Iron v. Canoe Lake Cree First Nation

Iron v. Canoe Lake Cree First Nation
Collection
Canadian Human Rights Tribunal
Date
2024-05-10
Neutral citation
2024 CHRT 81
File number(s)
T2718/9421
Decision-maker(s)
Harrington, Colleen
Decision type
Decision
Grounds
Age
Family Status
Sex
Summary:
Judith Iron (the Complainant) is a Cree woman who returned to Canoe Lake Cree First Nation (the Respondent) in 2017 for a few months and again from 2018 to 2021. She filed a complaint saying that the Respondent discriminated against her based on sex, age and family status. The Complainant says the Respondent discriminated against her when it denied her education funding and prevented her from attending the Annual Elders Holiday Gathering (section 5 of the Canadian Human Rights Act (CHRA)). She also says the Respondent denied her housing (section 6 of the CHRA). Finally, the Complainant believes the Respondent retaliated against her by not letting her attend the annual gathering and by taking her name off of a housing waitlist (section 14.1 of the CHRA).
The Tribunal dismissed the complaint because the Complainant did not establish that the Respondent discriminated against her or that it retaliated against her for filing a human rights complaint.
Regarding the education funding, the Tribunal found that the Complainant had changed priority status from “continuing student” to “returning student” when she put her schooling on hold to accept a job. The Complainant also did not provide any evidence as to which protected ground in section 3 of the CHRA was the basis of the discrimination.
Regarding the annual gathering, the Tribunal found that the Respondent was providing a service to Elders 60 years and over who resided in Canoe Lake. The age limit was a way to ensure that the service reached the intended client group. The Complainant was 49 years old at the time and was therefore not part of the general public to whom the Respondent was providing this service. She did not show that she was denied the service for a discriminatory reason.
Regarding the Respondent denying her housing, the Tribunal said it was not given any evidence of Canoe Lake Cree Nation providing housing to residents during the time the Complainant lived at Canoe Lake. Without any evidence of housing becoming available, the Tribunal could not determine that the Complainant was denied housing for a discriminatory reason.
Finally, the Tribunal found that the Complainant had not shown that the Respondent retaliated against her. The Complainant filed her human rights complaint after the annual gathering she was not allowed to attend. As to the housing waitlist, the evidence was that the Complainant’s name may have been removed from the 2020 waitlist because she did not file a housing application in 2019. The Complainant did not show that it was more likely than not that her name was removed because of her human rights complaint.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2024 CHRT
81
Date:
May 10, 2024
File No.:
T2718/9421
Between:
Judith Iron
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canoe Lake Cree First Nation
Respondent
Decision
Member:
Colleen Harrington
Table of Contents
I. Context 1
II. Decision 2
III. Issues 2
IV. Legal Framework 2
V. Analysis 5
A. Issue 1: Did Ms. Iron experience discrimination in the provision of services contrary to section 5 of the CHRA? 5
(i) Ms. Iron was not discriminated against on the basis of a prohibited ground of discrimination contrary to section 5 of the CHRA, by not receiving education funding for the 2017-2018 school year 5
(ii) Ms. Iron was not discriminated against based on her age contrary to section 5 of the CHRA, by not being permitted to attend the meeting portion of the Annual Gathering 7
B. Issue 2: Did Ms. Iron experience discrimination in the provision of residential accommodation contrary to section 6 of the CHRA? 19
C. Issue 3: Did Ms. Iron experience retaliation by Canoe Lake for filing her human rights complaint contrary to section 14.1 of the CHRA? 28
I. Context [1] The Complainant in this proceeding, Judith Iron, is a Cree woman and a Kokum (a grandmother). She is a member of the Respondent Canoe Lake Cree First Nation (Canoe Lake). Canoe Lake is located on the traditional hunting grounds of the Woodland Cree. The First Nation is a member of the Meadow Lake Tribal Council. It is governed by its own Chief and Council and has approximately 2900 members who live both on and off reserve.
