Right to Life Association of Toronto v. Canada (Employment, Workforce and Labour)

Right to Life Association of Toronto v. Canada (Employment, Workforce and Labour)
Court (s) Database
Federal Court Decisions
Date
2021-10-22
Neutral citation
2021 FC 1125
File numbers
T-8-18
Decision Content
Date: 20211022
Docket: T-8-18
Citation: 2021 FC 1125
Ottawa, Ontario, October 22, 2021
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
RIGHT TO LIFE ASSOCIATION OF
TORONTO AND AREA, BLAISE ALLEYNE
AND MATTHEW BATTISTA
Applicants
and
CANADA (MINISTER OF EMPLOYMENT,
WORKFORCE, AND LABOUR)
Respondent
and
ACTION CANADA FOR SEXUAL HEALTH AND RIGHTS AND BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Interveners
JUDGMENT AND REASONS
[1] The Applicants, the Right to Life Association of Toronto and Area [TRTL], Mr. Blaise Alleyne, its former president, and Mr. Matthew Battista, a student who hoped to be re-employed by TRTL, seek judicial review of the decision of the Minister of Employment, Workforce, and Labour [the Minister]. The Minister decided to add an Attestation as an eligibility requirement for the 2018 Canada Summer Jobs [CSJ] program. All applicants for funding were required to attest to several statements, including that the job and the applicant organization’s mandate respected individual human rights, Charter rights and reproductive rights. TRTL did not make the Attestation and, as a result, its application for funding was not considered.
[2] Among other arguments, the Applicants allege that the Minister’s decision to add the Attestation is ultra vires as it was not authorized by the enabling legislation and was made for an improper purpose. The Applicants also allege that the Minister acted in bad faith and with bias, by imposing the Attestation to respond to the complaints of an abortion rights lobby group. The Applicants further argue that the Attestation engages and infringes their sections 2(a), 2(b), and 15 rights under the Canadian Charter of Rights and Freedoms [the Charter] and that the Minister failed to proportionately balance the Charter rights and protections with the relevant statutory objectives.
[3] The Applicants submit that the Minister’s decision to add the Attestation punishes and excludes TRTL and other pro-life groups because they oppose the Government’s pro-choice policies. They argue that the debate about abortion should continue and that TRTL’s engagement in this debate, through their educational activities, is beneficial to inform the public. However, this Application is not the forum to fuel this debate. This Application is about whether the decision of the Minister to include an Attestation as a prerequisite for organizations seeking funding under the 2018 CSJ program was reasonable.
[4] For the more detailed reasons that follow, the Application is dismissed. In brief, I find that the decision to add the Attestation as part of the eligibility criteria for the 2018 CSJ program was within the Minister’s broad authority pursuant to the Department of Employment and Social Development Act, SC 2005, c 34 [DESDA or the Act]. The Minister did not act for an improper purpose, rely on irrelevant considerations, or show bad faith or a closed mind in making this decision. The Attestation is intra vires the DESDA.
[5] I also find that, although not the purpose of the Attestation, its effects engaged the Applicants’ rights of freedom of expression and freedom of religion. Applying the framework established in Doré v Barreau du Québec, 2012 SCC 12 [Doré] for determining whether the limitation on the Applicants’ Charter rights reflects a proportionate balancing, I find that the limitation on the Applicants’ rights was minimal and proportional to the objectives of the DESDA and the CSJ program. Of note, the 2018 CSJ program sought to protect and promote the Charter and other rights of program beneficiaries. Given that the decision reflects a proportionate balancing, it is a reasonable decision.
I. Background
A. The Parties
[6] The Right to Life Association of Toronto is a registered charity incorporated under the Corporations Act, RSO 1990, c C.38, carrying on business in Toronto and the Greater Toronto Area. TRTL describes itself as a volunteer, non-sectarian human rights organization dedicated, through education, to upholding the sacredness and inviolability of human life from conception to natural death. The Letters Patent state that its objectives include: to uphold the dignity of human life; to uphold the sacredness and inviolability of human life from the time of conception until death; to protect the interests and rights of the unborn child; to hold conferences, meetings and exchange of views in matters relating to the dignity of human life; and to prepare and submit to the public or private groups, bodies, associations or authorities, information pertaining to the above objects.
