over questions of law,  must nevertheless have exclusive jurisdiction over challenges to the validity of legislation under the Constitution of Canada, and particularly the Charter .  Only courts have the requisite independence to be entrusted with the constitutional scrutiny of legislation when that scrutiny leads a court to declare invalid an enactment of the legislature.  Mere creatures of the legislature, whose very existence can be terminated at the stroke of a legislative pen, whose members usually serve at the pleasure of the government of the day and whose decisions in some circumstances are properly governed by guidelines established by the executive branch of government, are not suited to this task.  Security of tenure, financial security, and independence with respect to matters of administration bearing directly on the exercise of  the courts’ judicial function define judicial independence.  In the context of Charter  adjudication, these features help to insulate the courts from interference, inter alia, by elected legislatures, and thus ensure that courts can safeguard the supremacy of Charter  rights through the vehicle of s. 52.

The case law relies on a distinction between refusals to apply legislation and declarations of invalidity in order to claim that tribunals are not encroaching upon the judicial role.  Many tribunals, however, operate according to an informal doctrine of  precedent.  The de facto equivalence between refusals to apply legislation and declarations of invalidity decisively demonstrates that tribunals, when they refuse to apply their enabling legislation under s. 52  of the Constitution Act, 1982 , are improperly exercising the role of the courts.  This Court’s decisions authorizing tribunals to overstep their constitutional role are, accordingly, in serious need of revision.  And for the same reasons, tribunals cannot be expressly given the power to consider the constitutionality of their enabling legislation.

This conclusion does not detract from the power of the Commission to determine whether complaints fall within federal jurisdiction according to the division of powers.  An important conceptual difference exists between the Commission’s interpreting its enabling legislation in light of the division of powers, and the Commission’s questioning the validity of that legislation in light of the Charter .  When it performs the former role, the Commission is merely determining whether it has jurisdiction over a matter, because the clear intent of Parliament was that the Commission should only operate within the confines of federal jurisdiction.  As well, these comments should not to be construed as detracting from the general duty to interpret statutes in light of Charter  values.

Douglas College, Cuddy Chicks and Tétreault‑Gadoury  also offend a second defining feature of the Canadian Constitution, its  commitment to Parliamentary democracy.  The Constitution Act, 1867  incorporated those aspects of Parliamentary democracy that have taken legal form. One of those aspects is the legal relationship between the executive  and the legislature.  The role of the executive is to effectuate legislative intent.   The justification for this hierarchical relationship, in present-day Canada, is a respect for democracy because legislatures are representative institutions accountable to the electorate. The assumption by administrative tribunals of jurisdiction over the Charter , however, inverts this hierarchical relationship.  Instead of putting the intent of the legislature into effect, the case law of this Court enables tribunals to challenge the decisions of the democratically elected legislature.  A tribunal has, in these circumstances, unconstitutionally usurped power which it did not have.  The framers of the Charter  did not intend to alter so fundamentally the nature of the relationship between the executive and the legislature. 

Per L’Heureux‑Dubé and McLachlin JJ. (dissenting):   Every tribunal charged with the duty of deciding issues of law has the concomitant  power to decide those issues.  The fact that the question of law concerns the effect of the Charter  does not change the matter.

Two related principles of general application apply.  First, all decision‑making tribunals, whether courts or administrative tribunals, are bound to apply the law,  including the Charter .  Second,  a tribunal’s ruling that a law is inconsistent with the Charter  is nothing more than a case of applying the law.

Douglas College, Tetréault‑Gadoury and Cuddy Chicks stand for two related propositions.  First, an administrative tribunal which has the power to decide questions of law has the power to decide the validity of particular laws under the Charter .  Second,  an administrative tribunal provided that it is discharging a function assigned to it by its legislation may, in the course of doing so, consider and decide Charter  issues.  As a corollary, the cases affirm a third proposition:  no express term is required for the tribunal to apply the Charter . 

The power of the Commission  to consider legal questions, while not expressly stated, may be inferred from the Act .  Many of its duties could not be accomplished without the power to consider issues of law generally and the effect of the Charter  on human rights law more particularly. Parliament did not intend that the Commission, which was required to interpret the law for the purposes of Part I of the Act  (Proscribed Discrimination), should be forbidden from making legal interpretation in discharging its Part III (Discriminatory Practices and General Provisions) duties.  The Commission accordingly has the power to interpret the law in determining whether to refer a complaint to a tribunal or dismiss it. The Act  confers the same power to consider and decide issues of law on the tribunals appointed to investigate and decide particular complaints.

A tribunal may consider the Charter  in carrying out the mandate conferred upon it by Parliament or the legislature.  Several provisions of the Act  support the conclusion that  not only is the Commission empowered to consider questions of law but also that it is obliged to do so.  This obligation extends to permitting boards and tribunals appointed under human rights legislation to hold that provisions of the law are invalid.  Often this has been assumed without challenge.  The Commission functions as gatekeeper to the tribunal process and accordingly cannot be barred from considering questions of law which the tribunal is permitted to consider for the Commission must first consider that question.

The Commission accordingly has the power to consider the issue of whether the Charter  renders invalid the "normal age of retirement" defence.  Given that the Commission's only duty is to screen the complaint, it need not decide the question finally but only determine whether it has a reasonable chance of success.  In the context of its duties under the  Act , the Commission has the expertise to carry out its duty in this regard.  The Commission should refer the matter to a tribunal which can hear full representations on the matter and make its decision accordingly if it decides that the complaint has a reasonable chance of success.  The tribunal's decision on the issue of law may in turn be reviewed by the review tribunal.  The review tribunal's decision in turn may be filed as a decision of the Federal Court, from which appeal lies to the Federal Court of Appeal.

The argument that McKinney v. University of Guelph (which held a provision setting  mandatory retirement at age 65 to be contrary to s. 15  of the Charter  but saved under s. 1) was based on the conclusion of the Court that age 65 was the "normal" age of retirement for the occupation at issue and that, similarly, a statute providing for retirement at the normal age for the occupation in question must also be saved under s. 1,  oversimplifies the process envisaged under s. 1  of the Charter .  Section 1 is about much more than what is usual or "normal".  The usual practice may be unjustifiable, having regard to the egregiousness of the infringement or the insubstantiality of the objective alleged to support it.  Each case must be looked at on its own circumstances.

Cases Cited

By La Forest J.

Applied:  Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; referred to:  McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Syndicat des employés de production du Québec et de L’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; Canada (Attorney General) v. Druken, [1989] 2 F.C. 24; Public Service Alliance of Canada v. Qu’Appelle Indian Residential Council (1986), 7 C.H.R.R. D/3600; Nealy v. Johnston (1989), 10 C.H.R.R. D/6450; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892.

By Lamer C.J.

Disapproved:  Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; referred to:  Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; R. v. Power, [1994] 1 S.C.R. 601; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Beauregard v. Canada, [1986] 2 S.C.R. 56; Valente v. The Queen, [1985] 2 S.C.R. 673; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753;  Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319.

 By McLachlin J. (dissenting)

Re Rosen, [1987] 3 F.C. 238; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Mills v. The Queen, [1986] 1 S.C.R. 863; Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Re Shewchuk and Ricard (1986), 28 D.L.R. (4th) 429; Canada (Attorney General) v. Druken, [1989] 2 F.C. 24; McKinney v. University of Guelph, [1990] 3 S.C.R. 229.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 1 , 11( d ) , 15 , 24(1) , (2) .

Canadian Human Rights Act , R.S.C., 1985, c. H‑6 , ss.  7 , 10 , 15 (a), (c), 26 , 27(1) (e), (f), (g), (2) , 40 , 41 (c), 43   [subs. (2) rep. & sub. R.S.C., 1985, c. 31 (1st Supp.), s. 63], 44(1), (2), (3)(a), (b) [rep. & sub. ibid., s. 64], 47(1), 49 [subs. (1) rep. & sub. ibid., s. 66], 50, 50(1), (3), 53(1), (2)(c), 55, 56(2), (3).

Constitution Act, 1867 , ss. 96 , 97 , 98 , 99 , 100 .

Constitution Act, 1982 , s. 52 .

Federal Court Act , R.S.C., 1985, c. F‑7 , ss. 18  [rep. & sub. 1990, c. 8, s. 4], 18.1 [ad. ibid., s. 5], 57 [rep. & sub. ibid.,  s. 19].

Human Rights Code, 1981, S.O. 1981, c. 53, s. 9(a).

Labour Code, R.S.B.C. 1979, c. 212.

Labour Relations Act, R.S.O. 1980, c. 228.

Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48.

Authors Cited

Anisman, Philip.  “Jurisdiction of Administrative Tribunals to Apply the Canadian Charter of Rights and Freedoms ”.  In Special Lectures of the Law Society of Upper Canada 1992:  Administrative Law:  Principles, Practice and Pluralism.  Scarborough, Ont.: Carswell, 1992.

Evans, J. M.  “Administrative Tribunals and Charter Challenges” (1989), 2 C.J.A.L.P. 13.

Hogg, Peter W.  Constitutional Law of Canada (3rd ed. 1992).  Scarborough, Ont.: Carswell, 1992.

Kuttner, Thomas.  “Courts, Labour Tribunals and the Charter ” (1990), 39 U.N.B. L.J. 85.

Macaulay, Robert W. and James L. H. Sprague.  Practice and Procedure Before Administrative Tribunals, vol. 2.  Toronto:  Carswell, 1995 (loose-leaf).

McAllister, Debra M.  “Administrative Tribunals and the Charter :  A Tale of Form Conquering Substance”.  In Special Lectures of the Law Society of Upper Canada 1992:  Administrative Law:  Principles, Practice and Pluralism.   Scarborough, Ont.:  Carswell, 1992.

Priest, Margot.  “Charter Procedure in Administrative Cases:  The Tribunal’s Perspective” (1994), 7 C.J.A.L.P. 151.

Roman, Andrew J.  “Tribunals Deciding Charter of Rights Questions:  The Trilogy of the Supreme Court of Canada — Douglas College, Cuddy Chicks, and Tétreault‑Gadoury” (1992), 1 Admin. L.R. (2d) 243.

Taman, Larry.  “Jurisdiction of Administrative Tribunals to Consider Charter Arguments”.  In Neil R. Finkelstein and Brian MacLeod Rogers, eds., Administrative Tribunals and the Charter.  Toronto: Carswell,  1990.

APPEALS from a judgment of the Federal Court of Appeal (1994), 22 C.H.R.R. D/90, 167 N.R. 17, 25 Admin. L.R. (2d) 275, dismissing  appeals from judgments of the Trial Division (1992), 22 C.H.R.R. D/87, 54 F.T.R. 96, dismissing applications for judicial review.  Appeals dismissed, L’Heureux-Dubé and McLachlin JJ. dissenting.

David John Cooper, appearing on his own behalf.

Noel Edwin Bell, appearing on his own behalf.

René Duval and William F. Pentney, for the respondent Canadian Human Rights Commission.

Rhys Davies and Jennifer Duprey, for the respondent Canadian Airlines International Ltd.

Andrew Raven and David Yazbeck, for the Amicus Curiae.

