Canada (House of Commons) v. Vaid

Canada (House of Commons) v. Vaid
Collection
Supreme Court Judgments
Date
2005-05-20
Neutral citation
2005 SCC 30
Report
[2005] 1 SCR 667
Case number
29564
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Constitutional law
Notes
SCC Case Information: 29564
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30
Date: 20050520 Docket: 29564
Between:
House of Commons and the Honourable Gilbert Parent
Appellants
v.
Satnam Vaid and Canadian Human Rights Commission
Respondents
‑ and ‑
Attorney General of Canada, the Honourable Senator Serge
Joyal, the Honourable Senator Mobina S.B. Jaffer, Canadian
Association of Professional Employees, Communication,
Energy and Paperworkers Union of Canada and Speaker
of the Legislative Assembly of Ontario
Interveners
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment: (paras. 1 to 101)
Binnie J. (McLachlin C.J. and Major, Bastarache, LeBel, Deschamps, Fish, Charron and Abella JJ. concurring)
______________________________
Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30
House of Commons and the Honourable Gilbert Parent Appellants
v.
Satnam Vaid and Canadian Human Rights Commission Respondents
and
Attorney General of Canada, the Honourable Senator
Serge Joyal, the Honourable Senator Mobina S. B. Jaffer,
Canadian Association of Professional Employees, Communications,
Energy and Paperworkers Union of Canada and Speaker
of the Legislative Assembly of Ontario Interveners
Indexed as: Canada (House of Commons) v. Vaid
Neutral citation: 2005 SCC 30.
File No.: 29564.
2004: October 13; 2005: May 20.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the federal court of appeal
Constitutional law — Parliamentary privilege — Existence of privilege — Former chauffeur to Speaker of House of Commons filing discrimination and harassment complaints against Speaker and House after his position declared surplus — House and Speaker asserting parliamentary privilege in relation to “management of employees” to challenge jurisdiction of Canadian Human Rights Commission to investigate chauffeur’s complaints — Whether claimed parliamentary privilege exists — Constitution Act, 1867, s. 18 — Parliament of Canada Act, R.S.C. 1985, c. P‑1, s. 4 .
Human rights — Human rights legislation — Application — Parliamentary employees — Whether Canadian Human Rights Act applicable to employees of Senate and House of Commons — Canadian Human Rights Act, R.S.C. 1985, c. H‑6, s. 2 .
Administrative law — Human rights tribunal — Jurisdiction — Parliamentary employees — Workplace complaints raising human rights issues — Chauffeur to Speaker of House of Commons declared surplus and filing discrimination and harassment complaints against Speaker and House — Whether Canadian Human Rights Commission has jurisdiction to investigate chauffeur’s complaints — Whether chauffeur’s complaints should proceed by way of grievance under the Parliamentary Employment and Staff Relations Act — Canadian Human Rights Act, R.S.C. 1985, c. H‑6, s. 2 — Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd Supp .), s. 2.
Following a grievance under the Parliamentary Employment and Staff Relations Act (“PESRA ”), V was reinstated as chauffeur to the Speaker of the House of Commons. He returned to work, but was not allowed to resume his duties. He was subsequently informed by the Speaker’s office that, because of a reorganization, his former position would be made surplus. V complained to the Canadian Human Rights Commission against the Speaker and the House of Commons alleging refusal to continue his employment, harassment and discrimination on the basis of race, colour, and national or ethnic origin. The Commission accepted V’s complaints and referred them to a tribunal. The Speaker and the House of Commons challenged the human rights tribunal’s jurisdiction, claiming that the Speaker’s power to hire, manage and dismiss employees was privileged and therefore immune to external review. The tribunal dismissed the challenge. On an application for judicial review, both the Federal Court, Trial Division, and the Federal Court of Appeal upheld the tribunal’s decision.
Held: The appeal should be allowed.
