Canadian Human Rights Commission v. Canada (Attorney General) et al., 2015 FC 398

• Judge: McVeigh, J.
• Court: Federal Court (Canada)
• Case Date: August 28, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 398;(2015), 477 F.T.R. 229 (FC)

CHRC v. Can. (A.G.) (2015), 477 F.T.R. 229 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. AP.019

Canadian Human Rights Commission (applicant) v. Attorney General of Canada representing Indian and Northern Affairs Canada (now Aboriginal Affairs and Northern Development Canada) and Jeremy Matson, Mardy Matson and Melody Schneider (respondents)

(T-1088-13)

Canadian Human Rights Commission (applicant) v. Attorney General of Canada representing Indian and Northern Affairs Canada (now Aboriginal Affairs and Northern Development Canada) and Roger William Andrews and Michelle Dominique Andrews (respondents)

(T-1777-13; 2015 FC 398)

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

Federal Court

McVeigh, J.

March 30, 2015.

Summary:

Four individuals (the complainants) were registered as "Indians" under s. 6(2) of the Indian Act. They each married and had children with individuals who were not registered or entitled to be registered under the Indian Act. Consequently, s. 6 provided that the complainants were unable to pass Indian status to their children. The complainants filed complaints with the Canadian Human Rights Tribunal, asserting that s. 6 was discriminatory. The Tribunal dismissed the complaints, finding that it did not have jurisdiction because the complaints were directed against legislation, and that the matter should be dealt with as a Charter challenge. The Tribunal further found that registration under s. 6 was not a "service" pursuant to s. 5 of the Canadian Human Rights Act. The Canadian Human Rights Commission applied for judicial review.

The Federal Court dismissed the application.

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 3

General - General principles - Status of human rights legislation - Four individuals (the complainants) were registered as "Indians" under s. 6(2) of the Indian Act - They each married and had children with individuals who were not registered or entitled to be registered under the Indian Act - Consequently, s. 6 provided that the complainants were unable to pass Indian status to their children - The complainants filed complaints with the Canadian Human Rights Tribunal, asserting that s. 6 was discriminatory - The Tribunal dismissed the complaints, finding that it did not have jurisdiction because the complaints were directed against legislation, and that registration under s. 6 was not a "service" pursuant to s. 5 of the Canadian Human Rights Act (CHRA) - The Canadian Human Rights Commission applied for judicial review, arguing that the Tribunal undermined the primacy of human rights law by finding that the CHRA could only render inconsistent legislation inoperable where the application of that legislation arose in a complaint filed about some other form of discriminatory practice - The Federal Court dismissed the application - The Tribunal did not err in its consideration of primacy - The Tribunal did not dispute that human rights legislation could render other legislation inoperable, or that it was within its power to grant a remedy of declaring legislation inoperable - Rather, it found that it did not have jurisdiction to consider legislation as a service in s. 5 of the CHRA - See paragraphs 88 to 93.

Civil Rights - Topic 964.1

Discrimination - Facilities and services customarily available to public - What constitutes a service or facility - Four individuals (the complainants) were registered as "Indians" under s. 6(2) of the Indian Act - They each married and had children with individuals who were not registered or entitled to be registered under the Indian Act - Consequently, s. 6 provided that the complainants were unable to pass Indian status to their children - The complainants filed complaints with the Canadian Human Rights Tribunal, asserting that s. 6 was discriminatory - The Tribunal dismissed the complaints, finding that it did not have jurisdiction because the complaints were directed against legislation, and that registration under s. 6 was not a "service" pursuant to s. 5 of the Canadian Human Rights Act (CHRA) - The Canadian Human Rights Commission applied for judicial review - The Federal Court dismissed the application - The legislative criteria that were determined by Parliament to identify an individual as an Indian were not a "service" as envisioned under s. 5 of the CHRA - Processing applications for registration might constitute a service, but not the criteria that had to be met to be registered - A challenge to the way in which a formula was to be applied was a challenge to the law itself - Applying the mandatory eligibility provisions of the Indian Act was an act of enforcing the law even though the statute provided a benefit - It was the law which denied access to the benefit, not the government agency - See paragraphs 57 to 63.

Civil Rights - Topic 7070.1

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

Civil Rights - Topic 7165

Federal or provincial legislation - Application - Exceptions - Matters within Indian Act - Four individuals (the complainants) were registered as "Indians" under s. 6(2) of the Indian Act - They each married and had children with individuals who were not registered or entitled to be registered under the Indian Act - Consequently, s. 6 provided that the complainants were unable to pass Indian status to their children - The complainants filed complaints with the Canadian Human Rights Tribunal, asserting that s. 6 was discriminatory - The Tribunal dismissed the complaints, finding that it did not have jurisdiction because the complaints were directed against legislation, and that registration under s. 6 was not a "service" pursuant to s. 5 of the Canadian Human Rights Act (CHRA) - The Canadian Human Rights Commission applied for judicial review, arguing that the Tribunal erred by failing to properly interpret s. 5 within the context of the former s. 67 of the CHRA - Section 67, which was repealed in 2008, stated that "Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act." - The Commission submitted that the repeal of s. 67 would be meaningless unless registration was intended to be a service under s. 5 of the CHRA - The Federal Court dismissed the application - While there was some evidence in the legislative history to support the Commission's argument, the Tribunal's decision was still reasonable - It was notable that s. 67 was implemented prior to the Charter when the CHRA would have been the only means of challenging the Indian Act provisions as discriminatory - The Charter now provided a more appropriate means by which to bring a challenge - See paragraphs 94 to 123.

