Beattie, Beattie, Brewer and the estate of James Louie v. Aboriginal Affairs and Northern Development Canada

Beattie, Beattie, Brewer and the estate of James Louie v. Aboriginal Affairs and Northern Development Canada
Collection
Canadian Human Rights Tribunal
Date
2016-02-24
Neutral citation
2016 CHRT 5
File number(s)
T2055/5614, T2056/5714, T2057/5814
Decision-maker(s)
Lustig, Edward P.
Decision type
Decision
Decision status
Final
Grounds
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2016 CHRT
5
Date:
February 24, 2016
File Nos.:
T2055/5614, T2056/5714, T2057/5814
Between:
Bruce Beattie, Joyce Beattie, Jenelle Brewer
and the estate of James Louie
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Aboriginal Affairs and Northern Development Canada
Respondent
Decision
Member:
Edward P. Lustig
Table of Contents
I. Background 1
II. Relevant Legislation 2
III. Facts 4
A. Chronology 4
B. The Land Management System 9
IV. Threshold/Preliminary Issue: Are the Complaints solely a challenge to or a collateral attack upon legislation and nothing else and therefore beyond the jurisdiction of the Tribunal, as per the Murphy, Matson and Andrews line of cases? 16
V. Analysis 22
VI. Order 26
I. Background
[1] This case involves three Complaints dated March 30, 2012 that were filed with the Canadian Human Rights Commission (the Commission) on April 4, 2012 by Mr. Bruce Beattie. The Commission requested the Canadian Human Rights Tribunal (the Tribunal) institute an inquiry into the Complaints on a consolidated basis on October 1, 2013, pursuant to section 44(3)(a) of the Canadian Human Rights Act (the CHRA).
[2] Mr. Beattie filed the Complaints on behalf of Ms. Joyce Beattie, Ms. Jenelle Brewer and Mr. James Louie who are alleged in the Complaints to be victims of discrimination by the Respondent on the grounds of their race, national or ethnic origin, by reason of the Respondent’s refusal to register certain land documents in the Indian Reserve Land Register (the Register) established under section 21 of the Indian Act (the Act), contrary to section 5 of the CHRA. Ms. Beattie, Ms. Brewer and Mr. Louie, by letters dated August 30 and 31, 2012, authorized Mr. Beattie to act as their representative for the purpose of the Complaints that were filed.
[3] Mr. Louie, who died on March 28, 2015, was a member of the Okanagan Indian Band and a registered Indian under the Act. Ms. Brewer is also a registered Indian under the Act and a member of the Okanagan Indian Band. Ms. Beattie, who is the spouse of Mr. Beattie, is also a registered Indian under the Act but is not a member of the Okanagan Indian Band.
[4] Mr. Beattie, who is not an Indian, has also alleged that he was a Complainant in this case, in addition to acting as the agent or representative of Mr. Louie and his estate, Ms. Brewer and Ms. Beattie. The Complaints do not specify the basis of any alleged discrimination suffered by him.
[5] By way of a letter dated May 8, 2015 the Commission advised the Tribunal and the parties that it was not going to participate in the matter or appear at the hearing after initially participating.
[6] Ms. Beattie attended the hearing but was not called as a witness. Ms. Brewer did not attend the hearing. No one from Mr. Louie’s family attended the hearing. Mr. Beattie attended the hearing as the representative for the Complainants and also gave evidence as a witness for the Complainants. No written proof was provided to the Tribunal confirming Mr. Beattie’s authority to represent Mr. Louie’s estate.
[7] Section 91(24) of the Constitution Act provides Canada with exclusive legislative authority in respect of “Indians and Lands reserved for Indians”. The Respondent (known as Indian and Northern Affairs Canada prior to May 2011 and known as Indigenous and Northern Affairs Canada since November 2015) is the Government of Canada department responsible for administering the Act including the system of Indian land reserves under the land management provisions of the Act. Ms. Sheila Craig, the Manager of Lands Modernization in the Respondent’s Lands and Economic Development British Columbia Regional Office, appeared as a witness for the Respondent.