[2] Ms. Iron was born in Canoe Lake and lived there until she was seven years old, when she moved to Saskatoon. She returned to Canoe Lake in 2017 and stayed for a few months. Then, she returned to live there from 2018 to 2021. At the time of the hearing, Ms. Iron was 53 years old and she was single, with five adult children and seven grandchildren.
[3] In March of 2019, Ms. Iron filed a human rights complaint with the Canadian Human Rights Commission (the “Commission”) alleging that Canoe Lake’s Chief and Council had discriminated against her for the past two years. Following a review, the Commission referred Ms. Iron’s complaint alleging that she had been discriminated against contrary to sections 5, 6 and 14.1 of the Canadian Human Rights Act, R.S.C., 1985, c.H-6 (CHRA) to the Tribunal for an inquiry. The Commission participated as a separate party at the hearing.
[4] Ms. Iron alleges that, contrary to section 5 of the CHRA, Canoe Lake discriminated against her on the basis of a prohibited ground of discrimination by denying her post-secondary education funding. She also says that Canoe Lake discriminated against her on the basis of her age by not permitting her to attend part of the Annual Elders Holiday Gathering (the “Annual Gathering”).
[5] She further alleges that Canoe Lake denied her housing in the community on the basis of her age and family status, contrary to section 6 of the CHRA. Ms. Iron also says that Canoe Lake retaliated against her for filing a human rights complaint, contrary to section 14.1 of the CHRA, by removing her name from the housing waitlist and by denying her access to the Annual Gathering.
[6] Canoe Lake denies that it discriminated or retaliated against Ms. Iron and asks the Tribunal to dismiss her complaint.
II. Decision [7] I am dismissing Ms. Iron’s complaint against Canoe Lake because she has not established that she was discriminated against in relation to the provision of a service or residential accommodation on the basis of her age or her family status, nor that she was retaliated against for filing a human rights complaint.
III. Issues
[8] In this decision I determine the following issues:
1)Did Canoe Lake discriminate against Ms. Iron in relation to the provision of a service contrary to section 5 of the CHRA:
(i)based on a prohibited ground of discrimination by not providing her with funding for her post-secondary studies for a period of time?
(ii)based on her age by not permitting her to attend part of the Annual Gathering because she was under the age of 60?
2)Did Canoe Lake discriminate against Ms. Iron in the provision of residential accommodation, contrary to section 6 of the CHRA, by not providing her with housing, either based on her family status as a single person with no children residing with her, or due to her age, as she was not elderly?
3)Did Canoe Lake retaliate against Ms. Iron for filing a human rights complaint contrary to section 14.1 of the CHRA by not permitting her to attend the Annual Gathering or removing her name from the housing waitlist?
IV. Legal Framework [9] Section 5(a) of the CHRA, which is applicable to Ms. Iron’s complaint, states that it is a discriminatory practice in the provision of a service “customarily available to the general public” to deny an individual access to any such service on a prohibited ground of discrimination.
[10] Section 6 of the CHRA states that it is a discriminatory practice in the provision of residential accommodation to (a) deny occupancy of such premises or accommodation to an individual, or (b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.
[11] To establish that Canoe Lake engaged in a discriminatory practice contrary to sections 5 or 6 of the CHRA, Ms. Iron has the burden of establishing what the Supreme Court of Canada refers to as a “prima facie case” of discrimination (Ontario Human Rights Commission and O’Malley v Simpsons-Sears Ltd., [1985] 2 SCR 536 [O’Malley]). A prima facie case is “...one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent” (O’Malley at para 28).
[12] To establish a prima facie case of discrimination on the basis of sections 5 or 6 of the CHRA, Ms. Iron must prove that:
1) she has a characteristic or characteristics protected from discrimination under the CHRA;
2) she has been denied a service customarily available to the general public, or occupancy of residential accommodation, or been adversely impacted in the provision of a service or accommodation by the Respondent; and
3) the protected characteristic was a factor in the adverse impact or denial (Moore v British Columbia (Education), 2012 SCC 61 at para 33).
[13] To prove the third element of the prima facie discrimination test, the complainant must show that there is a connection between the first two elements. The protected characteristic need not be the only factor in the adverse impact or denial, and a causal connection is not required, nor is an intention to discriminate.