\\The Chief Justice\\

The following are the reasons delivered by

The Chief Justice --

Introduction

1.                       These appeals are the latest in a series of decisions from this Court which have examined the ability of administrative tribunals to determine the constitutionality of their enabling legislation.  Although my colleagues disagree on the outcome of these appeals, they nevertheless agree on the governing legal proposition: that tribunals which have jurisdiction over the general law, have jurisdiction to refuse to apply — and hence effectively to render inoperative — laws that they find to be  unconstitutional, since through the operation of s. 52  of the Constitution Act, 1982 , the Constitution is the supreme law of Canada.  I agree with them that this proposition emerges from previous decisions of this Court and that it binds us today.  However, I hope that a full bench of this Court will eventually be afforded the opportunity to revisit this proposition.

2.                       Although there are pragmatic reasons for reconsidering that proposition, my concerns mainly emerge from a consideration of some of the fundamental features of the Canadian constitutional order.  Canada is a Parliamentary democracy, and is hence based on the belief that those who exercise public power should be held accountable to the electorate.  Legislation is the ultimate embodiment of that public power, because it reflects the measured and considered judgment of the legislature itself on a matter of public policy.  In Canada, the decisions of our democratic institutions are subject to judicial review, which allows courts to strike down the enactments of those legislatures when those enactments contradict constitutional norms.  Although judicial review is necessary to preserve important constitutional values, in a democracy like Canada it is inherently controversial, because it confers on unelected officials the power to question decisions which are arrived at through the democratic process.  For this reason, in my view, as a matter of constitutional principle that power must be reserved to the courts and should not be given over to bodies that are mere creatures of the legislature, whose members are usually vulnerable to removal with every change of government, and whose decisions in some circumstances are made within the parameters of guidelines established by the executive branch of government.

3.                       I fear that in seeking to give the fullest possible effect to the Charter ’s promise of rights-protection, the previous judgments of this Court may have misunderstood and distorted the web of institutional relationships between the legislature, the executive and the judiciary which continue to form the backbone of our constitutional system, even in the post-Charter era.  This distortion has been achieved by giving administrative tribunals access to s. 52.  But in my opinion, s. 52 can only be used by the courts of this country, because the task of declaring invalid legislation enacted by a democratically elected legislature is within the exclusive domain of the judiciary.  I should make it very clear at the outset of my reasons that I am not addressing the role of administrative tribunals in relation to s. 24(1)  of the Canadian Charter of Rights and Freedoms .

4.                       I am cognizant that this conclusion not only stands against the established jurisprudence of this Court, but also that I concurred in two of those earlier decisions, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22.  However,  I want to make it very clear why I took the position I did, and why I wish to reconsider that position today. 

5.                       The central principles governing the relationship between s. 52 and administrative tribunals were laid down by this Court in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570.  The primacy of Douglas College was emphasized by the Court in Cuddy Chicks, where Justice La Forest  stated, at p. 13, that Douglas College:

. . . articulated the basic principle that an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid. [Emphasis added.]

I did not participate in this Court’s decision in Douglas College.  When the time came to consider the application of Douglas College in Cuddy Chicks and Tétreault-Gadoury, I felt bound by that earlier decision, as was proper.  Likewise, in the case at bar, I am too of the opinion that La Forest J. is correct in his interpretation and application of Douglas College.  However, I have always believed, and continue to believe that those judgments are at odds with some of the fundamental principles of the Canadian constitution.  I speak out today because this Court has had the benefit of six years of experience to consider the implications of those judgments and to reflect upon the rationale underlying them.  In my opinion, that experience strongly suggests that the time has come for this Court to revisit the issue.

The Issue in this Case

6.                       I approach this conceptual problem by reference to the practical question which my colleagues address in this case — did Parliament intend to confer on the Canadian Human Rights Commission, and on tribunals which adjudicate upon the Canadian Human Rights Act , R.S.C., 1985, c. H-6 , the power to decide general questions of law?  Justices La Forest and McLachlin agree that the bodies in question have not been expressly granted this power.  Where they disagree is whether those bodies have the implied jurisdiction to consider the general law.  La Forest J. relies on the non-adjudicatory nature of the Commission to deny it jurisdiction over the general law, and hence over the Charter .  He infers as a matter of logic that tribunals appointed by the Commission cannot consider Charter  challenges to the Canadian Human Rights Act , because Charter  challenges will not get past the Commission.  As well, he fails to find in the provisions of the Act the basis for implying a  legislative intent that tribunals have jurisdiction over the general law.  McLachlin J., by contrast, focuses on specific provisions in the Act  which govern the Commission and tribunals, to infer the intent by Parliament that these bodies can consider the general law, and hence Charter  challenges to their enabling legislation.

7.                       But in my respectful opinion, this exercise is deeply flawed because the premise upon which my colleagues rely — that the intent to confer on tribunals a power to interpret general law in turn implies an intent to confer on tribunals a power to refuse systematically to apply laws which violate the Charter  — is suspect.  I say that for two reasons.  One is that such an inference is artificial.  Many, if not most of the tribunals which have been set up by Parliament and the provincial legislatures were created before the enactment of the Charter  in 1982.  Granting the power to tribunals to refuse systemically to apply laws which violate the Charter  could not have possibly been within the contemplation of Canada’s legislatures.  As Andrew J. Roman has written in his article,  “Tribunals Deciding Charter of Rights Questions: The Trilogy of the Supreme Court of Canada — Douglas College, Cuddy Chicks, and Tétreault-Gadoury” (1992), 1 Admin. L.R. (2d) 243, at p. 254:

An inquiry of this sort is likely to be an after-the-fact rationalization for almost every tribunal, since most were created well before the passage of the Charter .  How could the legislature have had any intention with respect to the Charter ?  Clearly, any such ex post finding of a “legislative intention” is speculative and fictitious. [Emphasis in original.]

(Also see Debra M. McAllister, “Administrative Tribunals and the Charter : A Tale of Form Conquering Substance”, in Special Lectures of the Law Society of Upper Canada 1992:  Administrative Law: Principles, Practice and Pluralism, at p. 150;  Margot Priest, “Charter Procedure in Administrative Cases: The Tribunal’s Perspective” (1994), 7 C.J.A.L.P. 151, at p. 154.) 

8.                       Moreover, inferring the power to refuse systematically  to apply laws which violate the Charter  from the power to interpret and apply the general law strikes me as profoundly illogical.  A legislature could only intend to confer on a tribunal the power to judge the constitutionality of that tribunal’s enabling legislation if the legislature had knowingly passed a constitutionally suspect law; otherwise, the conferral of the power would be unnecessary.  But it is very hard to imagine a situation in which a legislature would know that it was passing constitutionally suspect legislation.  If anything, the presumption of constitutionality seems to suggest that legislatures assume the constitutionality of their enactments. In any event, if the legislature did know that a piece of legislation was constitutionally suspect, and nonetheless enacted it into law, it is not readily apparent why the legislature would also confer on the tribunal to which the legislature assigns the responsibility of giving effect to that legislation the power to hold various provisions of the legislation inoperative.  Surely, a legislature intent on passing a constitutionally suspect law would not plant within that law the seeds of its own demise.

9.                       The suspect nature of the inference that jurisdiction over the general law in turn leads to jurisdiction over the Charter  requires us to return to the first principles of the Constitution, in order to comprehend  properly the relationship between s. 52 and administrative tribunals.  I will discuss two of these principles here.  These are the separation of powers and Parliamentary democracy.

The Separation of Powers

10.                     One of the defining features of the Canadian Constitution, in my opinion, is the separation of powers.  This point was made by Dickson C.J. in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp. 469-70, where he explained that:

There is in Canada a separation of powers among the three branches of government — the legislature, the executive and the judiciary.  In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy.

(Also see R. v. Power, [1994] 1 S.C.R. 601, at p. 620.)  I am well aware that this Court has held that the separation of powers under the Canadian Constitution is not strict, in that judicial functions, including the interpretation of law, may be vested in non-judicial bodies such as tribunals, and that conversely the judiciary may be vested with non-judicial functions: Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at p. 728; Douglas College, supra, at p. 601.   Indeed, the rise of the administrative state has been marked by the creation of institutions other than the courts on whom the legislature has conferred the power to interpret law, a function who had hitherto been performed by the judiciary.

11.                     However, the absence of a strict separation of powers does not mean that Canadian constitutional law does not recognize and sustain some notion of the separation of powers.  This is most evident in this Court’s jurisprudence on s. 96  of the Constitution Act, 1867 .  Although the wording of this provision suggests that it is solely concerned with the appointment of judges, through judicial interpretation — an important element of which has been the recognition that s. 96 must be read along with ss. 97-100 as part of an integrated whole — s. 96 has come to guarantee the core jurisdiction of the superior courts against legislative encroachment.  As I recently noted in MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at p. 753:

Governance by rule of law requires a judicial system that can ensure its orders are enforced and its process respected. [Emphasis added.]

As this passage makes clear, the existence of courts is definitional to the Canadian understanding of constitutionalism.  Thus, although some commentators had suggested that s. 96 was concerned as much with the division of powers as with safeguarding the role of the courts, because it was intended to prevent the provinces from undermining a unitary judicial system (e.g., J. M. Evans, “Administrative Tribunals and Charter Challenges” (1989), 2 C.J.A.L.P. 13), the fact that s. 96 binds Parliament as well as the provincial legislatures (MacMillan Bloedel, supra, at p. 737) demonstrates that the central concern of the provision is with the preservation of the judicial role.  Similarly, s. 96 has also been relied on to constitutionalize judicial review of administrative decision-makers.  The Court has applied s. 96 to strike down legislation which sought to grant the power to make final decisions on questions of jurisdiction to an appeal tribunal: Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220.

12.                     The constitutional foundations of the role of the judiciary, however, are not only found in ss. 96-100.  As this Court recognized in Beauregard v. Canada, [1986] 2 S.C.R. 56, judicial independence was incorporated into the Canadian constitution through the operation of the preamble of the Constitution Act, 1867 .  That preamble states that Canada is to have “a Constitution similar in Principle to that of the United Kingdom”.   As Dickson C.J. said for the Court in Beauregard, at p. 72:

Since judicial independence has been for centuries an important principle of the Constitution of the United Kingdom, it is fair to infer that it was transferred to Canada by the constitutional language of the preamble.

Although the comments of the Court in Beauregard were addressed to the issue of judicial independence, it is clear that a constitutional commitment to judicial independence must entail a more fundamental constitutional commitment to the existence of a judiciary.

13.                     The constitutional status of the judiciary, flowing as it does from the separation of powers, requires that certain functions be exclusively exercised by judicial bodies.  Although the judiciary certainly does not have an interpretive monopoly over questions of law, in my opinion, it must have exclusive jurisdiction over challenges to the validity of legislation under the Constitution of Canada, and particularly the Charter . The reason is that only courts have the requisite independence to be entrusted with the constitutional scrutiny of legislation when that scrutiny leads a court to declare invalid an enactment of the legislature.  Mere creatures of the legislature, whose very existence can be terminated at the stroke of a legislative pen, whose members, while the tribunal is in existence, usually serve at the pleasure of the government of the day, and whose decisions in some circumstances are properly governed by guidelines established by the executive branch of government, are not suited to this task.  I must stress again, however, that questions of this sort relate to s. 52  of the Constitution Act, 1982 ; I do not address s. 24(1)  of the Charter .