II. Relevant Legislation
[8] The following legislation is relevant to this case and is reproduced below, namely sections 3(1) and 5 of the CHRA and sections 2(1)(a), 18(1), 20(1) and (2), 21, 24, 28(1) and (2) and 58(3) of the Act.
Canadian Human Rights Act
Prohibited grounds of discrimination
3(1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
Denial of good, service, facility or accommodation
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.
Indian Act
2 (1) In this Act,
Minister means the Minister of Indian Affairs and Northern Development; (ministre)
reserve
(a) means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band, and
Reserves to be held for use and benefit of Indians
18 (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.
Possession of lands in a reserve
20 (1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.
Certificate of Possession
(2) The Minister may issue to an Indian who is lawfully in possession of land in a reserve a certificate, to be called a Certificate of Possession, as evidence of his right to possession of the land described therein.
Register
21 There shall be kept in the Department a register, to be known as the Reserve Land Register, in which shall be entered particulars relating to Certificates of Possession and Certificates of Occupation and other transactions respecting lands in a reserve.
Transfer of possession
24 An Indian who is lawfully in possession of lands in a reserve may transfer to the band or another member of the band the right to possession of the land, but no transfer or agreement for the transfer of the right to possession of lands in a reserve is effective until it is approved by the Minister.
Grants, etc., of reserve lands void
28 (1) Subject to subsection (2), any deed, lease, contract, instrument, document or agreement of any kind, whether written or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.
Minister may issue permits
(2) The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve.
Lease at request of occupant
58(3) The Minister may lease for the benefit of any Indian, on application of that Indian for that purpose, the land of which the Indian is lawfully in possession without the land being designated.
III. Facts
A. Chronology
[9] The lands that are the subject of this case are located within the Okanagan Indian Reserve near Vernon British Columbia and include two parcels described as Lot 170-1 and Lot 175, Block 4, Plan 93082 CLSR in Indian Reserve No.1. These lands were allotted to Mr. Louie by the council of the Okanagan Indian Reserve No. 1 and the allotment was approved by the Minister of the Respondent evidenced by Certificates of Possession (CP) registered in the Register under section 20 of the Act.
[10] In June 2007, Mr. Louie and Ms. Beattie applied for a ministerial lease under section 58(3) of the Act with respect to Lot 170-1. In January 2008, they applied for a ministerial lease under section 58(3) of the Act for Lot 175. These applications were refused by the Respondent on the basis of various interpretations it made respecting requirements it said were not fulfilled by the applications. The requirements it said were not fulfilled, in its interpretation, included a requirement that a lease had to be provided at fair market value or else a locatee needed to provide a justification to the Respondent; a requirement that a locatee could not lease his own land held subject to a Certificate of Possession, without incorporating; and a requirement that recognized legally adopted children but not custom adopted children.
[11] The refusals of these applications resulted in several complaints under the CHRA in 2008 and 2010 in which Mr. Beattie acted as agent for the complainants. All of these complaints were found to have been substantiated on their merits after hearings before the Tribunal, although a judicial review application by the Respondent regarding the implementation of one of the decisions was successful. Ultimately, all of these decisions involving ministerial leases stood, on their merits, as discrimination was found by the Tribunal to have occurred. Decisions of the Tribunal in the matters related to the 2008 complaints were issued by former Member Craig in 2011, 2012 and 2013 (Beattie and Louie v. Indian and Northern Affairs Canada 2011 CHRT 2, 2012 CHRT 2, 2013 CHRT 17). Decisions of the Tribunal in the matters related to the 2010 complaints were issued by me in 2014 (Beattie v. Aboriginal Affairs and Northern Development Canada 2014 CHRT 1 and Beattie and Louie v. Indian and Northern Affairs Canada 2014 CHRT 7). While the lots in question in those cases were the same lots as in this case, the prior cases all involved section 58(3) ministerial leases, unlike this case which involves private leases, without the Crown. None of the interpretations that prompted the Complaints related explicitly to statutory requirements.