[14] A prima facie case of discrimination must be proven on a balance of probabilities, meaning the Tribunal must find that it is more likely than not that the events described by the complainant happened that way.
[15] A respondent can either present evidence to refute the allegations of discrimination, put forward a statutory defence justifying the discrimination, or do both (Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [Bombardier] at para 64). Where a respondent refutes an allegation of discrimination, this explanation must be reasonable; it cannot be a “pretext”—or an excuse—to conceal discrimination (Moffat v Davey Cartage Co.(1973) Ltd., 2015 CHRT 5 at para 38).
[16] If the respondent does not establish a justification, proof of these three elements on a balance of probabilities will be sufficient for the Tribunal to find that the CHRA has been contravened (Bombardier at para 64).
[17] In responding to Ms. Iron’s complaint of discrimination contrary to sections 5 and 6 of the CHRA, Canoe Lake has led its own evidence and made arguments to refute her claims of discrimination. Therefore, the Tribunal’s task is to consider all of the evidence and arguments presented by the parties to determine whether Ms. Iron has proven the three elements of a discriminatory practice on a balance of probabilities (see Bombardier at paras 56 and 64; see also First Nations Child and Family Caring Society of Canada et al. v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 [Caring Society 2016] at para 27).
[18] With regard to Ms. Iron’s claim that Canoe Lake retaliated against her contrary to section 14.1 of the CHRA, I would note that retaliation complaints are founded on the fact that a previous human rights complaint was filed, rather than on a prohibited ground of discrimination. The onus is on complainants to establish a prima facie case of retaliation by proving on a balance of probabilities that:
1)they previously filed a human rights complaint under the CHRA;
2)they experienced adverse treatment following the filing of their complaint from the person they filed the complaint against or anyone acting on their behalf; and
3)the human rights complaint was a factor in the adverse treatment (First Nations Child and Family Caring Society of Canada et al. v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2015 CHRT 14 [Caring Society 2015] at para 5).
[19] With respect to the third element, a complainant must establish a connection between the filing of a complaint and the adverse treatment following the complaint. If this connection is not demonstrated in a complete and sufficient manner, the complainant will not have met the burden of proof. A causal connection is not required, and the previous complaint need not be the sole reason for the adverse treatment. Proof of intention to retaliate is also not necessary, and the Tribunal may rely on a complainant’s reasonable perception that the act was retaliation for filing a human rights complaint (see Millbrook First Nation v Tabor, 2016 FC 894 at paras 63-64).
[20] Respondents may present evidence to refute the allegation of prima facie retaliation, although their explanation must be reasonable and not a pretext. Canoe Lake argues that Ms. Iron’s allegations of retaliation are without merit and asks that they be dismissed.
V. Analysis
A. Issue 1: Did Ms. Iron experience discrimination in the provision of services contrary to section 5 of the CHRA? [21] No, Ms. Iron has not established that Canoe Lake discriminated against her contrary to section 5 of the CHRA, either with respect to the denial of education funding for her post-secondary studies for the 2017-2018 school year, or with respect to being denied access to part of the Annual Gathering in December of 2018.
(i) Ms. Iron was not discriminated against on the basis of a prohibited ground of discrimination contrary to section 5 of the CHRA, by not receiving education funding for the 2017-2018 school year [22] Ms. Iron testified that she was pursuing a university degree and that Canoe Lake had funded her post-secondary studies from 2014 until the winter of 2016, when she withdrew from school so that she could begin working for Canoe Lake at its urban office. As a result of withdrawing from university at that time, she lost her “continuing student status”.
[23] When Ms. Iron applied for education funding again, to be able to return to university in the fall of 2017, Canoe Lake denied her application. The reason provided to her at the time, and confirmed by Canoe Lake’s evidence at the hearing, was that, as Canoe Lake received a limited amount of funding for post-secondary education from Indigenous Services Canada (ISC), it had established categories to determine which students would receive funding each year.