The party who seeks to rely on the immunity provided by parliamentary privilege has the onus of establishing its existence. Within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts. A finding that a particular area of parliamentary activity is covered by privilege therefore has very significant legal consequences for non‑Members who claim to be injured by parliamentary conduct. [29-30]
The appellants have failed to establish the privilege in the broad and all‑inclusive terms asserted. The Canadian Human Rights Act does apply to employees of Parliament. However, V is obliged by PESRA to pursue his complaints by way of a grievance under that Act. This conclusion, which rests entirely on administrative law principles and has nothing to do with parliamentary privilege, entitles the appellants to succeed. [6] [76] [82-83]
Legislative bodies created by the Constitution Act, 1867 do not constitute enclaves shielded from the ordinary law of the land. The framers of the Constitution, and Canadian Parliamentarians in passing the Parliament of Canada Act , thought it right to use the House of Commons at Westminster as the benchmark for parliamentary privilege in Canada. Accordingly, to determine whether a privilege exists for the benefit of the Senate or House of Commons, or their members, a court must decide whether the category and scope of the claimed privilege have been authoritatively established in relation to our own Parliament or to the House of Commons at Westminster. If so, the claim to privilege ought to be accepted by the court. However, if the existence and scope of a privilege have not been authoritatively established, the court will be required to test the claim against the doctrine of necessity — the foundation of all parliamentary privilege. In such a case, in order to sustain a claim of privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their legislative work with dignity and efficiency. Once a claim to privilege is made out, the court will not enquire into the merits of its exercise in any particular instance. [29] [37-40] [46-48]
In this case, the appellants identified the claimed privilege as “management of employees”. The privilege is said to cover with immunity all dealings with all employees without exception who work for the legislative branch of government. The wide‑ranging privilege asserted by the appellants has not been authoritatively established in the courts of Canada or the United Kingdom and is not supported as a matter of principle by the necessity test. While a privilege no doubt attaches to the House’s relations with some of its employees, the scope of the appellants’ claim clearly exceeded what is considered necessary at Westminster; it is not established by historical precedent in Canada; and it is not consistent with the classic definition of privilege as being the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, “without which they could not discharge their functions”. [29] [50-52] [53-56]
The Canadian Human Rights Act applies to all employees of the federal government, including those working for Parliament. However, the fact that V claims a violation of his human rights does not automatically steer the case to the Canadian Human Rights Commission. Rather, in this case, V’s complaints of discrimination and harassment contrary to the provisions of the Canadian Human Rights Act arose in the context of his claim of constructive dismissal and therefore fall within the grievance procedure established under the PESRA . The PESRA created a specific regime governing the labour relations of parliamentary employees. Its system of redress, which covers complaints about violations of statutory standards such as those found in the Canadian Human Rights Act , runs parallel to the enforcement machinery provided under the Canadian Human Rights Act . While not all potential claims to relief under the Canadian Human Rights Act would be barred by s. 2 of the PESRA , there is clearly a measure of duplication in the two statutory regimes, and the purpose of s. 2 of PESRA is to avoid such duplication. Since Parliament has determined that workplace grievances of employees covered by the PESRA are to be dealt with under the PESRA , and as PESRA includes grievances related to violations of standards established by the Canadian Human Rights Act , V is obliged to seek relief under the PESRA . There is nothing in V’s complaints to lift his grievance out of its specific employment context. [79-82] [89-95]