[12] As a result of these previous cases, the Respondent reversed some of its interpretations and revised some of its internal practices for issuing ministerial leases. Also, beginning in July 2013, the Respondent’s land policies and practices were reviewed and amended to ensure, according to the Respondent, that its new Locatee Policy and Directive provided an enabling process for locatees to lease their lands. The changes, however, did not remove the requirement for the Crown to be a party to a lease nor did the changes require modifications to the Respondent’s practice of requiring Crown consent before a lessee could sublet or assign a lease. Nevertheless, over the Summer of 2011, there was extensive correspondence between the Respondent and Mr. Beattie and several draft ministerial leases were exchanged, however, the parties were not able to reach an agreement on a ministerial lease under section 58(3). So in the latter part of 2011 during the Tribunal’s handling of the earlier complaints, Mr. Beattie on behalf of the Complainants changed his approach and departed from using ministerial leases to accomplish the leases in favour of private leases without the Crown.
[13] Two applications for registration, dated July 25, 2011, were submitted by Mr. Beattie to the Registrar. The applications were received on July 27, 2011. Each application attached a lease. One lease, regarding Lot 170-1, named Mr. Louie as lessor and Ms. Beattie as lessee. The other lease, regarding Lot 175, named Mr. Louie as lessor and Ms. Brewer as lessee. Both leases were dated July 25 with an effective date of August 1, 2011.
[14] By letter, dated July 26, 2011, Mr. Beattie wrote to Mr. Sidney Restall, legal counsel with the Department of Justice, and advised him the Complainants had substituted the locatee in place of the Crown as lessor on the Lot 170-1 lease.
[15] By letter, dated July 29, 2011, Mr. Restall wrote to Mr. Beattie that he was not aware of any requirement for registering the lease between Mr. Louie and Ms. Beattie accompanying Mr. Beattie’s letter of July 26, 2011. Mr. Restall wrote, “I am not aware of any requirement for such a lease to be registered by the Minister of AANDC.” He concluded, “Given your lease initiative, I take it that no further Crown involvement is required.”
[16] By another letter dated July 29, 2011, Mr. Restall wrote Mr. Beattie that with respect to Lot 175, “The lease document you have provided involves a different party from the original application. This will have to be reviewed by the Crown. The attached application for registration is likely premature.”
[17] An Application for Registration for an Assignment of Lease, signed March 1, 2012 was submitted to the Indian Land Registry by Mr. Beattie. Ms. Brewer was identified in the document as the assignor and Ms. Beattie was identified as the assignee and Mr. Louie signed the document to indicate his consent. The Application indicated that the Assignment of Lease was intended to assign the lease between Mr. Louie and Ms. Brewer regarding Lot 175 and was received on or about March 7, 2012.
[18] The Assignment of Lease contained three conditions. Condition “A” provides:
A. Pursuant to the Indian Act, the Premises are lands reserved for the use and benefit of the Okanagan Indian Band (hereinafter “the Band”) of which the Assignor is a member, and this Assignment of Lease shall have no effect on the reserve status of the Premises nor shall this Assignment of Lease be construed to diminish or otherwise effect [sic: affect] the lawful authority of the Band to regulate or otherwise govern the use and occupation of the Premises.
[19] Condition “C” of the Assignment states, “...the Parties will submit this Assignment of Lease for registration in the Indian Land Registry on or before the effective date of this Assignment of Lease.”
[20] By letter, dated March 7, 2012, Mr. Beattie wrote to Ms. Fiona McFarlane, legal counsel with the Department of Justice. He stated that he had received confirmation that morning that the application to register the Assignment had been received by the Indian Land Registry in Ottawa and asked for a response that same day providing an assurance that counsel had not instructed the Indian Land Registry to suspend or delay consideration of the application.