[7] Blaise Alleyne, as president of TRTL at the time, filed the application for funding from the 2018 CSJ program.
[8] Matthew Battista, described at the relevant time as a student at the University of Toronto, had been employed as a summer student by TRTL in 2016 and 2017. He attests that he would have sought summer employment again in 2018.
[9] Action Canada for Sexual Health and Rights [Action Canada] was granted intervener status in April 2018 to, among other things, make representations regarding sexual and reproductive rights and how the activities of “anti-choice” organizations are inconsistent with Charter values.
[10] The British Columbia Civil Liberties Association [BCCLA] was granted intervener status in May 2018 for the limited purpose of noting relevant American constitutional principles involving freedom of speech and religion and how these principles may inform Canadian jurisprudence.
B. TRTL’s Previous Funding from CSJ
[11] TRTL applied for and received funding from the 2016 CSJ Program.
[12] TRTL also applied for $29,184.00 in funding from the 2017 CSJ program. Employment and Social Development Canada [ESDC] advised TRTL that due to the lack of sufficient funds for that particular federal constituency, no funds would be granted. TRTL sought judicial review of the funding decision, alleging that the real reason for refusing its application and those of other similar organizations was because of the organizations’ stand on abortion. A settlement was reached and ESDC provided funding to TRTL. The Minister acknowledged that the 2017 application for funding had been denied based on criteria that were not set out either in the 2017 Applicant Guide or in the list of local priorities for Members of Parliament.
C. The 2018 CSJ Program
[13] The 2018 CSJ program set out five national priorities:
(1) Employers who intend to hire youth who are in underrepresented groups, including new immigrant youth/refugees, Indigenous youth, youth with disabilities and visible minorities;
(2) Small businesses, in recognition of their contribution to the creation of jobs;
3) Organizations that support opportunities for official language minority communities;
4) Organizations that provide services and/or supports for the LGBTQ2 community; and
(5) Organizations that support opportunities in science, technology, engineering and mathematics (STEM) and information and communications technology (ICT), particularly for women.
[14] On December 19, 2017, the Minister published the Applicant Guide for the 2018 CSJ program [Applicant Guide]. The Applicant Guide stated that, for an application to be considered complete and eligible for assessment, the applicant must check the box attesting to the following statements [the Attestation]:
I have read and understood the Canada Summer Jobs Articles of Agreement and referred to the Applicant Guide as needed;
The job would not be created without the financial assistance provided under a potential contribution agreement;
Both the job and my organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability or sexual orientation, or gender identity or expression;
I have all the necessary authorities, permissions and approvals to submit this application on behalf of myself and the organization.
[Emphasis added.]
Only the underlined parts of the Attestation are at issue in this Application.
[15] The Applicant Guide further states:
The employer attestation for CSJ 2018 is consistent with individual human rights in Canada, Charter rights and case law, and the Government of Canada's commitment to human rights, which include women's rights and women's reproductive rights, and the rights of gender-diverse and transgender Canadians.
The government recognizes that women's rights are human rights. This includes sexual and reproductive rights – and the right to access safe and legal abortions.
This explanation of women’s reproductive rights is repeated throughout the Applicant Guide.
[16] Under the heading “2.0 Introduction”, the Applicant Guide states:
Canada Summer Jobs (CSJ) is an initiative of the Summer Work Experience program. It provides wage subsidies to employers to create employment for secondary and post-secondary students. Again this year, Canada Summer Jobs welcomes applications from small businesses, not-for-profit employers, public sector and faith-based organizations that provide quality summer jobs for students.
[17] Under the subheading “3.1 Eligible Employers”, the Applicant Guide includes this note:
NOTE: That an organization is affiliated with a religion does not itself constitute ineligibility for this program.