14.                     This Court has previously given texture to the meaning of judicial independence in Valente v. The Queen, [1985] 2 S.C.R. 673, in the context of the interpretation of s. 11( d )  of the Charter .  That provision guarantees to “[a]ny person charged with an offence” the right:

11. . . .

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. . . .

By its terms, s. 11(d) only relates to judges who adjudicate upon criminal matters.  However, I am of the opinion that the definition given there by the Court to judicial independence indicates the features of courts which make them well-suited to adjudication on the Charter . 

15.                     The Court (per Le Dain J.) identified three features of courts which made them independent ­ security of tenure, financial security, and independence “with respect to matters of administration bearing directly on the exercise of its [i.e., the courts’] judicial function” (Valente, supra, at p. 708).  In the context of Charter  adjudication, these features help to insulate the courts from interference, inter alia, by elected legislatures, and thus ensure that the courts can safeguard the supremacy of Charter  rights through the vehicle of s. 52  of the Constitution Act, 1982 .  Conversely, the absence of these features in tribunals makes them unsuited to measuring legislative provisions against the requirements of the Charter  and to overturning the will of the democratically elected representatives of the Canadian people.

16.                     The link between the protection of constitutional rights and an independent judiciary has been recognized by a number of commentators.  Professor Thomas Kuttner, in “Courts, Labour Tribunals and the Charter ” (1990), 39 U.N.B.  L.J. 85, has written at p. 95 that “the logic of entrenched rights and freedoms” requires an independent judiciary.  Similarly, Professor Hogg has described the importance of an independent judiciary to the protection of individual freedoms in these terms (Peter W. Hogg, Constitutional Law of Canada (3rd ed. 1992), at p. 168):

The independence of the judge from the other branches of government is especially significant, because it provides an assurance that the state will be subjected to the rule of law.  If the state could count on the courts to ratify all legislative and executive actions, even if unauthorized by law, the individual would have no protection against tyranny. [Emphasis added.]

Dickson C.J. arrived at the same conclusion in Beauregard, when he discussed the intimate relationship between judicial independence and the Charter .  Although, as I noted above, he located one of the constitutional foundations of judicial independence in the preamble of the Constitution Act, 1867 , he also said at p. 71 that judicial independence “is derived from many sources”.  One of these sources is the Charter  (at p. 72):

. . . the enactment of the Canadian Charter of Rights and Freedoms  ... conferred on the courts another truly crucial role: the defense of basic individual liberties and human rights against intrusions by all levels and branches of government.  Once again, in order to play this deeply constitutional role, judicial independence is essential.

17.                     The centrality of courts to determinations of constitutional validity suggests that no other bodies should exercise this function.  Indeed, this Court openly acknowledged  in Cuddy Chicks that a tribunal could not make a declaration of invalidity, because it was not a court: Cuddy Chicks, supra, at p. 17.  Thus, even in that decision, there was a recognition of the fundamental constitutional difference between courts and tribunals.   However, despite the Court’s awareness of this difference, the Court in that case rejected the view that when a tribunal refuses to apply its enabling legislation for the purposes of the proceeding before it, it effectively makes a declaration of invalidity: Cuddy Chicks, at p. 17; also see Douglas College, supra, at p. 599.  However, the distinction between declarations of invalidity and refusals to apply is hard to sustain.  The distinction relies on the assumption that decisions of one tribunal do not bind another tribunal operating under the same statutory regime. 

18.                     However, a number of authors have recognized that many tribunals operate according to an informal doctrine of precedent: Philip Anisman, “Jurisdiction of Administrative Tribunals to Apply the Canadian Charter of Rights and Freedoms ”, in Special Lectures of the Law Society of Upper Canada 1992: Administrative Law: Principles, Practice and Pluralism, at pp. 113-14; Larry Taman, “Jurisdiction of Administrative Tribunals to Consider Charter Arguments”, in Neil R. Finkelstein and Brian MacLeod  Rogers, eds., Administrative Tribunals and the Charter (1990), at p. 11; Roman, supra, at p. 252.  The reality of administrative justice is best put by Robert W. Macaulay and James L. H. Sprague, in Practice and Procedure Before Administrative Tribunals (1995), at p. 23-28:

. . . there is a widely held view amongst many competent and experienced agencies in Canada, that although one panel of an agency is not bound by the decision of any other panel of the same agency, nevertheless every agency ought to be consistent in its decisions, and where it departs from some previous decision of the same agency, that it ought to give its reasons in writing for so doing.

19.                     The de facto equivalence between refusals to apply and declarations of invalidity decisively demonstrates that tribunals, when they refuse to apply their enabling legislation under s. 52  of the Constitution Act, 1982 , are improperly exercising the role of the courts.  As a result, the decisions of this Court which authorize tribunals to overstep their constitutional role, in my opinion, are in serious need of revision.  Furthermore, although the case at bar concerns the implied power to decide Charter  questions, I would even go so far as to say that tribunals cannot be expressly given the power to consider the constitutionality of their enabling legislation, for the same reasons.

20.                     However, I must emphasize that this conclusion does not detract from the power of the Commission to determine whether complaints fall within federal jurisdiction according to the division of powers. As my colleague La Forest J. notes in his separate reasons, there is an important conceptual difference between the Commission’s interpreting its enabling legislation in light of the division of powers, and the Commission’s questioning the validity of that legislation in light of the Charter .  When it performs the former role, the Commission is merely determining whether it has jurisdiction over a matter, because the clear intent of Parliament was that the Commission should only operate within the confines of federal jurisdiction.

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

Parliamentary democracy

22.                     The separation of powers is not the only aspect of the Canadian constitution which is subverted by Douglas College, Cuddy Chicks, and Tétreault-Gadoury.  Those decisions also offend a second defining feature of the Canadian Constitution, its commitment to Parliamentary democracy.   As with the separation of powers, the commitment to Parliamentary democracy was incorporated into the Canadian Constitution by the Constitution Act, 1867 , through that provision’s reference to a constitution “similar in Principle to that of the United Kingdom”.  Admittedly, much of the content of Parliamentary democracy is governed by convention, and it is clear that the conventions of the British constitution do not have the force of law in Canada: Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753.  Rather, my position is that the Constitution Act, 1867 , incorporated those aspects of Parliamentary democracy that have taken legal form.

23.                     One of those aspects is the legal relationship between the executive  and the legislature.  A central principle of that relationship is that the executive must execute and implement the policies which have been enacted by the legislature in statutory form.  The role of the executive, in other words, is to effectuate legislative intent.  Admittedly, at times, that intent may be so broad and general that it becomes difficult to speak of any legislative intent at all; the legislature may in fact have been deliberately vague in order to leave a broad berth for the executive to develop and shape the contours of a particular regulatory regime.  But the ultimate truth remains that fundamental matters of political choice are left to the legislature, and the executive is bound to adhere to those choices.

24.                     The justification for this hierarchical relationship, in present-day Canada, is a respect for democracy, because legislatures are representative institutions accountable to the electorate.  A respect for democracy is also at the heart of those aspects of administrative judicial review which seek to ensure that administrative bodies do not exceed the boundaries of the powers granted to them by the legislature.  The hierarchical relationship between the executive and the legislature is also another aspect of the separation of powers, since the separation of powers inheres in Parliamentary democracy: Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876, at para. 68.

25.                     The assumption by administrative tribunals of jurisdiction over the Charter  does no less than to invert this hierarchical relationship.  Instead of putting the intent of the legislature into effect, the case law of this Court enables tribunals to challenge the decisions of the democratically elected legislature “by the assertion of overriding constitutional  norm” (Kuttner, supra, at p. 97).  Instead of being subject to the laws of the legislature, the executive can defeat the laws of the legislature.  On each occasion that this occurs, a tribunal has disrupted the proper constitutional relationship between it and the legislature.   Indeed, I would go so far as to say that a tribunal has, in these circumstances, unconstitutionally usurped power which it did not have.

26.                     The unconstitutional usurpation of power by tribunals can be illustrated by the decision of this Court in Cuddy Chicks.  In that case, the Ontario Labour Relations Board (O.L.R.B.) held that a provision of its enabling legislation which barred agricultural workers from access to collective bargaining violated the equality rights guaranteed by s. 15  of the Charter .  That decision was upheld by this Court.  The effect of the decision, of course, was to expand the jurisdiction of the O.L.R.B. to cover a class of persons whom the legislature had decided should not have the right to collectively bargain.  Instead of the legislature’s determining the jurisdiction of the O.L.R.B., the O.L.R.B. determined its own jurisdiction.

27.                     I cannot imagine that the intent of the framers of the Charter  was to alter so fundamentally the nature of the relationship between the executive and the legislature.  In this respect, I adopt the views expressed by  McLachlin J. in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, where she described the impact of the Charter  on the separation of powers in a Parliamentary democracy in the following terms, at p. 389:

The Charter has changed the balance of power between the legislative branch and the executive on the one hand, and the courts on the other hand, by requiring that all laws and government action must conform to the fundamental principles laid down in the Charter . [Emphasis added.]

Although I did not concur with McLachlin J. in that case, I did not disapprove of this passage in her judgment.   What is critical about this passage is that McLachlin J. at no point says that the Charter  has altered the relationship between the executive and the legislature.  The obvious implication is that this particular relationship was intended to remain the same after Patriation.

Conclusion

28.                     In my respectful view, the decisions of this Court in Douglas College, Cuddy Chicks, and Tétreault-Gadoury stand in contradiction to two fundamental principles of the Canadian constitution — the separation of powers and Parliamentary democracy.  By authorizing tribunals to declare provisions of their enabling legislation inoperative for the purposes of the proceedings before them, this Court has effectively allowed those bodies to make declarations of invalidity.  Furthermore, this power also permits tribunals to invert the hierarchical relationship between the executive and legislative branches which is fundamental in a Parliamentary democracy. 

29.                     By limiting the operation of s. 52 to the courts, we may avoid the complicated jurisprudence which is in full evidence in this decision.  Although we are bound by the prior decisions of this Court, I strongly urge my colleagues to revisit those decisions in order to ensure that the Charter  does not distort the deep structure of the Canadian Constitution.

Disposition

30.                     For the reasons stated above, I concur with La Forest J. in his disposition of these  appeals.

\\La Forest J.\\

The judgment of La Forest, Sopinka, Gonthier and Iacobucci JJ. was delivered by

31.                     La Forest J. -- At issue in these appeals is whether the Canadian Human Rights Commission or a tribunal appointed by it to investigate a complaint has power to determine the constitutionality of a provision of their enabling statute, the Canadian Human Rights Act , R.S.C., 1985, c. H-6 .  In particular, is it open to the Commission to ignore s. 15 (c) of the Act , which provides that it is not a discriminatory practice for an individual to be terminated from employment because that individual has reached the normal age of retirement for employees in similar positions?