[24] Wilfred Iron, the Canoe Lake Band Councillor responsible for the education portfolio, testified that there are more applicants than there is funding from ISC but that Canoe Lake tries to help as many students as it can. The categories utilized by Canoe Lake to prioritize funding in the summer of 2017 were included in its Post-Secondary Student Support Program (PSSSP) Policy. The PSSSP Policy gives first priority to students continuing their post-secondary studies (without taking a break like Ms. Iron did), then to recent Grade 12 graduates and then to “returning students”. In the fall of 2017, Ms. Iron was considered a returning student because she had withdrawn from school to pursue employment in December of 2016.
[25] As set out in the PSSSP Policy, all applications for post-secondary funding must be received by June 30 of each year. Canoe Lake’s evidence was that a list is then made of all of the applicants and their requested funding, which can include tuition and books as well as living and travel costs. The initial work of compiling the information from the applications and making recommendations about who should receive funding is an administrative task completed by the Post-Secondary Funding Coordinator and other staff of Canoe Lake. Final decisions on the allotment of the funding are then made by the Chief and Council.
[26] Canoe Lake’s former Post-Secondary Funding Coordinator, Ms. Kennedy, testified that, in accordance with the PSSSP Policy, if an applicant were to quit school and then reapply the following academic year, they would move to the bottom of Canoe Lake’s priority list for education funding. This was the situation Ms. Iron found herself in when she applied for funding again in the summer and fall of 2017.
[27] Ms. Iron testified that she understood in late 2016 that, when she began working for Canoe Lake at their urban office in Saskatoon, she would not be eligible to continue to receive education funding. She said that she chose to put her schooling on hold in order to focus on her job at the urban office. She did not receive funding in 2017 because she had lost her priority status as a “continuing student” and was instead considered a “returning student” for the purpose of receiving education funding from Canoe Lake, pursuant to its PSSSP Policy.
[28] Ms. Iron alleges that Canoe Lake did not provide her with education funding in order to continue her university studies for the 2017-2018 academic year for a discriminatory reason. She says that this is contrary to section 5 of the CHRA. The Commission and Canoe Lake submit that Ms. Iron has failed to establish a prima facie case of discrimination with respect to the allegations of denial of education funding. I agree.
[29] Even if it were true that Canoe Lake treated Ms. Iron in an adverse or differential manner by “denying [her] years of access to government funding for [her] educational pursuits since 2017 then telling [her] she can go to university and refusing to pay leaving [her] with a large tuition bill” as stated in her closing submissions – which Canoe Lake denied - she has not established that a protected characteristic under the CHRA was a factor in the unfavourable treatment she claims to have experienced. Ms. Iron has never clearly indicated in her complaint, her Statement of Particulars, her testimony at the hearing or her closing submissions that she was discriminated against on the basis of any particular discriminatory ground under section 3 of the CHRA with respect to this allegation. This is required in order to prove prima facie discrimination under the CHRA.
[30] I agree with the Commission and Respondent that Ms. Iron has not established a prima facie case of discrimination with respect to the denial of education funding for the 2017-2018 school year and therefore dismiss this aspect of her complaint.
(ii) Ms. Iron was not discriminated against based on her age contrary to section 5 of the CHRA, by not being permitted to attend the meeting portion of the Annual Gathering [31] Ms. Iron testified that she was a member of the Canoe Lake Kokoms, Mushooms, and Chapans (KMC) group while she resided in Canoe Lake. This is a group for grandmothers, grandfathers and great-grandparents in the community. The KMC group meets monthly. In her human rights complaint, Ms. Iron says that members of the KMC group “are often referred to as Elders”. She wrote in her complaint that, because she is a grandmother and had attended KMC meetings for two years, she qualified as an Elder.
[32] The evidence before the Tribunal highlights that the word “Elder” is used in different contexts within Canoe Lake. There is a more traditional use of the term to describe someone who is respected in the community and offers leadership and guidance to others. This traditional use of the word is not necessarily based on one’s age. Then there is what might be considered a more practical or administrative use of the word “Elder” which has an age limit and is used to determine who qualifies for certain services and benefits that may have a financial cost to Canoe Lake.
