SCC File No. 37208 BETWEEN: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) CANADIAN HUMAN RIGHTS COMMISSION -and- ATTORNEY GENERAL OF CANADA -and- APPELLANT (Appellant) RESPONDENT (Respondent) Attorney General of Quebec, Tania Zulkoskey, Income Security Advocacy Centre, Sudbury Community Legal Clinic, Chinese and Southeast Asian Legal Clinic, Community Legal Assistance Society, HIV & AIDS Legal Clinic Ontario, Canadian Muslim Lawyers Association, Council of Canadians with Disabilities, Women s Legal Education and Action Fund Inc., Native Women s Association of Canada, Amnesty International, First Nations Child and Family Caring Society of Canada, Jeremy E. Matson, African Canadian Legal Clinic, Aboriginal Legal Services, Public Service Alliance of Canada INTERVENERS FACTUM OF THE INTERVENER, the CANADIAN MUSLIM LAWYERS ASSOCIATION Pursuant to Rule 42 of the Rules of the Supreme Court of Canada KARIMJEE GREENE LLP GOWLING WLG (CANADA) LLP 401 Bay Street, Suite 2008, P.O. Box 80 160 Elgin Street, Suite 2600 Toronto, ON M5G 2G8 Ottawa, ON K1P 1C3 Kumail Karimjee D. Lynne Watt Nabila F. Qureshi Tel: (613) 786-8695 Tel: (416) 593-0007 Fax: (613) 788-3509 Fax: (416) 593-9907 Email: lynne.watt@gowlingwlg.com Email: kumail@karimjeegreene.com nabila@karimjeegreene.com Counsel for the Intervener, the Canadian Muslim Lawyers Association Agent for Counsel for the Intervener, the Canadian Muslim Lawyers Association
ORIGINAL TO: THE SUPREME COURT OF CANADA The Registrar 301 Wellington Street Ottawa, ON K1A 0J1 COPIES TO: CANADIAN HUMAN RIGHTS COMMISSION 344 Slater Street, 8 th Floor Ottawa, ON K1A 1E1 Brian Smith Fiona Keith Tel: (613) 943-9205 / (613) 943-9520 Fax: (613) 993-3089 Email: brian.smith@chrc-ccdp.gc.ca fiona.keith@chrc-ccdp.gc.ca Counsel for the Appellant CANADIAN HUMAN RIGHTS COMMISSION 344 Slater Street, 8 th Floor Ottawa, ON K1A 1E1 Valerie Phillips Director and General Counsel Tel: (613) 943-9357 Fax: (613) 993-3089 Email: valerie.phillips@chrc-ccdp.gc.ca Agent for the Appellant ATTORNEY GENERAL OF CANADA Department of Justice Canada Exchange Tower 130 King Street West, Suite 3400 Toronto, ON M5X 1K6 Fax: (416) 952-4518 Christine Mohr Catherine Lawrence Tel: (416) 973-4111 / (613) 670-6528 Email: christine.mohr@justice.gc.ca catherine.lawrence@justice.gc.ca Counsel for the Respondent DEPARTMENT OF JUSTICE CANADA 50 O Connor Street Suite 500, Room 557 Ottawa, ON K1A 0H8 Fax: (613) 954-1920 Christopher M. Rupar Senior General Counsel Tel: (613) 670-6290 Email: christopher.rupar@justice.gc.ca Agent for the Respondent
