Indexed As: Canadian Human Rights Commission v. Canada (Attorney General) et al. Federal Court Mactavish, J. April 18, 2012.

Transcription

1 Canadian Human Rights Commission (applicant) v. Attorney General of Canada, First Nations Child and Family Caring Society, Assembly of First Nations, Chiefs of Ontario, Amnesty International (respondents) (T ) First Nations Child and Family Caring Society (applicant) v. Attorney General of Canada, Assembly of First Nations, Canadian Human Rights Commission, Chiefs of Ontario and Amnesty International (respondents) (T ) Assembly of First Nations (applicant) v. Attorney General of Canada, First Nations Child and Family Caring Society, Canadian Human Rights Commission, Chiefs of Ontario and Amnesty International (respondents) (T ; 2012 FC 445) Indexed As: Canadian Human Rights Commission v. Canada (Attorney General) et al. Federal Court Mactavish, J. April 18, Summary: A human rights complaint alleged the federal government's under-funding of welfare services for on-reserve First Nations children resulted in a lower level of services for those children than for other Canadian children whose welfare services were provincially funded. Following a preliminary motion brought by the federal government, the Canadian Human Rights Tribunal dismissed the complaint, on the basis that there was no appropriate comparator group available to assist in its discrimination analysis as required by s. 5(b) of the Canadian Human Rights Act (CHRA) (i.e., a comparator group was required in every case). Judicial review proceedings ensued. The Federal Court held that, while the Tribunal had the power to decide this issue in advance of a full hearing on the merits, the process followed was not fair. In particular, the Tribunal considered a substantial volume of extrinsic material in arriving at its decision. Further, the decision was unreasonable as the Tribunal failed to provide any reasons as to why it could not consider the complaint under s. 5(a) of the CHRA (which did not require a comparator group). The Tribunal also erred in its interpretation of s. 5(b) and in concluding that the complaint could not succeed in the absence of an identifiable comparator group. Finally, in determining that no comparator group was available, the Tribunal erred in failing to consider the significance of the federal government's own adoption of provincial child welfare standards in its funding policies. Administrative Law - Topic 547 The hearing and decision - Decisions of the tribunal - Reasons for decision - When required - [See second Civil Rights - Topic 7046].

2 Administrative Law - Topic 2608 Natural justice - Evidence and proof - Extraneous or irrelevant considerations - [See first Civil Rights - Topic 7046]. Administrative Law - Topic 2609 Natural justice - Evidence and proof - Reliance on evidence not adduced by parties - [See first Civil Rights - Topic 7046]. Civil Rights - Topic 963 Discrimination - Facilities and services customarily available to public - Comparator groups - Section 5(b) of the Canadian Human Rights Act made it a discriminatory practice to "differentiate adversely in relation to any individual, on a prohibited ground of discrimination" in the provision of services customarily available to the general public - The Canadian Human Rights Tribunal interpreted s. 5(b) as requiring that there be a comparator group in order to establish discrimination (i.e., that a mirror comparator group was required in every case in order to establish adverse differential treatment in the provision of services) - Judicial review proceedings ensued - The Federal Court opined that the standard of review of the Tribunal's interpretation was reasonableness - The court held that the Tribunal's interpretation of s. 5(b) was unreasonable - The Tribunal erred in concluding that the ordinary meaning of the phrase "differentiate adversely" in s 5(b) required a comparator group in every case in order to establish discrimination in the provision of services - See paragraphs 222 to 366. Civil Rights - Topic 963 Discrimination - Facilities and services customarily available to public - Comparator groups - A human rights complaint alleged the federal government's under-funding of welfare services for on-reserve First Nations children resulted in a lower level of services for those children than for other Canadian children whose welfare services were provincially funded - The Canadian Human Rights Tribunal dismissed the complaint on the basis that there was no appropriate comparator group available to assist in its discrimination analysis as required by s. 5(b) of the Canadian Human Rights Act (CHRA) (i.e., the Tribunal interpreted s. 5(b) as requiring a comparator group in every case) - Judicial review proceedings ensued - The Federal Court held that s. 5(b) did not require a comparator group to establish adverse differential treatment in the provision of services - The court opined that, in any event, the Tribunal erred in concluding that there was no relevant comparator group in this case - In particular, the Tribunal failed to consider the significance of the government's own adoption of provincial child welfare standards in its programming manual and funding policies - See paragraphs 222 to 390. Civil Rights - Topic 963 Discrimination - Facilities and services customarily available to public - Comparator groups - [See second Civil Rights - Topic 7046]. Civil Rights - Topic 7003 Federal, provincial or territorial legislation - General - Interpretation of human rights legislation - The Federal Court, in interpreting s. 5(b) of the Canadian Human Rights Act