[21] Ms. McFarlane replied to Mr. Beattie on March 9, 2012. She wrote that the Complainants would be advised of the Respondent’s decisions on the Lot 170-1 lease, Lot 175 lease, and assignment of the Lot 175 lease at a later date. Ms. McFarlane noted that the Respondent had two leases for Lot 175 with different lessees--a ministerial lease between the Minister and Mr. Louie dated June 1, 2011 and a private lease without reference to the Minister between Mr. Louie and Ms. Brewer dated August 1, 2011. Ms. McFarlane asked Mr. Beattie for clarification of what he wanted to do with Lot 175.
[22] Mr. Beattie responded to Ms. McFarlane on March 9, 2012. He confirmed that all previous applications (i.e. the ministerial leases) submitted pursuant to section 58(3) of the Act were either replaced by the applicants or rejected by the Respondent and that the lease documents had been returned to the complainants. Mr. Beattie also advised that the only lease acceptable to Mr. Louie for Lot 175 was the lease dated July 25/August 1, 2011 (i.e. a private lease) and assigned to Ms. Brewer with an effective date of March 1, 2012 and that the only lease acceptable to Mr. Louie for Lot 170-1 was the lease dated July 25/August 1, 2011 (i.e. also a private lease). By letter dated March 27, 2012, Mr. Beattie wrote to Ms. McFarlane that no section 58(3) lease existed in respect to Lot 170-1 since April 11, 2011 and the no future section 58(3) lease was anticipated.
[23] The three Complaints in this matter dated March 30, 2012, were submitted to the Commission on April 4, 2012 alleging discrimination by the Respondent against Mr. Louie, Ms. Brewer, and Ms. Beattie on the grounds of their race, national or ethnic origin (as registered Indians), by reason of the denial of a service, customarily available to the public, contrary to section 5 of the CHRA, as a result of the refusal of the Respondent to register their private leases and assignment under section 21 of the Act.
[24] By letter dated September 30, 2013, Mr. Daryl Hargitt, Lands Registrar, Lands and Environmental Operations of the Respondent advised Mr. Beattie that the Applications for Registration covering the private leases (and the assignment of lease) could not be registered in the Registry because the leases did not indicate Her Majesty the Queen in Right of Canada as lessor, did not indicate the Crown as a party nor had Ministerial approval been provided. Mr. Hargitt noted that he could only locate the March 2012 Application for Registration of the Assignment of Lease but not the actual Assignment itself being received in the Registry. He further stated that as the private lease between Mr. Louie and Ms. Beattie was not acceptable for registration, the subsequent assignment would also not be registrable.
[25] Mr. Beattie wrote to Mr. Hargitt on October 16, 2013 requesting that the rejections of the Applications for Registration be rescinded and assurances provided that the Applications for Registration be completed upon resubmission of the registration documents. He further advised that each of the transactions had a “marketable value of $200,000” and that this would be claimed against Canada in the event that the registrations did not proceed.
[26] The private leases and assignment of lease were all received by the Respondent during the time that the 2006 Indian Land Registration Manual (the Manual) was in effect but the refusal to register the documents took place when the 2013 Manual had come into effect. Under the 2013 Manual aboriginal persons are no longer required to include their racial, national or ethnic (i.e. Indian Act) identification on new Applications for Registration.
B. The Land Management System
[27] The Act governs all dealings with respect to Indian lands for those First Nations operating under the land management provisions of the Act. Some First Nations have assumed responsibility for administering their own reserve lands under the First Nations Land Management Act or other arrangements with Canada, however, the Okanagan Indian Reserve where this case took place is administered by Canada pursuant to the Act.
[28] The Respondent is legislatively responsible for various aspects of the management of Indian reserve land and the registration of interests in reserve land. As part of this, it administers the Indian Land Registry System (IRLS) and has created the Manual to assist its staff in the process of registering instruments for land transactions on reserves. The current Manual replaced the 2006 version in July of 2013. As noted above, section 21 of the Act states as follows: “There shall be kept in the Department a register, to be known as the Reserve Land Register, in which shall be entered particulars relating to Certificates of Possession and Certificates of Occupation and other transactions respecting lands in a reserve.” According to the Manual, the Register “records instruments respecting lands which are allotted to individual band members (locatee lands) as well as other transactions.” The Registrar of Indian Lands (the Registrar) is the title of the person designated to receive, process and enter/register documents.
