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

Canada (Canadian Human Rights Commission) v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2018-06-14
Neutral citation
2018 SCC 31
Report
[2018] 2 SCR 230
Case number
37208
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Federal Court of Appeal
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230
Appeal Heard: November 28, 2017 Judgment Rendered: June 14, 2018 Docket: 37208
Between:
Canadian Human Rights Commission
Appellant
and
Attorney General of Canada
Respondent
- and -
Attorney General of Quebec, Tania Zulkoskey, Income Security Advocacy Centre, Sudbury Community Legal Clinic, Chinese and Southeast Asian Legal Clinic, Community Legal Assistance Society, HIV & AIDS Legal Clinic Ontario, Canadian Muslim Lawyers Association, Council of Canadians with Disabilities, Women’s Legal Education and Action Fund, Native Women’s Association of Canada, Amnesty International, First Nations Child and Family Caring Society of Canada, Jeremy E. Matson, African Canadian Legal Clinic, Aboriginal Legal Services and Public Service Alliance of Canada
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment: (paras. 1 to 68)
Gascon J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis and Wagner JJ. concurring)
Joint Concurring Reasons: (paras. 69 to 107)
Côté and Rowe JJ.
Concurring Reasons: (paras. 108 to 115)
Brown J.
Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230
Canadian Human Rights Commission Appellant
v.
Attorney General of Canada Respondent
and
Attorney General of Quebec,
Tania Zulkoskey,
Income Security Advocacy Centre,
Sudbury Community Legal Clinic,
Chinese and Southeast Asian Legal Clinic,
Community Legal Assistance Society,
HIV & AIDS Legal Clinic Ontario,
Canadian Muslim Lawyers Association,
Council of Canadians with Disabilities,
Women’s Legal Education and Action Fund,
Native Women’s Association of Canada,
Amnesty International,
First Nations Child and Family Caring Society of Canada,
Jeremy E. Matson,
African Canadian Legal Clinic,
Aboriginal Legal Services and
Public Service Alliance of Canada Interveners
Indexed as: Canada (Canadian Human Rights Commission) v. Canada (Attorney General)
2018 SCC 31
File No.: 37208.
2017: November 28; 2018: June 14.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the federal court of appeal
Administrative law — Judicial review — Standard of review — Canadian Human Rights Tribunal dismissing complaints alleging that provisions of Indian Act precluding registration of complainants’ children as “Indians” constituted discriminatory provision of services — Tribunal finding that complaints involved direct challenge to s. 6 of Indian Act and that legislation not included in the meaning of “services” under s. 5 of Canadian Human Rights Act — Whether Tribunal’s decisions reviewable on standard of reasonableness or correctness.
Human rights — Discriminatory practices — Provision of services — Indians — Status eligibility — Registration — Human rights complaints alleging that provisions of Indian Act precluding registration of complainants’ children as “Indians” discriminated in provision of services customarily available to general public on grounds of race, national or ethnic origin, sex or family status — Whether complaints constituted direct attack on legislation or whether they concerned discrimination in provision of service — Meaning of “services” under s. 5 of Canadian Human Rights Act, R.S.C. 1985, c. H-6 .
This appeal concerns several complaints alleging that Indian and Northern Affairs Canada engaged in a discriminatory practice in the provision of services contrary to s. 5 of the Canadian Human Rights Act (“CHRA ”) when it denied a form of registration under the Indian Act that the complainants would have been entitled to if past discriminatory policies, now repealed, had not been enacted.
In two separate decisions, the Canadian Human Rights Tribunal determined that the complaints were a direct attack on the Indian Act . As legislation was not a service under the CHRA , it dismissed the complaints. On judicial review, both the Federal Court and the Federal Court of Appeal found that the Tribunal decisions were reasonable and should be upheld.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.: Where an administrative body interprets its home statute, there is a well‑established presumption that the reasonableness standard applies. The presumption may be rebutted and the correctness standard applied where one of the categories identified in Dunsmuir can be established or, exceptionally, where a contextual inquiry shows a clear legislative intent that the correctness standard be applied. In applying the standard of review analysis, there is no principled difference between a human rights tribunal and any other decision maker interpreting its home statute.