[18] A document titled “Implementing Changes to Eligibility for Canada Summer Jobs 2018: Program Policy Rationale” (ESDC 2017) [Rationale] describes the context and objectives of the Attestation and its elements. In setting out the context, the Rationale notes the Government’s commitment to offering valuable summer work opportunities. It also notes that the Government has publicly expressed its overall priorities, which include strengthening diversity and inclusion, and innovation and skills development. The Rationale then elaborates:
The government has proclaimed itself as feminist and recognizes that women’s rights are human rights. This includes sexual and reproductive rights — and the right to access safe and legal abortions. These rights are at the core of the Government of Canada’s foreign and domestic policies.
In March 2017, on International Women’s Day, the Prime Minister announced a new strategy to spend $650-million on sexual and reproductive health and rights worldwide. This three-year plan is expected to finance a range of global programs, including contraception, reproductive health, legal abortion, sexuality education and advocacy work.
The government recognizes that everyone should have the right to live according to their gender identity and express their gender as they choose, free from discrimination. The government is committed to protecting the dignity, security, and rights of gender-diverse and transgender Canadians.
[19] The objective of the changes in approach to include the Attestation is:
[t]o prevent Government of Canada funding from flowing to organizations whose mandates or projects may not respect individual human rights, including the values underlying the [Charter] and associated case law. Additionally, these changes help prevent youth (as young as 15 years of age) from being exposed to employment within organizations that may promote positions that are contrary to the values enshrined in the [Charter] and associated case law.
This change helps to ensure that youth job opportunities funded by the Government of Canada take place in an environment that respects the rights of all Canadians.
[20] A memorandum from the Deputy Minister of ESDC to the Minister, dated December 1, 2017, (with some redactions) described the options considered and sought the Minister’s approval for the inclusion of the Attestation as a new eligibility requirement for funding. The memorandum notes, among other considerations:
Consideration was given to asking employers to certify that the project or job respects the values underlying the Charter, as well as respects the individual’s reproductive rights and freedoms. However, following consultation with your office, the new desired approach was to also ask that the core mandate of the organization respect individual human rights, including the values underlying the Charter as well as other rights. These would include reproductive rights and, non-discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation, or gender expression and identity.
The addition of this new requirement does not guarantee that only organizations whose mandates align with government priorities will apply for funding. However, it provides the department with an additional means to screen out ineligible organizations—even if the projects themselves seem to respect the spirit of the Charter at first glance.
[Emphasis in original.]
D. TRTL’s 2018 CSJ Application
[21] On December 20, 2017, Mr. Alleyne, president of TRTL, submitted a paper application for funding under the 2018 CSJ program. Mr. Alleyne did not make the Attestation. Instead, he enclosed a letter objecting to the Attestation and proposing a different attestation:
On the basis of conscience, we are unable to express the words that the Minister has required in the Applicant’s Guide. We are, however, able to attest that “we support all Canadian law, including Charter and human rights law.” We believe the Minister does not have the jurisdiction under law to compel us to make a statement that conflicts with our conscience rights under the Charter. Nor does the Minister have the right to compel speech as a condition of receiving a financial benefit from the government of Canada. We respectfully decline to make a statement that is inconsistent with our fundamental personal beliefs about the value of life and the right to life under section 7 of the Charter. Please confirm that you will accept our application with the above noted statement in substitution for the statement set forth in the online application process and in the Applicant’s Guide.
[Emphasis added]
[22] The application for funding was considered incomplete because TRTL did not fulfil the Attestation requirement and was not considered.
[23] On January 4, 2018, the Applicants filed this Application. The Applicants sought several remedies, including that the decision be quashed, that they be awarded the funding they had sought, and that an interim injunction be granted.
[24] On January 30, 2018, Justice Martine St-Louis dismissed the Applicants’ motion for an interim injunction to stay the decision to add the Attestation to the 2018 CSJ program pending the final determination of this Application (Right to Life Association of Toronto and Area v Canada (Minister of Employment, Workforce, and Labour), 2018 FC 102 [Injunction Order]).