LA PROCUREURE GÉNÉRALE DU QUÉBEC 1200, route de l Église, 2ᵉ étage Québec (Québec) G1V 4M1 Mᵉ Amélie Pelletier Desrosiers Ministère de la Justice du Québec Tél: (418) 643-1477, poste 21006 Téléc: (418) 644-7030 Courriel: Amelie.pelletierdesrosiers@justice.gouv.qc.ca Procureure de la Requérante, la Procureure générale du Québec NOEL ET ASSOCIÉS 111, rue Champlain Gatineau (Québec) JX8 3R1 Mᵉ Pierre Landry Tél: (819) 771-7393 Téléc: (819) 771-5397 Courriel: p.landry@noelassocies.com Correspondant de la Requérante, la Procureure générale du Québec CAVALLUZZO SHILTON McINTYRE CORNISH LLP 474 Bathurst Street, Suite 300 Toronto, ON M5T 2S6 Stephen J. Moreau Nadia Lambek Tel: (416) 964-1115 Fax: (416) 964-5895 Email: smoreau@cavalluzzo.com Counsel for the Intervener, Tania Zulkoskey SUPREME LAW GROUP 900 275 Slater Street Ottawa, ON K1P 5H9 Moira Dillon Tel: (613) 691-1224 Fax: (613) 691-1338 Email: mdillon@supremelawgroup.ca Agent for the Intervener, Tania Zulkoskey INCOME SECURITY ADVOCACY CENTRE 1500-55 University Avenue Toronto, ON M5J 2H7 Marie Chen Tel: (416) 597-5820 ext. 5152 Fax: (416) 597-5821 Email: chenmel@lao.on.ca Counsel for the Interveners, Income Security Advocacy Centre, Sudbury Community Legal Clinic, Chinese and Southeast Asian Legal Clinic, Community Legal Assistance Society, and HIV & AIDS Legal Clinic Ontario SUPREME ADVOCACY LLP 340 Gilmour Street, Suite 100 Ottawa, ON K2P 0R3 Marie-France Major Tel: (613) 695-8855 Fax: (613) 695-8580 Email: mfmajor@supremeadvocacy.ca Agent for the Interveners, Income Security Advocacy Centre, Sudbury Community Legal Clinic, Chinese and Southeast Asian Legal Clinic, Community Legal Assistance Society, and HIV & AIDS Legal Clinic Ontario
ARCH DISABILITY LAW CENTRE 55 University Avenue, 15 th Floor Toronto, ON M5J 2H7 Kerri Joffe Dianne Wintermute Tel: (416) 482-8255 TTY: (416) 482-1254 Fax: (416) 482-2981 Email: joffek@lao.on.ca wintermd@lao.on.ca Counsel for the Intervener, Council of Canadians with Disabilities COMMUNITY LEGAL SERVICES OTTAWA CARLETON 1 Nicholas Street, Suite 422 Ottawa, ON K1N 7B7 Michael Bossin Tel: (613) 241-7008 Fax: (613) 241-8680 Email: bossinm@lao.on.ca Agent for the Intervener, Council of Canadians with Disabilities STOCKWOODS LLP BARRISTERS TD North Tower, 77 King Street West Suite 4130, P.O. Box 140 Toronto, ON M5K 1H1 Justin Safayeni Stephen Alyward Tel: (416) 593-7200 Fax: (416) 593-9345 Email: justins@stockwoods.ca stephena@stockwoods.ca Counsel for the Intervener, Amnesty International POWER LAW 130 Albert Street, Suite 1103 Ottawa, ON K1P 5G4 David Taylor Tel & Fax: (613) 702-5563 Email: dtaylor@juristepower.ca Agent for the Intervener, Amnesty International ABORIGINAL LEGAL SERVICES 211 Yonge Street, Suite 500 Toronto, ON M5B 1M4 Emily Hill Emilie Lahaie Tel: (416) 408-4041 Fax: (416) 408-4268 Email: e_hill@lao.on.ca Counsel for the Intervener, Aboriginal Legal Services Inc. COMMUNITY LEGAL SERVICES OTTAWA CARLETON 1 Nicholas Street, Suite 422 Ottawa, ON K1N 7B7 Michael Bossin Tel: (613) 241-7008 Fax: (613) 241-8680 Email: turcottea@lao.on.ca Ottawa Agent for the Intervener, Aboriginal Legal Services Inc.
