Canada (Human Rights Commission) v. Canada (Attorney General)

Canada (Human Rights Commission) v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2016-07-21
Neutral citation
2016 FCA 200
File numbers
A-221-15
Notes
A correction was made on September 23, 2016.
Reported Decision
Decision Content
Date: 20160721
Docket: A-221-15
Citation: 2016 FCA 200
CORAM:
PELLETIER J.A.
DE MONTIGNY J.A.
GLEASON J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia, on January 27, 2016.
Judgment delivered at Ottawa, Ontario, on July 21, 2016.
REASONS FOR JUDGMENT BY:
GLEASON J.A.
CONCURRED IN BY:
PELLETIER J.A.
DE MONTIGNY J.A.
Date: 20160721
Docket: A-221-15
Citation: 2016 FCA 200
CORAM:
PELLETIER J.A.
DE MONTIGNY J.A.
GLEASON J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
GLEASON J.A.
[1] This appeal raises important issues about the degree of deference to be afforded to the Canadian Human Rights Tribunal [the Tribunal], when it interprets its constituent legislation, and about the breadth of its jurisdiction to hear challenges to federal legislation that is alleged to be discriminatory.
[2] These issues arise in the context of complaints filed under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 [the CHRA] by several members of two First Nations. The complainants alleged that provisions in the Indian Act, R.S.C. 1985, c. I-5 that preclude the registration of their children as “Indians” under that Act violate their human rights because the impugned provisions constitute prohibited discrimination on the basis of race, national or ethnic origin, sex or family status.
[3] The CHRA prohibits a number of discriminatory practices. One of them is discrimination in the provision of services customarily available to the general public on one of the grounds enumerated in the CHRA. Section 5 of the CHRA defines this discriminatory practice in the following terms:
5 It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
5 Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, pour le fournisseur de biens, de services, d’installations ou de moyens d’hébergement destinés au public :
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
a) d’en priver un individu;
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
b) de le défavoriser à l’occasion de leur fourniture.
[4] In two very thoughtful and thorough decisions, reported as 2013 CHRT 13 [Matson] and 2013 CHRT 21 [Andrews], the Tribunal determined that the complaints in the present case were direct challenges to provisions in the Indian Act and that, as such, did not allege a discriminatory practice under section 5 of the CHRA because the adoption of legislation is not a service “customarily available to the general public” within the meaning of section 5 of the CHRA. While sensitive to the merits of the complainants’ claims, the Tribunal ruled that the challenge to the impugned provisions in the Indian Act may only be brought under section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c. 11 [the Charter] and therefore needs to be made to a court of law. In so deciding, the Tribunal relied on the decision in Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7, 428 N.R. 240 [Murphy], where this Court held that the adoption of legislation is not a service customarily available to the general public within the meaning of section 5 of the CHRA. In result, the Tribunal dismissed the complaints.
[5] The Canadian Human Rights Commission [the Commission] participated in the hearings before the Tribunal and supported the complainants’ position. Following release of the Tribunal’s decisions, the Commission filed two judicial review applications with the Federal Court, seeking to set the Tribunal’s decisions aside. In a decision dated March 30, 2015, the Federal Court (per Justice McVeigh) dismissed the Commission’s applications: Canada (Human Rights Commission) v. Canada (Attorney General), 2015 FC 398, 252 A.C.W.S. (3d) 308. The Federal Court held that the reasonableness standard applies to the review of the Tribunal’s decisions and concluded that the decisions were reasonable, principally because they followed Murphy.
[6] The Commission has appealed the Federal Court’s decision to this Court and argues that it must be set aside for two reasons. First, it says that the Federal Court erred in applying the reasonableness standard of review because the controlling authority from the Supreme Court of Canada indicates that the correctness standard is applicable to decisions like these, which interpret the scope of rights protected by human rights legislation. Second, the Commission says that the Tribunal’s decisions are incorrect as section 5 of the CHRA must be interpreted as extending to complaints that directly challenge federal legislation. The Commission recognizes that Murphy holds otherwise, but says that we should conclude that Murphy was wrongly decided or has been overtaken by subsequent jurisprudence of the Supreme Court of Canada and is thus not good law.
[7] For the reasons that follow, I disagree with the Commission on both points and therefore would dismiss this appeal. However, I would not grant the respondent the costs it seeks as the Commission brought this appeal in the public interest to clarify the means to challenge federal legislation that is alleged to be discriminatory. I thus believe that it is appropriate to refrain from awarding costs against the Commission.