Cases Cited
Applied: Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112; not followed: R. v. Graham‑Campbell; Ex parte Herbert, [1935] 1 K.B. 594; considered: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; referred to: Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; Duke of Newcastle v. Morris (1870), L.R. 4 H.L. 661; Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; Telezone Inc. v. Canada (Attorney General) (2004), 69 O.R. (3d) 161; Samson Indian Nation and Band v. Canada, [2004] 1 F.C.R. 556, 2003 FC 975; Fielding v. Thomas, [1896] A.C. 600; Kielley v. Carson (1842), 4 Moo. P.C. 63, 13 E.R. 225; Burdett v. Abbot (1811), 14 East 1, 104 E.R. 501; Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) 595; Martin v. Ontario, [2004] O.J. No. 2247 (QL); R. v. Richards; Ex parte Fitzpatrick and Browne (1955), 92 C.L.R. 157; Egan v. Willis (1998), 158 A.L.R. 527; Huata v. Prebble, [2004] 3 NZLR 359, [2004] NZCA 147; Stopforth v. Goyer (1979), 23 O.R. (2d) 696; Re Clark and Attorney‑General of Canada (1977), 17 O.R. (2d) 593; Prebble v. Television New Zealand Ltd., [1995] 1 A.C. 321; Hamilton v. Al Fayed, [2000] 2 All E.R. 224; Zündel v. Boudria (1999), 46 O.R. (3d) 410; R. v. Behrens, [2004] O.J. No. 5135 (QL), 2004 ONCJ 327; Tafler v. British Columbia (Commissioner of Conflict of Interest) (1998), 161 D.L.R. (4th) 511; Morin v. Crawford (1999), 29 C.P.C. (4th) 362; Payson v. Hubert (1904), 34 S.C.R. 400; Ainsworth Lumber Co. v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 93, 2003 BCCA 239; Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73; Landers v. Woodworth (1878), 2 S.C.R. 158; Bear v. State of South Australia (1981), 48 S.A.I.R. 604; Thompson v. McLean (1998), 37 C.C.E.L. (2d) 170; Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Bradlaugh v. Gossett (1884), 12 Q.B.D. 271; Temple v. Bulmer, [1943] S.C.R. 265; Carter v. Alberta (2002), 222 D.L.R. (4th) 40, 2002 ABCA 303, leave to appeal refused, [2003] 1 S.C.R. vii; R. v. Bunting (1885), 7 O.R. 524; Penikett v. Canada (1987), 45 D.L.R. (4th) 108; Sibbeston v. Northwest Territories (Attorney General), [1988] 2 W.W.R. 501; Pickin v. British Railways Board, [1974] A.C. 765; House of Commons v. Canada Labour Relations Board, [1986] 2 F.C. 372; Walker v. Jones, 733 F.2d 923 (1984); Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Quebec (Attorney General) v. Quebec (Human Rights Tribunal), [2004] 2 S.C.R. 223, 2004 SCC 40; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; Auclair v. Library of Parliament (2002), 222 F.T.R. 124, 2002 FCT 777; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Canada (Human Rights Commission) v. Canadian Airlines International Ltd., [2004] 3 F.C.R. 663, 2004 FCA 113.
Statutes and Regulations Cited
Act respecting the internal Economy of the House of Commons, and for other purposes, S.C. 1868, c. 27.
Bill of Rights (Eng.), 1 Will. & Mar. sess. 2, c. 2, art. 9.
Canadian Charter of Rights and Freedoms , ss. 2( b ) , 32(1) .
Canadian Human Rights Act , R.S.C. 1985, c. H‑6, ss. 2 , 11 , 41 , 43(2) , 47(1) , 48.9 , 54.1(2) .
Constitution Act, 1867 , preamble, s. 18.
House of Commons (Offices) Act, 1812 (U.K.), 52 Geo. 3, c. 11.
Interpretation Act , R.S.C. 1985, c. I‑21, s. 12 .
Parliament of Canada Act , R.S.C. 1985, c. P‑1, s. 4 .
Parliamentary Employment and Staff Relations Act , R.S.C. 1985, c. 33 (2nd Supp .), ss. 2, 4(1), 5(1), 14, 62(1).
Public Service Staff Relations Act , R.S.C. 1985, c. P‑35 .
Standing Orders of the House of Commons, Standing Order 151 [adopted in 1867 as Standing Order 83].
United States Constitution, art. 1, § 6, cl. 1.
Authors Cited
Anson, William Reynell. The Law and Custom of the Constitution, 5th ed., vol. I. Oxford: Clarendon Press, 1922.
Australia. Parliament of the Commonwealth of Australia. Final Report of the Joint Select Committee on Parliamentary Privilege, Parliamentary Paper No. 219/1984. Canberra: Commonwealth Government Printer, October 1984.