In both of its decisions, the Tribunal was called upon to characterize the complaints before it and ascertain whether a discriminatory practice had been made out under the CHRA . This falls squarely within the presumption of deference. The Tribunal clearly had the authority to hear a complaint about a discriminatory practice, and the question of what falls within the meaning of “services” is no more exceptional than questions previously found by the Court not to be true questions of jurisdiction. To find that the Tribunal was faced with a true question of vires here would only risk disinterring the jurisdiction/preliminary question doctrine that was clearly put to rest in Dunsmuir. Plainly, the definition of a service under the CHRA is not a true question of vires.
The category of true questions of vires is confined to instances where the decision maker must determine whether it has the authority to enter into the inquiry before it. Since its inclusion as a category of correctness review in Dunsmuir, the concept of true questions of vires has been as elusive as it has been controversial. In applying Dunsmuir, the Court has been unable to identify a single instance where this category was found to be applicable. Since Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, the Court has reasserted the narrow and exceptional nature of this category. The difficult distinction between simple questions of jurisdiction (i.e., questions that determine the scope of one’s authority) and true questions of vires (i.e., questions that determine whether one has authority to enter into the inquiry) has, however, tempted litigants and judges alike to return to a broad understanding of jurisdiction as justification for correctness review. The elusive search for true questions of vires may thus both threaten certainty for litigants and undermine legislative supremacy. While some have advocated for the conceptual necessity of correctness review for jurisdiction, reasonableness review is often more than sufficient to fulfil the courts’ supervisory role with regard to the jurisdiction of the executive. Absent full submissions by the parties on this issue it will be for future litigants to establish whether or not this category remains necessary.
The category of questions of law that are both of central importance to the legal system as a whole and outside the decision maker’s specialized area of expertise does not apply here. The Court has rejected a liberal application of this category. Regardless of the importance of the questions before the Tribunal, they were clearly within the Tribunal’s expertise. The ability of other federal tribunals to apply the CHRA does not rob the Tribunal of its expertise in its home statute.
Finally, a contextual analysis would not rebut the presumption in this case either. Where the presumption of reasonableness applies, the contextual approach should be applied sparingly in order to avoid uncertainty and endless litigation concerning the standard of review analysis. Indeed, the presumption of reasonableness was intended to prevent litigants from undertaking a full standard of review analysis in every case. As such, the presumption of reasonableness review and the identified categories will generally be sufficient to determine the applicable standard. Where a contextual analysis may be justified to rebut the presumption it need not be a long and detailed one. Changes to “foundational legal tests” are not clear indicators of legislative intent, and do not warrant the application of the contextual approach or, by extension, correctness review. Nor do the absence of a privative clause, the fact that other administrative tribunals may consider the CHRA , the potential for conflicting lines of authority, or the nature of the question at issue and the purpose of the Tribunal.
The presumption of deference is not rebutted and the reasonableness standard applies to the review of the Tribunal’s decisions. In its application, reasonableness review recognizes the legitimacy of multiple possible outcomes, even where they are not the court’s preferred solution. In reasonableness review, the reviewing court is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process and with determining whether the outcome falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. When applied to a statutory interpretation exercise, reasonableness review recognizes that the delegated decision maker is better situated to understand the policy concerns and context needed to resolve any ambiguities in the statute. Reviewing courts must also refrain from reweighing and reassessing the evidence considered by the decision maker.
Both of the Tribunal’s decisions were reasonable and should be upheld. The Tribunal provided careful and well‑considered reasons explaining why the complaints had not established a discriminatory practice under the CHRA . In coming to their conclusion, the adjudicators considered the complainants’ evidence and submissions, the governing jurisprudence, the purpose, nature and scheme of the CHRA , and relevant policy considerations. The decisions meet the Dunsmuir standard of intelligibility, transparency and justifiability, and fall within the range of reasonable outcomes. Specifically, the adjudicators reasonably concluded that the complaints before them were properly characterized as direct attacks on legislation, and that legislation in general did not fall within the meaning of “services”. Although human rights tribunals have taken various approaches to making a distinction between administrative services and legislation, this is a question of mixed fact and law squarely within their expertise, and they are best situated to develop an approach to making such distinctions.
