Supreme Court


Human Rights

Practice and procedure

Judicial review

Where presumption of resonablenes applied, contextual appraoch should be applied sparingly

All complaints arose from lingering effects of enfranchisement, which was discriminatory and damaging policy previously enshrined in Indian Act. Complainants filed human rights complaints, alleging that their inability under provisions in Indian Act to register their children as “Indians” constituted discrimination in provision of services customarily available to general public on grounds of race, ethnicity, sex or family status. Canadian Human Rights Tribunal determined that complaints were direct challenge to provisions such that they did not allege discriminatory practice under s. 5 of Canadian Human Rights Act (CHRA), as adoption of legislation was not service customarily available to general public. Tribunal ruled that challenge to provisions in Indian Act could only be brought under s. 15 of Canadian Charter of Rights and Freedoms in court. On judicial review, both Federal Court and Federal Court of Appeal found that tribunal decisions were reasonable and should be upheld. Canadian Human Rights Commission appealed. Appeal dismissed. Standard of reasonableness applied. In applying standard of review analysis, there was no principled difference between human rights tribunal and any other decision maker interpreting its home statute. When applied to statutory interpretation exercise, reasonableness review recognized that delegated decision maker was better situated to understand policy concerns and context needed to resolve any ambiguities in statute. Where presumption of reasonableness applied, contextual approach should be applied sparingly in order to avoid uncertainty and endless litigation concerning standard of review analysis.

Canada (Human Rights Commission) v. Canada (Attorney General) (2018), 2018 CarswellNat 2838, 2018 CarswellNat 2839, 2018 SCC 31, 2018 CSC 31, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellNat 3213, 2016 CarswellNat 9942, 2016 FCA 200, 2016 CAF 200, J.D. Denis Pelletier J.A., Yves de Montigny J.A., and Mary J.L. Gleason J.A. (F.C.A.).

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