3 (CHRA), noted the quasi-constitutional nature of the CHRA and that the Supreme Court of Canada had repeatedly warned of the dangers of strict or legalistic approaches that would restrict or defeat the purpose of such a quasi-constitutional document - The court noted also that the Supreme Court had observed on numerous occasions that human rights legislation was to be given a large, purposive and liberal interpretation in a manner consistent with its overarching objectives, so as to ensure that the remedial goals of the legislation were best achieved - The court noted that it was inappropriate to rely solely on a strictly grammatical analysis, particularly with respect to the interpretation of legislation which was constitutional or quasi-constitutional in nature - See paragraphs 243 to 250. Civil Rights - Topic 7046 Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - The complainants filed a human rights complaint, alleging that the federal government's under-funding of welfare services for on-reserve First Nations children resulted in a lower level of services for those children than for other Canadian children whose welfare services were provincially funded - Following a preliminary motion brought by the federal government, the Canadian Human Rights Tribunal dismissed the complaint, on the basis that there was no appropriate comparator group available to assist in its discrimination analysis - Judicial review proceedings ensued - The Federal Court held that the although the Tribunal had the power to decide this issue in advance of a full hearing on the merits of the complaint, the process that it followed was not fair - That is, there was a breach of procedural fairness because the Tribunal considered a substantial volume of extrinsic material in arriving at its decision without affording the parties any opportunity to respond to it - See paragraphs 115 to 205. Civil Rights - Topic 7046 Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - The complainants filed a human rights complaint, alleging that the federal government's under-funding of welfare services for on-reserve First Nations children resulted in a lower level of services for those children than for other Canadian children whose welfare services were provincially funded - Following a preliminary motion brought by the federal government, the Canadian Human Rights Tribunal dismissed the complaint, on the basis that there was no appropriate comparator group available to assist in its discrimination analysis under s. 5(b) of the Canadian Human Rights Act (CHRA) - Judicial review proceedings ensued - The Federal Court held that the Tribunal erred in failing to provide any reasons as to why the complaint could not proceed under s. 5(a) of the CHRA (which did not require a comparator group) - Under s. 5(a), it was discriminatory practice to deny access to a service to an individual that was customarily available to the general public on a prohibited ground - See paragraphs 207 to 222. Civil Rights - Topic 7062 Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Preliminary issues - The Federal Court held that the Canadian Human Rights Tribunal's power to control its own process allowed it to consider motions raising substantive issues, including motions to dismiss human rights complaints, brought in advance of a full hearing into the merits of the complaint in some circumstances - The process followed by the

4 Tribunal in this regard would, however, always be subject to the requirements of procedural fairness - See paragraphs 115 to 157. Civil Rights - Topic 7062 Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Preliminary issues - [See first Civil Rights - Topic 7046]. Civil Rights - Topic 7069 Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - General - [See first Civil Rights - Topic 7062]. Civil Rights - Topic 7103 Federal, provincial or territorial legislation - Practice - Complaint - [See first Civil Rights - Topic 7062]. Statutes - Topic 504 Interpretation - General principles - Quasi-constitutional statutes - [See Civil Rights - Topic 7003]. Statutes - Topic 1803 Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - Section 5(b) of the Canadian Human Rights Act made it a discriminatory practice to "differentiate adversely in relation to any individual, on a prohibited ground of discrimination" in the provision of services customarily available to the general public - The Federal Court looked to both versions when interpreting s. 5(b) of the Canadian Human Rights Act - The court found that the two versions shared a common meaning - See paragraphs 269 and 272 to 275. Words and Phrases Differentiate adversely - The Federal Court discussed the meaning of this phrase as it appeared in s. 5(b) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 - See paragraphs 251 to 271. Cases Noticed: NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, [2010] 2 S.C.R. 696; 407 N.R. 338; 294 B.C.A.C. 1; 498 W.A.C. 1; 2010 SCC 45, refd to. [para. 30]. Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada et al., [2010] F.T.R. Uned. 203; 2010 FC 343, refd to. [para. 73]. Prassard v. Minister of Employment and Immigration, [1989] 1 S.C.R. 560; 93 N.R 81, refd to. [para. 129]. Canadian Human Rights Commission v. Canada Post, [2004] 2 F.C.R. 581; 245 F.T.R. 263; 2004 FC 81, affd. (2004), 329 N.R. 95; 2004 FCA 363, refd to. [para. 134]. Harkin v. Canada (Attorney General), 2009 CHRT 6, refd to. [para. 134]. Buffet v. Canada (Attorney General), 2005 CHRT 16, refd to. [para. 134]. Human Rights Commission (Nfld.) v. Newfoundland (Minister of Health) et al. (1998), 164