Per Côté and Rowe JJ.: Reasonableness is the presumptive standard for the review of questions that involve the tribunal’s interpretation and application of its home statute. There are, however, two situations where the presumption will not apply. First, the jurisprudence recognizes four categories of questions that will necessarily attract review on a standard of correctness: constitutional questions, questions of law that are both of central importance to the legal system and that are outside of the tribunal’s specialized area of expertise, questions that involve the drawing of jurisdictional lines between two or more competing specialized tribunals and true questions of jurisdiction. Second, the presumption of reasonableness will be rebutted if the contextual factors listed in Dunsmuir point towards correctness as the appropriate standard. This contextual approach does not play merely a subordinate role in the standard of review analysis. Resort to this approach is not exceptional and the framework set out in Dunsmuir is manifestly contextual in nature.
While any uncertainty surrounding the jurisdictional question category ought to be resolved another day, the Court has recognized that the concept of jurisdiction continues to play a crucial role in administrative law and has made clear that administrative decision makers must be correct in their determinations as to the scope of their delegated authority. This is because jurisdictional questions are fundamentally tied to both the maintenance of legislative supremacy, which requires that a given statutory body operate within the sphere in which the legislature intended that it operate, as well as the rule of law, which requires that all exercises of delegated authority find their source in law.
Since the interpretation of s. 5 of the Canadian Human Rights Act is at issue in this case, it is agreed that reasonableness presumptively applies. However, and without deciding on whether the nature of the question at issue falls within a category of correctness, the relevant contextual factors listed in Dunsmuir lead to the conclusion that the presumption of reasonableness has been rebutted in this case, such that the appropriate standard of review is correctness. Firstly, Parliament opted not to shield the Tribunal’s decisions from exacting review behind a privative clause. Secondly, provisions within a given human rights statute must be interpreted consistently across courts and tribunals tasked with its application. Applying a non‑deferential correctness standard allows the courts to provide meaningful guidance as to the scope of these fundamentally important human rights protections, and ensure respect for the rule of law in such cases. Finally, the Tribunal’s decision responds to a question of law with a constitutional dimension: Who gets to decide what types of challenges can be brought against legislative action? Because this question necessarily implicates the rule of law and the constitutional duty of superior courts to uphold this fundamental principle, no deference is owed to the Tribunal’s decision in these circumstances.
There is no dispute that the presumption of deference is not rebutted, solely by either the omission of a privative clause or by the potential for conflicting lines of authority. But while neither factor may independently call for correctness, they are each indicia that point toward correctness as the appropriate standard.
The wording of s. 5 of the Canadian Human Rights Act focuses on the provision of services and the language suggests that it is geared towards discrimination perpetrated by service providers. The complainants sought to challenge the registration provisions of the Indian Act as making discriminatory distinctions on the basis of race, national or ethnic origin, sex and family status. They did not challenge the actions of the Registrar in processing their applications. Therefore, at their core, these complaints are about Parliament’s decision not to extend “Indian” status to persons in similar circumstances. This was properly characterized by the Tribunal as a bare challenge to legislation. Parliament is not a service provider and was not providing a service when it enacted the registration provisions of the Indian Act . Parliament can be distinguished from the administrative decision makers that operate under legislative authority. These individuals and statutory bodies, which include the Registrar, may be service providers, and if they use their statutory discretion in a manner that effectively denies access to a service or makes an adverse differentiation on the basis of a prohibited ground, s. 5 will be engaged. But, when they are engaged simply in applying valid legislation, the challenge is not to the provision of services, but to the legislation itself. The Tribunal was correct in dismissing the complaints for want of an underlying discriminatory practice.
Per Brown J.: It is agreed that the Tribunal’s answers to the questions before it were both reasonable and correct. However, the majority’s discussion regarding true questions of jurisdiction omits a central point that, while not determinative, is an important consideration which militates against its suggestion that this category of correctness review might be “euthanized”. In Dunsmuir, this Court wrote that “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority”. This presupposes not only that the treatment of such questions is a matter of first importance, but that such questions continue to exist. Deciding whether and how any “euthanizing” the category of true questions of jurisdiction is to proceed will require a measure of circumspection. Abolition of that category will necessitate a concomitant shift towards a more flexible, rather than a strictly binary standard of review framework. There is also concern with the extremely narrow scope for contextual analysis that the majority states, and which would significantly impede that necessary flexibility. Statements suggesting that contextual review should be applied sparingly or that it plays a subordinate role are not easily reconciled with the majority’s acknowledgement that reviewing courts ought to examine factors that show a clear legislative intent justifying the rebuttal of the presumption. If one is considering factors which show legislative intent, one is undertaking a contextual analysis.