I. Background [8] To place the issues in this appeal into context, it is useful to begin by a review of the impugned provisions in the Indian Act and of the facts which gave rise to the human rights complaints in the present case.
A. The Relevant Provisions in the Indian Act [9] Since Confederation, the federal government has followed a policy of defining who is an “Indian” for the purpose of regulating its relationship with indigenous peoples. For some time, such status has been – and continues to be – governed by the Indian Act, which sets out the criteria for determining whether an individual is an “Indian” under the Act. (I refer to such a determination in the balance of these Reasons as a grant of “Indian status” and am sensitive to the fact that many indigenous people find this terminology offensive. It is, however, the terminology that is used in the legislation and thus is relevant to the issues in this appeal.)
[10] It is common ground between the parties that a grant of Indian status under the Indian Act confers a number of benefits, such as entitlement to non-insured and health benefits, certain tax exemptions and, in some instances, post-secondary education benefits. Status may also confer intangible benefits related to acceptance within indigenous communities.
[11] Prior to 1985, various provisions in the Indian Act allowed for “enfranchisement”, a process whereby individuals who had been granted Indian status through registration under the Indian Act could be “enfranchised” from registration, either voluntarily or involuntarily. The effect of enfranchisement was to strip individuals and their descendants of the right to Indian status under the Indian Act. As noted by the Tribunal at paragraph 2 of Andrews:
[g]enerally speaking, enfranchisement was a process by which the federal government stripped an Indian, all of his or her minor unmarried children and future descendants of Indian status and band membership in exchange for incentives and various entitlements under the Indian Act and otherwise, depending on the mechanisms in force at the time of enfranchisement. At different times, these incentives included such things as Canadian citizenship, the right to vote in Canadian elections, rights to hold life and/or fee simple estates in reserve lands, or per capita shares of funds held on behalf of the First Nation.
[12] The assumptions behind the enfranchisement policy were undoubtedly discriminatory: First Nations peoples were encouraged or required to renounce their heritage and identity in order to benefit from some of the advantages enjoyed by other members of Canadian society. Several courts have commented on the discriminatory nature of the enfranchisement policy: see, for example, Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at para. 88, 239 N.R. 1 and Canada (Attorney General) v. Larkman, 2012 FCA 204, 433 N.R. 184 [Larkman]. In Larkman, this Court noted:
“Enfranchisement” is a euphemism for one of the most oppressive policies adopted by the Canadian government in its history of dealings with Aboriginal peoples: Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Backward, vol. 1 (Ottawa: Canada Communication Group Publishing, 1996) at page 271.
Beginning in 1857 and evolving into different forms until 1985, “enfranchisement” was aimed at assimilating Aboriginal peoples and eradicating their culture or, in the words of the 1857 Act, encouraging “the progress of [c]ivilization” among Aboriginal peoples: An Act to Encourage the Gradual Civilization of Indian Tribes in the Province and the Amend the Laws Respecting Indians, S. Prov. C. 1857, 20 Vict., c. 26 (initial law); An Act to Amend the Indian Act, S.C. 1985, c. 27 (the abolition).
Under one form of “enfranchisement” … Aboriginal peoples received Canadian citizenship and the right to hold land in fee simple. In return, they had to renounce – on behalf of themselves and all their descendants, living and future – their legal recognition as an “Indian,” their tax exemption, their membership in their Aboriginal community, their right to reside in that community, and their right to vote for their leaders in that community.
[Larkman at paras. 10-12]
[13] Prior to 1985, the Indian Act also enshrined a patrilineal concept of descent that was foreign to many indigenous traditions: Corbiere at para. 86, quoting from the Report of the Royal Commission on Aboriginal Peoples (1996), vol. 4, Perspectives and Realities at 26. Under the rules enshrined in the Indian Act prior to 1985, Indian status was based almost entirely on lineage stemming from a man who had such status. The children of men with Indian status, who married and had offspring with women without status, were granted Indian status under the pre-1985 legislation. Conversely, women who possessed Indian status but who had children with a man without status were unable to pass Indian status on to their children. In addition, their own status was dependent on that of the men they married.
