Date: 19980210
Docket: A-461-96
(T-1022-95)
CORAM: MARCEAU J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
(Intervenor)
- and -
ATTORNEY GENERAL OF CANADA
Respondent
(Applicant)
Heard at Ottawa, Ontario, on Tuesday, February 10, 1998.
Judgment delivered from the Bench on Tuesday, February 10, 1998.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
Date: 19980210
Docket: A-461-96
(T-1022-95)
CORAM: MARCEAU J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
(Intervenor)
- and -
ATTORNEY GENERAL OF CANADA
Respondent
(Applicant)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario,
on Tuesday, February 10, 1998)
MARCEAU J.A.
[1] We are all of the view that the learned motions judge in the Trial Division could not but allow the Attorney General's application for judicial review and make the order presently under appeal. There is no doubt, in our view, that Madame Justice McGillis was right in finding that the Canadian Human Rights Commission had no jurisdiction to consider, inquire into and refer to a tribunal for adjudication the six complaints directed against the Department of Transport.
[2] These complaints were made by individuals who had been refused employment as brakemen/yardmen or trainmen by C.N.R. Company or C.P. Limited by reason of their inability to meet the visual acuity standards established by the Railway Vision and Hearing Examination Regulations,1 known as General Order No. O-9. They combined their complaints against the railway companies based on sections 7 and 10 of the Canadian Human Rights Act,2 with six similar complaints directed against the Department. Their allegations on these six separate complaints were that the Department had indirectly refused to employ them as prohibited by section 7 of the Act or had pursued a discriminatory employment policy or practice against them, within the meaning of section 10 of the Act.
[3] The appeal is basically founded on the contention that the motions judge was wrong in interpreting sections 7 and 10 of the Act as limited to relations between actual and possible employer and actual or possible employee, thereby giving full effect to the fact that the Department was obviously not the employer or possible employer of any of these individuals. Indeed, it is argued, section 7 in particular speaks not only of direct but of indirect action, and this Court has had occasion to implement that statutory extension in two cases, that of Fontaine3 and Rosin.4 It is agreed that those cases only stand for the proposition that not only the legal employer but also the "utilizer" of the services of the employee could be involved and that the Department here is in no way an actual or eventual "utilizer" of the complainants' services. But it is contended that the notion should be further extended, in support of which are invoked: a) the role of the Department in the adoption and implementation of the Regulations, the source of the discrimination; b) the quasi-constitutional status that is accorded to the human rights legislation requiring that its provisions be interpreted purposively; c) the frequency today of situations where contracts of employment do not involve strictly employers and employees; and, finally, d) the importance of assuring a remedy which will, as clearly desired by Parliament, go to the root of the discrimination and eradicate it.
[4] It would be useless to analyze each of these considerations so as to avoid unduly extending their proper scope and effect. Indeed, however compelling they may appear when well presented as they were today, we simply do not believe that, on the basis thereof, it was open to the Commission and now the Courts to redraft the Canadian Human Rights Act. As they now stand, neither section 7 nor section 10 of the Act could withstand an interpretation that would stretch their meaning enough to encompass the Department which is not ultimately responsible for the existence of the Regulations and is not entitled to determine their legal effect. Needless to say, a Government department cannot be held accountable to the Commission for a questionable provision of a Regulation simply because it has been given by Parliament the responsibility of administering the Act on the authority of which the Regulation was validly enacted by the Governor in Council.
[5] It may be that it would be quite proper to question the validity of these Regulations on the basis of human rights principles and ideals, but apart from the means of direct influence suggesting amendments under subsection 27(1)(g)5 of the Act, only a court of law could be asked to declare them unconstitutional.
[6] We must, therefore, dismiss the appeal.
"Louis Marceau"
J.A.
FEDERAL COURT OF APPEAL
Date: 19980210
Docket: A-461-96
(T-1022-95)
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
(Intervenor)
- and -
ATTORNEY GENERAL OF CANADA
Respondent
(Applicant)
REASONS FOR JUDGMENT
OF THE COURT
__________________
1 C.R.C. 1978, c. 1173.
2 These sections read as follows:
7. It is a discriminatory practice, directly or indirectly, ( a) to refuse to employ or continue to employ any individual, or ( b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer, employee organization or organization of employers ( a) to establish or pursue a policy or practice, or ( b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
3 Canadian Pacific Ltd. v. Canada (Human Rights Commission) and Fontaine (1992), 16 C.H.R.R. D/470 (F.C.A.).
4 Canada (Attorney General) v. Rosin (1990), 16 C.H.R.R. D/441 (F.C.A.).
5 Which reads:
27. (1) In addition to its duties under Part III with respect to complaints regarding discriminatory practices, the Commission is generally responsible for the administration of this Part and Parts I and III and [...] ( g) may review any regulations, rules, orders, by-laws and other instruments made pursuant to an Act of Parliament and, where deemed by the Commission to be appropriate, include in a report referred to in section 61 reference to and comment on any provision thereof that in its opinion is inconsistent with the principle described in section 2; [...]