Keith v. Correctional Service of Canada, (2012) 431 N.R. 121 (FCA)

• Judge: Blais, C.J., Sharlow and Mainville, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 13, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 431 N.R. 121 (FCA);2012 FCA 117;[2012] SJ No 168 (QL);33 MVR (6th) 129;392 Sask R 262

Keith v. Correctional Service (2012), 431 N.R. 121 (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: [2012] N.R. TBEd. MY.002

Arthur Keith (appellant) v. Correctional Service of Canada (respondent)

Arthur Keith (appellant) v. Canadian Forces (respondent)

(A-249-11; 2012 FCA 117; 2012 CAF 117)

Indexed As: Keith v. Correctional Service of Canada

Federal Court of Appeal

Blais, C.J., Sharlow and Mainville, JJ.A.

April 18, 2012.

Summary:

Dr. Keith was born in 1950 and was educated and trained in the USA as a physician and psychiatrist. A Fellowship in psychiatry in the Royal College of Physicians and Surgeons of Canada (Royal College) was required for certain psychiatric positions with the Correctional Service of Canada (CSC) and the Canadian Forces (CF). Dr. Keith made complaints to the Canadian Human Rights Commission against the CSC and the CF. He alleged that the requirement of being a Fellow of the Royal College amounted to discrimination on the basis of national origin by excluding from the positions psychiatrists with foreign professional credentials. He added age as a ground of discrimination in his complaint against the CSC, alleging that an older candidate was less likely to succeed in the Royal College Fellowship accreditation process. The Commission dismissed the complaint against the CSC pursuant to s. 44(3)(b) of the Canadian Human Rights Act. The Commission found that (a) Fellowship in the Royal College was required in order to carry out the duties of the concerned position, and (b) the Royal College Fellowship hiring standard did not prima facie discriminate on a prohibited ground. In a second decision, the Commission refused to deal with the complaint against the CF pursuant to s. 41(1)(c) of the Act on the basis that the substance of the complaint was against the Royal College over which it lacked jurisdiction. Dr. Keith applied for judicial review of both decisions.

The Federal Court, in a decision reported at (2011), 391 F.T.R. 184, dismissed the applications. Dr. Keith appealed.

The Federal Court of Appeal allowed the appeal in part and returned Dr. Keith's complaint concerning the CF to the Commission for investigation pursuant to s. 43 of the Act, and decision pursuant to s. 44 of the Act. The appeal was otherwise dismissed.

Civil Rights - Topic 989.1

Discrimination - Employment - On basis of nationality, race or ethnic origin - [See Civil Rights - Topic 994 ].

Civil Rights - Topic 994

Discrimination - Employment - Age - General - Dr. Keith was born in 1950 and was educated and trained in the USA as a physician and psychiatrist - A Fellowship in psychiatry in the Royal College of Physicians and Surgeons of Canada (Royal College) was required for a psychiatric position with the Correctional Service of Canada (CSC) - Dr. Keith made a complaint to the Canadian Human Rights Commission against the CSC - He alleged that the requirement of being a Fellow of the Royal College amounted to discrimination on the basis of national origin by excluding from the position psychiatrists with foreign professional credentials - He also added age as a ground of discrimination, alleging that an older candidate was less likely to succeed in the Royal College Fellowship accreditation process - The Commission dismissed the complaint pursuant to s. 44(3)(b) of the Canadian Human Rights Act - The Commission found that (a) Fellowship in the Royal College was required in order to carry out the duties of the concerned position, and (b) the Royal College Fellowship hiring standard did not prima facie discriminate on a prohibited ground - Dr. Keith applied for judicial review - The Federal Court of Appeal upheld the dismissal of the application - The Commission's findings of fact and law were reasonable - The decision dismissing the complaint pursuant to s. 44(3)(b) was reasonable having regard to those findings and taking into account that the decision was a final decision precluding further investigation or inquiry under the Act - See paragraphs 58 to 75.

Civil Rights - Topic 7004

Federal, provincial or territorial legislation - Application of legislation - [See Civil Rights - Topic 7069 ].

Civil Rights - Topic 7069

Federal, provincial or territorial legislation - Commission or boards - Jurisdiction - Complaints - General - At issue was the application of the Canadian Human Rights Act to provincially regulated professional qualifications adopted as hiring standards by a federally regulated employer - The Federal Court of Appeal stated that "Once a federally regulated employer adopts a hiring standard, whether that standard is developed by the employer itself or is based, as is the case here, on an external provincially regulated professional qualification, that hiring standard is subject to scrutiny under the Act. ... This does not mean that the review of the hiring standard by the Commission extends beyond the jurisdictional bounds of the Act, since not all hiring standards are subject to scrutiny under the Act, only those that prima facie discriminate on the basis of one or more of the prohibited grounds. However, there are constitutional limits which must be respected. Thus, if a federally regulated employer adopts membership in a provincially regulated professional organization as a hiring standard for a position, the review under the Act will be focused on determining if such membership is a true requirement for the position or rather a means of excluding candidates on prohibited grounds. The Commission may not however use its investigation powers in order to extend its authority over the certification requirements of the professional association itself, since the regulation of professions and trades falls under provincial jurisdiction" - See paragraphs 54 to 57.