[14] In 1985, Parliament repealed the enfranchisement provisions in the Indian Act and changed the rules governing the acquisition of status, in an attempt to remove gender-based discrimination.
[15] On the latter point, the amendments introduced what is often called the “second generation cut-off rule” in subsection 6(1) and 6(2) of the Indian Act. Generally speaking, these provisions contemplate that individuals born of only one parent with Indian status are considered to be second generation and are granted status under subsection 6(2). If they have children with a person without status, they cannot transmit Indian status to their children. Conversely, people born of two parents with Indian status are generally speaking considered to be first generation and are granted status under subsection 6(1) of the Indian Act. They can transmit Indian status to their children, irrespective of whether the other parent possesses Indian status. The second generation cut-off rule functions as follows:
• 6(1) has child with 6(1) = 6(1) child
• 6(1) has child with 6(2) = 6(1) child
• 6(2) child has child with 6(2) = 6(1) child
• 6(1) has child with a person without Indian status = 6(2) child
• 6(2) has child with a person without Indian status = child has no status
[16] In terms of the repeal of enfranchisement, the 1985 amendments provided an entitlement to registration under subsection 6(1) of the Indian Act to those who had been enfranchised and whose names appeared in an Order in Council issued under the former enfranchisement provisions. However, the amendments also provided in section 7 that women were not entitled to be registered if they had: (i) no claim to Indian status by virtue of their own ancestry; (ii) acquired such status only via a pre-1985 marriage to a man with status; and (iii) lost such status by virtue of enfranchisement.
[17] The interplay of the 1985 amendments to the Indian Act repealing enfranchisement with those creating the second generation cut-off rule resulted in differential treatment depending on whether one’s enfranchised forbearer was a man or a woman. Where an individual’s only forbearer with Indian status was a mother, who lost her status due to marriage with a non-Indian but regained it as a result of the 1985 amendments, offspring could be registered only under subsection 6(2) of the Indian Act. In result, they could not pass status on to children they had with a non-status person as such children fell within the third generation under the rules then enshrined in the Indian Act. However, the result was the opposite if the forbearer with status was an individual’s father. In those circumstances, the individual was entitled to registration under subsection 6(1) of the Indian Act, was deemed to be within the first generation, and accordingly could pass status on to children the individual had with a non-status person.
[18] This situation was addressed by the British Columbia Court of Appeal in McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153, 177 A.C.W.S. (3d) 2 [McIvor], where the Court found that paragraphs 6(1)(a) and 6(1)(c) of the Indian Act infringed section 15 of the Charter in a manner that was not justified by section 1 of the Charter. More specifically, the Court determined that the impugned provisions of the Indian Act created a discriminatory distinction between individuals who inherited their indigenous heritage through their grandfather (who would also inherit Indian status) and those who inherited their heritage through their grandmother (who lost their status).
[19] In response to the decision in McIvor, Parliament enacted the Gender Equity in Indian Registration Act, S.C. 2010, c. 18 [the GEIRA] on January 31, 2011. Among other things, this legislation added a new paragraph 6(1)(c.1) to the Indian Act. This new paragraph provides an entitlement to registration under subsection 6(2) of the Indian Act for individuals whose grandmothers lost their status by marrying non-Indians before April 17, 1985.
[20] Having outlined the relevant legislative backdrop to the two complaints, I turn now to discuss the particular facts involved in each complaint.
B. The Andrews Complaints [21] Roger William Andrews filed two human rights complaints that centred on the difference in the way he was treated, with respect to Indian status, as compared to his sister, who was several years older. He was registered under subsection 6(2) of the Indian Act but his sister was registered under subsection 6(1). She could therefore pass Indian status on to the children she had with a non-status individual but Mr. Andrews could not.
[22] Their father was recorded at birth as a member of the Naotkamegwanning First Nation (also known as the Whitefish Bay Indian Band) and was registered as a status Indian. He married a woman who had no aboriginal ancestry, but who became a status Indian upon her marriage by virtue of the provisions of the Indian Act then in force. The complainant’s father subsequently applied for and was granted enfranchisement in exchange for various incentives. In result, he, his wife and their unmarried child (the complainant’s sister) lost their Indian status by virtue of the enfranchisement order.
[23] Some years later, following his enfranchisement, the complainant’s father had another child – the complainant – with another woman who did not have Indian status and who had never been entitled to such a status. At birth, the complainant was not entitled to be registered as a status Indian because his father had been granted enfranchisement.