LAW OFFICE OF MARY EBERTS 95 Howland Avenue Toronto, ON M5R 3B4 Mary Eberts Tel: (416) 923-5215 Fax: (416) 595-7131 Email: eberts@ebertslaw.ca WOMEN S LEGAL EDUCATION AND ACTION FUND INC. 260 Spadina Avenue, Suite 309 Toronto, ON M5T 2E4 BORDEN LADNER GERVAIS LLP Suite 1100, 100 Queen Street Ottawa, ON K1P 1J9 Nadia Effendi Tel: (613) 787-3562 Fax: (613) 230-8842 Email: neffendi@blg.com Ottawa Agent for the Interveners, Women s Legal Education and Action Fund Inc. and Native Women s Association of Canada Kim Stanton Tel: (416) 595-7170 ext. 223 Fax: (416) 5595-7191 Email: k.stanton@leaf.ca NATIVE WOMEN S ASSOCIATION OF CANADA 1 Nicholas Street, 9 th Floor Ottawa, ON K1N 7B7 K. R. Virginia Lomax Tel: (613) 722-3033 ext. 246 Fax: (613) 722-7687 Email: vlomax@nwac.ca Counsel for the Interveners, Women s Legal Education and Action Fund Inc. and Native Women s Association of Canada JEREMY E. MATSON 4516 Walker Road Kelowna, BC V1W 2Z1 Tel: (250) 718-9614 Email: matinoia@hotmail.com
RAVEN, CAMERON, BALLANTYNE & YAZBECK LLP/s.r.l. 1600-220 Laurier Avenue West Ottawa, ON K1P 5Z9 Andrew Raven Andrew Astritis Morgan Rowe Tel: (613) 567-2901 Fax: (613) 567-2921 Email: araven@ravenlaw.com aastritis@ravenlaw.com mrowe@ravenlaw.com Counsel for the Intervener, Public Service Alliance of Canada AFRICAN CANADIAN LEGAL CLINIC 402-250 Dundas Street West Toronto, ON M5T 2Z5 Danardo Jones Tel: (416) 214-4747 Fax: (416) 214-4748 Email: jonesdn@lao.on.ca FAISAL MIRZA PC 301-55 Village Centre Place Mississauga, ON L4Z 1V9 SPITERI & URSULAK LLP 1010-414 Laurier Avenue West Ottawa, ON K1P 5J3 Michael Crystal Tel: (613) 563-1010 Fax: (613) 563-1011 Email: mac@sulaw.ca Ottawa Agent for the Intervener, African Canadian Legal Clinic Faisal Mirza Tel: (905) 897-5600 Fax: (905) 897-5657 Email: fm@mirzakwok.com Counsel for the Intervener, African Canadian Legal Clinic
CONWAY BAXTER WILSON LLP/s.r.l. 400-411 Roosevelt Avenue Ottawa, ON K2A 3X9 David Taylor Tel: (613) 691-0368 Fax: (613) 688-0271 Email: dtaylor@conway.pro Counsel for the Intervener, First Nations Child and Family Caring Society of Canada
i TABLE OF CONTENTS PART I OVERVIEW AND STATEMENT OF FACTS... 1 PART II POSITION ON QUESTION AT ISSUE... 1 PART III STATEMENT OF ARGUMENT... 1 A. Human rights tribunals provide meaningful access to justice... 3 B. Process plurality advances access to justice and the development of the common law... 6 C. Access to justice is necessary to state accountability and the rule of law... 8 PART IV STATEMENT ON COSTS... 10 PART V ORDER SOUGHT... 10 PART VI TABLE OF AUTHORITIES... 12
PART I OVERVIEW AND STATEMENT OF FACTS 1. Barriers to access to justice challenge the very credibility of our legal system and threaten the rule of law. This appeal raises questions about access to justice before human rights tribunals in cases alleging discrimination by the state based on a legislative foundation. This Court s decision may have implications for human rights tribunals across Canada. The Canadian Human Rights Tribunal ( Tribunal ), Federal Court and Federal Court of Appeal adopted a narrow and restrictive interpretation of provision of services under s. 5 of the Canadian Human Rights Act 1 ( CHRA ) that limits the ability of marginalized communities to access human rights tribunals. Instead, given the legislative basis for the discrimination at issue, an individual seeking redress is expected to mount a constitutional challenge in court to the legislation itself. 2. The Canadian Muslim Lawyers Association ( CMLA ) submits that this Court s interpretation of s. 5 of the CHRA must be informed by access to justice as a contextual factor and interpretive principle so as to enhance crucial access to human rights tribunals where the state has discriminated in providing legislated benefits or services. 3. The CMLA relies on the Statement of Facts in the Appellant s factum and takes no position with respect to any disagreement on factual matters. PART II POSITION ON QUESTION AT ISSUE 4. The CMLA is intervening in this Appeal with respect to the proper interpretation of s. 5 of the CHRA in light of the central importance of access to justice. The CMLA s position is that services under s. 5 of the CHRA must be interpreted as encompassing state discrimination arising from the application of legislation. PART III STATEMENT OF ARGUMENT 5. Access to justice is the greatest challenge facing the Canadian legal system today. In its traditional sense, access to justice includes access to fair dispute resolution tools to resolve 1 Canadian Human Rights Act, RSC, 1985, c H-6, s 5.