[25] The Applicants subsequently amended their Notice of Application to add the allegations that the Minister’s decision was made in bad faith, for an improper purpose, on irrelevant considerations and with bias.
II. Overview of Positions
A. The Applicants’ Position
[26] The Applicants submit that the Minister’s decision to add the Attestation is ultra vires and does not relate to any of the statutory purposes of the DESDA or the CSJ program, which is only about jobs and aims, more particularly, to provide opportunities for skills development for all Canadians. The Applicants submit that the Attestation was instead added for illegal purposes: to coerce thoughts, opinion, expression or religious and conscientious beliefs of the Applicants and similar groups and to discriminate against them on the basis of their religious beliefs.
[27] The Applicants acknowledge that the Minister has the discretion to award funding to some groups and not others, but argues that the Minister cannot deny the eligibility for funding on the basis of belief and opinion.
[28] The Applicants further argue that the Attestation was added to placate pro-choice lobby groups by excluding TRTL and other similar groups who hold a pro-life view. The Applicants therefore allege that the decision to add the Attestation was made in bad faith, because it was made for an improper purpose or on irrelevant considerations, and that it reflects a reasonable apprehension of bias.
[29] The Applicants dispute the Respondent’s contention that they have misunderstood the Attestation. They submit that the Attestation, which refers to their core mandate and activities, relates to their values and beliefs, which are grounded in religion, and prevents them from disavowing its message of supporting reproductive rights. The Applicants also dispute the Respondent’s suggestion that they are not required to sign the Attestation unless they seek funding, and that the Attestation does not silence them because they can still express their views.
[30] The Applicants submit that even if the Minister’s purpose in adding the Attestation were permissible, the effects of the Attestation infringe their Charter rights. The Applicants argue that the Attestation infringes their right to freedom of expression because it compels speech; to freedom of religion, because it requires them to disavow their religious beliefs; and to equal benefit of the law, because it discriminates against them by excluding them from the program on the grounds of religion.
[31] The Applicants submit that the infringing effects of the Attestation on their Charter rights are greatly disproportionate to the statutory objectives because they were completely excluded from applying for funding. The Applicants submit that while the Attestation may have sought to protect the rights of others, it did not protect their rights. The Applicants contend that there is no evidence that the Minister considered their Charter rights to freedom of religion and speech or how to proportionately balance the limitation of their rights with the statutory objectives.
[32] As a remedy, the Applicants seek declarations that the Minister’s decision to add the Attestation infringes sections 2(a), 2(b) and 15 and cannot be saved by section 1, and that the Minister’s decision is ultra vires, made in bad faith and for an improper purpose and/or on irrelevant considerations. The Applicants also seek an order in the nature of certiorari to quash the decision and an order in the nature of mandamus to require the Minister to award the Applicants the funds they would have been awarded had they made the Attestation.
B. The Respondent’s Position
[33] The Respondent explains that the CSJ program is an oversubscribed annual discretionary funding program. The purpose of the Attestation was to respect the Charter and other rights of all Canadians. The Attestation confirmed that the primary activities of the organization seeking funding and the jobs to be funded did not seek to undermine the Charter and other rights of Canadians. The Respondent notes that applying for funding is voluntary and that no organization has a right to funding.
[34] The Respondent first submits that neither Mr. Alleyne nor Mr. Battista have standing; only TRTL has standing to bring this Application.
[35] The Respondent notes that in accordance with Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the Court’s role is not to decide whether a different approach is better, only whether the approach taken—i.e., the decision to add the Attestation—is reasonable. The objectives and eligibility criteria for the 2018 CSJ program provide the context for the reasonableness review. The Respondent submits that discretionary policy decisions, including those related to program design, are owed deference.
[36] The Respondent argues that the policy decision to add the Attestation as an eligibility requirement is intra vires; it falls within the purpose and objectives of the Act and within the Minister’s broad discretion. The decision was not based on irrelevant considerations nor made for an improper purpose. There is no evidence that the Minister acted with a closed mind.