Facts

32.                     The appellants Bell and Cooper were airline pilots employed by the respondent Canadian Airlines International Ltd. (“Canadian”).  Upon reaching the age of 60 they were informed by Canadian that they would be retired in accordance with the provisions of the collective agreement between the pilots and the company.  To this the applicants objected; in their view, it constituted discrimination on the basis of age since the vast majority of employees in Canada are not obliged to retire before the age of 65.  Accordingly, in April and July of 1990 respectively, they filed complaints under the Act  with the respondent Commission alleging discrimination on the basis of age in violation of ss. 7  and 10  of the Act .  Following receipt of the complaints the Commission appointed an investigator pursuant to the Act .  As part of the investigative process, Canadian made submissions to the investigator claiming there was no discrimination as the retirement policy was a bona fide occupational requirement under s. 15(a) of the Act and because 60 was the normal age of retirement for airline pilots by virtue of s. 15 (c) of the Act .  Paragraph 15(c) reads as follows:

15. It is not a discriminatory practice if

                                                                   . . .

(c) an individual's employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual;

33.                     In December, 1990, this Court issued its decision in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, where it held that s. 9(a) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, which provided that a mandatory retirement policy did not amount to discrimination on the basis of age, violated s. 15  of the Canadian Charter of Rights and Freedoms  but was nevertheless justified under s. 1.  In the spring of 1991 the appellants wrote the investigator a letter in which they argued that s. 15 (c) of the Act  violated the Charter  and that the McKinney decision was inapplicable.  However the investigator recommended to the Commission that the appellants’ complaints be dismissed and by letter dated October 23, 1991, the Commission informed the appellants that an inquiry was not warranted and that it was bound by the McKinney decision.

34.                     The appellants applied for judicial review in the Federal Court Trial Division, seeking an order to quash the Commission’s decision and to direct it to request the President of the Human Rights Tribunal Panel to appoint a tribunal to inquire into their complaints.  The motion was dismissed by Joyal J. and his finding was upheld by the Federal Court of Appeal.

35.                     Leave to appeal was granted by this Court on October 13, 1994, [1994] 3 S.C.R. vi, subsequent to which the Chief Justice ordered that Canadian be granted party status in the proceedings.  After hearing oral submissions from the parties, who were all of the view that the Commission had at least a limited jurisdiction to question the constitutionality of the Act , the Court took the step of appointing an amicus curiae to present the argument against such a jurisdiction.

Judicial History

Federal Court Trial Division (1992), 22 C.H.R.R. D/87

36.                     Joyal J. held, at p. D/87, that this Court’s decision in McKinney stood for the proposition that no Court interference, either under human rights provisions or on Charter  grounds, was warranted when dealing with a "well-founded, historically respected and presumably reasonable scheme for mandatory retirement".  He concluded, at p. D/88, that by endorsing s. 9(a) of the Ontario Human Rights Code, 1981, the Court had “effectively endorsed the legality of s. 15 (c) of the Canadian Human Rights Act ”.  As a result, Joyal J. held that the Commission had not exceeded its jurisdiction, denied the appellants any aspect of procedural fairness, or come to a perverse or absurd decision in deciding not to refer the complaints to a tribunal.  The Commission had thus not committed any reviewable error and he denied the appellants’ application.

Federal Court of Appeal (1994), 22 C.H.R.R. D/90

37.                     Though concurring in the result, Pratte J.A. and Marceau J.A. wrote separate reasons dismissing the appellants’ appeals.  McDonald J.A. concurred with the reasons of both of his colleagues.

Pratte J.A.

38.                     Pratte J.A. noted that the main ground of the appellants’ motion before the Trial Division was that s. 15 (c) of the Act  was unconstitutional but that no notice of a constitutional question had been given pursuant to s. 57  of the Federal Court Act , R.S.C., 1985, c. F-7 .  Though it was not argued before the Court of Appeal that s. 15(c) was unconstitutional, the appellants would be barred from doing so because of the failure to give notice both in the Court of Appeal and in the Trial Division.

39.                     Pratte J.A. understood the appellants’ argument as being that because of the differences between s. 15(c) of the Act and s. 9(a) of the Ontario Human Rights Code, 1981, McKinney did not establish the constitutionality of the former.  If the Commission had not erroneously applied McKinney they would have necessarily concluded that the constitutionality of s. 15(c) was an open question and referred the complaints to a tribunal.  Pratte J.A. disagreed with the appellants’ argument for the following reasons, at p. D/94:

This is, in my view, a fallacious argument.  In order to succeed, the appellant must show that the decision appealed from is wrong.  And as that decision confirmed the decision of the Canadian Human Rights Commission, he must show that the decision of the Commission was wrong.  That decision dismissed the appellant’s complaint, the Commission being satisfied that an inquiry was not warranted since the complaint was clearly directed against a practice that para. 15(c) declares not to be discriminatory.  It is common ground that para. 15(c), if valid, would justify the Commission’s decision.  It follows that, in order to succeed, it was not sufficient for the appellant to show that para. 15(c) is in some respects different from para. 9(c) [sic] of the Human Rights Code, 1981.  The appellant had to establish the unconstitutionality of that provision and ask the Court to adjudge it to be invalid.  This, in view of his failure to comply with s. 57  of the Federal Court Act , he did not and could not do.

Marceau J.A.

40.                     Marceau J.A. agreed with Pratte J.A. that the appellants’ appeals should be dismissed, but for different reasons.  Marceau J.A. believed that the Commission had no choice but to dismiss the complaints as the Commission was bound by the provisions of s. 15 (c) of the Act .  The Commission was bound by the Act  because neither the Commission, nor a tribunal appointed by the Commission, had the power to consider the constitutionality of their enabling statute.

41.                     Marceau J.A. noted that in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, this Court established two propositions.  First, that the power of an administrative tribunal to refuse to apply a law of Parliament on the basis that such law was unconstitutional had to be found in its enabling statute.  Second, that the intention of Parliament to confer this power on a tribunal could be given in express terms or could be inferred from the mandate assigned to the tribunal and particularly, from a requirement that it deal with all necessary questions of law.  Applying these propositions to the Act , Marceau J.A. stated, at p. D/95:

It is clear to me that the terms used in the Canadian Human Rights Act  contain nothing that could even remotely suggest an intention on the part of Parliament of allowing the Human Rights Commission -- whose role is purely administrative (cf. Syndicat des employés de production du Québec et de l'Acadie v. Canadian Human Rights Commission, [1989] 2 S.C.R. 879) . . . or the Human Rights tribunals -- which do not have to be presided by people trained in law and whose mandate is strictly “to inquire into the complaint” (cf. s. 39  of the Act ) -- to dispute the constitutional validity of legislative provisions governing their activity.  It can even be said, in the case of the particular provision in question, that the wording of the statute indicates the exact contrary:  for the Commission to hold to be discriminatory and subject to its sanction a practice that Parliament has formally declared non-discriminatory and outside the ambit of the mandate given to it, would be for the tribunal to go directly against the will of Parliament.  To pretend that Parliament still intended to make its pronouncement subject to some value judgment by the Commission or its tribunal appears to me totally untenable.

Issues

42.                     The issues before the Court are the following:

1.                Has Parliament granted to the Commission the jurisdiction to consider the constitutional validity of a provision of its enabling statute?

2.                Has Parliament granted to a tribunal, appointed by the Commission pursuant to s. 49  of the Act , the jurisdiction to consider the constitutional validity of its enabling statute?

Analysis

43.                     All the parties to these appeals, with the exception of the amicus curiae, are of the view that the Commission has, at the very least, a limited power to consider the constitutional validity of its enabling statute.  The appellants, along with counsel for the Commission, argue that at a minimum the Commission has the power to decide if there is a triable issue with respect to the constitutional status of a provision of the Act , and on this basis to send it to a tribunal for a full hearing.  Inherent in this position, of course, is the assumption that such a tribunal has the power to decide constitutional questions.  The respondent Canadian took a somewhat different approach, arguing that if the Commission found there was a triable constitutional issue, it should refer the constitutional question to a superior court for determination.

44.                     There was considerable argument by the parties to the effect that this sort of screening function by the Commission with respect to the constitutionality of a provision of its enabling statute would not amount to an actual determination of the constitutional question, that it would be no more than an opinion.  This is quite simply not the case.  If the Commission had found that there was some uncertainty regarding the constitutionality of s. 15 (c) of the Act , and as a result sent the matter to a tribunal, the Commission would have effectively found s. 15(c) to be inoperative.  For, if s. 15(c) is valid, it operates to deny the Commission jurisdiction to refer the appellants’ complaint to a tribunal; it is trite law that the Commission has no other jurisdiction than that granted to it by Parliament.  There is no middle ground:  either s. 15(c) is operative and the Commission has no jurisdiction, there being no discriminatory practice; or the section is inoperative and the Commission does have jurisdiction.  Therefore the question before this Court is a straightforward one: does the Commission, and in turn a tribunal appointed under the Act , have the power to find a provision of the Act  unconstitutional and treat it as inoperative?

45.                     In three previous cases, Douglas College, supra, Cuddy Chicks, supra, and Tétreault-Gadoury, supra, this Court has had the opportunity to address the principles underlying an administrative tribunal’s jurisdiction to consider the constitutionality of its enabling statute.  These authorities make it clear that no administrative tribunal has an independent source of jurisdiction pursuant to s. 52(1)  of the Constitution Act, 1982 .  Rather, the essential question facing a court is one of statutory interpretation -- has the legislature, in this case Parliament, granted the administrative tribunal through its enabling statute the power to determine questions of law?  As noted by the majority in Tétreault-Gadoury, supra, at p. 32:

As I have stressed in both Douglas College and Cuddy Chicks, supra, s. 52(1) does not, in itself, confer the power to an administrative tribunal to find a legislative provision to be inconsistent with the Charter .  Rather, the inquiry must begin with an examination of the mandate given to the particular tribunal by the legislature.

46.                     If a tribunal does have the power to consider questions of law, then it follows by the operation of s. 52(1) that it must be able to address constitutional issues, including the constitutional validity of its enabling statute.  This principle was clearly enunciated by this Court in Cuddy Chicks, supra, at pp. 13-14, referring to the earlier decision in Douglas College, supra, in the following passage:

The power of an administrative tribunal to consider Charter  issues was addressed recently by this Court in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570.  That case concerned the jurisdiction of an arbitration board, appointed by the parties under a collective agreement in conjunction with the British Columbia Labour Code, to determine the constitutionality of a mandatory retirement provision in the collective agreement.  In ruling that the arbitrator did have such jurisdiction, this Court articulated the basic principle that an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid.  This conclusion ensues from the principle of supremacy of the Constitution, which is confirmed by s. 52(1)  of the Constitution Act, 1982 :

52.  (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Distilled to its basics, the rationale for recognizing jurisdiction in the arbitrator in the Douglas College case is that the Constitution, as the supreme law, must be respected by an administrative tribunal called upon to interpret law.