2 claims. 2 There is widespread acknowledgment that significant barriers, including the financial cost of litigation and legal representation, the complexity of proceedings, and lack of knowledge and skill effectively bar most ordinary Canadians from the opportunity to pursue justice, particularly within the courts. 3 6. This Court has recognized the need to improve access to justice in diverse contexts. Access to justice considerations have informed the proper interpretation of civil procedure rules for summary judgment 4, the test for public interest standing 5, certification requirements for class action proceedings 6, the appropriateness of the imposition of court hearing fees 7 and the application of human rights codes. 8 These rulings were informed by the value of access to justice and the need for the legal system to provide real and practical avenues through which individuals can enforce their rights. 7. It is submitted that access to justice has developed into an interpretive principle. 9 In Hryniak v Mauldin, this Court s concern with improving access to justice shaped its interpretation of Ontario s summary judgment rule. 10 This Court defined the parameters of summary judgment powers in light of the need to create a more accessible legal system. 11 Access to justice as an 2 Hryniak v Mauldin, 2014 SCC 7 at para 28 [Hryniak]. 3 Hryniak, supra note 2; Fischer v IG Investment Management Ltd, 2013 SCC 69 [Fischer]; Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 [Downtown Eastside]; Beverley McLachlin, The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law (1999) 12 Can J Admin L & Prac 171 [McLachlin] [Book of Authorities ( BOA ), Tab 3]. 4 Hryniak, supra note 2. 5 Downtown Eastside, supra note 3. 6 Fischer, supra note 3. 7 Trial Lawyers Assn. of British Columbia v British Columbia (Attorney General), 2014 SCC 59 [Trial Lawyers]. 8 Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 at paras 33, 49-51 [Tranchemontagne]. 9 Michelle Flaherty and Andrea Cole, Access to Justice, Looking for a Constitutional Home: Implications for the Administrative Legal System (2016) 94 Can B Rev 13 at 29 [Flaherty and Cole] [BOA, Tab 6]; Hryniak, supra note 2. 10 Hryniak, supra note 2. 11 Ibid, at paras 1-7, 21-79; Flaherty and Cole, supra note 9 at 29.
