Federal Appeal

Human Rights Legislation

Tribunal considered material outside formal record on motion

This was appeal of Federal Court’s decision setting aside decision of human rights tribunal. Respondents brought complaints under Canadian Human Rights Act, alleging that Canada had engaged in prohibited discrimination by under-funding child welfare services for on-reserve First Nations children and denied them services available to other Canadian children. Respondent commission referred complaint to tribunal. Appellant brought preliminary motion alleging that complaint could not succeed. Tribunal held that complaint could not succeed under s. 5(b) of Act and quashed complaint. Federal Court set aside tribunal’s decision. Federal Court found that decision was substantively unreasonable and was procedurally unfair. Appeal dismissed. Federal Court appreciated test for reasonableness and applied it differentially. Federal Court found that tribunal’s interpretation of s. 5(b), which required complainants to point to similarly situated comparator group in order to succeed, was unreasonable. Federal Court did not err in finding that tribunal’s decision was unreasonable. Federal Court found that it was unreasonable for tribunal not to consider s. 5(a) of Act and Federal Court’s analysis was unimpeachable. Complaint referred globally to s. 5 and s. 5(a) was part of complaint. Tribunal considered material outside formal record on motion. Tribunal committed procedural unfairness in circumstances. Parties were entitled to know what tribunal was considering and to have opportunity to address it.

Canada (Human Rights Commission) v. Canada (Attorney General) (Mar. 11, 2013, F.C.A., David Stratas J.A., J.D. Denis Pelletier J.A., and Wyman W. Webb J.A., File No. A-145-12) Decision at 215 A.C.W.S. (3d) 439 was affirmed.  226 A.C.W.S. (3d) 813.

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