[24] As a result of the 1985 amendments, the complainant became eligible for registration under subsection 6(2) of the Indian Act as he was the child of a parent eligible under subsection 6(1) and a non-Indian parent. He was not eligible for registration under subsection 6(1) because his birth occurred after his father’s enfranchisement and the complainant’s name therefore did not appear in an enfranchisement order. Had the complainant been born before his father was enfranchised, the 1985 amendments to the Indian Act would have provided him entitlement to registration under paragraph 6(1)(d) of the Indian Act. The complainant’s sister, who was born before their father was enfranchised, was named in the enfranchisement order and therefore was entitled to registration under paragraph 6(1)(d) of the Indian Act even though her mother, like the complainant’s, had no aboriginal ancestry. Both she and the complainant had children with individuals without Indian status. In result, the complainant’s child could not be registered as a status Indian but his nieces and nephews could be registered.
[25] In the two complaints he filed, one on his own behalf and the other on behalf of his child, Mr. Andrews alleged that this differential treatment between himself and his half-sister and between their offspring under the provisions in the Indian Act constitutes prohibited discrimination on the grounds of race, national or ethnic origin and family status.
C. The Matson Complaints [26] Jeremy Matson, Mardy Matson and Melody Schneider are siblings and have a grandmother who lost her Indian status when she married a non-Indian before 1985 and regained that status under paragraph 6(1)(c) of the Indian Act following the 1985 amendments. By virtue of those amendments, the complainants’ father became eligible for registration under subsection 6(2) of the Indian Act. He married a woman without Indian status and the complainants, like one of the plaintiffs in McIvor, were ineligible for status at the time of their birth. As a result, the complainants’ children, conceived with non-status individuals, were also ineligible for registration.
[27] In November and December 2008, the complainants filed complaints under section 5 of the CHRA, alleging that they would have been entitled to registration under subsection 6(1) of the Indian Act had their indigenous heritage been transmitted through their grandfather rather than through their grandmother. They further alleged that in this patrilineal scenario their children would have been eligible for registration under subsection 6(2) of the Indian Act. They claimed that the treatment afforded to them constituted discrimination in respect of the provision of service on the prohibited grounds of race, sex, national or ethnic origin and family status.
[28] Following the British Columbia Court of Appeal’s decision in McIvor and the coming into force of the GEIRA, the complainants became eligible for registration under subsection 6(2) of the Indian Act, and applied for and were granted registration in May and June 2011. However, the Office of the Indian Registrar determined that their children are not eligible for registration under any of the provisions of section 6 of the Indian Act because the complainants are married to individuals who are not eligible for Indian status and are themselves registered under subsection 6(2) of the Indian Act.
[29] In a preliminary decision, dated September 27, 2011, the Tribunal held that the portions of the Matson complaints relating to the complainants’ own eligibility for registration under the Indian Act were moot because the complainants had been successfully registered under subsection 6(2) of the Act following the adoption of the GEIRA. However, the Tribunal decided to proceed to a hearing on the remaining part of the complaints relating to the opportunity to pass status on to any children conceived with a non-Indian parent (Matson, Matson, and Schneider (née Matson) v. Indian and Northern Affairs Canada, 2011 CHRT 14).
II. The Tribunal’s Decisions [30] As noted, in both the Matson and Andrews decisions under review, the Tribunal decided that the complaints did not allege a discriminatory practice under section 5 of the CHRA because the adoption of legislation is not a service customarily available to the general public and thus dismissed the complaints.
A. Matson [31] The Matson case was decided first. In it, the Tribunal addressed three issues: first, whether the complaints involved a direct challenge to provisions of the Indian Act; second, whether the Tribunal was bound to follow the decision of this Court in Murphy; and, finally, whether the complaints impugned a discriminatory practice in the provision of services customarily available to the general public that could be the subject of a complaint under section 5 of the CHRA.
[32] In terms of the first issue, the Tribunal found that the complaints sought to directly challenge provisions of the Indian Act because the complainants were challenging their entitlements under the legislation as opposed to the manner in which the respondent processed their applications.