It should be emphasized that there is no need to determine if either the Commission or a tribunal under the Act  is a court of competent jurisdiction under s. 24(1)  of the Charter .  That is not the inquiry before us.  Rather, what must be scrutinized is the mandate given under the Act  to the Commission and the tribunals.  There is no doubt that the power to consider questions of law can be bestowed on an administrative tribunal either explicitly or implicitly by the legislature.  All the parties agree that there is no provision in the Act  that expressly confers on the Commission a general power to consider questions of law.  There being no such express authority, it becomes necessary to determine whether Parliament has granted it implicit jurisdiction to consider such questions.  As stated in Cuddy Chicks, supra, at p. 14:

[J]urisdiction must have expressly or impliedly been conferred on the tribunal by its enabling statute or otherwise.  This fundamental principle holds true regardless of the nature of the issue before the administrative body.  Thus, a tribunal prepared to address a Charter  issue must already have jurisdiction over the whole of the matter before it, namely, the parties, subject matter and remedy sought.

47.                     In considering whether a tribunal has jurisdiction over the parties, the subject matter before it, and the remedy sought by the parties, it is appropriate to take into account various practical matters such as the composition and structure of the tribunal, the procedure before the tribunal, the appeal route from the tribunal, and the expertise of the tribunal.  These practical considerations, in so far as they reflect the scheme of the enabling statute, provide an insight into the mandate given to the administrative tribunal by the legislature.  At the same time there may be pragmatic and functional policy concerns that argue for or against the tribunal having constitutional competence, though such concerns can never supplant the intention of the legislature.

The Scheme of the Act

48.                     The Act  sets out a complete mechanism for dealing with human rights complaints.  Central to this mechanism is the Commission.  Its powers and duties are set forth in ss. 26 and 27, and Part III of the Act.  Briefly put, the Commission is empowered to administer the Act , which includes among other things fostering compliance with the Act  through public activities, research programs, and the review of legislation.  It is also the statutory body entrusted with accepting, managing and processing complaints of discriminatory practices.  It is this latter duty which is provided for in Part III of the Act.

49.                     A complaint of a discriminatory practice may, under s. 40, be initiated by an individual, a group, or the Commission itself.  On receiving a complaint the Commission appoints an investigator to investigate and prepare a report of its findings for the Commission (ss. 43 and 44(1)).  On receiving the investigator’s report, the Commission may, after inviting comments on the report by the parties involved, take steps to appoint a tribunal to inquire into the complaint if having regard to all the circumstances of the complaint it believes an inquiry is warranted (ss. 44(3)(a)).  Alternatively the Commission can dismiss the complaint, appoint a conciliator, or refer the complainant to the appropriate authority (ss. 44(3)(b), 47(1) and 44(2) respectively).

50.                     If the Commission decides that a tribunal should be appointed, then, pursuant to the Commission’s request, the President of the Human Rights Tribunal Panel appoints a tribunal (s. 49).  This tribunal then proceeds to inquire into the complaint and to offer each party the opportunity to appear in person or through counsel before the tribunal (s. 50).  At the conclusion of its inquiry the tribunal either dismisses the complaint pursuant to s. 53(1) or, if it finds the complaint to be substantiated, it may invoke one of the various remedies found in s. 53  of the Act .  These remedies include an order that a person cease a discriminatory practice; that a right, opportunity or privilege denied the victim be made available to him or her; and that the person engaged in the discriminatory practice compensate the victim of the practice for lost wages and expenses resulting from the practice and, where it is warranted, pay a fine to the victim.  Finally, if the tribunal was composed of less than three members, it is open to a party to appeal the tribunal’s decision to a three-member Review Tribunal on any question of law or fact or mixed law and fact (ss. 55 and 56).

51.                     Not included in the Act , but also available to any party, is the right to judicial review of a decision of the Commission or tribunal.  Under ss. 18  and 18.1  of the Federal Court Act , an application for judicial review is to be brought in the Federal Court, Trial Division, from which a further appeal lies to the Federal Court of Appeal.  It is by this route that the instant appeals are before us.

The Jurisdiction of the Commission

52.                     With the exception to be noted later, there is no explicit provision in the Act  giving to the Commission power to determine questions of law.  Nor is there anything in the scheme of the Act  to imply that the Commission has this power.  Looking at the Act  as a whole it is evident that the role of the Commission is to deal with the intake of complaints and to screen them for proper disposition.  In Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 584, I described the powers and the limits of the Commission in the following way:

The Human Rights Commission undoubtedly serves many useful functions that help to educate, inform, and advise the government, the public and the courts on matters of human rights (s. 27).  It also provides a procedure for initiating, investigating, and seeking voluntary settlement of human rights complaints.

53.                     The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act .  When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry.  It is not the job of the Commission to determine if the complaint is made out.  Rather its duty is to decide if, under the provisions of the Act , an inquiry is warranted having regard to all the facts.  The central component of the Commission’s role, then, is that of assessing the sufficiency of the evidence before it.  Justice Sopinka emphasized this point in Syndicat des employés de production du Québec et de L’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p. 899:

The other course of action is to dismiss the complaint.  In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39.  It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage.

54.                     The striking down of s. 15(c) by the Commission, which is what a referral to a tribunal in the present case would amount to, would be an assumption by the Commission of an adjudicative role for which it has no mandate.  When Parliament has failed to vest an administrative body with such a jurisdiction (which is the case here), then it is not the role of a court to create such jurisdiction.  Administrative bodies and tribunals are creatures of statute; the will of the legislature as it appears therein must be respected.

55.                     Notwithstanding the general scheme of the Act , there are specific provisions, notably ss. 27, 40 and 41, that both the appellants and the Commission fastened upon as indicating an intent by Parliament to have the Commission determine questions of law.  However, these sections amount to no more than that the Commission has power to interpret and apply its enabling statute.  It does not follow that it then has a jurisdiction to address general questions of law.  Every administrative body, to one degree or another, must have the power to interpret and apply its own enabling statute.  If this were not the case, it would be at the mercy of the parties before it and would never be the master of its own proceedings.  The power to refuse to accept a complaint, or to turn down an application, or to refuse to do one of the countless duties that administrative bodies are charged with, does not amount to a power to determine questions of law as envisaged in Douglas/Kwantlen, Cuddy Chicks and Tétreault-Gadoury.  To decide otherwise would be to accept that all administrative bodies and tribunals are competent to question the constitutional validity of their enabling statutes, a position this Court has consistently rejected

56.                     In his argument, counsel for the Commission focused on the obligation and power granted to the Commission in s. 41 (c) of the Act  to refuse to deal with a complaint beyond its jurisdiction.  In particular he argued that because in exercising this power the Commission often determines whether a given complaint falls within the federal sphere pursuant to the constitutional division of powers, then it followed that the Commission had jurisdiction to consider constitutional questions in general.

57.                     I am unable to accept this.  When deciding whether a complaint falls within its jurisdiction the Commission is bound to look to its enabling statute for the limits of that jurisdiction.  Thus it is well accepted that the Commission only has jurisdiction over a complaint when it is in respect to an activity or undertaking within the federal sphere.  In making such a determination the Commission must obviously make reference to the constitutional division of powers.  Similarly, pursuant to s. 40(1) of the Act the Commission only has jurisdiction over complaints of alleged discriminatory practices.  In determining what is a discriminatory practice the Commission is bound by s. 15(c) which states that job termination at the normal age of retirement is not a discriminatory practice.  The process of the Commission in determining its jurisdiction over a given complaint through reference to the provisions of the Act  is conceptually different from subjecting the same provisions to Charter  scrutiny.  The former represents an application of Parliament’s intent as reflected in the Act  while the latter involves ignoring that intent.

58.                     The role of the Commission as an administrative and screening body, with no appreciable and adjudicative role, is a clear indication that Parliament did not intend the Commission to have the power to consider questions of law.  There is simply nothing in the Act  indicating that the Commission has the mandate which the appellants and the Commission would wish it to have.  This point was succinctly and directly addressed by Marceau J.A. in his reasons.  He stated, at p. D/95:

It is clear to me that the terms used in the Canadian Human Rights Act  contain nothing that could even remotely suggest an intention on the part of Parliament of allowing the Human Rights Commission, whose role is purely administrative, . . . to dispute the constitutional validity of legislative provisions governing their activity.

Practical Considerations

59.                     It must be recognized at the outset that practical considerations cannot dictate the outcome of the issue presently before this Court.  As I have already emphasized, the focus of the Court’s inquiry must be the mandate given to the Commission by Parliament.  In such an endeavour practical considerations may be of assistance in determining the intention of Parliament, but they are not determinative.  Thus in Tétreault-Gadoury, supra, the Court found that the Board of Referees under the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, had no jurisdiction to consider the constitutionality of its enabling statute, notwithstanding the fact that certain practical advantages argued in favour of granting the Board such a jurisdiction.

60.                     In the present case the practical advantages in having the Commission consider the constitutionality of its own statute are limited.  First, since the Commission is not an adjudicative body it cannot be considered a proper forum in which to address fundamental constitutional issues.  As this Court has previously found, there is no requirement for anything more than a “paper hearing” for the parties before the Commission.  Although I readily acknowledge that the informal and accessible process of administrative bodies may well be a considerable advantage to a party, as compared to the regular court system, there comes a point where a body such as the Commission simply does not have the mechanism in place to adequately deal with multifaceted constitutional issues.  For example, the Commission is not bound by the traditional rules of evidence.  This means that it is open to the Commission to receive unsworn evidence, hearsay evidence, and simple opinion evidence.  Such an unrestricted flow of information may be well suited to deciding the threshold question facing the Commission, but it is inappropriate when determining the constitutional validity of a legislative provision.  In the latter case, suitable evidentiary safeguards are desirable.  Related to this problem is the concern that one of the aims of the Commission, to deal with human right complaints in an accessible, efficient and timely manner, would be disrupted and interfered with by allowing the parties to raise constitutional issues before the Commission.  Such issues would of necessity require a more involved and lengthy process than is presently the case.  In my view, it was not the intention of Parliament that the Commission’s screening function become entangled in this manner.

61.                     A second and more telling problem in the case of the Commission is its lack of expertise.  In Tétreault-Gadoury, supra, I pointed out, at p. 34, that an Umpire under the Unemployment Insurance Act was a Federal Court judge which would ensure that a complainant received “a capable determination of the constitutional issue”.  Similarly in both Douglas/Kwantlen and in Cuddy Chicks, supra, the expertise of labour boards and the assistance they could bring to bear on the resolution of constitutional issues was recognized.  In contrast this Court has made clear in Mossop, supra, at pp. 584-85, and reiterated in Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, at pp. 599-600, that a human rights tribunal, unlike a labour arbitrator or labour board, has no special expertise with respect to questions of law.  What is true of a tribunal is even more true of the Commission which, as was noted in Mossop, is lacking the adjudicative role of a tribunal.

62.                     To my mind the relevant practical considerations do not argue in favour of having the Commission consider Charter  issues.  Without question there is on the surface an attraction and efficiency, at least for the complainant, in having the constitutional matter first heard by the Commission.  That will always be so, however, and in the present situation I am of the view that the reality would in fact be different.  It is likely that in a case such as the one presently before us the decision of the Commission on the validity of a provision of the Act  under the Charter  would be the subject of judicial review proceedings in the Federal Court.  It would be more efficient, both to the parties and to the system in general, to have a complainant seek a declaration of constitutional invalidity in either the Federal Court or a provincial superior court.  In such a setting the question can be debated in the fullness it requires and the proper expertise can be brought to bear on its resolution.

