Canadian Human Rights Commission v Canada

Background

There were two sets of complaints before the tribunal.

The Matson complaints

The first set of complaints was made by three siblings who are each registered as “Indians” under s. 6(2) of the Indian Act, married to an individual who is neither registered nor entitled to be registered under the Indian Act, and have two children. The mother of these complainants had made unsuccessful applications for their registration under the Indian Act in 1986 and 1994 that were refused, and the complainants had each made applications for registration on their own behalf in 2000 and 2008 that were refused. They filed their complaints with the tribunal in 2008.

In April 2009, the British Columbia Court of Appeal declared ss. 6(1)(a) and (6)(1)(c) of the Indian Act to be of no force or effect pursuant to s. 15 of the Charter in the McIvor decision. This led to an amendment of the Indian Act that allowed the complainants to be registered under s. 6(2) of the Act.

Between 2010 and 2012, the complainants applied for registration for their children and these applications were refused based on the “second generation cut-off rule” that denies status to individuals with one non-Indian parent and one parent with '6(2) status'. As a result, the complainants amended their complaints to instead address the denial of the opportunity to pass status under the Indian Act to their children with one non-Indian parent.

The complainants also filed a Notice of Constitutional Question (NCQ) with the tribunal that challenged the constitutional validity of s. 6 of the Indian Act. However, Canada successfully brought a motion to strike out the NCQ, convincing the tribunal that the constitutional question was not linked to determining whether a discriminatory practice had occurred under the federal Canadian Human Rights Act (CHRA).

In 2013, the tribunal dismissed the complaints on the basis that the complainants were seeking to challenge s. 6 of the Indian Act and nothing else, which a 2012 decision of the Federal Court of Appeal had found not to be permitted under the CHRA in an unrelated matter (the Murphy decision). The tribunal also held that s. 6 of the Act does not constitute a service customarily available to the general public within the meaning of s. 5 of the CHRA. The tribunal noted that it would be more appropriate for the complainants to bring a constitutional challenge in the courts to accomplish their purpose.

The Andrews complaints

The second set of complaints was made by a man who received status under s. 6(2) of the Indian Act after applying for registration in 2004 and whose daughter’s application was consequently rejected based on her non-Indian mother’s lack of entitlement to be registered. His first complaint was levelled against Canada’s application of the “second generation cut-off rule” to his daughter, which he alleged was a discriminatory practice within the meaning of s. 5 of the CHRA. He also filed a second complaint relating to his own registration being granted under s. 6(2) rather than s. 6(1) of the Act.

The tribunal rejected these complaints for the same reasons it rejected the Matson complaints, concluding that the complaints were solely a challenge to legislation, which could only be accomplished through a constitutional challenge before the courts. 

Court’s decision

The Court held that the tribunal’s decision ought to be reviewed on a standard of reasonableness. The Court then went on to review several precedents as to whether the government’s application of a statute can constitute a service within the meaning of s. 5 of the CHRA, including the Murphy decision relied on by Canada.

The Court found that the legislative criteria set by Parliament to determine who can be registered as an Indian under the Indian Act did not constitute a service as envisioned by s. 5 of the CHRA. While processing applications for registration under the Act might constitute a service, this could not extend to the legislated criteria that these applications need to meet. In the Court’s view, “[a] challenge to the way in which that formula is applied is a challenge to the law itself”. When Canada applies the mandatory eligibility provisions in the Indian Act it is enforcing the law even if the statute provides a benefit, and it is the law that denies access to that benefit, not the government agency.

The Court held that the Murphy decision supported the tribunal’s conclusions and the case was analogous to the matter at issue in this application. It was therefore reasonable for the tribunal to rely on this decision in dismissing the complaints.

The Court also rejected an argument that the tribunal ought to have declined to follow the Murphy decision on the basis that it was inconsistent with Supreme Court of Canada jurisprudence concerning the “quasi-constitutional nature of human rights law”. The Human Rights Commission, acting on behalf of the complainants, had also argued that even if the Court concluded that Murphy was binding it could “…outline any problematic aspects of the decision in its reasons for judgment” so that the Federal Court of Appeal would have the benefit of the Court’s reasoned opinion in the event of a subsequent appeal.

The Court noted that the very same counsel appearing in this matter on behalf of the Commission had unsuccessfully made the same arguments previously in context to an application for leave to appeal the Murphy decision to the Supreme Court of Canada. As the Supreme Court did not grant leave in that matter, the Court held that Murphycontinued to be binding on both the Federal Court and the tribunal. The Court also noted that none of the Supreme Court of Canada decisions relied on by the Commission considered whether the application of a mandatory legislative provision constituted a service under s. 5 of the CHRA; instead, these cases involved conflicts between human rights legislation and provisions of other statutes that allowed the conflicting provisions to be declared inoperable pursuant to the CHRA.

The Court held that it was bound to follow the Murphy decision on the basis of stare decisis, but conceded that it could write reasons why the decision was problematic if it chose to do so. However, the Court was not of the view that the Murphy decision was wrongly decided and therefore declined the Commission’s request that it outline problematic aspects of the decision.

The Court also rejected an argument that the tribunal had improperly limited the application of the principle that human rights legislation has primacy over other statutes due to its quasi-constitutional status. The Court found that the tribunal’s decision did not dispute the primacy of human rights legislation. Instead, the tribunal simply found that it did not have jurisdiction to consider legislation as a service under s. 5 of the CHRA. The Court found no error in this conclusion.

Finally, the Commission argued that the tribunal had failed to take a contextual approach to the interpretation of the former s. 67 of the CHRA, which prevented the CHRA from being applied to the Indian Act up until it was repealed in June 2008. The Commission argued that s. 67 had been created in order to shield the Indian Act’s registration provisions from the application of the CHRA and if the Act could not be challenged by the CHRA in any event then the repeal of s. 67 would be rendered legally meaningless. This argument was rejected based on the fact that prior to its repeal, s. 67 of the CHRA had immunized challenges to a host of decisions made under the Indian Act, including decisions of an Indian band council in relation to the allocation of housing, for example, and its repeal was therefore not meaningless if the tribunal's decision remained undisturbed by the Court.

While the Commission was able to point to evidence of legislative history in support of its position that s. 67 was intended to protect the registration provisions of the Indian Act, the Court still found the tribunal’s decision that the application of the registration criteria did not constitute a service under s. 5 of the CHRA to be reasonable. The Court also noted that s. 67 of the CHRA was implemented prior to the existence of the Canadian Charter of Rights and Freedoms and the CHRA would have been the only conceivable means of challenging the Indian Act’s registration provisions as discriminatory at that time. The Court found that the jurisprudence since then had made it clear that the Charter provides a more appropriate means by which to bring such a challenge.