[33] On the second issue, the Tribunal determined that the decision in Murphy had not been overtaken by subsequent case law from the Supreme Court of Canada and was therefore still binding on the Tribunal. In reaching this conclusion, the Tribunal reviewed the Supreme Court cases relied on by the Commission, which the Commission submitted support the application of the CHRA or similar provincial legislation by human rights tribunals to declare conflicting legislation inoperative: Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, 43 N.R. 168; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150, 61 N.R. 241; CN v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, 27 Admin. L.R. 172; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 91 N.R. 255; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513.
[34] The Tribunal noted that none of these cases stands for the proposition that the adoption of legislation constitutes a service customarily available to the general public, and that in those cases where legislation had been declared inoperative by reason of a conflict with human rights legislation, the Tribunal possessed jurisdiction on an alternate basis, often because the complaint stemmed from an employment relationship where the employer applied an impugned legislative provision. The Tribunal reasoned that these cases did not undercut the holding in Murphy because they dealt with different situations.
[35] The Tribunal then went on to address and dismiss the various other arguments advanced by the Commission as to why Murphy should not be followed.
[36] First, it accepted that prior to the decision in Murphy there was a substantial body of jurisprudence under the CHRA that was to the opposite effect and which held that legislation could be challenged under section 5 of the CHRA as a service customarily available to the general public. The Tribunal noted, though, that this jurisprudence was premised on the decision of this Court in Canada (Attorney General) v. Druken, [1989] 2 F.C. 24, 88 N.R. 150 (C.A.) [Druken] where the respondent admitted that the adoption of the impugned legislation – there provisions in the Unemployment Insurance Act – constituted a service customarily available to the general public within the meaning of section 5 of the CHRA. Because this point was admitted in Druken, the Tribunal found it to be less persuasive than Murphy. Also, as Druken was decided earlier, the Tribunal accepted that Murphy was the binding authority on the point.
[37] Next, the Tribunal discussed and dismissed as unhelpful several cases decided under provincial human rights legislation referred to by the Commission. In many of these cases, as in the cases from the Supreme Court relied on by the Commission, jurisdiction over the discriminatory practice in issue arose from another provision in the legislation, like the provisions prohibiting discrimination in employment. Thus, in several of these cases, where declarations of legislative invalidity were made, the underlying complaints did not stem from a direct challenge to legislation.
[38] The Tribunal also discussed section 2, subsection 49(5) and 62(1) as well as the former section 67 of the CHRA and found that none of these provisions required the result urged by the Commission.
[39] Section 2 of the CHRA provides:
The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l’égalité des chances d’épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la situation de famille, la déficience ou l’état de personne graciée.
[40] Subsection 49(5) provides that “if a complaint involves a question about whether another Act or a regulation made under another Act is inconsistent” with the CHRA, the Tribunal member (where a single person panel is appointed to hear the case) or one of the members of the Tribunal (where there a three person panel is appointed to hear the case) must be legally trained.
[41] Subsection 62(1) provides that the portions of the CHRA that create, prohibit and provide a remedy for discriminatory practices “do not apply to or in respect of any superannuation or pension fund or plan established by an Act of Parliament enacted before March 1, 1978”.
[42] Finally, the former section 67 of the CHRA, which was repealed in 2008 (with immediate effect in some cases and a three year delay in other cases), stated that nothing in the CHRA “affects any provision of the Indian Act or any provision made under or pursuant to that Act”.
[43] The Commission argued that these provisions must lead to the conclusion that section 5 extends jurisdiction to the Tribunal to declare legislation invalid as an opposite conclusion would contradict the general purpose of the CHRA and would render subsections 49(5) and 62(1) as well as former section 67 of the CHRA virtually meaningless.
[44] The Tribunal disagreed and held that the foregoing provisions do not necessarily require a finding that the adoption of legislation is a service customarily available to the general public, within the meaning of section 5 of the CHRA, as legislation could be declared by the Tribunal to be inoperative in cases where the Tribunal possessed jurisdiction under a provision other than section 5 of the CHRA. It explained that such an issue could arise where the impugned legislation was raised as a defence by the respondent; cases in the employment context where the employer applied a legislative provision (like a provision in pension legislation) that conflicted with the CHRA provide an example of such a situation. The Tribunal reasoned that such cases are conceptually distinct from a direct challenge to a law because in such other cases the jurisdiction of the Tribunal is grounded in a provision governing the actions of the respondent and the challenge to the legislation arises only collaterally. Such cases, in other words, do not involve a direct challenge to the legislation. The Tribunal also noted that the now-repealed section 67 of the CHRA could have been explained by the former case law – overtaken by Murphy– that it was not obliged to follow. The Tribunal therefore found that its interpretation of section 5 of the CHRA was consistent with section 2, subsection 49(5) and former section 67 of the CHRA.
