Between:
Jeremy Eugene
Matson, Mardy Eugene Matson
and Melody Katrina Schneider (nee Matson)
Complainants
(Respondents on Motion)
- and -
Canadian Human Rights Commission
Commission
(Respondents on Motion)
- and -
Indian and
Northern Affairs Canada
(now Aboriginal Affairs and Northern Development Canada)
Respondent
(Moving Party)
Ruling
Member: Edward P. Lustig
Date: September 6, 2012
Citation: 2012 CHRT 19
I. Motion
[1] This is a Ruling on the Motion of the Respondent dated July 30, 2012 for an Order striking out the whole of the Complainants’ Notice of Constitutional Question (“NCQ”) dated January 19, 2012.
[2] The Complainants’ NCQ seeks to challenge the constitutional validity of section 6 of the Indian Act, R.S.C., 1985, c. I-5, under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the Charter]. The basis of the Charter challenge is that section 6 of the Indian Act is “…in contravention of (a) Sections 2 & 3 of the Canadian Human Rights Act; and (b) Sections 1, 15(1) of the Charter of Rights and Freedoms, and should be struck down and declared to be of no force and effect.” Section 6 of the Indian Act deals with the registration of persons as Indians under the Indian Act.
II. Background
[3] The Complainants are siblings who are the grandchildren of an Indian woman who married a non-Indian man prior to 1985. The Complainants filed virtually identical complaints under the Canadian Human Rights Act, R.S.C., 1985, c. H-6 [the CHRA] that allege that the registration provisions in section 6 of the Indian Act discriminate against them based on sex and/or family status in that it does not entitle their children to registration, in contrast to their hypothetical counterparts descended from an Indian grandfather who married a non-Indian woman.
[4] The Respondent’s Notice of Motion which includes its Written Submissions says that the Canadian Human Rights Tribunal (the “CHRT’) does not have jurisdiction to entertain a Charter challenge to the Indian Act and the NCQ ought to be struck.
[5] The Canadian Human Rights Commission’s (the “Commission”) Written Submissions dated August 9, 2012 say that the Commission agrees with the Respondent that the CHRT should decline to consider the Charter issues raised by the NCQ in this proceeding.
[6] The Complainants’ Written Submissions dated August 9, 2012 say that the CHRT has the jurisdiction to hear and determine its NCQ.
[7] The Respondent’s Reply Submissions dated August 23, 2012 say that the Complainants’ Submissions are without merit.
III. Relevant Statutory Provisions
[8] The relevant statutory provisions in this motion are as follows:
From the Charter:
15. (1) Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
From the CHRA:
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, color, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
39. For the purposes of this Part, a “discriminatory practice” means any practice that is a discriminatory practice within the meaning of Sections 5 to 14.1.
40. (1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.
49. (1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted.
50. (2) In the course of hearing and determining any matter under inquiry, the member or panel may decide all questions of law or fact necessary to determining the matter.
53. (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice…
67. Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act. [Repealed, 2008, c. 30, s. 1]
From the CHRT Rules of Procedure (03-05-04)
9. (7) Where a party intends to challenge the constitutional validity, applicability or operability of a statute or regulation before the Panel, it shall serve notice in accordance with Section 57 of the Federal Court Act and Form 69 of the Federal Court Rules, 1998.
From the Federal Courts Act, R.S.C., 1985, c. F-7
57. (1) If the constitutional validity, applicability or operability of an Act of Parliament ... or of a regulation made under such an Act, is in question before ... a federal board, commission or other tribunal..., the Act or regulation shall not be judged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).
IV. The Parties’ Submissions
[9] The Respondent’s Submissions can be summarized as follows:
i) The CHRT is empowered by virtue of Section 50(2) of the CHRA to decide questions of law, constitutional or otherwise, necessary to determining whether there are reasonable grounds for believing that a particular practice constitutes a “discriminatory practice” within the meaning of sections 5-14.1 of the CHRA. There is no jurisdiction to consider questions of law that are unnecessary to the performance of this task, such as whether section 6 of the Indian Act violates section 15 of the Charter; and, if so, whether it is saved by section 1 of the Charter; and
ii) The jurisdiction to determine questions of law encompasses any constitutional question that arises in the course of the CHRT fulfilling its statutory mandate. As noted by the Supreme Court of Canada in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at para. 34, “the question becomes whether the tribunal’s mandate includes jurisdiction to rule on the constitutionality of the challenged provision.” The jurisdiction provided in Section 50(2) of the CHRA does not include a challenge to Section 6 of the Indian Act under Section 15 of the Charter as set out in the NCQ; and
iii) The fact that section 15 of the Charter also protects against discrimination does not give the CHRT free-standing jurisdiction to entertain constitutional discrimination challenges to any legislation, any more than the CHRT is empowered to determine whether a particular statute violates sections 2 or 7-12 of the Charter. The CHRT can perform its statutorily mandated role of determining whether the impugned provisions constitute a “discriminatory practice” under the CHRA without reference to the Charter. As a result, the Charter question is beyond the scope of the CHRT’s mandate as set out in the CHRA. Accordingly, the NCQ should be struck as in Neubauer v. British Columbia (Ministry of Human Resources), 2004 BCHRT 34 and Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482; and
iv) The repeal of section 67 of the CHRA is unrelated to the issue in this motion. Section 67 has no effect on Charter - based equality rights raised in court proceedings. Charter - based equality rights claims could be brought before the repeal of section 67 and can still be brought after the repeal of section 67. However, the repeal of section 67 did not authorize the CHRT to decide those cases.