Indians, Inuit and Métis - Topic 164

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

Statutes - Topic 1641

Interpretation - Extrinsic aids - Legislative history - General - [See Civil Rights - Topic 7165 ].

Statutes - Topic 6906

Operation and effect - Commencement, duration and repeal - Repeal - Effect of repeal - General - [See Civil Rights - Topic 7165 ].

Words and Phrases

Service - The Federal Court of Appeal discussed the meaning of this word as used in s. 5 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 - See paragraphs 36 to 63.

Cases Noticed:

Public Service Alliance of Canada et al. v. Canada Revenue Agency et al. (2012), 428 N.R. 240; 2012 FCA 7, leave to appeal refused (2012), 443 N.R. 391 (S.C.C.), folld. [para. 3].

McIvor et al. v. Registrar of Indian and Northern Affairs Canada et al. (2009), 269 B.C.A.C. 129; 453 W.A.C. 129; 306 D.L.R.(4th) 193; 2009 BCCA 153, refd to. [para. 7].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 29].

Air Canada Pilots Association v. Kelly et al. (2012), 434 N.R. 165; 2012 FCA 209, refd to. [para. 31].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [para. 31].

First Nations Child and Family Caring Society of Canada v. Canada (Attorney General) - see Canadian Human Rights Commission v. Canada (Attorney General).

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2013), 444 N.R. 120; 2013 FCA 75, refd to. [para. 32].

Canada (Attorney General) v. Watkin (2008), 378 N.R. 268; 2008 FCA 170, refd to. [para. 36].

Forward v. Canada (Minister of Citizenship and Immigration), 2008 CHRT 5, appld. [para. 40].

Canadian Human Rights Commission v. Minister of National Revenue et al. (2003), 242 F.T.R. 175; 2003 FC 1280, refd to. [para. 52].

Druken et al. v. Canada (Attorney General), [1989] 2 F.C. 24; 88 N.R. 150 (F.C.A.), leave to appeal refused [1988] S.C.C.A. No. 433, refd to. [para. 53].

Canada (Attorney General) v. McKenna et al., [1999] 1 F.C. 401; 233 N.R. 52 (F.C.A.), refd to. [para. 55].

Minister of National Revenue v. Craig (2012), 433 N.R. 111; 2012 SCC 43, refd to. [para. 64].

Insurance Corp. of British Columbia v. Heerspink and Director, Human Rights Code, [1982] 2 S.C.R. 145; 43 N.R. 168, refd to. [para. 65].

Craton v. Winnipeg School Division No. 1 and Winnipeg Teachers' Association No. 1 of the Manitoba Teachers' Society, [1985] 2 S.C.R. 150; 61 N.R. 241; 38 Man.R.(2d) 1, refd to. [para. 65].

Action Travail Des Femmes v. Canadian National Railway Co., [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 65].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Montréal (Communauté urbaine) (2004), 319 N.R. 379; 2004 SCC 30, refd to. [para. 65].

Tranchemontagne v. Disability Support Program (Ont.) et al. (2006), 347 N.R. 144; 210 O.A.C. 267; 2006 SCC 14, refd to. [para. 65].

Commissioner of Competition v. Superior Propane Inc. (2003), 300 N.R. 104; 2003 FCA 53, refd to. [para. 74].

Hutterian Brethren of Wilson Colony et al. v. Alberta (2009), 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 81].

Canadian National Railway Co. v. Bhinder and Canadian Human Rights Commission, [1985] 2 S.C.R. 561; 63 N.R. 185, refd to. [para. 84].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 84].

Laslo v. Gordon Band (Council) - see Canadian Human Rights Commission v. Gordon Indian Band Council et al.

Canadian Human Rights Commission v. Gordon Indian Band Council et al. (2000), 257 N.R. 254 (F.C.A.), refd to. [para. 97].

Desjarlais v. Piapot Band No. 75 (1989), 102 N.R. 71 (F.C.A.), refd to. [para. 98].

Shubenacadie Indian Band v. Canadian Human Rights Commission et al., [1998] 2 F.C. 198; 138 F.T.R. 275 (T.D.), refd to. [para. 98].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 100].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 5 [para. 3]; sect. 67 [para. 94].

Indian Act, R.S.C. 1985, c. I-5, sect. 6 [para. 2].

Counsel:

Philippe Dufresne, for the applicant, Canadian Human Rights Commission;

Sean Stynes and Sonia Han, for the respondents, Attorney General of Canada et al.

Solicitors of Record:

Canadian Human Rights Commission, Ottawa, Ontario, for the applicant, Canadian Human Rights Commission;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondents, Attorney General of Canada et al.

This application for judicial review was heard at Vancouver, British Columbia, on August 28, 2014, before McVeigh, J., of the Federal Court, who delivered the following judgment and reasons at Ottawa, Ontario, on March 30, 2015.