[45] Thus, after a thorough review of each of the arguments advanced by the Commission on behalf of the complainants, the Tribunal determined that it was bound to apply Murphy and that it was required to dismiss the complaint.
[46] This determination provided a negative answer to the third question of whether the complaints impugned a discriminatory practice in the provision of a service customarily available to the general public that could be the subject of a complaint under section 5 of the CHRA. In finding that the complaints did not raise such a question because the adoption of legislation is not a service customarily available to the general public, the Tribunal underscored the policy reasons why legislation should not be subject to direct challenge under the CHRA as opposed to the Charter. Citing from the decisions of the Supreme Court of Canada in Andrews and Alberta v. Hutterian Brethren of Wilson Colony, 2009 CSC 37, [2009] 2 S.C.R. 567, the Tribunal noted that a section 1 Charter justification would not be available under the CHRA, where the only defence would be a bona fide justification under subsection 15(2) of the CHRA.
[47] The Tribunal noted that in Hutterian Brethren, the Supreme Court of Canada held the two defences to be conceptually distinct, and relied on the following passage from the majority decision at paragraphs 68 to 70, where Chief Justice McLachlin wrote:
Minimal impairment and reasonable accommodation are conceptually distinct. Reasonable accommodation is a concept drawn from human rights statutes and jurisprudence. It envisions a dynamic process whereby the parties — most commonly an employer and employee — adjust the terms of their relationship in conformity with the requirements of human rights legislation, up to the point at which accommodation would mean undue hardship for the accommodating party. In Multani, Deschamps and Abella JJ. explained:
The process required by the duty of reasonable accommodation takes into account the specific details of the circumstances of the parties and allows for dialogue between them. This dialogue enables them to reconcile their positions and find common ground tailored to their own needs. [para. 131]
A very different kind of relationship exists between a legislature and the people subject to its laws. By their very nature, laws of general application are not tailored to the unique needs of individual claimants. The legislature has no capacity or legal obligation to engage in such an individualized determination, and in many cases would have no advance notice of a law’s potential to infringe Charter rights. It cannot be expected to tailor a law to every possible future contingency, or every sincerely held religious belief. Laws of general application affect the general public, not just the claimants before the court. The broader societal context in which the law operates must inform the s. 1 justification analysis. A law’s constitutionality under s. 1 of the Charter is determined, not by whether it is responsive to the unique needs of every individual claimant, but rather by whether its infringement of Charter rights is directed at an important objective and is proportionate in its overall impact. While the law’s impact on the individual claimants is undoubtedly a significant factor for the court to consider in determining whether the infringement is justified, the court’s ultimate perspective is societal. The question the court must answer is whether the Charter infringement is justifiable in a free and democratic society, not whether a more advantageous arrangement for a particular claimant could be envisioned.
Similarly, “undue hardship”, a pivotal concept in reasonable accommodation, is not easily applicable to a legislature enacting laws. In the human rights context, hardship is seen as undue if it would threaten the viability of the enterprise which is being asked to accommodate the right. The degree of hardship is often capable of expression in monetary terms. By contrast, it is difficult to apply the concept of undue hardship to the cost of achieving or not achieving a legislative objective, especially when the objective is (as here) preventative or precautionary. Though it is possible to interpret “undue hardship” broadly as encompassing the hardship that comes with failing to achieve a pressing government objective, this attenuates the concept. Rather than strain to adapt “undue hardship” to the context of s. 1 of the Charter, it is better to speak in terms of minimal impairment and proportionality of effects.
[48] Thus, in Matson, the Tribunal determined that both the binding authority in Murphy and sound policy reasons required it to find that the Matson complaints did not allege a discriminatory practice in the provision of services customarily available to the general public that could be the subject of a complaint under section 5 of the CHRA. It accordingly dismissed the complaints.
B. Andrews [49] Many of the same points were again made by the Tribunal in the subsequent decision in Andrews. In addition, the Tribunal in that case undertook a more detailed analysis of what is required for something to constitute a service customarily available to the general public within the meaning of section 5 of the CHRA.