Cases Cited
By Gascon J.
Applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; considered: Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7, 428 N.R. 240; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; referred to: Canada (Attorney General) v. Larkman, 2012 FCA 204, [2012] 4 C.N.L.R. 87; Matson v. Canada (Indian and Northern Affairs), 2013 CHRT 13; Andrews v. Canada (Indian and Northern Affairs), 2013 CHRT 21; Canada (Attorney General) v. Watkin, 2008 FCA 170, 378 N.R. 268; P.S.A.C. v. Canada (Revenue Agency), 2010 CHRT 9, [2011] 1 C.T.C. 215; Canada (Attorney General) v. Druken, [1989] 2 F.C. 24; Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Oakes, [1986] 1 S.C.R. 103; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3; Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615; Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; City of Arlington, Texas v. Federal Communications Commission, 133 S. Ct. 1863 (2013); ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45, [2015] 3 S.C.R. 219; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555; Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29; Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Beattie v. Canada (Aboriginal Affairs and Northern Development), 2014 CHRT 1; Canada (Attorney General) v. Davis, 2013 FC 40, 425 F.T.R. 200; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2012 FC 445, [2013] 4 F.C.R. 545; Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; Descheneaux v. Canada (Attorney General), 2015 QCCS 3555, [2016] 2 C.N.L.R. 175; McIvor v. Canada (Indian and Northern Affairs, Registrar), 2009 BCCA 153, 306 D.L.R. (4th) 193.
By Côté and Rowe JJ.
Applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; referred to: Andrews v. Canada (Indian and Northern Affairs), 2013 CHRT 21; Matson v. Canada (Indian and Northern Affairs), 2013 CHRT 13; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678; Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488; Canada (Attorney General) v. Watkin, 2008 FCA 170, 378 N.R. 268; Canada (Attorney General) v. Johnstone, 2014 FCA 110, [2015] 2 F.C.R. 595; Canadian National Railway v. Seeley, 2014 FCA 111, 458 N.R. 349; University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; Canada Employment Insurance Commission v. M. W., 2014 SSTAD 371; Garneau Community League v. Edmonton (City), 2017 ABCA 374, 60 Alta. L.R. (6th) 1; Druken v. Canada (Employment and Immigration Commission), 1987 CanLII 99; Canada (Attorney General) v. Druken, [1989] 2 F.C. 24; Gonzalez v. Canada (Employment and Immigration Commission), [1997] 3 F.C. 646; McAllister‑Windsor v. Canada (Human Resources Development), 2001 CanLII 20691; Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7, 428 N.R. 240; Forward v. Canada (Citizenship and Immigration), 2008 CHRT 5; Canada (Human Rights Commission) v. M.N.R., 2003 FC 1280, [2004] 1 F.C.R. 679; Canada (Attorney General) v. McKenna, [1999] 1 F.C. 401; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226.
By Brown J.
Referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635; Canadian Copyright Licensing Agency (Access Copyright) v. Canada, 2018 FCA 58.
Statutes and Regulations Cited
Act to amend the Indian Act, R.S.C. 1985, c. 32 (1st Supp.).
Act to amend the Indian Act (death rules), R.S.C. 1985, c. 43 (4th Supp.).
Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général), S.C. 2017, c. 25 .
Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians, S. Prov. C. 1857, 20 Vict., c. 26, preamble.
Canadian Charter of Rights and Freedoms, s. 15 .
Canadian Human Rights Act, R.S.C. 1985, c. H‑6, ss. 2 , 4 , 5 , 5 to 14.1 , 39 , 40 , 49 , 50(2) , 62(1) , 67 [rep. 2008, c. 30, s. 1].
Constitution Act, 1867, s. 96 .
Gender Equity in Indian Registration Act, S.C. 2010, c. 18 .