3 interpretive principle must equally be applied in determining the proper interpretation of s. 5 of the CHRA, and in turn the legal forums that will be available to disadvantaged Canadians who have suffered discrimination by the state. 8. The CMLA submits that the CHRA must be interpreted in a way that enhances, rather than obstructs, access to justice. An interpretation of s. 5 of the CHRA that permits access to human rights tribunals where the state has discriminated in providing legislated services will (A) help to provide meaningful avenues for recourse to disadvantaged communities, (B) encourage the development of the common law through process plurality, and (C) strengthen state accountability and the rule of law. A. Human rights tribunals provide meaningful access to justice 9. Meaningful access to justice is about real, and not theoretical, avenues for recourse. Section 5 of the CHRA must be interpreted in a way that will provide individuals with realistic channels through which to pursue justice. 10. This Court has characterized access to justice as requiring real and practical opportunities. In Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society ( Downtown Eastside ), this Court considered whether to grant public interest standing to the respondent society. Part of its determination turned on whether there existed some other reasonable and effective means to bring the case to court. Writing for the majority, Cromwell J. found that the practical prospects of [other potential plaintiffs] bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities, not theoretical possibilities. 12 11. For the overwhelming majority of Canadians, the determination of their rights will take place in administrative tribunals rather than in courts. 13 For them, administrative tribunals are a 12 Downtown Eastside, supra note 3 at para 51. 13 Lorne Sossin and Andrea Hill, Social Rights and Administrative Justice, in Martha Jackman and Bruce Porter, eds, Advancing Social Rights in Canada (Toronto: Irwin Law Inc, 2014) at 343
4 more realistic option than courts as a forum within which to enforce their rights. The rights at stake in administrative proceedings are often crucial, relating to housing, social benefits, employment, and other human rights. While courts may exercise judicial oversight on decisions rendered in administrative forums, the expense and complexity of court proceedings means that for most individuals, an administrative tribunal will be their first and final recourse to protect their social rights. 14 This is no less true in cases involving state services or benefits that emanate from legislation. 12. The federal and provincial human rights tribunals in particular are critical for protecting and enhancing the rights of vulnerable persons. This includes members of the Muslim community in Canada, a predominantly immigrant and racialized community subject to discrimination. 15 Human rights tribunals are empowered to provide a range of meaningful remedies where services flowing from the application of legislation are in issue, including damages in recognition of injury to dignity and self-respect, public interest or systemic remedies and orders requiring discriminatory practices to cease. 16 Individuals who have experienced discrimination may obtain meaningful redress without having to challenge the validity of legislation. In many contexts where there is concurrent jurisdiction to deal with a claim, there may be different remedies available in different forums. A party seeking redress should have the agency to determine, based on personal, practical and strategic considerations, which avenue for recourse to use. 13. As such, s. 5 of the CHRA must be interpreted in a way that provides individuals the realistic option of enforcing their rights in a human rights tribunal. Human rights legislation, like [Sossin and Hill] [BOA, Tab 5]; Raj Anand, A Checklist for Access to Administrative Justice Today (2004) 27:2 Can J Admin L & Prac 234 at 235 [BOA, Tab 7]. 14 Sossin and Hill, supra note 13 at 343. 15 Environics Institute for Survey Research, Survey of Muslims in Canada 2016, by Keith Neuman (2016) online: <http://www.environicsinstitute.org/uploads/instituteprojects/survey%20of%20muslims%20in%20canada%202016%20-%20final%20report.pdf> at 3, 13, 38-39; Uzma Jamil, Discrimination Experienced by Muslims in Ontario (2012) 9:3 Canadian Diversity 64 at 64-68, online: <http://www.ohrc.on.ca/sites/default/files/diversity%20magazine_creed_freedom%20of%20re ligion-human%20rights_accessible.pdf. 16 See, e.g., XY v Ontario, 2012 HRTO 726 at paras 273, 289-292.
5 the Canadian Charter of Rights and Freedoms ( Charter ), must be recognized as being the law of the people and accordingly must not only be given expansive meaning, but offered accessible application. 17 It cannot be expected to function as the law of the people if claimants are effectively barred from accessing its protection. Human rights legislation is the final refuge of the disadvantaged but may be rendered meaningless through barriers to access. 18 14. Access to real and not theoretical tools to pursue justice is important precisely because substantive justice is the goal behind most litigation. As this Court has recognized, access to justice contains both a procedural and a substantive component. 19 The two cannot be divorced. 20 Procedural rights such as the right to an accessible forum like the human rights tribunals are the avenues through which individuals seek to obtain substantive equality and justice. The restriction of procedural tools will inevitably restrict the nature and quality of substantive justice which individuals can pursue, if they are able to pursue it at all. This is why it is critical that the procedural tools available to individuals, including forums for adjudication, be real and not theoretical. 15. The decisions below limited individuals who experience discrimination in the provision of legislated services to the single option of constitutional litigation. In doing so, they effectively limit many such individuals to no meaningful recourse at all. As the Supreme Court has recognized, access to justice within the civil justice system has become severely constrained. 21 Our courts are further grappling with the requirement to adjudicate criminal matters in a timely way. 22 This context strongly suggests that administrative tribunals are a meaningful alternative forum. The theoretical possibility of a Charter challenge in our already burdened court system is not a viable option for most Canadians, or the courts. The suggestion that a claimant alleging discrimination by the government can simply mount a Charter challenge in a superior court is, with respect, akin to stating let them eat cake. 17 Tranchemontagne, supra note 8 at para 33. 18 Ibid, at para 49. 19 Fischer, supra note 3 at para 24. 20 Ibid. 21 Hryniak, supra note 2 at para 1. 22 R v Jordan, 2016 SCC 27.