[29] The Manual provides guidance about the ILRS (and the Register) as follows:
a) Generally
i) “it was established to provide a reliable, internet-based, computerized registry of registered interests in reserve lands in Canada.”
ii) “it is a repository of documentation and does not purport to guarantee title or accuracy of documentation filed therein, nor does it give priority to any interests...”
iii) “it records information concerning interests registered against reserve lands.” While “the land register provides a list of transactions that affect a parcel of land, the nature of the transaction and the scope of the interest.” and “...once recorded, transactions cannot be deleted, thus transactions remain on record as part of the history of the reserve or parcel even though they may be discharged or expired.”
iv) “it is guided by a set of interacting procedures designed to govern the registration of rights or interests, claims of interest, or notices of claims of interest in reserve land.”
v) “Most provincial systems deal with recording title to lands; however, in the ILRS, title remains with the Crown and transactions in land are registered.”
b) Definition of ILRS
A database of instruments registered in the [ILRS] relating to Reserve Lands and Crown Lands. The ILRS generates Registration Numbers and Evidence of Title (EOT) numbers and is the authoritative source for reserve names. The ILRS allows all users to perform enquiries and generate reports on data in the system. Electronic images of instruments registered in the Indian Lands Registry System can be viewed and printed from the system.
c) Description of the purpose of ILRS
to fulfill the statutory requirements of the Indian Act,
to record interests approved and submitted for registration in Indian reserve, Designated and Surrendered lands,
to safeguard interests that have been registered,
to provide timely and reliable information to clientele, and to provide safekeeping of original instruments and documents submitted for registration.
d) Definition of Registration
The process of inserting into the record the various transactions and supporting documentation affecting a given parcel of land. The registration of transactions gives public notice regarding the nature of an interest on land; and enables persons interested in a property to determine the rights of all parties with an interest in that particular properly.
e) Definition of Leases
Anyone who Leases land from another acquires a leasehold interest in that land; such an interest is called a “Lease”. The possessor of the interest is the “lessor”, namely Crown Canada, while the person who acquired the interest is the “lessee “.A leasehold interest must have a definable time period, the term, or a time period that can be established. The term of the instrument includes all provisions for renewal or extension of the right or interest. The holder of a Leasehold interest has exclusive rights to use and occupy the land. When the term of the Lease ends, the land reverts to the lessor.
f) Description of basic functions of the registration system
1. to give notice to the public of all documents registered concerning a particular piece of reserve land.
2. to show the historical record of registered interests.
3. to display interests that affect reserve land.
g) The Manual sets out the administrative “...procedures for preparing, submitting and registering documents for the ILRS, in accordance with policy requirements developed in support of the Indian Act land management provisions.” It provides guidance as to, inter alia, how to prepare documents for registration, what documents are required, as well as the requirements for registration applications and their content.
h) The Manual describes what an “interest” in land is and the requirements for a “legal document” as follows:
In the normal course of management of reserve lands, a variety of transactions may affect the rights or interest in the land. The transactions may involve a First Nation, one or more members of a Band, or non-members of a Band. The transactions are described in an “instrument”, a legal document that gives effect to the transaction, and describes the parcel of land, the parties to the transaction, and any legal details and specifications required.
i) The Manual includes direction on when to refuse the registration of documents submitted including where “the interest granted by the instrument overlaps or is inconsistent with a previously registered interest” which can include a situation where the “instrument purports to grant a leasehold interest and the instrument is not the proper authority as specified in the Indian Act.”
j) The Manual provides that the lessor in a locatee lease must be the Crown.