The Jurisdiction of a Tribunal under the Act 

63.                     Given my finding that the Commission does not have the jurisdiction to question the constitutional validity of its enabling statute, it logically follows that a tribunal appointed under the Act , and indeed a review tribunal appointed pursuant to s. 56, must also lack the jurisdiction to declare unconstitutional a limiting provision of the Act .  Take for example the case presently before us:  if the Commission must apply the Act  as it is written, then the appellants cannot get their complaint before a tribunal, depending as it does on s. 15(c) being found to be inoperative.  The same is true of any complaint that requires the Commission to arrive at a decision on a constitutional matter before being able to find that the complaint warrants further inquiry by a tribunal.  It would be something of a paradox for Parliament to grant tribunals under the Act a jurisdiction that could never be exercised.

64.                     As with the Commission there is no explicit power given to a tribunal to consider questions of law.  Taken together, ss. 50(1)  and 53(2)  of the Act  state that a tribunal shall inquire into the complaint referred to it by the Commission to determine if it is substantiated.  This is primarily and essentially a fact-finding inquiry with the aim of establishing whether or not a discriminatory practice occurred.  In the course of such an inquiry a tribunal may indeed consider questions of law.  As with the Commission, these questions will often centre around the interpretation of the enabling legislation.  However, unlike the Commission, it is implicit in the scheme of the Act  that a tribunal possess a more general power to deal with questions of law.  Thus tribunals have been recognized as having jurisdiction to interpret statutes other than the Act  (see Canada (Attorney General) v. Druken, [1989] 2 F.C. 24 (C.A.)) and as having jurisdiction to consider constitutional questions other than those noted above.  In particular, it is well accepted that a tribunal has the power to address questions on the constitutional division of powers (Public Service Alliance of Canada v. Qu’Appelle Indian Residential Council (1986), 7 C.H.R.R. D/3600 (C.H.R.T.)), on the validity of a ground of discrimination under the Act  (Nealy v. Johnston (1989), 10 C.H.R.R. D/6450 (C.H.R.T.)), and it is foreseeable that a tribunal could entertain Charter  arguments on the constitutionality of available remedies in a particular case (see Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892).  Even in such instances, however, the legal findings of a tribunal receive no deference from the courts.  This position was firmly established by this Court in Mossop, supra, at p. 585:

The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context.  It does not extend to general questions of law such as the one at issue in this case.  These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform.

65.                     I would add a practical note of caution with respect to a tribunal’s jurisdiction to consider Charter  arguments.  First, as already noted, a tribunal does not have any special expertise except in the area of factual determinations in the human rights context.  Second, any efficiencies that are prima facie gained by avoiding the court system will be lost when the inevitable judicial review proceeding is brought in the Federal Court.  Third, the unfettered ability of a tribunal to accept any evidence it sees fit is well suited to a human rights complaint determination but is inappropriate when addressing the constitutionality of a legislative provision.  Finally, and perhaps most decisively, the added complexity, cost, and time that would be involved when a tribunal is to hear a constitutional question would erode to a large degree the primary goal sought in creating the tribunals, i.e., the efficient and timely adjudication of human rights complaints.

66.                     Taking all these factors into consideration, I am of the view that while a tribunal may have jurisdiction to consider general legal and constitutional questions, logic demands that it has no ability to question the constitutional validity of a limiting provision of the Act .

Conclusion

67.                     To conclude, the Canadian Human Rights Commission has no jurisdiction under the Canadian Human Rights Act  to subject provisions of that statute to constitutional scrutiny.  The Commission is limited in its jurisdiction by the dictates of the Act .  Similarly, a tribunal appointed at the request of the Commission is also without jurisdiction to determine the constitutional validity of limiting provisions of the Act .

68.                     Accordingly, I would dismiss the appeals.  There should be no order as to costs.

//McLachlin J.//

The reasons of L’Heureux-Dubé and McLachlin JJ. were delivered by

McLachlin J. (dissenting) --

I.                 Introduction

69.                     In 1977 the Parliament of Canada enacted the Canadian Human Rights Act , S.C. 1976-77, c. 33 (now R.S.C., 1985, c. H-6 ), aimed at promoting equal treatment in the workplace and other areas.  In 1982, this country adopted as part of our constitution the Canadian Charter of Rights and Freedoms , which guaranteed to Canadians the right to equal treatment under the law.  The Constitution Act, 1982   declared in s. 52 that all laws, to the extent that they violate its guarantees, are invalid.  The appellants argue that a provision of the Canadian Human Rights Act  which permits an employer to retire an employee where the employee has reached "the normal age of retirement for employees working in [similar] positions" conflicts with the Charter  and is hence invalid.  Everyone agrees that the issue of whether a section of the Canadian Human Rights Act  has been invalidated by s. 15  of the Charter  and s. 52  of the Constitution Act, 1982  is an important issue for the appellants and for Canadians generally.  Everyone also agrees that the Charter  overrides the Human Rights Act if the latter fails to meet its requirements.  Yet, a majority of this Court would assert that the Canadian Human Rights Commission has no power to consider the appellants’ argument that the Act ’s defence of normal retirement for the industry is unconstitutional.  The Commission is obliged to proceed, it asserts, as though the Charter  did not exist and the statute's validity had not been called into question, and hence to dismiss the appellant's complaint -- a complaint which, if s. 52  of the Constitution Act, 1982  means what it says, may well be valid.  Why is the Commission compelled to ignore the central legal question posed by these appeals and proceed in this artificial manner?  Because, in the view of the majority, it lacks the power to consider Charter  issues.

70.                     In my respectful view, the majority approach depreciates the language of s. 52  of the Constitution Act, 1982 , makes it more difficult for the Human Rights Commission to fulfil its mandate, and places burdens on the victims of discrimination in their fight for equality that Parliament cannot have intended.  If this is the clear effect of the Act and the law, then these results, however illogical, unjust and inconvenient they may be, must be accepted.  But, unlike the majority, I do not find this to be the clear effect of the law.  In my view, every tribunal charged with the duty of deciding issues of law has the concomitant power to do so.  The fact that the question of law concerns the effect of the Charter  does not change the matter.  The Charter is not some holy grail which only judicial initiates of the superior courts may touch.  The Charter belongs to the people.  All law and law-makers that touch the people must conform to it.  Tribunals and commissions charged with deciding legal issues are no exception.  Many more citizens have their rights determined by these tribunals than by the courts.  If the Charter  is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals.  If Parliament makes it clear that a particular tribunal can decide facts and facts alone, so be it.  But if Parliament confers on the tribunal the power to decide questions of law, that power must, in the absence of counter-indications, be taken to extend to the Charter , and to the question of whether the Charter  renders portions of its enabling statute unconstitutional.

71.                     What is at stake may be judged by the case before us.  The appellants contend that they are the victims of discrimination on the basis of age.  Like many people who bring complaints before human rights tribunals, they have no lawyer.  As is usual, they asked the Commission to consider their claim and refer it to a tribunal for investigation and hearing.  Consistent with its goal of helping the disadvantaged, the Act  establishes procedures for all this to be done at little or no cost to the complainant. 

72.                     Everyone who appeared before this Court, with the exception of amicus curiae appointed at the direction of this Court, agreed that the Commission should be able to initiate proceedings to determine the constitutional validity of the "normal retirement age" exemption of the Act .  The appellants, having fought their way all the way to this Court without counsel, submit that the Commission should refer their complaint to a tribunal for consideration of both the facts and the legal issues.  The respondent employer, Canadian Airlines, suggests that the Commission should be permitted to refer the legal question to the Federal Court, which will permit it, upon obtaining the answer, to decide whether the complaint has sufficient merit to justify appointing a tribunal.  The Canadian Human Rights Commission, for its part, submits that the Commission has the power as a screening body to consider the constitutional issue in a preliminary way and either appoint a tribunal if it finds a meritorious case to be made out considering the law and the facts, or decline to do so if it finds no such case.  In the event a tribunal were appointed, the Commission submits that the tribunal would have the power to consider and decide the entire matter, including arguments that the "normal age of retirement" exemption is rendered void by s. 52  of the Constitution Act, 1982 .  Aggrieved parties could take appeals to the courts as permitted by the Canadian Human Rights Act .

73.                     It behooves this Court to ask why every party with a stake in the matter urges this Court to find that the Human Rights Commission may deal with the issue of the constitutionality of the "normal age of retirement" exemption in one way or another.  The answer, I venture to suggest, is that this is the result which best achieves the economical and effective resolution of human rights disputes and best serves the values entrenched in the Canadian Human Rights Act  and the Charter .

74.                     Applicants like the appellants suffer the greatest prejudice from a ruling that the Commission has no choice but to ignore the Charter  challenge and to proceed on the basis that the law is valid.  They must first launch their complaint with the Human Rights Commission, knowing that this is a useless pro forma step.  When the complaint is refused, as it inevitably must be, they  must then bring an action in Federal Court for a declaration that the section of the Canadian Human Rights Act  at issue offends the Charter  and is invalid.  The requirement of this pro forma step can only serve to discourage complainants from challenging the constitutionality of a provision of the Canadian Human Rights Act .  Moreover, the Commission itself may be unable to refer the constitutionality of a provision of the Canadian Human Rights Act  to the court: see Re Rosen, [1987] 3 F.C. 238, where the Federal Court of Appeal held that it lacked jurisdiction to hear a reference from the Human Rights Commission on a question arguably similar to that raised by this appeal.

75.                     Nor does the process the majority envisions serve the employer; while the  employer may be better able to bear the legal expense of a litigation detour than the appellants, the process may never provide an answer to the question of whether its policy violates the Canadian Human Rights Act .  Unless the private complainants muster courage and enough money to pursue a collateral court challenge to the Canadian Human Rights Act , the employer will not know what policy is required to conform to the law and the Charter .

76.                     Finally, the Canadian public is ill-served by the process proposed by the majority on this appeal.  Unless and until private individuals mount a successful court challenge under the Charter , administrative agencies like the Canadian Human Rights Commission must proceed to deal with people's rights as though the Charter  had never been enacted.  If and when the Charter  issue is brought before the courts, it will be decided in a vacuum.  Under the majority’s suggested process of a declaratory action in Federal Court, there will be no factual record or tribunal findings to assist the courts in deciding whether or not to declare that the impugned section of Canadian Human Rights Act  offends the Charter .

77.                     Why, one must ask, is it necessary to conclude, against the submissions of all the parties, that the Canadian Human Rights Commission has no jurisdiction to consider, even in its limited capacity as a screening body, the question of whether the "normal age of retirement" defence may have been invalidated by the Charter ?  In my view, it is not necessary.  The authorities, in my opinion, point to a more efficient process, a process which will not place unnecessary roadblocks in the way of complainants like the appellants.  The Canadian Human Rights Commission seeks to do only what its statute obliges it to do -- to carry out preliminary investigations of complaints and, if warranted, appoint tribunals to investigate and hear them.