[37] The Respondent notes that subsection 5(2) of the DESDA, which refers to an inclusive labour market and social well-being and quality of life for all, anchors the vires of the Attestation. The Respondent submits that the Attestation ensured that funding flowed only to organizations that respect the rights of all Canadians and promoted the statutory objectives of an inclusive labour market and the social well-being of vulnerable and underrepresented persons.
[38] The Respondent notes that Justice St-Louis found that the Minister had broad discretion (Injunction Order at para 17) and that the program was in the public interest (para 78).
[39] If the Court considers the Charter issues, the Respondent submits that neither the purpose nor the effects of the Attestation interfere with the Applicants’ rights under sections 2(a), 2(b) or 15. Alternatively, the Respondent argues that if the effects of the Attestation limit the Applicants’ Charter rights, the limitation is minimal and the decision to add the Attestation reflects a proportionate balancing of the Charter rights and protections at play with the statutory objectives of the DESDA and the CSJ program. A proportionate balancing reflects a reasonable decision.
[40] The Respondent submits that the Attestation did not compel speech and force the Applicants to say that they supported abortion, as they alleged, nor did it restrict the Applicants’ ability to disavow the message.
[41] The Respondent disputes that the Attestation infringed the Applicant’s freedom of religion. The Respondent notes that TRTL describes itself as a non-sectarian, human rights organization with its main activities as education. The Respondent adds that TRTL has not provided any objective evidence that the Attestation interfered with their religious freedoms in a non-trivial way.
[42] The Respondent further submits that the Applicants cannot assert their section 15 claim because section 15 rights belong to individuals and neither Mr. Alleyne nor Mr. Battista has standing to advance this claim.
[43] The Respondent alternatively argues that the Attestation did not infringe the equality rights of Mr. Alleyne or Mr. Battista on the basis of religion for several reasons, including that they were not personally required to make the Attestation, TRTL is not a religious group, and there is no evidence of a differential impact or disadvantage that would be perpetuated by the Attestation.
[44] With respect to the remedy sought by the Applicants, the Respondent submits that if any error is found, only certiorari (to quash the Attestation) and a declaration are appropriate. The Respondent submits that it would be pointless for the Court to order a redetermination of the Minister’s decision, since the 2018 program is over. The Respondent adds that mandamus is not justified as there is no duty owed to the Applicants and funding is a discretionary decision.
C. The Interveners
(1) Action Canada for Sexual Health and Rights
[45] Action Canada’s mandate is to advance and uphold the sexual and reproductive rights and health of all people, including through advocacy, education and the provision of services.
[46] Action Canada submits that the Attestation fulfills a necessary statutory purpose, which includes promoting the well-being of vulnerable persons. Funds should not be used to support activities that cause harm and which violate constitutionally guaranteed rights such as reproductive rights protected by section 7 of the Charter.
[47] Action Canada submits that the Government has a responsibility to uphold the protections for sexual and reproductive rights, noting Canada’s international commitments, including the International Covenant on Civil and Political Rights.
[48] Action Canada submits that based on its own work, it has observed the prevalence of misinformation provided to women about their pregnancy options by anti-choice groups. Action Canada alleges that some engage in duplicitous and harassing campaigns that intimidate women considering their options. Action Canada submits that the activities of anti-choice groups are inconsistent with Charter values.
[49] Action Canada disputes the submission of TRTL that women and others are not harmed by being exposed to the graphic literature of pro-life groups. Action Canada notes that those in a vulnerable state can be influenced.
(2) BC Civil Liberties Association
[50] BCCLA intervenes for the limited purpose of making submissions about the possible guidance from US constitutional principles regarding freedom of speech and expression and how these principles may inform Canadian jurisprudence.
[51] BCCLA notes that it disagrees with the views of TRTL on access to abortion; however, it also opposes measures that interfere with freedom of expression and the peaceful expression of alternative views.