6 16. The CMLA therefore urges this Court to apply access to justice as an interpretive principle in its determination of the proper meaning of s. 5 of the CHRA. In doing so, this Court can ensure the availability of meaningful avenues through which individuals can seek the protection of human rights legislation across the country, even when challenging services or benefits that flow from legislation. B. Process plurality advances access to justice and the development of the common law 17. Human rights and other administrative tribunals, not just courts in Charter litigation, have played a critical role in the development of the discourse on human rights. This includes the discourse on discrimination as it relates to legislated benefits or services. Adjudication of human rights issues in multiple forums is the norm given the primacy and quasi-constitutional status of human rights codes and the overlapping nature of Charter protections and human rights legislation. 18. A plurality of forums within which human rights issues involving state action can be adjudicated increases access to justice and furthers the development of the law and social progress. Conversely, prohibiting access to human rights tribunals for adjudicating claims that involve discrimination with a legislative basis, particularly when the alternative process is extraordinarily difficult to access, risks stunting the development of the common law. 23 19. Progressive change is often achieved incrementally. The evolution of LGBTQ rights is instructive in this regard. The law and societal attitudes in relation to LGBTQ rights did not change solely as a result of Charter litigation and judicial pronouncements in cases such as Egan v Canada, Vriend v Alberta and M v H in the 1990s. 24 These decisions did not arise within a vacuum, divorced from other LGBTQ rights cases being decided at the time. 20. On the contrary, they emerged within a broader dialogue on LGBTQ rights taking place within multiple forums, including human rights tribunals. Human rights case law involving LGBTQ 23 Hryniak, supra note 2 at para 1. 24 Egan v Canada, [1995] 2 SCR 513 (SCC) [Egan]; Vriend v Alberta, [1998] 1 SCR 493 (SCC); M v H, [1999] 2 SCR 3 (SCC).
7 rights began to emerge in the 1970s, some 25 years before this Court first recognized same-sex relationship rights in M v H. Even where the courts were reluctant to recognize same-sex relationship rights 25, some human rights tribunals did so, including in the context of the provision of legislated services. For example, before M v H was decided, the Ontario Human Rights Tribunal recognized same-sex relationship rights in two cases involving the direct application of legislated criteria which provided for an opposite sex definition of spouse. The Tribunal found that the applicants had experienced discrimination in the provision of services under the Ontario Human Rights Code. 26 These decisions were important to the individual claimants in recognizing their same-sex relationship rights. 21. However, the value of adjudicating human rights cases in multiple forums is not limited to the private justice which these cases achieve for individual claimants. Of equal importance is the public good in their contribution to the common law. Human rights tribunals by design are dedicated to the adjudication of everyday human rights complaints, including those which relate to the provision of legislated benefits. In hearing many such complaints, the tribunals are uniquely situated to determine how human rights protections operate in a variety of legal and factual settings. This includes novel claims or claims in emerging spheres of human rights protection. As such, human rights tribunals play a critical role in the development of human rights law and social progress. 22. The development of case law through the accessibility of human rights tribunals supported broader societal dialogue and incremental change to the law in relation to LGBTQ rights. There is no doubt that as a society and within Canadian law we are in a very different place in our understanding of LGBTQ rights than we were less than a generation ago. This progression is in part due to the rights developed incrementally through litigation before human rights tribunals, including in cases challenging state action under legislation. This plurality of forums through which human rights are organically developed should be fostered and not limited by a 25 R v Mossop, [1993] 1 SCR 554 (SCC); Egan, supra note 24. 26 Bewley v Ontario, 1997 CarswellOnt 6128, 27 CHRR D/405 (Ont Bd Inq) [BOA, Tab 1]; O Neill v Ontario (Ministry of Transportation), 1994 CarswellOnt 4172, 27 CHRR D/405 (Ont Bd Inq) [BOA, Tab 2].