II.                The Applicable Principles

78.                     Two related principles of general application govern the question before us.  The first is the general rule that all decision-making tribunals, be they courts or administrative tribunals, are bound to apply the law of the land.  In doing so, they apply all the law of the land, including the Charter .  As this Court, per Justice La Forest, stated in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, there cannot be one law for administrative tribunals and another for the courts.  Section 52  of the Constitution Act, 1982  proclaims the Constitution as the "supreme law" of Canada.  Citizens have the same right to expect that it will be followed and applied by the administrative arm of government as by legislators, bureaucrats and the police.  If the state sets up an institution to exercise power over people, then the people may properly expect that that institution will apply the Charter .

79.                     While all tribunals must apply the law of the land, the powers they can exercise in doing so may be limited by Parliament or the Legislature.  Save for the superior courts, which enjoy inherent jurisdiction, a tribunal can do only that which its constituent statute empowers it to do.  Some tribunals are limited to questions of fact only.  Other tribunals are empowered to consider questions of law as well as fact.

80.                     Questions of law encompass the meaning to be given to particular provisions of the statute under which the tribunal acts.  But other types of legal questions may arise as well.  There may be questions of conflicts between the tribunal’s constituent statute and other enactments.  Or there may be questions, as in the instant appeal, of conflict between the tribunal’s constituent statute and the fundamental law of the land, the Charter .

81.                     This Court has repeatedly held that administrative tribunals empowered to decide questions of law may consider Charter  questions:  Douglas College, supra, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board ), [1991] 2 S.C.R. 5; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.  This conclusion reflects the principle that tribunals must apply the law of the land in its entirety.  If the tribunal is empowered to decide questions of law, then that power goes not to part of the law but to all the law; absent an indication that Parliament intended to exclude Charter  issues from the tribunal’s purview, the courts should not do so by judicial fiat.

82.                     The general obligation of tribunals empowered to decide questions of law to apply the Charter  and render decisions reflecting the Charter  is confirmed by the court structure dictated by the Constitution of Canada.  Unlike many countries, for example Germany and France, the Constitution of Canada does not establish a separate constitutional court which is given exclusive responsibility to decide constitutional questions.  Such systems specifically forbid junior tribunals and courts from deciding constitutional issues, which must be referred to the constitutional court. As noted in Mills v. The Queen, [1986] 1 S.C.R. 863, and Douglas College, supra, the Canadian Constitution generally and the Charter  in particular take another route: lower tribunals are to apply the Charter  in their decisions.  The correctness of their Charter  rulings will be considered, along with all other matters, on appeal of the case as a whole.  Absent specific indications to the contrary, lower courts and tribunals should as a general rule consider such Charter  issues as may come before them.

83.                     The second principle of general application to the question before us is this: a tribunal’s ruling that a law is inconsistent with the Charter  is nothing more,  in the final analysis, than a case of applying the law of the land -- including the most fundamental law of the land, the Constitution.  It is common to speak of courts or tribunals "striking down" or invalidating laws, regulations and government actions,  suggesting action that transcends mere application of the law and hence, must be reserved for the highest courts.  This view of the Charter  is, with respect, inaccurate.  The Charter confers no power on judges or tribunals to strike down laws. The Constitution Act, 1982 , however, provides that all laws are invalid to the extent that they are inconsistent with the Charter .  Laws are struck down not by judicial fiat, but by operation of the Charter  and s. 52  of the Constitution Act, 1982 .  The task of the judge or decision-maker is to determine whether there is an inconsistency between the law that is challenged and the Charter  and, if so, its extent.  My point is not that this is not an important and powerful role, but rather that we fall into error if we think of the Charter  as a document that empowers some decision-making bodies to decide Charter  questions to the exclusion of others.  The Constitution Act, 1982  does not speak in terms of bodies possessing power to invalidate laws.  Rather, it pronounces the laws invalid, to the extent of their inconsistency with the Charter . The only reference in the Charter  to decision-making bodies deals not with the invalidity of the laws that conflict with the Charter , but with enforcement.  Section 24(1) provides that a person whose rights are infringed or denied "may apply to a court of competent jurisdiction" for a remedy, and s. 24(2) permits a court to exclude evidence taken in violation of the Charter .  The fact that invalidation of laws under the Charter  is linked to inconsistency rather than the action of a particular court, undercuts the suggestion that striking down laws under the Charter  is the prerogative of a particular court.

84.                     These general considerations suggest that any tribunal empowered to decide legal questions should be able to rule on the legal question of inconsistency with the Charter  where this issue comes before them.  The jurisprudence of this Court supports that view.  It confirms a distinction between the duty of a tribunal to apply the Constitution in the course of performing its statutory mandate, and the power to grant Charter  remedies under s. 24 .  Only in the latter case does the question of whether the tribunal is "competent" arise.  In the former, the tribunal must consider and apply the Charter .

85.                     This distinction was made by La Forest J. in Douglas College, supra, speaking for the majority of the Court on this point.  In that case, the issue was whether an arbitrator, applying a collective agreement governed by the British Columbia Labour Code, R.S.B.C. 1979, c. 212, was entitled to consider arguments that certain sections of the Code relating to mandatory retirement violated the Charter .  The issue was identical to the  issue posed in this case, except that there the decision-maker was an arbitrator under the Labour Code while here the decision-maker is the Canadian Human Rights Commission under the Canadian Human Rights Act .

86.                     La Forest J. began his consideration of the jurisdiction of the arbitrator to apply the Charter  by noting the Court of Appeal in finding jurisdiction stated that it was unnecessary to consider the question of whether the arbitrator was "a court of competent jurisdiction" since no relief was sought under s. 24(1) (at p. 587).  In the course of a careful review of the authorities, he stated, at p. 591, that the "predominant position among the courts is that in the exercise of its statutory mandate, a tribunal is empowered to examine and rule upon the constitutional validity of a statute it is called upon to apply".  Later, he opined, at p. 594, that a tribunal "performing what it was by law empowered to do. . . . was entitled not only to construe the relevant legislation but to determine whether that legislation was validly enacted (emphasis added).  He elaborated by reference to s. 52 of the Constitution:

Section 52(1)  of the Constitution Act, 1982  provides that any law that is inconsistent with the provisions of the Constitution of Canada -- the supreme law of the land -- is, to the extent of its inconsistency, of no force or effect.  A tribunal must respect the Constitution so that if it finds invalid a law it is called upon to apply, it is bound to treat it as having no force or effect.  [Emphasis added.]

La Forest J. went on to state that if a tribunal were asked to address a Charter  matter outside its mandate, for example a special remedy under s. 24(1)  of the Charter , the result might be otherwise.  He concluded by underlining "[t]he distinction . . . between the exercise of the power conferred by s. 24(1)  of the Charter  and the duty of a tribunal to apply the Constitution in the course of performing its statutory mandate” (p. 595).  The same distinction was made by Wilson J., L'Heureux-Dubé J. concurring.  In the result, this Court unanimously held that the arbitrator had the power, in the course of rendering his decision on the complaint against mandatory retirement, to consider whether the Code's retirement provision violated the Charter .

87.                     This Court applied the same principles in Tétreault-Gadoury, supra.  Again, the issue was age discrimination and the ability of a tribunal to consider whether a statute violated the equality guarantee of the Charter .  This time the statute was the Unemployment Insurance Act, 1971, S.C. 1970-7l-72, c. 48, which denied benefits to those over 65.  The Board of Referees to which an appeal from denial of benefits was taken refused to consider the Charter  question.  The Federal Court of Appeal held that the Board had erred in refusing to consider the Charter .  This Court, per La Forest J. reversed that decision on the ground that the statute did not give the Board the power to decide questions of law.  The Act  conferred that power on another administrative tribunal in the scheme -- the Umpire.  Applying the test set out in Douglas College and Cuddy Chicks, it was the Umpire who was charged with interpreting the law and applying the Charter .  La Forest J. underlined the practical reasons for permitting administrative tribunals to apply the Charter  (at pp. 35-36):  "one of the major advantages . . . is the relative accessibility such bodies provide in comparison with the regular court system".   Another (at p. 36) is "that specialized expertise may be brought to bear on the issue. . . .  The umpire will possess a certain insight, based upon broad experience with respect to the legislative scheme, that will render his or her contribution to the determination of the constitutional question a valuable one".  These advantages, he noted, were preserved in the system at issue by permitting the Umpire to apply the Charter .

88.                     This Court applied the same principles in Cuddy Chicks to conclude that the Ontario Labour Relations Board had the power to apply the Ontario’s Labour Relations Act, R.S.O. 1980, c. 228, in determining whether a provision of the Act  violated the Charter 's guarantee of freedom of association.  La Forest J., after noting that the legislation empowered the Board to determine questions of law, wrote at p. 15:  "The issue . . . is whether this authority with respect to questions of law can encompass the question of whether a law violates the Charter .  It is clear to me that a Charter  issue must constitute a question of law; indeed, the Charter  is part of the supreme law of Canada" (emphasis added).

89.                     Douglas College, Tétreault-Gadoury and Cuddy Chicks stand for two related propositions.  First, an administrative tribunal which has the power to decide questions of law has the power to decide the validity of particular laws under the Charter .  Second, provided that an administrative tribunal is discharging a function assigned to it by its legislation, it may, in the course of doing so, consider and decide Charter  issues.  As a corollary, the cases affirm a third proposition: no express term conferring upon the tribunal the power to entertain constitutional questions is required for the tribunal to apply the Charter .

90.                     This Court has never overruled or limited these cases or the principles which they set out.  Accordingly, it is these principles that govern the issue in the case at bar -- whether the Canadian Human Rights Commission has the power to consider the constitutional validity of the "normal age of retirement" defence in the Canadian Human Rights Act .

III.               Application of the Law in this Case

91.                     It is my view that the Canadian Human Rights Commission has the power to consider questions of law, and that the Charter  issue raised here falls within the mandate of what the Commission is required to do under the Canadian Human Rights   Act .  Accordingly, I conclude that a tribunal appointed by  the Commission has the power to apply the Charter  and determine whether the "normal age of retirement" defence is rendered invalid by s. 52(1)  of the Constitution Act, 1982 .  Since no relief is claimed under s. 24  of the Charter , the question of whether the tribunal is a "court of competent jurisdiction" under that section does not arise.

92.                     I approach the matter first from the perspective of the principle that tribunals entitled to decide questions of law may decide Charter  issues. 

93.                     The first enquiry focuses on the provisions of the Canadian Human Rights Act .  The Act  does not expressly state that the Commission has power to consider legal questions.  However, this power may be inferred from the Act .  Many of the duties which Parliament assigns to the Commission could not be accomplished unless the Commission has the power to consider issues of law generally and the effect of the Charter  on human rights law more particularly.