Bourinot, John George. Parliamentary Procedure and Practice in the Dominion of Canada, 4th ed. Toronto: Canada Law Book, 1916.
Canada. House of Commons. House of Commons Debates, vol. V, 3rd Sess., 28th Parl., p. 5338.
Canada. Parliament. House of Commons. Beauchesne’s Rules & Forms of the House of Commons of Canada with Annotations, Comments and Precedents, 6th ed. By Alistair Fraser, W. F. Dawson and John A. Holtby. Toronto: Carswell, 1989.
Canada. Parliament. House of Commons. House of Commons Procedure and Practice. Edited by Robert Marleau and Camille Montpetit. Ottawa: House of Commons, 2000.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 19th ed. By David Lidderdale, ed. London: Butterworths, 1976.
Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 23rd ed. By William McKay, ed. London: LexisNexis UK, 2004.
Heuston, R. F. V. Essays in Constitutional Law, 2nd ed. London: Stevens & Sons, 1964.
Lock, G. F. “Labour Law, Parliamentary Staff and Parliamentary Privilege” (1983), 12 Indus. L.J. 28.
Maingot, J. P. Joseph. Parliamentary Privilege in Canada, 2nd ed. Montréal: McGill‑Queen’s University Press, 1997.
United Kingdom. House of Commons. First Report from the Committee of Privileges, “Speaker’s Order of 22 January 1987 on a Matter of National Security”. Report, together with Proceedings of the Committee, Minutes of Evidence, and Appendices. London: H.M.S.O., 1987.
United Kingdom. Parliament. Joint Committee on Parliamentary Privilege. Report and Proceedings of the Committee. London: H.M.S.O., 1999.
APPEAL from a judgment of the Federal Court of Appeal (Létourneau, Linden and Rothstein JJ.A.), [2003] 1 F.C. 602, 222 D.L.R. (4th) 339, 296 N.R. 305, 46 Admin. L.R. (3d) 200, 22 C.C.E.L. (3d) 1, [2002] F.C.J. No. 1663 (QL), 2002 FCA 473, upholding a decision of Tremblay‑Lamer J., [2002] 2 F.C. 583, 203 F.T.R. 175, 208 D.L.R. (4th) 749, 38 Admin. L.R. (3d) 252, 14 C.C.E.L. (3d) 125, [2001] F.C.J. No. 1818 (QL), 2001 FCT 1332, dismissing an application for judicial review of a decision from the Human Rights Tribunal (2001), 40 C.H.R.R. D/229, [2001] C.H.R.D. No. 15 (QL). Appeal allowed.
Neil Finkelstein, Jacques A. Emond and Lynne J. Poirier, for the appellants.
Andrew Raven and David Yazbeck, for the respondent Satnam Vaid.
Philippe Dufresne and R. Daniel Pagowski, for the respondent the Canadian Human Rights Commission.
Anne M. Turley, for the intervener the Attorney General of Canada.
Dale Gibson, for the interveners the Honourable Senator Serge Joyal and the Honourable Senator Mobina S. B. Jaffer.
Peter Engelmann and Raija Pulkkinen, for the interveners the Canadian Association of Professional Employees and the Communications, Energy and Paperworkers Union of Canada.
Catherine Beagan Flood, for the intervener the Speaker of the Legislative Assembly of Ontario.
The judgment of the Court was delivered by
1 Binnie J. _ The former Speaker of the House of Commons, the Honourable Gilbert Parent, is accused of constructively dismissing his chauffeur, Mr. Satnam Vaid, for reasons that amount to workplace discrimination and harassment under the Canadian Human Rights Act , R.S.C. 1985, c. H-6 . The issue on this appeal is whether it is open to the Canadian Human Rights Tribunal to investigate Mr. Vaid’s complaint.