[52] BCCLA characterizes the Attestation as a condition that requires applicants to attest that they adopt the Government’s view. BCCLA notes that in the US experience, such attestations, oaths or pledges as a condition of funding have in some cases been held to violate freedom of speech. BCCLA submits that if the effect of the Attestation is found to suppress free speech, the Court should consider American jurisprudence that addresses the “unconstitutional conditions doctrine.”
[53] BCCLA submits that the Supreme Court of Canada has acknowledged, in R v Simmons, [1988] 2 SCR 495, 55 DLR (4th) 673, and R v Keegstra, [1990] 3 SCR 697, 114 AR 81, that US jurisprudence on constitutional freedoms can provide guidance to Canadian courts because of the long experience with these issues in the US. BCCLA submits that although Canadian jurisprudence has since been developed, US jurisprudence may provide guidance.
[54] BCCLA notes that the Supreme Court of Canada considered US jurisprudence on compelled speech and how it may be persuasive in Lavigne v Ontario Public Service Employees Union, [1991] 2 SCR 211 at 274–76, 81 DLR (4th) 545 [Lavigne], which is relied on by the Applicants.
[55] BCCLA cites particular US decisions and notes, more generally, that many US judgments are consistent with Canadian jurisprudence that holds that there is no right to government funding (e.g., Rust v Sullivan, 500 US 173 (1991)). Governments can support or subsidize some opinions to the exclusion of others. However, US jurisprudence makes a distinction between programs directed at promoting certain views and conditions that limit freedom of expression for reasons unrelated to the purpose of the program (e.g., Perry v Sindermann, 408 US 593 (1972)).
[56] BCCLA submits that the Attestation at issue appears to be a form of compelled speech not directly connected to the purpose of the funding.
[57] BCCLA submits that it would be permissible to attach a condition to the job that is funded by the grant, but questions whether it is permissible to include the core mandate in the Attestation.
III. The Issues
[58] The Respondent raises the preliminary issue of whether Mr. Alleyne and Mr. Battista have standing as individuals to bring this Application or whether the only Applicant should be TRTL, with Mr. Alleyne’s involvement limited to his role as the president and a member of the organization.
[59] With respect to the merits of the Application, the overarching issue is whether the Minister’s decision to add the Attestation as a new eligibility requirement was reasonable. This entails consideration of the following issues:
Whether the decision to add the Attestation is ultra vires the DESDA;
Whether the decision to add the Attestation was made in bad faith because it was made for an improper purpose or based on irrelevant considerations; and
Whether the decision to add the Attestation was made with bias or a closed mind.
[60] In the event that the Court finds that the Attestation is ultra vires based on the administrative law arguments advanced, the Court need not consider the Charter issues raised (Taseko Mines Limited v Canada (Environment), 2019 FCA 320 at para 105). In the event that the Court finds that the purpose of the Attestation is not ultra vires, the Court must consider the effects of the Attestation. The issue becomes whether the Attestation engaged the Applicants’ Charter rights protected by sections 2(a), 2(b) and 15, and if so, whether in deciding to add the Attestation, the Minister proportionately balanced the Charter rights and protections at play with the objectives of the DESDA and the CSJ program.
IV. The Standard of Review
[61] The reasonableness standard is the presumptive standard of review for administrative decisions, including decisions of Ministers, and applies to the majority of the issues noted above (Vavilov).
[62] In Vavilov, the Supreme Court of Canada provided extensive guidance to the courts in reviewing a decision for reasonableness, noting that a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision‑maker (Vavilov at paras 85, 102, 105–10). The Court does not assess the reasons against a standard of perfection (Vavilov at para 91).
[63] In Vavilov, the Supreme Court of Canada explained that decisions should not be set aside unless there are “sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” and that “[t]he court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable” [Emphasis added] (Vavilov at para 100).
[64] The Applicants’ allegations of bad faith and bias or closed mind are issues of procedural fairness that are reviewed on the standard of correctness. As noted in Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54–55, correctness is not so much a standard of review as an assessment of whether the process was fair having regard to all the circumstances.