8 restrictive interpretation of s. 5 of the CHRA. In other words, an interpretation of s. 5 which enhances access to justice will in turn enhance the progress of the law. 23. There is currently much discussion of the need for reconciliation and a new relation between the Canadian state and First Nations. Part of this process is about righting historical wrongs grounded in discriminatory laws and actions. Given this imperative, this Court should protect the availability of a plurality of processes, including those of human rights tribunals. C. Access to justice is necessary to state accountability and the rule of law 24. The Supreme Court of Canada has stated that ensuring access to justice is the greatest challenge to the rule of law in Canada today. 27 A just society is premised upon the rule of law, and indeed the rule of law is enshrined in the preamble to the Charter. 28 25. State accountability is an essential component of the rule of law. 29 The rule of law includes the principle that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power. 30 In short, the government is equally accountable under the law and must govern in accordance with it. 31 26. State accountability and the rule of law are contingent upon an individual s actual ability to challenge state action. Most Canadians cannot afford complex and expensive constitutional litigation when there is a concern about discrimination by the state in providing a legislated benefit. In light of this asymmetry of power between the government and individuals, it is important that the judicial system not restrict the tools at the disposal of individuals to pursue state accountability. Administrative tribunals are a far more accessible forum for scrutinizing discriminatory state action. Therefore, a liberal interpretation of s. 5 of the CHRA that permits 27 Hryniak, supra note 2 at para 1. 28 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, preamble. 29 Christie v British Columbia (Attorney General), 2007 SCC 21 at para 20. 30 Ibid, citing Reference re Language Rights Under s. 23 of Manitoba Act, 1870 & s. 133 of Constitution Act, 1867, [1985] 1 SCR 721 (SCC) at p. 748. 31 Downtown Eastside, supra note 3 at para 33.
9 access to the Tribunal is integral to upholding state accountability and the rule of law, particularly where the state has discriminated against vulnerable persons. 27. This Court has affirmed that access to a court is critical to ensuring state accountability as a component of the rule of law. In Trial Lawyers Assn. of British Columbia v. British Columbia (Attorney General), this Court found that the imposition of court hearing fees was unconstitutional and that it interfered with the rule of law because it impeded challenges to unlawful state action. In her decision for the majority, McLachlin C.J. quoted with approval the proposition that there cannot be a rule of law without access before stating that: In the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account the government will be, or be seen to be, above the law. 32 28. In Downtown Eastside, Cromwell J. agreed that absent realistic ways to challenge the state, there is a risk that government action will be immunized from review. 33 29. Although the jurisprudence has largely emphasized access to courts as necessary to upholding the rule of law, this does not diminish or exclude the importance of access to other types of forums. Access to administrative tribunals is also essential to enforcing state accountability. Lorne Sossin has written that [t]he rule of law is no less significant in an administrative hearing room than a courtroom. 34 Indeed, it may be more significant, given the tribunals role as the first and final refuge for protecting the rights of most ordinary people. Chief Justice McLachlin has written that administrative tribunals have a critical role in maintaining the rule of law. 35 The enforcement of state accountability is not the exclusive purview of the courts. Administrative tribunals, including the federal and provincial human rights tribunals, scrutinize 32 Trial Lawyers, supra note 7 at para 40 [emphasis added]. 33 Downtown Eastside, supra note 3 at para 33. 34 Lorne Sossin, Access to Administrative Justice and Other Worries in Lorne Sossin and Colleen Flood, eds, Administrative Law in Context, 2 nd ed (Toronto: Emond Montgomery Press, 2012) at 212 [BOA, Tab 4]. 35 McLachlin, supra note 3.