5 Nfld. & P.E.I.R. 251; 507 A.P.R. 251; 13 Admin. L.R.(3d) 142 (Nfld. C.A.), refd to. [para. 142]. Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al. (2012), 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 153]. Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 159]. Sapru v. Canada (Minister of Citizenship and Immigration) (2011), 413 N.R. 70; 2011 FCA 35, refd to. [para. 187]. Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] 2 F.C.R. 576; 382 N.R. 2; 2008 FCA 255, refd to. [para. 187]. Pfizer Co. v. Minister of National Revenue (Customs and Excise), [1977] 1 S.C.R. 456; 6 N.R. 440, refd to. [para. 191]. Khan v. University of Ottawa (1997), 101 O.A.C. 241; 148 D.L.R.(4th) 577; 34 O.R.(3d) 535 (C.A.), refd to. [para. 192]. Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 195]. Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 201]. Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 203]. Yassine v. Minister of Employment and Immigration (1994), 172 N.R. 308; 27 Imm. L.R.(2d) 135 (F.C.A.), refd to. [para. 203]. Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 220]. New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 221]. Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 233]. Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 234]. Toussaint v. Canada (Attorney General) (2011), 420 N.R. 364; 2011 FCA 213, refd to. [para. 234]. Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 234]. Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 339 D.L.R.(4th) 428; 2011 SCC 61, refd to. [para. 235]. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 243]. Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 244]. Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 246]. Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1, refd to. [para. 246]. Insurance Corp. of British Columbia v. Heerspink and Director, Human Rights Code, [1982]

6 2 S.C.R. 145; 43 N.R. 168, refd to. [para. 247]. Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 247]. Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161; 40 D.L.R.(4th) 193, refd to. [para. 247]. Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) - see Action Travail Des Femmes v. Canadian National Railway Co. et al. Potash Corp. of Saskatchewan Inc. v. Scott et al., [2008] 2 S.C.R. 604; 377 N.R. 91; 332 N.B.R.(2d) 341; 852 A.P.R. 341; 2008 SCC 45, refd to. [para. 248]. Quebec (Commission des droits de la personne et des droits de la juenesse) v. Montreal (Ville) et al., [2000] 1 S.C.R. 665; 253 N.R. 107; 2000 SCC 27, refd to. [para. 249]. Bastien Estate v. Minister of National Revenue, [2011] 2 S.C.R. 710; 418 N.R. 220; 2011 SCC 38, refd to. [para. 250]. Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask.), [1996] 3 S.C.R. 566; 203 N.R. 131; 148 Sask.R. 1; 134 W.A.C. 1; 140 D.L.R.(4th) 1, refd to. [para. 279]. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 281]. Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 286]. British Columbia (Minister of Education) v. Moore et al. (2010), 294 B.C.A.C. 185; 498 W.A.C. 185; 326 D.L.R.(4th) 77; 2010 BCCA 478, refd to. [para. 287]. ADGA Group Consultants Inc. v. Lane et al. (2008), 240 O.A.C. 333; 91 O.R.(3d) 649; 295 D.L.R.(4th) 425 (Div. Ct.), refd to. [para. 292]. Brooks, Allen and Dixon et al. v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; 94 N.R. 373; 58 Man.R.(2d) 161, refd to. [para. 295]. Bliss v. Canada (Attorney General), [1979] 1 S.C.R. 183; 23 N.R. 527, refd to. [para. 295]. Shakes v. Rex Pak Ltd. (1982), 3 C.H.H.R. D/1001 (Ont. Bd. Inq.), refd to. [para. 296]. Israeli v. Canadian Human Rights Commission and Public Service Commission (1983), 4 C.H.R.R. D/1616, refd to. [para. 297]. Lincoln v. Bay Ferries Ltd. (2004), 322 N.R. 50; 2004 FCA 204, refd to. [para. 298]. Human Rights Commission (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159, refd to. [para. 298]. Canada (Attorney General) v. Canadian Human Rights Commission et al. (2005), 334 N.R. 316; 2005 FCA 154, refd to. [para. 299]. Morris v. Canadian Armed Forces - see Canada (Attorney General) v. Canadian Human Rights Commission et al. Morris v. Canadian Armed Forces (2001), 42 C.H.R.R. D/443, refd to. [para. 301]. Lavoie v. Canada (Treasury Board), 2008 CHRT 27, refd to. [para. 303]. Singh (Subhaschan), Re, [1989] 1 F.C. 430; 86 N.R. 69 (F.C.A.), refd to. [para. 304]. Canada (Attorney General) v. Watkin (2008), 378 N.R. 268; 167 A.C.W.S.(3d) 135; 2008 FCA 170, refd to. [para. 308]. Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 315]. R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 319].