[30] Ms. Craig’s uncontradicted oral evidence at the hearing amplifies many of the foregoing facts regarding the ILRS as she testified that:
- The Manual is a document which describes the procedures for preparing, submitting and registering documents in the ILRS. The procedures are designed to govern the registration of rights of interest, claims of interest, or notices of claims of interest in reserve land;
- The Manual provides that the basic functions of the ILRS are to give notice to the public of all documents registered concerning a particular piece of reserve land; show a historical record of registered interests; and display interests that affect reserve land;
- The key purposes of the ILRS are to fulfil the statutory requirements of the Act, safeguard registered interests, and provide timely and reliable information to the public, bands and others;
- Documents proposed for registration must first be reviewed and verified to ensure that they meet the requirements set out in the Manual, the Act, legal advice, court cases and other relevant policy. Once the documents are reviewed and verified the officer enters the information respecting the documents into the ILRS in accordance with Indian Land Registry Entry Guidelines (the Guidelines);
- A document may be registered if it grants or claims an interest in reserve land; transfers, encumbers, or affects reserve land, designated, or surrendered land; and is submitted to the ILRS in accordance with the Act and the Manual;
- An applicant for registration or his agent submits the following documents to the applicable Regional office of the Respondent:
a. The instrument (details for preparation in Chapter 3 of the Manual);
b. An affidavit of witness (details for preparation in Chapter 4 of the Manual);
c. An application for registration (details for preparation in Chapter 5 of the Manual);
d. The legal land description (details for preparation in Chapter 6 of the Manual); and
e. All other supporting documents (details for most common documents in Chapter 7 of the Manual).
- In order for a document to be registered it must fulfill certain technical criteria set out in the Manual (such as being properly executed, identifying the parties and identifying the nature of the interest to be registered) and, in the case of instruments such as leases or permits, Ministerial approval or consent (Minister of the Respondent on behalf of Her Majesty) is required.
- Once a document is submitted for registration, the Registrar (i.e. the Regional office)
a. assigns a registration number, which is used throughout the process and records the year, month and hour of the registration in the ILRS;
b. determines if the document is not acceptable for registration following the criteria listed in section 9 of the Manual. If it is not acceptable for registration, the Region will return the instrument, the application and all supporting documents submitted with the instrument;
c. verifies that the necessary documents have been submitted;
d. verifies that the instrument meets the criteria set out in section 8.4 of the Manual including, under section 8.4.1(10), that it is signed by the person with the proper delegated authority;
e. in the case of a locatee, ensures that the locatee specific criteria set out in section 8.4.5 of the Manual are met; and
f. in the case of a lease, ensures that the lease specific criteria set out in section 8.4.7 of the Manual are met.
- Chapter 9 of the Manual provides guidance to registry staff regarding criteria to refuse registration. It provides that where, in the opinion of the lands officer reviewing the application and related material, identified criteria are not met, the regional office shall not register an instrument. For the purposes of this case, the key grounds to reject an application are: where the instrument being registered does not meet the requirements set out in the Manual and where Ministerial approval is not provided. These requirements were present in both the former and current version of the Manual.
- the ILRS is a document repository. It does not guarantee title or accuracy of the documents filed in the registry. Registration does not give priority to one registered interest over another (other than in cases involving assignments of interest).
- if a locatee wishes to lease his or her possessory title it can be done pursuant to the 2013 Locatee Lease Policy. Pursuant to that policy, locatees can request that the Minister of the Respondent enter into a section 58(3) of the Act lease to a range of persons including corporations, other Indians or the locatee him or herself and such a leasehold interest can then be mortgaged to provide financing for development of the land.
- the Respondent has fulfilled the statutory requirements of section 21 of the Act by creating the ILRS and setting up a process for entering particulars relating to allocations of lawful possession and other transactions relating to reserve land. In the case of an allocation of reserve land, the Respondent records the band council resolution allocating lawful possession to a band member, which has the effect of creating a folio for that interest. Subsequent transactions relating to that interest, such as a section 58(3) lease of the interest, are registered in the same folio. On page 34 of the Indian Land Registry Line Entry Guidelines, departmental officials are directed to register the band council resolution allotting the land and state that ministerial consent is required before such an interest is registered. Page 43 of the Guidelines lists the four types of leases that are registered in the Indian Land Registry which are Section 53(1) leases of designated land, 58(1)(b) locatee leases of agricultural land, 58(1)(c) band leases of agricultural land and 58(3) locatee leases for non-agricultural purposes.