2 The former Speaker denies any impropriety, but he joins the House of Commons in a preliminary objection that the hiring and firing of House employees are “internal affairs” which may not be questioned or reviewed by any tribunal or court outside the House itself. This immunity, the appellants say, emerged from the struggle for independence by the House of Commons from the prerogatives of the King, the authority of the Royal courts of law, and the special rights of the House of Lords reaching back in part to the time of the Tudor Kings and Queens in the 16th century. The appellants contend that these hard-won powers and immunities, collectively referred to as the privileges of Parliament, permit the Senate and the House to conduct their employee relations free from interference from the Canadian Human Rights Commission or any other body outside Parliament itself.
3 The respondent Canadian Human Rights Commission, which seeks to investigate Mr. Vaid’s allegations, says it is unthinkable that Parliament would seek to deny its employees the benefit of labour and human rights protections which Parliament itself has imposed on every other federal employer.
4 There are few issues as important to our constitutional equilibrium as the relationship between the legislature and the other branches of the State on which the Constitution has conferred powers, namely the executive and the courts. The resolution of this issue is especially important when the action of the Speaker sought to be immunized from outside scrutiny is directed against a stranger to the House (i.e., not a Member or official) who is remote from the legislative functions that parliamentary privilege was originally designed to protect. The courts below held that parliamentary privilege does not include the freedom to discriminate on grounds prohibited by the Canadian Charter of Rights and Freedoms or the Canadian Human Rights Act because such discrimination is not necessary to the proper functioning of the Senate or House of Commons. On this view, an allegation of discrimination destroys any privilege that might otherwise immunize the Speaker’s conduct from external review. I do not agree. The purpose of privilege is to recognize Parliament’s exclusive jurisdiction to deal with complaints within its privileged sphere of activity. The proper focus, in my view, is not the grounds on which a particular privilege is exercised, but the prior question of the existence and scope of the privilege asserted by Parliament in the first place.
5 Focussing, then, on the scope of the claimed privilege, the respondents argue that the duties of the Speaker’s chauffeur appear too remote from the legislative function of the House and that the respondent Vaid’s dismissal is not immunized from external review by virtue of parliamentary privilege. I will deal with this issue at some length in the reasons that follow. My conclusion is that the onus was on the appellants to establish a privilege that immunizes their conduct from the ordinary law governing the resolution of disputes with support staff such as Mr. Vaid, and that the appellants have failed to do so. I would therefore reject the appellants’ first ground of appeal based on an alleged parliamentary privilege. I would hold that the language used by Parliament in the Canadian Human Rights Act is wide enough to cover its own employees and that the sweeping exemption now asserted by the appellants has not been shown to be intended by Parliament nor, on general principles, is it necessary or justifiable as parliamentary privilege.
6 The appellants also put forward a narrower administrative law objection. They contend that the respondent Vaid falls within the group of employees for whom Parliament has enacted a special labour relations regime under the Parliamentary Employment and Staff Relations Act , R.S.C. 1985, c. 33 (2nd Supp .) (“PESRA ”). Mr. Vaid, on this view, is entitled to invoke the principles of the Canadian Human Rights Act , but he must do so by the special procedure governing the bulk of parliamentary employees. I agree that the respondent Vaid’s workplace complaints could have been adjudicated under PESRA (as indeed his earlier complaints were dealt with in 1995) and that the appellant House of Commons is entitled to require him to utilize the statutory machinery that Parliament has enacted, which is clearly stated to be the exclusive method of dispute resolution for employees such as the respondent Vaid. This conclusion, which rests entirely on administrative law principles and has nothing to do with parliamentary privilege, entitles the appellants to succeed. The appeal is therefore allowed.
I. Facts
7 Satnam Vaid worked as a chauffeur to successive Speakers of the House of Commons between 1984 and 1994. He was initially terminated on January 11, 1995 because it was said he refused to assume new duties under a changed job description and then refused alternative employment. He grieved the termination pursuant to PESRA . The matter was referred to adjudication and on July 27, 1995, the Board of Adjudication found in favour of Mr. Vaid and ordered that he be reinstated to his position as chauffeur ([1995] C.P.S.S.R.B. No. 74 (QL)). The Board also concluded that there was evidence insufficient to support a finding of discrimination:
Mr. Vaid has alleged discrimination and suggested that he might have been asked to clean dishes because of the colour of his skin. The evidence presented certainly does not permit me to reach that conclusion.