[33] The evidence before the Tribunal shows that Canoe Lake provides various age-based benefits to its members. For example, minutes from a Chief and Council meeting from 2016 state: “Elders – all elders to qualify must be band members and 60 years of age. Elders will be paid $500 each. Discussion on how to pay out the elders. No decision.” The minutes do not specify to what this particular $500 benefit relates. Chief and Council meeting minutes from October of 2018 refer to an “Ages 65 plus Elders Propane” benefit of $500. The minutes from a November 2019 Chief and Council meeting state that the Annual Gathering will take place December 20-22, 2019 and says: “Elders – 60+ and on Reserve”.
[34] The evidence shows that there is no age requirement to be a member of the Canoe Lake KMC group. Some grandparents are in their 40s, while others are much older. Canoe Lake’s evidence was that a number of community members who are over the age of 60 attend KMC meetings, whether they are grandparents or not, because many issues of importance to Elders are discussed at these meetings. However, none of the evidence presented at the hearing by Ms. Iron or by Canoe Lake supports Ms. Iron’s assertion that all members of the KMC group, or all grandparents in Canoe Lake, are considered Elders in either the traditional or the administrative sense of the word. Simply being a member of the KMC group does not make someone an Elder under either use of the term.
[35] Bernice Iron, Canoe Lake Band Councillor responsible for the health and Elders portfolios, testified that she was responsible for dealing with all issues relating to Elders in the community. She testified that an important part of her role as Councillor was to keep a list of Canoe Lake members who are 60 years of age and older. She would attend the monthly KMC meetings, at which members of the group would discuss issues and concerns of importance to them, as well as any upcoming activities. An Elder mentor would chair these monthly meetings, which took place in Council chambers, and a Canoe Lake staff person would take minutes of the meetings.
[36] One of the KMC group’s tasks is to plan the Annual Gathering. Bernice Iron testified that the Annual Gathering had been happening for at least the previous eight years and that it had always been meant for those 60 and older from Canoe Lake. She testified that the Elders themselves, along with the Chief and Council, had determined the 60-plus age requirement.
[37] Bernice Iron testified that the community’s Elders are involved in planning the Annual Gathering and setting the agenda while she, as the liaison between the Chief and Council and the Elders, is responsible for organizing and implementing the event, which Canoe Lake pays for.
[38] Bernice Iron testified that Canoe Lake applies for grants to help cover the costs of the Annual Gathering, including travel and accommodation for the Elders in a location of their choosing, which has usually been Prince Albert, Saskatchewan. While most of the activities and events at the Annual Gathering are meant for those 60 and over, there is a banquet in the evening of the second day that younger family members can attend as well.
[39] Ms. Iron’s human rights complaint arose out of a situation in which she was asked to leave part of the Annual Gathering in December of 2018, when she was 49 years old, because she did not meet the age requirement of 60. The evidence shows that, at a December 6, 2018 KMC group meeting, which Ms. Iron recorded, she was approved to bring her father and two others to the Gathering in Prince Albert later in the month. She says in the recording that her father wanted her to attend, so she could look after him. In her complaint, Ms. Iron says that the reason she was attending the Annual Gathering was “to chauffeur elders and to ensure the safety, care, and attention of” her father. At the December 6, 2018 KMC meeting, Bernice Iron approved Ms. Iron to stay with her father in his hotel room during the Annual Gathering.
[40] Ms. Iron’s evidence, which was not contested, is that, after she and her father arrived at the Annual Gathering on December 21, 2018, Bernice Iron and a representative from the Meadow Lake Tribal Council asked her to step outside the room. Ms. Iron was recording this interaction as well. Bernice Iron told her that she could not stay in the room because she was not 60 and did not serve a purpose. Bernice Iron also told Ms. Iron that she was not welcome because of what she had written on Facebook.