Human Rights Code, R.S.O. 1990, c. H.19, s. 1.
Indian Act, R.S.C. 1985, c. I‑5, s. 6 .
Authors Cited
Bastarache, Michel. Dunsmuir 10 Years Later, March 9, 2018 (online: http://www.administrativelawmatters.com/blog/2018/03/09/dunsmuir-10-years-later-hon-michel-bastarache-cc-qc/; archived version: https://www.scc-csc.ca/cso-dce/2018SCC-CSC31_1_eng.pdf).
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 4, Perspectives and Realities. Ottawa, 1996.
Daly, Paul. The hopeless search for “true” questions of jurisdiction, August 15, 2013 (online: http://www.administrativelawmatters.com/blog/2013/08/15/the-hopeless-search-for-true-questions-of-jurisdiction/; archived version: https://www.scc-csc.ca/cso-dce/2018SCC-CSC31_2_eng.pdf).
Mummé, Claire. “At the Crossroads in Discrimination Law: How the Human Rights Codes Overtook the Charter in Canadian Government Services Cases” (2012), 9 J.L. & Equality 103.
APPEAL from a judgment of the Federal Court of Appeal (Pelletier, de Montigny and Gleason JJ.A.), 2016 FCA 200, [2017] 2 F.C.R. 211, 487 N.R. 137, [2016] 4 C.N.L.R. 1, 363 C.R.R. (2d) 130, 8 Admin. L.R. (6th) 1, 402 D.L.R. (4th) 160, [2016] F.C.J. No. 818 (QL), 2016 CarswellNat 3213 (WL Can.), affirming a decision of McVeigh J., 2015 FC 398, [2015] 3 C.N.L.R. 1, 7 Admin. L.R. (6th) 75, 477 F.T.R. 229, [2015] F.C.J. No. 400 (QL), 2015 CarswellNat 893 (WL Can.). Appeal dismissed.
Brian Smith and Fiona Keith, for the appellant.
Christine Mohr and Catherine A. Lawrence, for the respondent.
Amélie Pelletier‑Desrosiers, for the intervener the Attorney General of Quebec.
Stephen J. Moreau and Nadia Lambek, for the intervener Tania Zulkoskey.
Marie Chen and Niiti Simmonds, for the interveners the Income Security Advocacy Centre, the Sudbury Community Legal Clinic, the Chinese and Southeast Asian Legal Clinic, the Community Legal Assistance Society and the HIV & AIDS Legal Clinic Ontario.
Kumail Karimjee and Nabila F. Qureshi, for the intervener the Canadian Muslim Lawyers Association.
Kerri Joffe and Dianne Wintermute, for the intervener the Council of Canadians with Disabilities.
Mary Eberts, Kim Stanton and K. R. Virginia Lomax, for the interveners the Women’s Legal Education and Action Fund and the Native Women’s Association of Canada.
Stephen Aylward, for the intervener Amnesty International.
David P. Taylor and Anne Levesque, for the intervener the First Nations Child and Family Caring Society of Canada.
Jeremy E. Matson, on his own behalf.
Faisal Mirza and Tamara Thomas, for the intervener the African Canadian Legal Clinic.
Emily Hill and Emilie Lahaie, for the intervener the Aboriginal Legal Services.
Andrew Astritis, Andrew Raven and Morgan Rowe, for the intervener the Public Service Alliance of Canada.
The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ. was delivered by
Gascon J. —
I. Overview
[1] This appeal concerns several complaints under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA ”), that were dismissed by the Canadian Human Rights Tribunal (“Tribunal”) in two decisions. The complaints alleged that the legislative entitlements to registration under the Indian Act, R.S.C. 1985, c. I-5 , were discriminatory practices prohibited by the CHRA . At issue before this Court is, first, whether deference is owed to a human rights tribunal interpreting its home statute and, second, whether the Tribunal’s decisions dismissing the complaints as direct attacks on legislation were reasonable.
[2] All of the complaints arise from the lingering effects of “enfranchisement”, a discriminatory and damaging policy previously enshrined in the Indian Act . Enfranchisement stripped individuals of their Indian Act status and prevented their children from registering as status “Indians”. Parliament has put an end to enfranchisement and enacted remedial registration provisions. The complainants challenge the sufficiency of these remedial measures, claiming that they and their children continue to suffer discrimination as a legacy of enfranchisement.
