Canadian Human Rights Commission v. Canada (Attorney General) et al., 2016 FCA 200

• Judge: Pelletier, de Montigny and Gleason, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: July 21, 2016
• Jurisdiction: Canada (Federal)
• Citations: 2016 FCA 200;(2016), 487 N.R. 137 (FCA)

CHRC v. Can. (A.G.) (2016), 487 N.R. 137 (FCA)

MLB headnote and full text

Temp. Cite: [2016] N.R. TBEd. JL.018

Canadian Human Rights Commission (appellant) v. Attorney General of Canada (respondent)

(A-221-15; 2016 FCA 200)

Indexed As: Canadian Human Rights Commission v. Canada (Attorney General) et al.

Federal Court of Appeal

Pelletier, de Montigny and Gleason, JJ.A.

July 21, 2016.

Summary:

Several members of two First Nations filed complaints under the Canadian Human Rights Act (CHRA). The complainants alleged that provisions in the Indian Act that precluded the registration of their children as "Indians" under that Act violated their human rights because the impugned provisions constituted prohibited discrimination on the basis of race, national or ethnic origin, sex or family status. In two decisions, reported as 2013 CHRT 13 (Matson) and 2013 CHRT 21 (Andrews), the Canadian Human Rights Tribunal determined that the complaints were direct challenges to provisions in the Indian Act and that, as such, did not allege a discriminatory practice under s. 5 of the CHRA because the adoption of legislation was not a service "customarily available to the general public" within the meaning of s. 5 of the CHRA. The Tribunal ruled that the challenge to the impugned provisions in the Indian Act could only be brought under s. 15 of Charter and therefore needed to be made to a court of law. The Tribunal relied on the decision in Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA (Murphy), where the court held that the adoption of legislation was not a service customarily available to the general public within the meaning of s. 5 of the CHRA. The Tribunal dismissed the complaints. The Canadian Human Rights Commission filed two judicial review applications, seeking to set aside the Tribunal's decisions.

The Federal Court, in a decision reported at 477 F.T.R. 229, dismissed the applications. The court held that the reasonableness standard applied to the review of the Tribunal's decisions and that the decisions were reasonable, principally because they followed Murphy. The Commission appealed. The Commission argued that the Federal Court erred in applying the reasonableness standard of review because the controlling authority from the Supreme Court of Canada indicated that the correctness standard was applicable to decisions like these, which interpreted the scope of rights protected by human rights legislation. Second, the Commission said that the Tribunal's decisions were incorrect as s. 5 of the CHRA had to be interpreted as extending to complaints that directly challenged federal legislation. The Commission recognized that Murphy held otherwise, but said that the court should conclude that Murphy was wrongly decided or had been overtaken by subsequent jurisprudence of the Supreme Court of Canada.

The Federal Court of Appeal disagreed with the Commission on both points and therefore dismissed the appeal. However, the court did not grant the respondent the costs it sought as the Commission brought the appeal in the public interest to clarify the means to challenge federal legislation that was alleged to be discriminatory.

Administrative Law - Topic 9051.1

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Human Rights Tribunal - [See Civil Rights - Topic 964.1 ].

Civil Rights - Topic 964.1

Discrimination - Facilities and services customarily available to public - Several members of two First Nations filed complaints under the Canadian Human Rights Act (CHRA) - The complainants alleged that provisions in the Indian Act that precluded the registration of their children as "Indians" under that Act violated their human rights because the impugned provisions constituted prohibited discrimination on the basis of race, national or ethnic origin, sex or family status - In two decisions, the Canadian Human Rights Tribunal determined that the complaints were direct challenges to provisions in the Indian Act and that, as such, did not allege a discriminatory practice under s. 5 of the CHRA because the adoption of legislation was not a service "customarily available to the general public" within the meaning of s. 5 of the CHRA - The Tribunal ruled that the challenge to the impugned provisions in the Indian Act could only be brought under s. 15 of Charter and therefore needed to be made to a court of law - The Tribunal relied on the decision in Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA (Murphy), where the court held that the adoption of legislation was not a service customarily available to the general public within the meaning of s. 5 of the CHRA - The Tribunal dismissed the complaints - The Canadian Human Rights Commission applied for judicial review of the Tribunal's decisions - The Federal Court dismissed the applications - The court held that the reasonableness standard applied to the review of the Tribunal's decisions that the Tribunal's decisions were reasonable - The Commission appealed - The Federal Court of Appeal dismissed the appeal - The Tribunal's decisions were reasonable and there was no basis upon which to declare that Murphy was no longer good law - See paragraphs 89 to 104.

Civil Rights - Topic 7069

Federal, provincial or territorial legislation - Commission or boards - Jurisdiction - Complaints - General - [See Civil Rights - Topic 964.1 ].

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - Several members of two First Nations filed complaints under the Canadian Human Rights Act (CHRA) - The complainants alleged that provisions in the Indian Act that precluded the registration of their children as "Indians" under that Act violated their human rights because the impugned provisions constituted prohibited discrimination on the basis of race, national or ethnic origin, sex or family status - In two decisions ("Matson" and "Andrews"), the Canadian Human Rights Tribunal determined that the complaints were direct challenges to provisions in the Indian Act and that, as such, did not allege a discriminatory practice under s. 5 of the CHRA because the adoption of legislation was not a service "customarily available to the general public" within the meaning of s. 5 of the CHRA - The Tribunal ruled that the challenge to the impugned provisions in the Indian Act could only be brought under s. 15 of Charter and therefore needed to be made to a court of law - The Tribunal dismissed the complaints - The Canadian Human Rights Commission applied for judicial review of the Tribunal's decisions - The Federal Court dismissed the applications - The court held that the reasonableness standard applied to the review of the Tribunal's decisions and that the Tribunal's decisions were reasonable - The Commission appealed, arguing, inter alia, that the Federal Court erred in applying the reasonableness standard of review - The Federal Court of Appeal held that the presumptive application of the reasonableness standard of review was not rebutted - Thus, the interpretation given by the Tribunal to s. 5 of the CHRA and, more specifically, to its determination that the adoption of legislation was not a service customarily available to the general public was reviewable on the reasonableness standard - Likewise, its application of that interpretation to the facts of the Matson and Andrews complaints was reviewable on the reasonableness standard as a matter of mixed fact and law - See paragraphs 59 to 88.

Indians, Inuit and Métis - Topic 164

General - Registration - Entitlement - [See Civil Rights - Topic 964.1 ].

Counsel:

Brian Smith and Fiona Keith, for the appellant;

Sean Stynes and Josef Rosenthal, for the respondent.

Solicitors of Record:

Litigation Services Division, Canadian Human Rights Commission, for the appellant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on January 27, 2016, at Vancouver, British Columbia, before Pelletier, de Montigny and Gleason, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Gleason, J.A., on July 21, 2016.