IV. Threshold/Preliminary Issue: Are the Complaints solely a challenge to or a collateral attack upon legislation and nothing else and therefore beyond the jurisdiction of the Tribunal, as per the Murphy, Matson and Andrews line of cases?
[31] Both parties in their submissions at the hearing identified this as either a “threshold” issue (the Complainants’ description) or a “preliminary” issue (the Respondent’s description). I agree.
[32] Murphy (Murphy v. Canada Revenue Agency, 2010 CHRT 9) is a case that involved a Complaint under the CHRA concerning the manner that certain tax relief calculations of lump sum payments for retroactive pay to a group of women in a pay equity situation were done by the Canada Revenue Agency (CRA) under the Income Tax Act (ITA). Former Vice-Chair of the Tribunal Hadjis held that the Complaint was not substantiated. At paragraphs 57 and 58 of his decision he wrote as follows:
[57] In sum, the source of the alleged discriminatory practice is not, in whole or in part, the CRA’s activities, be they a service customarily available to the public or not, but rather exclusively the tax legislation itself. In Wignall v. Canada (Department of National Revenue (Taxation), 2003 FC 1280, at para. 30, the Federal Court noted that the conduct of Revenue Canada cannot be held to be discriminatory under the CHRA when what is really being impugned is a provision of the ITA.
[58] Accordingly, where the alleged discrimination, as in the present case, arises solely from the legislative language of the ITA and not the activities of the CRA, it is not as a result of the provision of services by the CRA, within the meaning of s. 5 of the CHRA. Consequently, a prima facie case pursuant to that section cannot be substantiated.
[33] The Federal Court dismissed an application for judicial review of the Murphy decision in Public Service Alliance of Canada v. Canada Revenue Agency 2011 FC 207 and the Federal Court of Appeal upheld the decision of the Federal Court at 2012 FCA 7. A subsequent application for leave to appeal to the Supreme Court of Canada was dismissed (34706). In upholding the decision of the Federal Court, the Federal Court of Appeal held at paragraph 6 as follows:
[6] This is a direct attack on sections 110.2 and 120.31 of the ITA, based on considerations that are wholly extrinsic to the ITA. As was held in Forward v. Canada (Citizenship and Immigration), 2008 CHRT 5 at paragraphs 37 and 38 with respect to an identical challenge directed at specified provisions of the Citizenship Act, R.S.C. 1985, c. C-29, this type of attack falls outside the scope of the CHRA since it is aimed at the legislation per se, and nothing else. Along the same lines, the Federal Court in Wignall v. Canada (Department of National Revenue (Taxation)), 2003 FC 1280, observed in obiter that an attempt pursuant to the CHRA to counter the application of paragraph 56(1)(n) of the ITA based solely on its alleged discriminatory impact on the complainant, could not succeed; only a constitutional challenge could yield this result. In our view, the opinion expressed in these cases is the correct one since the CHRA does not provide for the filing of a complaint directed against an act of Parliament (see subsection 40(1) which authorizes the filing of complaints and sections 5 to 14.1 which sets out the “discriminatory practices” against which complaints may be directed).
[34] Matson (Matson et al v. Indian and Northern Affairs Canada 2013 CHRT 13) was decided by me. Andrews (Andrews et al v. Indian and Northern Affairs Canada 2013 CHRT 21) was decided by Member Marchildon. Both of these cases involved Complaints under the CHRA concerning the registration of Indian status under section 6 of the Act. Both Member Marchildon and I dismissed the Complaints. Both of our decisions followed the Federal Court of Appeal decision in Murphy in finding that the Complaints were solely a challenge to legislation, namely section 6 of the Act, and nothing else.
[35] In Matson I wrote the following at paragraphs 57 to 60 inclusive:
[57] As the definition of “Indian” and subsection 5(5) of the Indian Act indicate, entitlement and registration are two separate things. Entitlement is predetermined by the Indian Act, regardless of registration; whereas registration in the Indian Register is the result of an application process through the Registrar/Department.