[50] The Tribunal began its analysis of the issue by referring to the decisions of the Supreme Court of Canada and of this Court in Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, 194 N.R. 81 [Gould] and Watkin v. Canada (Attorney General), 2008 FCA 170, 378 N.R. 268 [Watkin]. Both cases were decided prior to the 2008 decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], which brought about a sea change in administrative law. Under pre-Dunsmuir principles, the standard of review applied in Gould and Watkin to decisions of the Tribunal defining discrimination and the scope of the rights protected under the CHRA was correctness. Thus, in Gould and Watkin, the Supreme Court and this Court expressed their views on the proper interpretation of what types of activities constitute services customarily available to the general public within the meaning of section 5 of the CHRA.
[51] In Gould, the Supreme Court established a two-step analysis for the determination: first, one must determine what constitutes the “service” based on the facts in the complaint; second, one must assess whether this service “creates a public relationship between the service provider and the service user” (at paragraph 68). The Tribunal noted that this notion of “service” was further refined in Watkin, where this Court rejected the notion that all governmental actions come within the scope of section 5 of the CHRA and instead ruled that the section “contemplate[s] something of benefit being ‘held out’ as services and ‘offered’ to the public” (at paragraph 31).
[52] Thus, as noted by the Tribunal, a service customarily available to the public requires the presence of two separate components: first, something of benefit must be available and, second, this benefit must be held out or offered to the public. Accordingly, to use the words of the Tribunal, the language in section 5 of the CHRA requires “a transitive connotation” between the benefit and the process by which it is provided. The Tribunal referred to the reasons of LaForest, J. in Gould in support of this notion, where he noted at paragraph 55:
[t]here is, therefore, a requisite public relationship between the service provider and the service receiver, to the extent that the public must be granted access to or admitted to or extended the service by the service provider. There is a transitive connotation from the language employed by the various provisions; it is not until the service, accommodation, facility, etc., passes from the service provider and has been held out to the public that it attracts the anti-discrimination prohibition.
[53] The Tribunal also referred to the decision of this Court in Canada (Attorney General) v. McKenna, [1999] 1 F.C. 401, 233 N.R. 52 [McKenna], where two members of the Court expressed doubt that a grant of citizenship under the Citizenship Act, R.S.C. 1985, c. C-29 constituted a service, and to the decision of the Tribunal in Forward and Forward v. Citizenship and Immigration Canada, 2008 CHRT 5, 63 C.H.R.R. 346 [Forward], finding that the grant of citizenship is not a service because nothing is held out or offered when legislation is applied. The Tribunal further mentioned the decisions of the Tribunal and the Federal Court in Dreaver v. Pankiw, 2009 CHRT 8 aff’d 2010 FC 555 [Pankiw FC] and noted that these decisions “determined that a service must require something of benefit or assistance being held out, [and] that one may also inquire ‘whether that benefit or assistance was the essential nature of the activity’” (Andrews at paragraph 49, citing from Pankiw FC at paragraph 42).
[54] Applying these principles to the facts of Mr. Andrews’ complaints, as in Matson, the Tribunal held that the complaints were a direct challenge to provisions in the Indian Act because they alleged that these provisions were discriminatory. The Tribunal accepted that the impugned provisions do confer a benefit on those granted Indian status and thus meet the first component of a service customarily available to the public, within the meaning of section 5 of the CHRA.
[55] However, the Tribunal found the second component was missing because in the act of legislating, Parliament does not hold out or offer a service to the public; in short, the legislator is not a service-provider.
[56] The Tribunal further held that its conclusion was supported by the modern principle of statutory interpretation, which requires that the words of an Act be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of Parliament, citing Elmer A. Driedger, The Construction of Statutes (Toronto: Butterworths, 1974) at 67. Also citing the associated words rule applied in Forward, the Tribunal held that the term “services”, as used in section 5 of the CHRA, is informed by its placement alongside the terms, “goods”, “facilities” and “accommodations” and thus should be understood to be of a similar character. According to the Tribunal, such a reading confirms that the act of legislating is not encompassed as a possible discriminatory practice within the meaning of section 5 of the CHRA.
[57] Thus, in addition to the reasons offered in Matson, the Tribunal in Andrews offered a more detailed analysis of the jurisprudence and the legislation in support of its conclusion that the complaints did not allege a discriminat