[41] This reference to what Ms. Iron had written relates to her Facebook page called Blackstone CLCC, which stands for Canoe Lake Concerned Citizens. In September of 2018, Ms. Iron made a post titled “What or WHO is an elder?” in which she says that the “Chief and Council have been using their family members and money hungry puppets as elders to try to make decisions for us then claiming they ‘had the support’ of some ‘well-respected elders’ … child abusers, thieves, and addicted gamblers are NOT worthy of the status of ‘ELDER’” [as written]. She goes on to say that “not all old people deserve that title. Just because they’re over 65 doesn’t make them an ‘elder’.” She sets out qualities that Elders should and should not have and says, “we need to find this group of real ‘Elders’ and talk to them about what’s been going on lately because true elders would not allow this Chief and Council to do what they are doing to their own people…”.
[42] The Tribunal heard evidence that several Elders were upset by what Ms. Iron had written on her Facebook page and that they had printed it off and given a copy to Bernice Iron. Despite her reference to what Ms. Iron had posted on Facebook, Bernice Iron was clear that Ms. Iron was not permitted to attend the Elders-only portion of the Annual Gathering because of her age. She testified that at least two other people were also asked to leave this part of the meeting because they were under 60.
[43] Although Ms. Iron has alleged discrimination on the basis of both her age and her family status with regard to the Annual Gathering, she has not provided any evidence in relation to the ground of family status. As such, I will only consider the protected ground of age with respect to the Annual Gathering allegation. I note, however, that Ms. Iron’s evidence and cross-examination questions, as well as her closing submissions, primarily focused on how her writing and advocacy, as well as other factors that are not protected under the CHRA, may have led to her exclusion from the Annual Gathering. I will consider whether Ms. Iron has met the requirements of the prima facie test for discrimination on the basis of her age because the Commission referred that complaint to the Tribunal for an inquiry.
[44] The Commission’s position regarding this allegation is that Ms. Iron has established prima facie discrimination because she was asked to leave the Elders-only part of the Annual Gathering as she did not meet the age requirement to be considered an Elder in Canoe Lake. It says that, as prima facie discrimination has been established, Canoe Lake has the burden to show that there is an alternate, wholly non-discriminatory explanation for the way Ms. Iron was treated.
[45] Canoe Lake denies discriminating against Ms. Iron in relation to the Annual Gathering. It says she was not asked to leave the portion of the Annual Gathering that family members were invited to attend. She was simply asked to leave the meeting portion because she was not yet 60 and so did not meet the age requirement to attend. Canoe Lake also denies that the meeting portion of the Annual Gathering was a service available to the public pursuant to section 5 of the CHRA. It argues that Ms. Iron cannot establish prima facie discrimination with respect to the Annual Gathering allegation because she has not proven all the elements of the test on a balance of probabilities.
[46] I am of the view that the question of what constitutes the service “customarily available to the general public” for the purpose of section 5 of the CHRA must be determined first, before the Tribunal applies the prima facie discrimination test in this case. If Ms. Iron can establish that Canoe Lake was involved in the provision of a service to which she was entitled, she must then demonstrate that Canoe Lake denied her this service on a prohibited ground of discrimination (Caring Society 2016 at para 24).
(a) What is the service customarily offered to the general public by Canoe Lake pursuant to section 5 of the CHRA? [47] The wording of section 5 of the CHRA requires complainants to establish that the discriminatory action complained of is in the provision of a service that is “customarily available to the general public”. Canoe Lake argues that the part of the Annual Gathering that Ms. Iron was excluded from due to her age does not meet the requirements of section 5 of the CHRA because it was not an event open to the general public but was exclusively for Elders who were over the age of 60.
[48] I will apply a two-step analysis established by the Tribunal to determine what is the service customarily available to the general public that Canoe Lake denied Ms. Iron. First, I must determine what service the Respondent was offering based on the facts before the Tribunal (Caring Society 2016 at para 30 and Gould v Yukon Order of Pioneers, 1996 CanLII 231 (SCC) [Gould] per La Forest J. at para 68). Second, I must determine whether the service creates a public relationship between the service provider and the service user (Caring Society 2016 at para 31 and Gould per La Forest J. at para 68).
i)What is the service offered by Canoe Lake?