[65] If the Court determines that the Minister’s decision to add the Attestation engages the Applicants’ Charter rights, the reasonableness standard applies to determine whether the Attestation reflects a proportionate balancing between the relevant Charter protections at play and the statutory objectives of the DESDA and the CSJ program to ensure that the right is limited no more than necessary (Doré; Loyola High School v Quebec (Attorney General), 2015 SCC 12 [Loyola]). A decision that reflects a proportionate balancing of Charter rights and values is a reasonable decision.
[66] In Vavilov, at para 57, the Supreme Court expressly stated that it was not displacing the standard of review set out in Doré.
V. Preliminary Issue: Mr. Alleyne Has Direct Standing
[67] The Respondent’s position is that TRTL is the only applicant with standing. The Respondent argues that neither Mr. Alleyne nor Mr. Battista has established that the Attestation affected their legal rights, imposed legal obligations on them, or prejudicially affected them in some personal way (Bernard v Close, 2017 FCA 52 at para 2 [Bernard]). The Respondent also argues that they do not have a genuine interest in the matter (Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para 37).
[68] The Applicants’ position is that both Mr. Alleyne and Mr. Battista have direct standing as individuals because they have been prejudicially affected. The Applicants argue that by signing the Attestation on behalf of TRTL, Mr. Alleyne would be required to attest to a view that he does not hold and which is contrary to his strongly held religious belief. The Applicants submit that Mr. Battista’s opportunity for employment in the summer of 2018 was prejudicially affected by the Attestation requirement.
[69] Individuals have direct standing to challenge a decision where the decision directly affects them (subsection 18.1(1) of the Federal Courts Act, RSC 1985, c F-7); where the decision affects their legal rights, imposes legal obligations upon them, or prejudicially affects them (Bernard at para 2, citing League for Human Rights of B’Nai Brith Canada v Odynsky, 2010 FCA 307 at para 58; Dow v Canadian Nuclear Safety Commission, 2020 FC 376 at para 9).
[70] I find that the Applicants have established that Mr. Alleyne has direct standing. At the relevant time, Mr. Alleyne was a member of and president of TRTL. He applied for funding on behalf of TRTL and would have been required to make the Attestation on behalf of TRTL. He attested that his “conscience does not allow [him] to sign the attestation”. Mr. Alleyne explained that he is faithful to the teachings of the Catholic Church, which teaches that human life must be respected and protected from conception. The Respondent’s view—that Mr. Alleyne’s legal rights and obligations were not affected by either signing or not signing the Attestation and that he was not prejudicially affected in his personal capacity—overlooks that Mr. Alleyne was the public face of TRTL. The organization could not submit an application for funding without a representative signing the Attestation. Mr. Alleyne explained that neither he nor other members of TRTL could make the Attestation, which in their view is inconsistent with their strongly held beliefs. In my view, as the face of TRTL, Mr. Alleyne’s personal views and beliefs are aligned with the beliefs and values of TRTL and vice versa, and he would be prejudicially affected by making the Attestation.
[71] The Applicants have not established that Mr. Battista was directly affected or prejudiced by the Attestation. Although Mr. Battista attested that he would have, or hoped to, seek employment with TRTL in 2018, noting that he had worked in previous summers, there is no evidence regarding whether TRTL had other sources of funds to employ Mr. Battista or whether he was employed in 2018 regardless of the lack of funding from the CSJ program. Mr. Battista was not required to make the Attestation as a representative of TRTL. Unlike Mr. Alleyne, he was not the public face or official representative of TRTL.
VI. Was the Decision to Add the Attestation Ultra Vires?
A. The Applicants’ Submissions
[72] The Applicants argue that the Attestation is ultra vires because its purpose is unrelated to and exceeds the statutory purposes of the DESDA.