[10] The Commission’s Submissions can be summarized as follows:
i) Section 50(2) of the CHRA says that in the course of inquiring into a complaint, the CHRT has the power to decide questions of law, including constitutional questions that are necessary to determining the matter under inquiry. In the present case, the CHRT can examine the alleged violations of the CHRA without having to decide the Charter issues that the Complainants raise in their NCQ. In other words, tracking the language of Section 50(2) of the CHRA, it is not necessary to resolve the proposed Charter issues in order to determine the matter under inquiry. As a result, the CHRT should decline to consider the proposed Charter issues; and
ii) The ultimate matter under inquiry in a CHRT proceeding must always be whether a respondent has engaged in a discriminatory practice, as defined in the CHRA. The CHRT does not have jurisdiction to conduct stand-alone inquiries into whether a legislative provision does or does not infringe the Charter; and
iii) Even where a tribunal finds a Charter infringement, it does not have the power to issue a general declaration of invalidity. As a result, the CHRT lacks the authority to grant the Charter remedy that the Complainants seek, namely a declaration that Section 6 of the Indian Act is struck down and of no force or effect.
[11] The Complainants’ Submissions can be summarized as follows:
i) The CHRT has the jurisdiction to hear the NCQ of section 6 of the Indian Act and there is nothing in the CHRA that narrows or restricts its authority to do so; and
ii) Section 50(2) of the CHRA provides the CHRT with the jurisdiction to decide all questions of law, without restriction, including constitutional matters so long as the proper NCQ has been given; and
iii) The repeal of section 67 of the CHRA was intended to expose the Indian Act and its provisions to the scrutiny of the CHRA, without restriction, including whether provisions of the Indian Act violate the constitution and Charter as well as the CHRA.
V. Analysis
[12] Administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them (R. v. Conway, 2010 SCC 22 at para. 78 [Conway]). If an administrative tribunal has jurisdiction to decide questions of law, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme (see Conway at paras. 81-82).
[13] Section 50(2) of the CHRA provides the CHRT with the power to decide all questions of law “necessary to determining the matter”. As indicated in sections 2, 39, 40(1), and 49(1) of the CHRA, the matter the CHRT has to determine in any given case is whether a discriminatory practice has occurred within the meaning of sections 5 to 14.1 of the CHRA. The Complainants’ NCQ attempts to adjudicate the same facts alleged to be in contravention of the CHRA under the Charter. In this regard, the constitutional question raised by the Complainants is not linked to determining whether a discriminatory practice has occurred within the meaning of the CHRA. It is a separate question of law altogether, unrelated to the CHRT’s statutory mandate in this case.
[14] The fact that the CHRT’s Rules of Procedure asks parties to serve a notice of constitutional question in accordance with section 57 of the Federal Courts Act does not alter the constitutional jurisdiction granted to the CHRT under the CHRA. Nor does the repeal of section 67 of the CHRA grant the CHRT jurisdiction to entertain stand-alone Charter challenges to the Indian Act unrelated to determining whether a discriminatory practice has occurred within the meaning of the CHRA.
[15] The Complainants’ NCQ also asks the CHRT to strike down and declare section 6 of the Indian Act to be of no force or effect. As indicated in section 53(2) of the CHRA, the CHRT’s remedial jurisdiction is linked to a finding that a discriminatory practice has occurred within the meaning of the CHRA and any order made to remedy the discriminatory practice is made “…against the person found to be engaging or to have engaged in the discriminatory practice” (see sections 53(2)(a)-(e), 53(3), 54, and 54.1 of the CHRA). There is no indication in the CHRA, or otherwise, that the CHRT has the power to strike down legislation or make general declarations of constitutional invalidity.
[16] Having carefully reviewed and considered the Parties’ submissions and the authorities in this matter, I agree with the Respondent and the Commission that the Respondent’s motion to strike out the whole of the Complainants’ NCQ should be allowed. In the circumstances of this case, the CHRT does not have the constitutional jurisdiction to entertain the Complainants’ NCQ.
VI. Ruling
[17] On the basis of the reasons above, the Respondent’s motion is allowed and I hereby order the whole of the Complainants’ NCQ to be struck out.
Signed by
Edward P. Lustig
Tribunal Member
Ottawa, Ontario
September 6, 2012
Canadian Human Rights Tribunal
Parties of Record
Tribunal File: T1444/7009
Style of Cause: Jeremy Eugene Matson, Mardy Eugene Matson and Melody Katrina Schneider (nee Matson) v. Indian and Northern Affairs Canada
Ruling of the Tribunal Dated: September 6, 2012
Appearances:
Jeremy Matson, for the Complainants
Brian Smith, for the Canadian Human Rights Commission
Sean Stynes, Michelle Casavant, for the Respondent