[49] In determining whether something is a service for the purpose of section 5 of the CHRA, the Tribunal should consider what “benefit” or “assistance” is being held out and “offered” to the public (see Watkin v Canada (Attorney General), 2008 FCA 170 at para 31; Gould per La Forest J. at para 55).
[50] The evidence before the Tribunal is that Canoe Lake has been organizing an Annual Gathering each December for several years. The event is referred to in Canoe Lake’s December 2021 Elders Benefits Policy as the “Annual Elders’ Holiday Gathering”.
[51] Bernice Iron’s evidence was that the Annual Gathering is planned by and for residents of Canoe Lake who are 60 and over and that it is paid for by the First Nation. She said much of the planning happens at the KMC meetings because that is a group where Elders, who are the intended beneficiaries of the Annual Gathering, consistently meet. She provided evidence about the 2018 Annual Gathering in Prince Albert, which consisted of different events that occurred over two days.
[52] On the first day of the Annual Gathering, December 21, 2018, people travelled to Prince Albert. While Canoe Lake provided Elders with transportation to the Annual Gathering, some like the Complainant’s father chose to travel on their own or with relatives.
[53] Bernice Iron testified that the first day of the Annual Gathering, which started at around 2p.m., was for Elders only, meaning those who were at least 60 years old. The activities consisted of a roundtable discussion followed by activities and a dinner. The second day of the Annual Gathering, December 22, 2018, started at around 10a.m., and the first part of this day was also only for Elders 60 and over. On this second day, there were presentations, a report on the previous day’s roundtable and discussions among the Elders about topics of importance to them. On the evening of the second day, there was a banquet which was open to Elders and their family members who had accompanied them. Because it was close to Christmas, there was a visit from Santa, and all the Elders received a gift.
[54] Bernice Iron attended all parts of the Annual Gathering in her role as liaison so that she could report back to the Chief and Council on issues of importance to Canoe Lake’s Elders that were identified at the Annual Gathering.
[55] Bernice Iron testified that the Annual Gathering allows Elders to come together and discuss issues that matter to them such as: treaties, elder abuse, powers of attorney, children, gangs or drug activity in the community, their residential school experiences, or other topics of their choosing. The Annual Gathering is also an opportunity for Elders to receive certain self-care services like haircuts or foot care, to visit with one another, to watch presentations relevant to them and to enjoy activities like bingo, karaoke and a jigging contest.
[56] Based on the facts before the Tribunal, I find that the Annual Gathering is a once per year special event that takes place just before Christmas and provides Canoe Lake members over the age of 60 with the benefit of coming together with their fellow community members who share common concerns and interests. This is the essential nature of the Annual Gathering. It allows them to discuss these issues together freely and to hear presentations about issues that concern them as older and respected members of the community. They also receive the benefit of self-care services and enjoy some entertainment and fun recreational activities together. Staff who are paid to provide care and assistance to the Elders are present during the Elders-only portion of the Annual Gathering to ensure they are safe and comfortable. All of this constitutes the service provided by the Respondent.
ii)Does the service create a public relationship between the service provider and the service user?
[57] Canoe Lake argues that the part of the Annual Gathering that Ms. Iron was excluded from due to her age does not meet the requirements of section 5 of the CHRA because it was not an event open to the “general public” but was exclusively for Elders who were over the age of 60.
[58] In determining whether the service at issue creates a public relationship between the service provider and the service user, the case law has established that the “general public” as contemplated in section 5 of the CHRA does not necessarily mean the entire public (see University of British Columbia v Berg, [1993] 2 SCR 353 [Berg] at pp. 374-388; Gould per La Forest J. at para 68).[1] Rather, a “public” relationship is created by virtue of the “service” being offered by the service provider (see Gould per La Forest J. at para 55).
[59] The Supreme Court in Gould stated that, “[e]very service has its own public, to be defined through the use of non-discriminatory eligibility criteria” (per La Forest J. at para 57). This means that the recipients of any given service “could be a very large or very small segment of the ‘public’” (Caring Society 2016 at para 31). Once that public has been defined through the use of eligibility criteria, the CHRA prohibits discrimination within that public.