[73] The Applicants submit that the Attestation is an attempt by the Minister to influence or affect political speech, to compel or censor speech, to regulate beliefs, or to discriminate against them on the basis of their religious beliefs. The Applicants argue that these are unconstitutional purposes, which render the Attestation ultra vires. (The Applicants’ Charter-related submissions are addressed below.)
[74] The Applicants further allege that the purpose of adding the Attestation was also to accomplish the Minister’s publicly stated objective of denying funding to any “organization that works to limit women's reproductive rights” and to satisfy the demands of the Abortion Rights Coalition of Canada [ARCC].
B. The Respondent’s Submissions
[75] The Respondent submits that the decision to add the Attestation is within the scope of the Minister’s discretion and is intra vires the DESDA. The Respondent points to the reference to an “inclusive labour market” and “promoting social well-being” in subsection 5(2) of the DESDA. The Respondent submits that the Attestation, which ensures that funds flow only to employers that do not discriminate in their hiring and do not undermine individual human rights, helps achieve the DESDA objectives of an inclusive workforce, social development and the social well-being of vulnerable persons such as LGBTQ2 youth and underrepresented groups such as women in STEM. In addition, the DESDA requires the Minister to establish criteria that favour certain applicants over others for the benefit of all Canadians.
[76] The Respondent further argues that the Attestation did not have unconstitutional objectives. The Respondent distinguishes the Attestation from the circumstances in R. v Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 [Big M], cited by the Applicants, where the law in question (the Lord’s Day Act) clearly had the purpose of forcing people to observe a particular religious practice. The Respondent submits that the purpose of the Attestation is not to coerce religious beliefs or to put a particular message “in the mouth of the Applicants.” Rather, the Attestation ensures that youth job opportunities funded by the CSJ program take place in an environment that respects the rights of all Canadians.
[77] The Respondent submits that there is no evidence that TRTL was singled out or excluded. The Attestation was directed at jobs and activities, not at values and beliefs.
C. The Attestation Is Intra Vires the DESDA
[78] The relevant provisions of the DESDA state:
5 (1) The Minister’s powers, duties and functions extend to and include all matters relating to human resources and skills development in Canada or the social development of Canada over which Parliament has jurisdiction and which are not by law assigned to any other Minister, department, board or agency of the Government of Canada.
5 (1) Les attributions du ministre s’étendent d’une façon générale à tous les domaines de compétence du Parlement liés aux ressources humaines et au développement des compétences au Canada ou au développement social du Canada et ne ressortissant pas de droit à d’autres ministres, ministères ou organismes fédéraux.
(2) The Minister shall exercise the powers and perform the duties and functions
(2) Ces attributions sont exercées aux fins suivantes :
(a) relating to human resources and skills development with a view to improving the standard of living and quality of life of all Canadians by promoting a highly skilled and mobile workforce and an efficient and inclusive labour market; and
a) s’agissant des ressources humaines et du développement des compétences, en vue de rehausser le niveau de vie de tous les Canadiens et d’améliorer leur qualité de vie en faisant la promotion du développement d’une main-d’oeuvre hautement qualifiée et mobile, ainsi que d’un marché du travail efficient et favorable à l’intégration;
(b) relating to social development with a view to promoting social well-being and income security.
b) s’agissant du développement social, en vue de promouvoir le bien-être des personnes au sein de la société et la sécurité du revenu.
7 The Minister may, in exercising the powers and performing the duties and functions assigned by this Act, establish and implement programs designed to support projects or other activities that contribute to the development of the human resources of Canada and the skills of Canadians, to the social development of Canada or to service delivery to the public, and the Minister may make grants and contributions in support of the programs.
7 Le ministre peut, dans le cadre des attributions que lui confère la présente loi, concevoir et réaliser des programmes destinés à appuyer les projets ou autres activités qui contribuent au développement des ressources humaines au Canada et au développement des compétences des Canadiens, au développement social du Canada ou à la prestation de services au public, et accorder des subventions et des contributions pour appuyer ces programmes.
[79] The DESDA sets out the powers, duties and functions of the Minister in sections 5–17. The broad powers of the