Focus On

APPEALS AND JUDICIAL REVIEW - Standard of review - Reasonableness

Thursday, June 14, 2018 @ 1:52 PM  

Lexis Advance® Quicklaw®
Appeal from a judgment of the Federal Court of Appeal affirming a decision of the Canadian Human Rights Tribunal (Tribunal) dismissing complaints based on the Canadian Human Rights Act (CHRA). The complaints alleged that the legislative entitlements to registration under the Indian Act were discriminatory practices prohibited by the Canadian Human Rights Act. In two separate decisions, the Tribunal determined that the complaints were a direct attack on the Indian Act and dismissed the complaints. At issue was, first, whether deference was owed to a human rights tribunal interpreting its home statute and, second, whether the Tribunal’s decisions dismissing the complaints were reasonable. All of the complaints arose from the lingering effects of “enfranchisement”, a discriminatory policy previously enshrined in the Indian Act. Enfranchisement stripped individuals of their Indian Act status and prevented their children from registering as status “Indians”. Parliament put an end to enfranchisement and enacted remedial registration provisions. The complainants challenged the sufficiency of these remedial measures, claiming that they and their children continued to suffer discrimination as a legacy of enfranchisement. The Tribunal determined that the complaints were a direct attack on the Indian Act, concluded that legislation was not a service under the CHRA, and dismissed the complaints. On judicial review, both the Federal Court and the Federal Court of Appeal found that the Tribunal decisions were reasonable and should be upheld.

HELD: Appeal dismissed. There was a well-established presumption that, where an administrative body interpreted its home statute, the reasonableness standard applied. The presumption could be rebutted, and the correctness standard applied where one of the following categories could be established: issues relating to the constitutional division of powers; true questions of vires; issues of competing jurisdiction between tribunals; and questions that were of central importance to the legal system and outside the expertise of the decision maker. In both of its decisions, the Tribunal was called upon to characterize the complaints before it and ascertain whether a discriminatory practice had been made out under the CHRA. This fell squarely within the presumption of deference. The Tribunal was determining whether the complaints concerned a discriminatory practice as defined by the CHRA. To find that the Tribunal was faced with a true question of vires would only risk disinterring the jurisdiction/preliminary question doctrine that was clearly put to rest in Dunsmuir. Plainly, the definition of a service under the CHRA was not a true question of vires. The ability of other federal tribunals to apply the CHRA did not rob the Tribunal of its expertise in its home statute. Regardless of whether the questions before the Tribunal rose to the requisite level of importance, they were clearly within the Tribunal’s expertise. There were no factors present in this appeal that would necessitate a long and detailed contextual analysis to rebut the presumption. As the presumption that reasonableness review applied was not rebutted, the Tribunal’s decisions should be reviewed on a reasonableness standard, as it was at the Federal Court and the Federal Court of Appeal. In both decisions, the Tribunal provided careful and well-considered reasons explaining why the complaints had not established a discriminatory practice under the CHRA. The adjudicators first characterized the complaints as direct attacks on legislation. They then found that, while the CHRA conferred remedial authority to render conflicting legislation inoperable, the Tribunal could not grant a remedy unless a discriminatory practice had first been established. In coming to this conclusion, the adjudicators considered the complainants’ evidence and submissions, the governing jurisprudence, the purpose, nature and scheme of the CHRA, and relevant policy considerations. The decisions met the Dunsmuir standard of intelligibility, transparency and justifiability, and fell within the range of reasonable outcomes.

Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2018] S.C.J. No. 31, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., June 14, 2018. Digest No. TLD-June112018012SCC