[60] Canoe Lake’s evidence was that the Annual Gathering was a service offered to those from the community who are 60 and older. The December 2021 Elders Benefits Policy, approved by Canoe Lake’s Chief and Council after Ms. Iron filed her human rights complaint, states that the Annual Gathering is part of a policy seeking to provide “additional benefits to [Elders] and provide certainty to the First Nation, its members and Elders”. The Elders Benefits Policy defines an “Elder” as “any person who is sixty (60) years of age or older on the date of the Gathering, residing on [Canoe Lake Cree First Nation] Reserve lands”.
[61] Bernice Iron testified that the policy reflects what was Canoe Lake’s practice or custom for many years, in terms of the Annual Gathering being available to those who are at least 60 years old and who reside in Canoe Lake. In its closing submissions, Canoe Lake said that the Annual Gathering has traditionally been offered to members who are at least 60 years old and that the 2021 Elders Benefits Policy merely codified this customary age requirement.
[62] The Annual Gathering is not a service meant for all people who may be considered an “Elder” in the more traditional sense of the word. It is only meant for those who are over the age of 60. Therefore, those who might be granted this respected title for their wisdom and guidance to others in the community, but who are not yet 60, would not be permitted to attend the 60-plus part of the Annual Gathering, even if they are members of the KMC group.
[63] The Commission has argued that Ms. Iron’s complaint engages the interpretive provision in section 1.2 of An Act to Amend the Canadian Human Rights Act, 2008, c.30, which says the Tribunal is to give due regard to First Nations legal traditions or customary laws when interpreting and applying provisions of the CHRA. The Commission says the provision is a lens with which to read the CHRA, including a contextualized analysis of the grounds of discrimination, discriminatory practices, and any defences. Section 1.2 of An Act to Amend the CHRA states:
In relation to a complaint made under the [CHRA] against a First Nation government, including a band council … operating or administering programs and services under the Indian Act, this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality.
[64] I am not convinced that the evidence in this case would support a finding that Canoe Lake’s reliance on a customary definition of an Elder as someone who is 60 or older is either a “legal tradition” or a “customary law” for the purpose of this section. However, I view this provision as being consistent with the case law that favours a “relational” approach to defining the public.
[65] The Supreme Court in Berg refers with favour to a Saskatchewan Court of Appeal decision that endorses this relational approach (Saskatchewan (Human Rights Commission) v Saskatchewan (Department of Social Services), 1988 CanLII 212 (SK CA)). In that case, the Court of Appeal stated:
The fact that a service is offered to the public does not mean that it must be offered to all members of the public. The Government can impose eligibility requirements to ensure that the program or services reaches the intended client group. The only restriction is that the Government cannot discriminate among the client group, that is, the elderly, the poor or others, on the basis of the enumerated characteristics set out in the [human rights legislation] (at para 31).
[66] The Supreme Court in Berg went on to give the example of the Canada or Quebec Pension Plan benefits, which are provided to millions of Canadians while an equally large number of Canadians who have not yet attained the qualifying age do not receive such benefits.
[67] Canoe Lake’s Chief and Council are an elected government and bear the responsibility of allocating limited funds to the members of the First Nation in a manner that balances the rights and interests of different community members. Elders are a respected group in First Nations communities, and Canoe Lake offers the Annual Gathering to its older members as a special event to honour, celebrate and hear from these respected community members. As Bernice Iron testified, the age of 60 for the Annual Gathering was chosen by the Elders and the Chief and Council. There is no indication that Canoe Lake has acted arbitrarily or unjustifiably to exclude individuals on the basis of a protected ground (for example on the basis of sex, disability or another ground) within this particular public of 60-plus residents when offering the service of the Annual Gathering.
[68] Ms. Iron testified that she feels the 2021 Elders Benefits Policy discriminates against off-reserve Elders. The Elders Benefits Policy itself was not in place at the time she was asked to leave the Annual Gathering, and it is not the subject of her human rights complaint. The Policy is only relevant to the complaint to the extent that it formally captures the age limit the community had long established to determine who was qualified to attend the Annual Gathering. In any