Civil Rights - Topic 7080

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Pre- investigation decision not to deal with complaint - Dr. Keith was educated and trained in the USA as a physician and psychiatrist - A Fellowship in psychiatry in the Royal College of Physicians and Surgeons of Canada (Royal College) was required for psychiatric positions with the Canadian Forces (CF) - Dr. Keith made a complaint to the Canadian Human Rights Commission against the CF - He alleged that the requirement of being a Fellow of the Royal College amounted to discrimination on the basis of national origin by excluding from the position psychiatrists with foreign professional credentials - Pursuant to s. 41(1)(c) of the Canadian Human Rights Act, the Commission refused to deal with the complaint on the basis that, in pith and substance, it concerned the testing procedure and exams of the Royal College, a matter over which the Commission found it had no authority under the Act and that would be better dealt with in a complaint to a provincial human rights commission - Dr. Keith applied for judicial review - The application was dismissed - The Federal Court of Appeal allowed Dr. Keith's appeal on this issue - Once a federal employer adopted as a hiring standard a provincially regulated professional qualification, that hiring standard was subject to scrutiny under the Act - The Commission declined jurisdiction without carrying out an investigation into the complaint against the Canadian Forces - It could not do so - The court returned the complaint against the CF to the Commission for investigation pursuant to s. 43 and decision pursuant to s. 44 of the Act - See paragraphs 76 to 81.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - The Federal Court of Appeal stated that "The decision of the [Canadian Human Rights] Commission to dismiss a complaint under paragraph 44(3)(b) of the [Canadian Human Rights] Act is a final decision made at an early stage, but in such case - contrary to a decision refusing to deal with a complaint under section 41 - the decision is made with the benefit and in the light of an investigation pursuant to section 43. Such a decision should be reviewed on a reasonableness standard, ... reasonableness is a single concept that 'takes it colour' from the particular context. In this case, the nature of the Commission's role and the place of the paragraph 44(3)(b) decision in the process contemplated by the Act are important aspects of that context, and must be taken into account in applying the reasonableness standard. In my view, a reviewing court should defer to the Commission's findings of fact resulting from the section 43 investigation, and to its findings of law falling within its mandate. Should these findings be found to be reasonable, a reviewing court should then consider whether the dismissal of the complaint at an early stage pursuant to paragraph 44(3)(b) of the Act was a reasonable conclusion to draw having regard to these findings and taking into account that the decision to dismiss is a final decision precluding further investigation or inquiry under the Act" - See paragraphs 47 to 48.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - A Fellowship in psychiatry in the Royal College of Physicians and Surgeons of Canada (Royal College) was required for psychiatric positions with the Canadian Forces (CF) - Dr. Keith made a complaint to the Canadian Human Rights Commission against the CF - He alleged that the requirement of being a Fellow of the Royal College amounted to discrimination on the basis of national origin by excluding from the position psychiatrists with foreign professional credentials - Pursuant to s. 41(1)(c) of the Canadian Human Rights Act, the Commission refused to deal with the complaint against the CF on the basis that, in pith and substance, it concerned the testing procedure and exams of the Royal College, a matter over which the Commission found it had no authority under the Act and that would be better dealt with in a complaint to a provincial human rights commission - The Federal Court of Appeal stated that "Questions regarding the division of powers between Parliament and the provinces, as well as other constitutional questions, are necessarily subject to correctness review, as are questions regarding the jurisdictional lines between two or more competing specialized tribunals... The decision of the Commission refusing to deal with the complaint against the Canadian Forces falls within these parameters and must therefore be reviewed on a standard of correctness" - See paragraphs 50 to 53.

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 41].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 42].

Prairie Acid Rain Coalition et al. v. Canada (Minister of Fisheries and Oceans) et al., [2006] 3 F.C.R. 610; 345 N.R. 374; 2006 FCA 31, refd to. [para. 41].

Yu v. Canada (Attorney General) (2011), 414 N.R. 283; 2011 FCA 42, refd to. [para. 41].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al. (2012), 428 N.R. 107; 2012 SCC 10, refd to. [para. 43].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 43].

Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 43].

Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al., [1999] 1 F.C. 113; 233 N.R. 87 (F.C.A.), refd to. [para. 44].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 47].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 49].

Canada Post Corp. v. Canadian Human Rights Commission et al. (1997), 130 F.T.R. 241 (T.D.), affd. (1999), 245 N.R. 397 (F.C.A.), refd to. [para. 50].

Michon-Hamelin v. Canada (Attorney General), [2007] F.T.R. Uned. 869; 2007 FC 1258, refd to. [para. 50].

Hicks v. Canada (Attorney General) (2008), 334 F.T.R. 260; 2008 FC 1059, refd to. [para. 50].

Canada (Attorney General) v. Maracle et al. (2012), 404 F.T.R. 173; 2012 FC 105, refd to. [para. 50].

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

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

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. 53].

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. 59].

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. 59].

Slattery v. Canadian Human Rights Commission, [1994] 2 F.C. 574; 73 F.T.R. 161 (T.D.), refd to. [para. 74].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 43, sect. 44 [para. 22].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007), vol. 1, sec. 21.7 [para. 56].

Counsel:

David Baker and Meryl Zisman Gary, for the appellant;

Victoria Yankou, for the respondents.

Solicitors of Record:

Bakerlaw, Toronto, Ontario, for the appellant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This appeal was heard on March 13, 2012, at Toronto, Ontario, before Blais, C.J., Sharlow and Mainville, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Mainville, J.A., on April 18, 2012.