[3] The complaints were heard by the Tribunal separately. In both decisions, the Tribunal determined that the complaints were a direct attack on the Indian Act . In order to establish a discriminatory practice to which the Tribunal could respond, the complainants needed to demonstrate that the legislative provisions fell within the statutory meaning of a service. After a thorough and thoughtful review of their enabling statute, the jurisprudence and policy considerations, the adjudicators in both decisions concluded that legislation was not a service under the CHRA and dismissed the complaints. On judicial review, both the Federal Court and the Federal Court of Appeal found that the Tribunal decisions were reasonable and should be upheld. I agree, and I would dismiss the appeal.
II. Background
A. Indian Act Registration
[4] Since its enactment in 1876, the Indian Act has governed the recognition of an individual’s status as an “Indian”. In its current form, the Indian Act creates a registration system under which individuals qualify for status on the basis of an exhaustive list of eligibility criteria. The Indian Act ’s registration entitlements do not necessarily correspond to the customs of Indigenous communities for determining their own membership or reflect an individual’s Aboriginal identity or heritage. However, it is incontrovertible that status confers both tangible and intangible benefits.
[5] The complaints underlying this appeal are rooted in a history of deeply harmful and discriminatory aspects of the Indian Act that were largely removed in 1985 and 2011 reforms (An Act to amend the Indian Act, R.S.C. 1985, c. 32 (1st Supp.), An Act to amend the Indian Act (death rules), R.S.C. 1985, c. 43 (4th Supp.), and Gender Equity in Indian Registration Act, S.C. 2010, c. 18 ). Prior to these reforms, individuals could be “enfranchised”, a euphemism for various legislative processes that would strip them of their Indian Act status. In one form of enfranchisement, the government incentivized individuals to renounce their status by offering such basic rights as citizenship, the right to vote, and the right to hold land in fee simple (Canada (Attorney General) v. Larkman, 2012 FCA 204, [2012] 4 C.N.L.R. 87, at para. 12). In another form, a status woman who married a non-status man would be involuntarily “enfranchised” along with any of her children (Report of the Royal Commission on Aboriginal Peoples, vol. 4, Perspectives and Realities (1996), at p. 25). This policy reflected a discriminatory view of women as subservient to their husbands and entrenched a system of patrilineal descent unfamiliar to many Indigenous communities (Report, at p. 25). Parliament’s stated intention for enfranchisement was to gradually reduce the number of status “Indians” (see, e.g., An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians, S. Prov. C. 1857, 20 Vict., c. 26, preamble). At its root, enfranchisement was a discriminatory policy aimed at eradicating Aboriginal culture and assimilating Aboriginal peoples (Larkman, at para. 11).
[6] In 1985, Parliament enacted new legislation that eliminated enfranchisement as a practice and created registration provisions entitling those who had lost their status to register (An Act to amend the Indian Act ). In 2011, further reforms granted registration eligibility to the children of women who had lost status for marrying a non-status man (Gender Equity in Indian Registration Act ). During the course of these proceedings, new amendments to the Indian Act have come into force that may impact the Matson siblings’ status eligibility (An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général), S.C. 2017, c. 25). The issue of mootness was not, however, fully argued by the parties and it is not necessary to consider it for the disposition of this appeal. I will therefore not comment further on the impact, if any, of the new entitlement provisions.
[7] Underlying all of the complaints are the Indian Act ’s rules for the transmission of status eligibility. Under the current Indian Act , individuals may qualify for one of two forms of status. Section 6(1) status is conferred on individuals who qualify under an exhaustive list of eligibility criteria. Section 6(2) status is conferred on individuals who are ineligible under s. 6(1) but who have a single parent entitled to s. 6(1) registration. The two forms of status differ mainly in the ability to transmit eligibility to one’s children: a child who has only one parent with s. 6(1) status will be eligible for s. 6(2) status, while a child who has only one parent with s. 6(2) status will not be eligible for status.