[58] The Respondent does not offer to the public the benefit of entitlement to registration under section 6 of the Indian Act, or the corresponding tangible and intangible benefits that may go along with entitlement to registration. It is the Indian Act itself that offers the benefit of entitlement to registration and it is Parliament who has applied the entitlement provisions of the Indian Act to the public, not the Respondent. What the Respondent may offer as a benefit/service to the public is the processing of applications for registration to determine whether a person should be added to the Indian Register, in accordance with the Indian Act. This involves the Indian Registrar receiving applications for registration, reviewing the information in the application to determine whether it is complete and accurate; and, assessing the application to determine whether or not the applicant satisfies the entitlement provisions of section 6 of the Indian Act. The Complainants do not allege discrimination in the Respondent’s performance of any of these functions. As noted, the result of this process is that either the applicant is added to the Indian Register as being entitled to status as an Indian under the Indian Act or he is not. While the processing of an application by the Registrar as described above may be a service, the resulting status or lack thereof is not.
[59] As is clear from the Complainants’ submissions, it is not the Respondent’s processing of the Complainants’ applications that is being challenged in this case. Rather, it is the Complainants’ entitlement to registration, pursuant to section 6 of the Indian Act, which gives rise to the present complaint. The sole source of the alleged discrimination in this case is the legislative language of section 6 of the Indian Act. In reviewing the Complainants’ applications for registration, the Respondent’s officials did nothing more than apply categorical statutory criteria to undisputed facts. Any issue taken with the application review process is really an issue taken with section 6 of the Indian Act.
[60] Therefore, for the above reasons, I would answer the first question in the affirmative and find the present complaint to be a challenge to legislation, namely section 6 of the Indian Act, and nothing else.
[36] In Andrews Member Marchildon wrote the following at paragraphs 110 and 111:
[110] Although this reasoning does not lead to a decision in the Complainant’s favour, I do not wish to diminish the suffering that Mr. Andrews and his family state to have endured as a result of the government’s enfranchisement policies. While the Complainants cannot challenge the impugned sections of the Indian Act pursuant to the Act, they may still choose to do so pursuant to the Charter as per Murphy. This was done successfully in the McIvor case, for example, for sections 6(1)(a) and 6(1)(c) of the Indian Act. The Tribunal is not, however, the appropriate forum to hear this challenge in this case.
[111] I would therefore answer questions A. and B. in the following manner:
A. Do the complaints involve the provision of services customarily available to the general public within the meaning of section 5 of the Act; or, are the complaints solely a challenge to legislation?
Answer: The complaints are solely a challenge to legislation.
B. If the complaints are solely a challenge to legislation, does the Act allow for such complaints?
Answer: No.
In light of these answers, I do not need to address questions C. and D., namely
C. Has the Complainant established a prima facie case of discrimination? and
D. If so, has the Respondent demonstrated that the prima facie discrimination did not occur as alleged or that the practice is justifiable under the Act?
[37] These two decisions were judicially reviewed together by the Federal Court in Canadian Human Rights Commission v. Canada (Attorney General), 2015 FC 398. In dismissing the application for judicial review the Federal Court held at paragraph 59 to 62 inclusive as follows:
[59] A challenge to the way in which that formula is applied is a challenge to the law itself. In the present case, the Complainants are alleging the eligibility provisions of the Indian Act are discriminatory. Therefore, applying the mandatory eligibility provisions of the Indian Act is an act of enforcing the law, even though the statute provides a benefit. It is the law which denies access to the benefit, not the government agency.
[60] In my opinion, the findings from Forward are equally applicable to the present case. At paragraph 54, referring to Forward, the Tribunal found that citizenship under the Citizenship Act was not a service, because the sole source of the alleged discrimination is the legislative language of the Citizenship Act. Forward adopted the obiter from McKenna which said that Druken was wrongly decided (Forward, at paras 32-34).
[61] Moreover, the fact that Matson and Andrews are analogous to Mur