8 Mr. Vaid returned to work on August 17, 1995, at which time he was told that the chauffeur’s position had been designated “bilingual imperative”. Lacking the necessary French language skills to resume his former post, he was sent for French language training.
9 In a letter dated April 8, 1997, Mr. Vaid advised the appellant House of Commons that he wished to come back to work. The Speaker’s office replied on May 12, 1997 that, because of reorganization, his former position would be made surplus effective May 29, 1997.
10 Mr. Vaid then filed two complaints with the respondent Commission, both dated July 10, 1997, alleging separately that the appellant Speaker and the appellant House of Commons discriminated against him on the basis of his race, colour and national or ethnic origin. He also complained of workplace harassment. With respect to the appellant House of Commons, he alleged refusal of continued employment.
II. Judicial History
11 In response to these complaints, the appellants challenged the jurisdiction of the Canadian Human Rights Tribunal to inquire into their conduct. The issue was heard by the Tribunal which, by a majority decision on April 25, 2001, ruled in favour of Mr. Vaid and the Commission ((2001), 40 C.H.R.R. D/229). The appellants then sought a judicial review of this ruling. Their application was refused by the Federal Court, Trial Division, [2002] 2 F.C. 583, 2001 FCT 1332, and this refusal was affirmed by a unanimous Federal Court of Appeal, [2003] 1 F.C. 602, 2002 FCA 473.
12 Létourneau J.A., with whom Linden J.A. concurred, noted the quasi-constitutional status of the Canadian Human Rights Act and the fully constitutional status of parliamentary privilege. In his view, however, the parliamentary privilege claimed by the appellants did not exist.
13 He defined such privilege as “the powers of the House necessary to ensure its proper functioning and maintain its dignity and integrity” (para. 34). Létourneau J.A. stated that both the existence and the exercise of any power asserted by the legislature must be shown to be necessary.
The Courts’ review function, in cases like the present where a parliamentary privilege is claimed, I believe, involves two steps: the first one to determine that the powers claimed need to exist and the second, when satisfied as to the necessity of their existence, to determine that their exercise was necessary to ensure the proper functioning of the House and maintain its dignity and integrity. [Emphasis added; para. 36.]
14 In the majority view, an allegation of discrimination contrary to the Charter or the Canadian Human Rights Act was not immunized by parliamentary privilege because such discriminatory conduct, if proven, would actually diminish the integrity and dignity of the House, without improving its ability to fulfill its constitutional mandate. The enactment by Parliament of PESRA would, in any event, prevent privilege from applying.
15 On the administrative law point, Létourneau J.A. held that a clear legislative enactment is required to exempt an employer from the application of human rights obligations. In his view, PESRA is not such a clear legislative enactment. Consequently, parliamentary employees are entitled to invoke the assistance of the Canadian Human Rights Commission.
16 Rothstein J.A., concurring in the result, disagreed that the courts could review each exercise of a claimed privilege. “[I]t is the particular exercise of a valid privilege that is immune from the Court’s scrutiny. However, what constitutes the scope of a valid privilege is a preliminary jurisdictional question” (para. 76). The appellants claimed that the right of the House of Commons to appoint and control its staff was immunized from any external review, but Rothstein J.A. concluded that no evidence or argument had been “put forward as to why a right to discriminate, contrary to the provisions of the CHRA” met the necessity test (para. 81). Accordingly, “parliamentary privilege does not displace application of the CHRA to employees of Parliament” (para. 84).
17 On the administrative law point, Rothstein J.A. noted that s. 2 of PESRA displaces other tribunals that might otherwise have concurrent jurisdiction. However, he was of the view that PESRA does not provide the comprehensive rights regarding human rights complaints that the Canadian Human Rights Act does, and as a result, the two statutes do not provide for “matters similar”. As a matter of statutory interpretation, therefore, PESRA would not exclude application of the Canadian Human Rights Act .