7 R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 333]. R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 352]. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 353]. R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 354]. Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 362]. Canadian Human Rights Commission et al. v. Canada (Minister of National Health and Welfare) (1998), 146 F.T.R. 106 (T.D.), refd to. [para. 387]. Basi v. Canadian National Railway Co. (1988), 9 C.H.R.R. D/5029, refd to. [para. 389]. Statutes Noticed: Canadian Human Rights Act, R.S.C., 1985, c. H-6, sect. 5(a), sect. 5(b) [para. 207]. United Nations, Universal Declaration of Human Rights (1948), art. 8 [para. 155]. Authors and Works Noticed: Baines, Beverley, Equality, Comparison, Discrimination, Status, in Faraday, Fay, Denike, Margaret, and Stephenson, M. Kate, Making Equality Rights Real: Securing Substantive Equality under the Charter (2006), p. 76 [para. 294]. Faraday, Fay, Denike, Margaret, and Stephenson, M. Kate, Making Equality Rights Real: Securing Substantive Equality under the Charter (2006), pp. 76 [para. 294]; 375 [para. 317]; 410, 427 [para. 281, footnote 2]. McIntyre, Sheila, and Rodgers, Sanda, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (2006), p. 63 [para. 328]. Moreau, Sophia, Equality Rights and the Relevance of Comparator Groups (2006), 5 J.L. & Equality 81, generally [para. 281, footnote 2]. Reaume, Leslie A., Postcards from O'Malley: Reinvigorating Statutory Human Rights Jurisprudence in the Age of the Charter, in Faraday, Fay, Denike, Margaret, and Stephenson, M. Kate, Making Equality Rights Real: Securing Substantive Equality under the Charter (2006), p. 375 [para. 317]. Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 1 [para. 243]; 364 [para. 277]; 547 [para. 354]; 548 [paras. 352, 354]; 549 [para. 354]. United Nations, General measures of implementation of the Convention on the Rights of the Child (3 Oct. 2003), para. 65 [para. 155]. United Nations, Role of Independent National Human Rights Institutions in the Protection and Promotion of the Rights of the Child (15 Nov. 2002), paras. 1, 25 [para. 155]. Wade, Henry William Rawson, and Forsyth, Christopher F., Administrative Law (6th Ed. 1988), p. 535 [para. 203]. Wright, Andrea, Formulaic Comparisons: Stopping The Charter at the Statutory Human Rights Gate, in Faraday, Fay, Denike, Margaret, and Stephenson, M. Kate, Making Equality Rights Real: Securing Substantive Equality under the Charter (2006), pp. 410, 427 [para. 281, footnote 2].

8 Young, Margot, Blissed Out: Section 15 at Twenty, in McIntyre, Sheila, and Rodgers, Sanda, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (2006), p. 63 [para. 328]. Counsel: Philippe Dufresne, Daniel Poulin and Samar Musallam, for the applicant, Canadian Human Rights Commission; Nicholas McHaffie and Sarah Clarke, for the applicant, First Nations Child and Family Caring Society of Canada; David Nahwegahbow and Joanne St. Lewis, for the applicant, Assembly of First Nations; Jonathan D.N. Tarlton and Melissa Chan, for the respondent, Attorney General of Canada; Michael Sherry, for the respondent, Chiefs of Ontario; Justin Safayeni, for the respondent, Amnesty International. Solicitors of Record: Canadian Human Rights Commission, Litigation Services Division, Ottawa, Ontario, for the applicant, Canadian Human Rights Commission; Stikeman Elliott LLP, Barristers and Solicitors, Ottawa, Ontario, for the applicant, First Nations Child and Family Caring Society; Nahwegahbow, Corbiere, Barristers and Solicitors, Ottawa, Ontario, for the applicant, Assembly of First Nations; Myles J. Kirwan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Attorney General of Canada; Michael Sherry, Barrister and Solicitor, Mississauga, Ontario, for the respondent, Chiefs of Ontario; Stockwoods LLP, Barristers, Toronto, Ontario, for the respondent, Amnesty International. These applications were heard at Ottawa, Ontario, on February 13-15, 2012, by Mactavish, J., of the Federal Court, who delivered the following reasons for judgment on April 18, Editor: Elizabeth M.A. Turgeon Applications allowed.