10 state decision making on a regular basis. This Court must affirm the legal significance of that role and give it meaningful effect. 30. This means affording open access to the tools available to pursue state accountability, particularly where the state has discriminated against disadvantaged persons. There is a deep imbalance of power and resources between the state and vulnerable individuals. At the same time, members of disadvantaged communities are more likely to require legislated benefits and services. Within this context, it is imperative that disadvantaged persons have accessible avenues to realistically challenge discriminatory state action. The effect of restricting individuals to the single option of constitutional litigation which for many is no option for recourse at all is to signal to them that they are less worthy of human rights protection, and that the state is permissibly above the law. 31. The Court of Appeal s interpretation of s. 5 of the CHRA, if adopted by this Court, will in certain cases effectively insulate government action from review. Undoubtedly some would-be litigants can afford to constitutionally litigate where the state has denied them a legislated service. Most Canadians, however, cannot. This leaves us with the troubling proposition that our government may be more accountable to the rich than to the poor. 32. The interpretation of s. 5 of the CHRA must include consideration of the importance of enhancing access to justice. By permitting access to the Tribunal in cases where the state has discriminated in providing legislated benefits, this Court will help to uphold state accountability and the rule of law, ensure that society s most vulnerable have the agency to choose a meaningful avenue for recourse, and safeguard the enrichment of the common law through the development of human rights law. PART IV STATEMENT ON COSTS 33. The CMLA seeks no costs, and respectfully requests that no costs be awarded against it. PART V ORDER SOUGHT 34. The CMLA takes no position on the outcome of the appeal.
11 All of which is respectfully submitted this 3rd day of October, 2017 at Toronto, Ontari KU RIMJEE NA URESHI The Canadian Muslim Lawyers Association
12 PART VI TABLE OF AUTHORITIES JURISPRUDENCE Bewley v Ontario, 1997 CarswellOnt 6128, 27 CHRR D/405 (Ont Bd Inq) [Book of Authorities, Tab 1] Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 Cited at para(s): 20 5, 6, 10, 25, 28 Christie v British Columbia (Attorney General), 2007 SCC 21 25 Egan v Canada, [1995] 2 SCR 513 19, 20 Fischer v IG Investment Management Ltd, 2013 SCC 69 5, 6, 14 Hryniak v Mauldin, 2014 SCC 7 5, 6, 7, 15, 18, 24 M v H, [1999] 2 SCR 3 19, 20 O Neill v Ontario (Ministry of Transportation), 1994 CarswellOnt 4172, 27 CHRR D/405 (Ont Bd Inq) [Book of Authorities, Tab 2] 20 R v Jordan, 2016 SCC 27 15 R v Mossop, [1993] 1 SCR 554 20 Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 Trial Lawyers Assn. of British Columbia v British Columbia (Attorney General), 2014 SCC 59 6, 13 6, 27 Vriend v Alberta, [1998] 1 SCR 493 19 XY v Ontario, 2012 HRTO 726 12
13 LEGISLATION Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, preamble Cited at para(s): 24 Canadian Human Rights Act, RSC, 1985, c H-6, section 5 1 SECONDARY SOURCES Beverley McLachlin, The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law, (1999) 12 Can J Admin L & Prac 171 [Book of Authorities, Tab 3]. Environics Institute for Survey Research, Survey of Muslims in Canada 2016, by Keith Neuman (2016). Lorne Sossin, Access to Administrative Justice and Other Worries in Lorne Sossin and Colleen Flood, eds, Administrative Law in Context, 2 nd ed (Toronto: Edmond Montgomery Press, 2012) [Book of Authorities, Tab 4]. Lorne Sossin and Andrea Hill, Social Rights and Administrative Justice, in Martha Jackman and Bruce Porter, eds, Advancing Social Rights in Canada (Toronto: Irwin Law Inc, 2014) [Book of Authorities, Tab 5]. Michelle Flaherty and Andrea Cole, Access to Justice, Looking for a Constitutional Home: Implications for the Administrative Legal System, (2016) 94 Can B Rev 13 [Book of Authorities, Tab 6]. Raj Anand, A Checklist for Access to Administrative Justice Today (2004) 27:2 Can J Admin L & Prac 235 [Book of Authorities, Tab 7]. Uzma Jamil, Discrimination Experienced by Muslims in Ontario (2012) 9:3 Canadian Diversity 64. Cited at para(s): 5, 29 12 29 11 7 11 12