18 In the result, Rothstein J.A. agreed with the majority that neither parliamentary privilege nor PESRA precluded the application of the Canadian Human Rights Act to employees of either Chamber.
III. Constitutional Question
19 On December 2, 2003, the Chief Justice stated the following constitutional question:
Is the Canadian Human Rights Act , R.S.C. 1985, c. H‑6 , constitutionally inapplicable as a consequence of parliamentary privilege to the House of Commons and its members with respect to parliamentary employment matters?
IV. Analysis
20 It is a wise principle that the courts and Parliament strive to respect each other’s role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament. None of the parties to this proceeding questions the pre-eminent importance of the House of Commons as “the grand inquest of the nation”. Nor is doubt thrown by any party on the need for its legislative activities to proceed unimpeded by any external body or institution, including the courts. It would be intolerable, for example, if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act , or to seek a ruling from the ordinary courts that the Speaker’s choice violated the member’s guarantee of free speech under the Charter . These are truly matters “internal to the House” to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper.
21 Parliamentary privilege, therefore, is one of the ways in which the fundamental constitutional separation of powers is respected. In Canada, the principle has its roots in the preamble to our Constitution Act, 1867 which calls for “a Constitution similar in Principle to that of the United Kingdom”. Each of the branches of the State is vouchsafed a measure of autonomy from the others. Parliamentary privilege was partially codified in art. 9 of the U.K. Bill of Rights of 1689, 1 Will. & Mar. sess. 2, c. 2, but the freedom of speech to which it refers was asserted at least as early as 1523 (Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (23rd ed. 2004), at p. 80). Parliamentary privilege is a principle common to all countries based on the Westminster system, and has a loose counterpart in the Speech or Debate Clause of the United States Constitution, art. 1, § 6, cl. 1.
22 The respondent Vaid does not quarrel either with the existence or the importance of parliamentary privilege. His argument is that the Speaker’s attempt to treat his dismissal from his job as chauffeur as an expression of such lofty doctrine is to overreach, if not trivialize, its true role and function. Even if the employment arrangements of some employees closely connected to the legislative process are covered by privilege, the respondents argue that the Speaker goes too far in attempting to throw the mantle of this ancient doctrine over the dealings of the House with such support staff as chauffeurs, picture framers, locksmiths, car park administrators, catering staff and others who play comparable supporting roles on Parliament Hill.
23 Over the years, the assertion of parliamentary privilege has varied in its scope and extent. In the leading English case of Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112 (Q.B.), the court was advised that “[t]he most trifling civil injuries to members [of Parliament], even trespasses committed upon their servants, though on occasions unconnected with the discharge of any Parliamentary duty, have been repeatedly the subject of enquiry [by either Chamber of Parliament] under the head of privilege” (pp. 1116-17), including “[k]illing Lord Galway’s rabbits” and “[f]ishing in Mr. Joliffe’s pond” (p. 1117). The court in Stockdale v. Hansard commented on this evidence that privilege “did not and could not extend to such a case” (p. 1156). On the other hand, a leading Canadian authority, Beauchesne’s Rules & Forms of the House of Commons of Canada (6th ed. 1989), records at pp. 11-12 a ruling of the Speaker of the Canadian House of Commons on April 29, 1971 asserting a much narrower concept of privilege, as follows:
On a number of occasions I have defined what I consider to be parliamentary privilege. Privilege is what sets hon. members apart from other citizens giving them rights which the public do not possess. I suggest we should be careful in construing any particular circumstance which might add to the privileges which have been recognized over the years and perhaps over the centuries as belonging to members of the House of Commons. In my view, parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a member to discharge his duties in the House as a member of the House of Commons. [Emphasis added.]
(House of Commons Debates, vol. V, 3rd Sess., 28th Parl., April 29, 1971, at p. 5338)
24 It is evident that there have been variations in the extent of privilege asserted by Parliament over the years, as well as a difference on occasion between the scope of a privilege asserted by Parliamentarians and the scope of a privilege the courts have recognized as justified (as in Stockdale v. Hansard). In resolving such conflicts it is important that both Parliament and the courts respect “the legitimate sphere of activity of the other”:
Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.