B. The Complaints in Matson v. Canada (Indian and Northern Affairs), 2013 CHRT 13
[8] The complaints in Matson involve three siblings who allege that sex-based discrimination led to their ineligibility for s. 6(1) status, and their children’s ineligibility for s. 6(2) status. Their grandmother lost her status under the Indian Act when she married a non-status man. Following the 1985 amendments, their grandmother was able to regain her status under s. 6(1) (c). The 2011 amendments then allowed their father to obtain status under s. 6(1) (c.1) and the siblings to obtain status under s. 6(2) . Their children are, however, ineligible for status. If the siblings’ status grandparent had been male, they would have been eligible for s. 6(1) (a) registration and their children would have been entitled to s. 6(2) registration.
C. The Complaints in Andrews v. Canada (Indian and Northern Affairs), 2013 CHRT 21
[9] The Andrews’ complaints concern the impact of the enfranchisement provisions and the scope of subsequent remedial legislation. Mr. Andrews’ father lost his status through an enfranchisement order. Consequently, his first wife and their daughter also lost their status. Mr. Andrews was born after the enfranchisement order was issued and his mother was a non-status woman unaffected by the order. Following the 1985 legislation, Mr. Andrews’ father and his half-sister became eligible for s. 6(1)(d) status. However, as Mr. Andrews’ mother was never eligible for status, Mr. Andrews is eligible only for s. 6(2) status and his daughter is ineligible for status. If Mr. Andrews had been born before the enfranchisement order, or if no order had been made, he would qualify for s. 6(1) status and his daughter would be eligible for s. 6(2) status. Mr. Andrews’ complaints allege that this result constitutes prohibited discrimination on the grounds of race, national or ethnic origin and family status.
D. Canadian Human Rights Act
[10] Under the CHRA , individuals can file a complaint regarding an enumerated discriminatory practice, and anyone found to have engaged in such a practice may be made subject to an order by the Tribunal (CHRA, s. 4 ). The complaints allege that Indian and Northern Affairs Canada (“INAC”) engaged in a discriminatory practice in the provision of services contrary to s. 5 of the CHRA when it denied a form of registration that would permit the complainants to pass on entitlements to their children. Section 5 reads as follows:
5 It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
III. Decisions Below
A. Canadian Human Rights Tribunal Decisions
(1) The Matson Decision
[11] In response to the request of the Canadian Human Rights Commission (“Commission”), the Tribunal launched an inquiry into the Matson siblings’ complaints pursuant to s. 49 of the CHRA . In its decision, the Tribunal addressed three issues: (1) whether the complaints involved a direct challenge to the Indian Act ; (2) whether the Tribunal was bound by the Federal Court of Appeal’s decision in Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7, 428 N.R. 240 (“Murphy”); and (3) whether the complaints, properly characterized, concerned a discriminatory practice.
[12] In the Tribunal decision, the adjudicator, Member Lustig, began the task of characterizing the complaints by referring, first, to the test for determining what constituted a service stated in Canada (Attorney General) v. Watkin, 2008 FCA 170, 378 N.R. 268, and, second, to the holding in Murphy that the CHRA did not permit complaints that directly targeted legislation. The adjudicator reviewed the Matson siblings’ submissions and concluded that their complaints, in substance, challenged the eligibility criteria under s. 6 of the Indian Act . It was noted that INAC did not have any involvement in determining the eligibility criteria under s. 6 of the Indian Act , nor did it have any discretion in applying the criteria. While the act of processing applications and registering individuals could be characterized as a service customarily held out to the public, the underlying statutory entitlement to registration was not a service held out by INAC to the public. Rather, it was a benefit offered by an Act of Parliament.
[13] The adjudicator considered whether he was bound by the Federal Court of Appeal decision in Murphy, which held that the Tribunal was unable to consider direct challenges to legislation. In Murphy, the complainant had received a settlement payment for wage discrimination that had occurred over a number of years. Under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp .), the settlement was deemed to be employment income accrued in the year the payment was made. The Canada Revenue Agency did not apply the qualifying retroactive lump-sum payment analysis, which would have spread the income over previous tax years. This was because the compound interest on the notional tax the complainant would have owed outweighed the benefits of being taxed at a lower rate. The complainant challenged the assessment as a discriminatory practice under the CHRA . The Tribunal dismissed the compl