Canadian Human Rights Commission v. Canada (Attorney General) et al., (2013) 444 N.R. 120 (FCA)

• Judge: Pelletier, Stratas and Webb, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 06, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 444 N.R. 120 (FCA);2013 FCA 75

CHRC v. Can. (A.G.) (2013), 444 N.R. 120 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2013] N.R. TBEd. MR.019

The Attorney General of Canada (appellant) v. Canadian Human Rights Commission, First Nations Child and Family Caring Society, Assembly of First Nations, Chiefs of Ontario, Amnesty International (respondents) and Canadian Civil Liberties Association (intervener)

(A-145-12; 2013 FCA 75; 2013 CAF 75)

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

Federal Court of Appeal

Pelletier, Stratas and Webb, JJ.A.

March 11, 2013.

Summary:

A human rights complaint alleged 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 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, in a decision reported 411 F.T.R. 14, 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. The Attorney General of Canada appealed.

The Federal Court of Appeal dismissed the appeal.

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 every case in order to establish discrimination - Judicial review proceedings ensued - The Federal Court held that the standard of review of the Tribunal's interpretation was reasonableness and that the Tribunal's interpretation of s. 5(b) as requiring a comparator group in every case was unreasonable - The Attorney General of Canada appealed - The Federal Court of Appeal dismissed the appeal - The Federal Court applied the correct standard of review - The court was not persuaded that the Federal Court erred in its conclusion that the Tribunal's decision was unreasonable - See paragraphs 1 to 19.

Civil Rights - Topic 963

Discrimination - Facilities and services customarily available to public - Comparator groups - 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, because there was no comparator group (Canadian Human Rights Act (CHRA), s. 5(b)) - Judicial review proceedings ensued - The Federal Court held that the Tribunal erred in failing to consider the complaint under s. 5(a) of the CHRA (which did not require a comparator group) - The Attorney General of Canada appealed - The Federal Court of Appeal dismissed the appeal, holding that the Federal Court's analysis on this issue was unimpeachable - The complaint referred globally to s. 5 - See paragraph 20.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See first Civil Rights - Topic 963 ].

Cases Noticed:

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; 2011 SCC 61, refd to. [para. 10].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 10].

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. 12].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 13].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 13].

Abraham et al. v. Canada (Attorney General) (2012), 440 N.R. 201; 2012 FCA 266, refd to. [para. 13].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 15].

British Columbia (Workers' Compensation Board) v. Figliola - see Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.).

Alberta (Minister of Education) et al. v. Canadian Copyright Licensing Agency et al., [2012] 2 S.C.R. 345; 432 N.R. 134; 2012 SCC 37, refd to. [para. 15].

Canada (Attorney General) v. Canadian Human Rights Commission et al. (2005), 334 N.R. 316; 2005 FCA 154, refd to. [para. 16].

Morris v. Canada (Canadian Armed Forces) - see Canada (Attorney General) v. Canadian Human Rights Commission et al.

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. 16].

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. 16].

British Columbia (Minister of Education) v. Moore et al. (2012), 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1; 2012 SCC 61, refd to. [para. 18].

A. v. B. (2013), 439 N.R. 1; 2013 SCC 5, refd to. [para. 18].

Quebec (Attorney General) v. A. - see A. v. B.

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 SCC 83, refd to. [para. 18].

Nova Scotia (Attorney General) v. Walsh - see Walsh v. Bona.

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 19].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 19].

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. 26].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 26].

MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) et al., [2010] 1 S.C.R. 6; 397 N.R. 232; 2010 SCC 2, refd to. [para. 26].

Dennis v. Adams Lake Indian Band (2011), 419 N.R. 385; 2011 FCA 37, refd to. [para. 26].

Community Panel of the Adams Lake Indian Band v. Adams Lake Band - see Dennis v. Adams Lake Indian Band.

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 5(a), sect. 5(b) [para. 5].

Counsel:

Jonathan D.N. Tarlton and Melissa Chan, for the appellant, Attorney General of Canada;

Philippe Dufresne, Daniel Poulin and Samar Musallam, for the respondent, Canadian Human Rights Commission;

Nicholas McHaffie and Sarah Clarke, for the respondent, First Nations Child and Family Caring Society;

David C. Nahwegahbow and Stuart Wuttke, for the respondent, Assembly of First Nations;

Michael W. Sherry, for the respondent, Chiefs of Ontario;

Justin Safayeni, for the respondent, Amnesty International;

Christopher A. Wayland and Steven Tanner, for the intervener, Canadian Civil Liberties Association.

Solicitors of Record:

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

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

Stikeman Elliott LLP, Ottawa, Ontario, for the respondent, First Nations Child and Family Caring Society;

Nahwegahbow, Corbiere, Rama, Ontario, for the respondent, Assembly of First Nations;

Michael W. Sherry, Mississauga, Ontario, for the respondent, Chiefs of Ontario;

Stockwoods LLP, Toronto, Ontario, for the respondent, Amnesty International;

McCarthy Tétrault LLP, Toronto, Ontario, for the intervener, Canadian Civil Liberties Association.

This appeal was heard on March 6, 2013, at Ottawa, Ontario, before Pelletier, Stratas and Webb, JJ.A., of the Federal Court of Appeal. The decision of the court was delivered by Stratas, J.A., on March 11, 2013.