(New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, per McLachlin J., at p. 389)
To this, I would add the observation of Dickson C.J. in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at p. 91:
There is an array of issues which calls for the exercise of judicial judgment on whether the questions are properly cognizable by the courts. Ultimately, such judgment depends on the appreciation by the judiciary of its own position in the constitutional scheme.
25 At the same time, relations between Parliament and its employees are clearly matters within the legislative authority of Parliament. The statutory language of the Canadian Human Rights Act , on its face, is broad enough to cover labour relations on Parliament Hill. There is much to be said for the respondents’ view that Parliament should not be thought to intend to exempt its employees from access to human rights guarantees which Parliament itself has declared applicable to all “matters coming within the legislative authority of Parliament” (Canadian Human Rights Act , s. 2 ).
26 At this stage, a further constitutional point arises. The appellants say it is a well-established principle that an express provision of a statute is necessary to abrogate a privilege of Parliament or its members (Duke of Newcastle v. Morris (1870), L.R. 4 H.L. 661). The respondents reply that human rights law is to be broadly interpreted, and that short of “[the] legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises”, per Lamer J. in Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at p. 158; see also Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, at p. 339. In my view, for the reasons to be explained, the Canadian Human Rights Act does apply to the employees of the Senate and House of Commons of Canada.
27 In order to resolve the issues raised by this appeal, it is first necessary to discuss whether or not the privilege asserted by the appellants is well founded, and if so, whether it precludes resort by the respondent Vaid to independent adjudication.
A. General Principles of Parliamentary Privilege
28 The contours of parliamentary privilege, and the relationship between Parliament and the courts relative to its exercise, have been dealt with by this Court in a number of cases, most recently in connection with the “inherent” privileges of provincial legislative assemblies in New Brunswick Broadcasting and Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876.
29 While there are some significant differences between privilege at the federal level, for which specific provision is made in s. 18 of the Constitution Act, 1867 , and privilege at the provincial level, which has a different constitutional underpinning, many of the relevant issues concerning privilege were resolved in New Brunswick Broadcasting and earlier cases, and there is no need to repeat the analysis here. For present purposes, it is sufficient to state a number of propositions that are now accepted both by the courts and by the parliamentary experts.
1. Legislative bodies created by the Constitution Act, 1867 do not constitute enclaves shielded from the ordinary law of the land. “The tradition of curial deference does not extend to everything a legislative assembly might do, but is firmly attached to certain specific activities of legislative assemblies, i.e., the so-called privileges of such bodies” (New Brunswick Broadcasting, at pp. 370-71). Privilege “does not embrace and protect activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament” (U.K., Joint Committee on Parliamentary Privilege, vol. 1, Report and Proceedings of the Committee (1999) (“British Joint Committee Report”), at para. 242 (emphasis in original)).
2. Parliamentary privilege in the Canadian context is the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions (Beauchesne’s Rules & Forms, at p. 11; Erskine May, at p. 75; New Brunswick Broadcasting, at p. 380).
3. Parliamentary privilege does not create a gap in the general public law of Canada but is an important part of it, inherited from the Parliament at Westminster by virtue of the preamble to the Constitution Act, 1867 and in the case of the Canadian Parliament, through s. 18 of the same Act (New Brunswick Broadcasting, at pp. 374-78; Telezone Inc. v. Canada (Attorney General) (2004), 69 O.R. (3d) 161 (C.A.), at p. 165; and Samson Indian Nation and Band v. Canada, [2004] 1 F.C.R. 556, 2003 FC 975).
4. Parliamentary privilege includes
the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces . . . in order for these legislators to do their legislative work. [Emphasis added.]
(J. P. J. Maingot, Parliamentary Privilege in Canada (2nd ed. 1997), at p. 12; New Brunswick Broadcasting, at p. 341; see Fielding v. Thomas, [