94.                     Section 26  of the Act  provides for a commission "to be known as the Canadian Human Rights Commission".  Under s. 27, the Commission is charged with the administration of Part I of the Act , relating to the prevention of discrimination and the promotion of equality, as well as Part III of the Act, relating to complaints.  Section 27 goes on to detail specific duties.  These duties include information programs, liaison with other bodies and authorities to avoid conflicts in the handling of complaints, considering and making recommendations on human rights matters, review of regulations, rules, by-laws and other instruments made by Parliament, and generally to endeavour "by persuasion, publicity or any other means that it considers appropriate to discourage and reduce discriminatory practices".

95.                     These provisions negate any notion that the Commission is simply a rubber stamp, created to apply cipher-like the instructions Parliament delivers from above.  If the Commission is to consider suggestions and requests on human rights and report to Parliament on the advisability of changes (s. 27(1)(e)), it must be presumed to have the power to interpret and consider the validity of the laws Parliament has already put in place.  Similarly, if it is to carry out studies concerning human rights and freedoms and report with recommendations (s. 27(1)(f)), it must have the power to interpret the law.  Again, if the Commission is to review Parliament's laws and regulations in any meaningful way and "comment on any provision thereof that in its opinion is inconsistent with the principle described in section 2" (promotion of equal opportunity and avoidance of discrimination) (s. 27(1)(g)), it must have the power to interpret the discrimination provisions of the Act ; interpretation is the prerequisite to judging consistency and effect.

96.                     Section 27(2) is to the same effect. It expressly empowers the Commission to interpret the Act 's provisions.  It permits on the Commission "on application or on its own initiative" to issue "guideline setting out the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act  applies in a particular case or in a class of cases described by the guideline".  The formulation of guidelines is the very stuff of legal and statutory interpretation -- the determination of how broadly or narrowly the words of particular sections should be read in order to ascertain whether specific cases fall within or outside the provisions.

97.                     The question then is whether the Commission, being required to interpret the law for the purposes of Part I of the Act ,  is forbidden to enter the domain of legal interpretation in discharging its duties in relation to complaints under Part III of the Act.  In my view, that cannot have been the intent of Parliament.  If the Commission, using its interpretative powers, sets out guidelines as to what the Act  means under Part I, surely it can apply those guidelines in determining whether a complaint should be referred to a tribunal for investigation, hearing and decision under Part III.  If this is so, as it must be, then the Commission has the power to interpret the law in determining whether to refer a complaint to a tribunal or dismiss it. 

98.                     The Act  confers the same power to consider and decide issues of law on the tribunals appointed to investigate and decide particular complaints.  The tribunal may receive all "and other evidence or information  . . .  whether or not  . . . admissible in a court of law"-- s. 50(2)(c).  It must give full opportunity to all parties not only to call evidence, but to "make representations" -- s. 50(1).  These suggest a full hearing extending beyond the facts to law.  However, the Act  does not leave us to guess.  In the provisions for appeal from a tribunal, it defines the powers of the review tribunal as "all the powers of  . . . a tribunal"  --  s. 56(2).  It then goes on to state that an "appeal lies to a review tribunal against a decision or order of a tribunal on any question of law or fact or mixed law and fact" -- s. 56(3) (emphasis added).  If the tribunal were confined to deciding matters of fact, then there would be no need for the review panel  to have the function of reviewing questions of law or mixed law and fact.  The provisions make sense only if it is accepted that the tribunal has the power to decide questions of law.  When it decides these questions of law or mixed law and fact, it is subject to correction by the review panel.

99.                     The second principle asserted by Douglas College, Tétreault-Gadoury, and Cuddy Chicks is that a tribunal may consider the Charter  in carrying out the mandate conferred upon it by Parliament or the legislature.  The provisions of the Act  reviewed above support the conclusion, not only that the Canadian Human Rights Commission is empowered to consider questions of law but also that it is obliged to do so in carrying out its mandate.  This obligation, the cases assert, extends to permitting boards and tribunals appointed under human rights legislation to hold that provisions of the law are invalid.  Often this has been assumed without challenge: see, for example Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145.  The power of inferior tribunals to find laws invalid in the course of performing their mandate is analogous to a similar question which was considered in Re Shewchuk and Ricard (1986), 28 D.L.R. (4th) 429 (B.C.C.A.), at p. 439.  In that case,  Macfarlane J.A., speaking for the majority held at pp. 439-40 that provincial courts do have the jurisdiction to deal with all relevant aspects of the Charter :

It is clear that the power to make general declarations that enactments of Parliament or of the Legislature are invalid is a high constitutional power which flows from the inherent jurisdiction of the superior courts.

But it is equally clear that if a person is before a court upon a charge, complaint, or other proceeding properly within the jurisdiction of that court then the court is competent to decide that the law upon which the charge, complaint or proceeding is based is of no force and effect by reason of the provisions of the Canadian Charter of Rights and Freedoms , and to dismiss the charge, complaint or proceeding.  The making of a declaration that the law in question is of no force and effect, in that context, is nothing more than a decision of a legal question properly before the court.  It does not trench upon the exclusive right of the superior courts to grant prerogative relief, including general declarations.

The analysis that Macfarlane J.A. applied with respect to provincial courts also applies with respect to tribunals, in so far as such tribunals have been given the power by Parliament to decide questions of law.

100.                   This principle was applied to tribunals appointed under the Canadian Human Rights Act  in Canada (Attorney General) v. Druken, [1989] 2 F.C. 24 (C.A.).  In that case, the complainants were denied unemployment insurance benefits because they were employed by their husbands or by corporations of which their husbands controlled more than 40 percent of the voting shares.  They brought a complaint under the Canadian Human Rights Act , alleging discrimination.  The Commission referred the matter to a tribunal, which held the sections of the Unemployment Insurance Act which mandated the discriminatory treatment were inconsistent with the Canadian Human Rights Act  and hence inoperative.  The Attorney General of Canada argued that the tribunal had no jurisdiction to make general declarations as to the validity of the legislation.  After citing the passage from Re Shewchuk quoted above, the Federal Court of Appeal per Mahoney J. found that the principle that an inferior court could find a statute invalid for breach of the Charter  in the course of making the decision that Parliament had empowered it to make applied equally to a human rights tribunal under the Canadian Human Rights Act .  The tribunal, in his view (at p. 35), was empowered to find the offending enactment "to have been implicitly repealed by the enactment of the Human Rights Act”.

101.                   In this case, it is a provision of the Canadian Human Rights Act  -- the "normal age of retirement" defence which is argued to be implicitly repealed by the Charter .  However, from the point of view of the jurisdiction of the Commission there is no distinction between this case and Druken.  If the appellants are correct, s. 52  of the Constitution Act, 1982  has implicitly repealed the “normal age of retirement” defence of the Canadian Human Rights Act .  In order to decide whether a complaint has validity, the Commission is obliged to determine whether this submission has merit or not.  Following the principle affirmed in Douglas College and applied in Re Shewchuk and Druken, the Commission has power to consider that question in discharging its duty of deciding whether to dismiss the complaint or refer it to a tribunal.

102.                   The Commission functions as gatekeeper to the tribunal process.  It cannot be, therefore, as the majority suggests, that the Commission is barred from considering questions of law which the tribunal is permitted to consider.  A question cannot be referred to a tribunal unless the Commission first considers it.  The practical effect of the majority’s approach will be to allow respondents to use the constitution as a shield, while rendering it impossible for complainants to challenge the validity of statutory defences.

103.                   I conclude that the Commission has the power to consider the issue of whether the Charter  renders invalid the "normal age of retirement" defence.  Given that the Commission's duty only is to screen the complaint, it need not decide the question finally, but only determine whether it has a reasonable chance of success.  In the context of its duties under the Canadian Human Rights Act , the Commission has the expertise to carry out its duty in this regard.  If it concludes that it does have a reasonable chance of success, then it should refer the matter to a tribunal, which can hear full representations on the matter and make its decision accordingly.  The tribunal's decision on the issue of law may in turn be reviewed by the review tribunal.  The review tribunal's decision  in turn may be filed as a decision of the Federal Court, from which appeal lies to the Federal Court of Appeal.

IV.              Whether the Commission Erred in Dismissing the Complaints

104.                   The Commission proceeded on the basis that it had power to consider whether the "normal age of retirement" defence of the Canadian Human Rights Act  violated s. 15  of the Charter  and was hence invalid under s. 52  of the Constitution Act, 1982 .  It justified its dismissal of the appellants' complaints by asserting that the decision of this Court in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, upholds mandatory retirement and hence the "normal age of retirement" defence.

105.                   The respondent Canadian Airlines International argues that the Commission was right to conclude that McKinney provides a complete answer to the appellants' claims.  In McKinney, this Court held that a mandatory retirement age for university professors of 65 violated the equality guarantee of s. 15  of the Charter  but was saved under s. 1  of the Charter  as a reasonable limitation demonstrably justified in a free and democratic society.  This conclusion was based, in Canadian Airlines International’s submission, on the conclusion of the Court that 65 was the "normal" age of retirement for university professors.  It follows, Canadian contends, that if a statute provides for retirement at the normal age for the occupation in question, it must be saved under s.1  of the Charter .

106.                   In my respectful opinion, this argument oversimplifies the process envisaged under s. 1  of the Charter .  Even if one were to accept the doubtful submission that the conclusion that the infringement in McKinney was justified under s. 1  of the Charter  solely on the ground that this was the normal age of retirement, one cannot conclude that that factor alone would suffice in all cases to justify an infringement of s. 15.  Section 1 is about much more than what is usual or "normal".  The usual practice may be unjustifiable, having regard to the egregiousness of the infringement or the insubstantiality of the objective alleged to support it.  Each case must be looked at on its own circumstances.  It is not difficult to imagine cases where the industry standard for retirement might be unreasonable.  If, for example, a computer software company decided to retire all persons over the age of 40 on the ground that most people's creativity wanes after that birthday, would the response that this was "normal" suffice to show justifiability without further inquiry?  I think not.

107.                   Nor is the fact that unions are involved in determining what is "normal" a guarantee of justifiability.  As the appellants point out, there may be many reasons why a union does not take up a particular cause.  The concern may be of interest only to a minority of its members, or the union may have other more important issues on the bargaining table.  Even if the union puts forward a concern like mandatory retirement age, it may be unable to win what it proposes.  In collective bargaining, as in any bargaining, not every party achieves its wish-list.

108.                   In my view, the Commission erred in concluding that McKinney presents a complete answer to the appellant's claim.  It should have concluded that the normal age of retirement may not necessarily constitute a defence to a claim for age discrimination, and referred the matter to a tribunal for investigation, hearing and decision, including a decision on the constitutional issue.  Of course, when referring the complaint which involves a Charter  issue like the one in the present case to a tribunal, the Commission is required to give notice to the Attorney General pursuant to s. 57  of the Federal Court Act ,   R.S.C., 1985, c. F-7 .

V.                Conclusion

109.                   I would allow the appeals and direct the Commission to refer the issue to a tribunal for determination. 

Appeals dismissed, L’Heureux‑Dubé and McLachlin JJ. dissenting.

David John Cooper, on his own behalf.

Noel Edwin Bell, on his own behalf.

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

Solicitors for the respondent Canadian Airlines International Ltd.:  Davis & Company, Vancouver.

Solicitors for the Amicus Curiae:  Raven, Jewitt & Allen, Ottawa.