Human Rights, the Charter, and Access to Justice

By: Jennifer Koshan

PDF Version: Human Rights, the Charter, and Access to Justice

Case Commented On: Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII)

This summer, the Federal Court of Appeal upheld the ruling of the Canadian Human Rights Tribunal (CHRT) that if a claimant wishes to challenge discriminatory federal legislation, they must do so via a Charter claim rather than a human rights complaint. This post will analyze the Court’s decision, compare it to the approach taken in Alberta in cases such as Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685 (CanLII); aff’d 2004 ABCA 210 (CanLII), and raise some concerns about the implications of the federal approach for access to justice. I will not analyze the Court’s reasons on standard of review, but it is interesting to note that following a survey of Canadian courts of appeal, the Federal Court of Appeal refers to the “sorry state of the case law and its lack of guidance on when decisions of human rights tribunals interpreting provisions in human rights legislation will be afforded deference” (Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII) at para 78). The Supreme Court has an opportunity to clarify the standard of review issue in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225, leave granted 2016 CanLII 13730 (SCC), which we have blogged on here and here and which will be heard by the Court in December. In addition, this month the Canadian Human Rights Commission filed an application for leave to appeal the Federal Court of Canada decision that is the subject of this post.


The CHRT’s ruling was made in two cases that are summarized at paragraph 4 of the Federal Court of Appeal decision:

In two very thoughtful and thorough decisions, reported as 2013 CHRT 13 (CanLII) [Matson] and 2013 CHRT 21 (CanLII) [Andrews], the Tribunal determined that the complaints in the present case were direct challenges to provisions in the Indian Act and that, as such, did not allege a discriminatory practice under section 5 of the CHRA because the adoption of legislation is not a service “customarily available to the general public” within the meaning of section 5 of the CHRA. While sensitive to the merits of the complainants’ claims, the Tribunal ruled that the challenge to the impugned provisions in the Indian Act may only be brought under section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c. 11 … and therefore needs to be made to a court of law. In so deciding, the Tribunal relied on the decision in Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7 (CanLII), 428 N.R. 240 [Murphy], where this Court held that the adoption of legislation is not a service customarily available to the general public within the meaning of section 5 of the CHRA. In result, the Tribunal dismissed the complaints.

The Canadian Human Rights Commission sought judicial review of these decisions at the Federal Court, supporting the Matson and Andrews complainants’ position that the CHRT did have jurisdiction to hear their challenges to the registration provisions of the Indian Act, RSC 1985, c I-5 under the Canadian Human Rights Act, RSC 1985, c H-6 (CHRA). The Federal Court dismissed the Commission’s applications in Canada (Human Rights Commission) v. Canada (Attorney General), 2015 FC 398 (CanLII), holding that the CHRT’s decisions should be reviewed on the standard of reasonableness and that its decisions were reasonable.

The underlying issue in both the Matson and Andrews complaints involved an allegation of ongoing discrimination in the Indian Act concerning entitlement to registration or “Indian status” (the Federal Court of Appeal notes (at para 9) that “many indigenous people find this terminology offensive”, but uses it because of the language of the legislation, as will I).

Prior to 1985, the Indian Act determined status on a patrilineal basis, such that Indian men who married non-Indian women were able to pass their status on to their wives and children, whereas Indian women who married non-Indian men lost their status, as did their children. These provisions were unsuccessfully challenged under the Canadian Bill of Rights in Attorney General of Canada v. Lavell, [1974] SCR 1349, 1973 CanLII 175, but were revised in 1985 via Bill C-31 once the equality provisions in the Charter came into effect (see also Lovelace v Canada, Communication No R.6/24, UN Doc Supp No 40 (A/36/40) at 166 (1981), a decision of the UN Human Rights Committee finding that the provisions violated  article 27 of the International Covenant on Civil and Political Rights, the right of ethnic minorities to enjoy their own culture in community with other members of their group).

Bill C-31 made some attempt at removing the overt discrimination in the status provisions of the Indian Act, but maintained a “second generation cut-off rule” in section 6 of the Indian Act, described as follows by the Federal Court of Appeal (at para 15):

[T]hese provisions contemplate that individuals born of only one parent with Indian status are considered to be second generation and are granted status under subsection 6(2). If they have children with a person without status, they cannot transmit Indian status to their children. Conversely, people born of two parents with Indian status are generally speaking considered to be first generation and are granted status under subsection 6(1) of the Indian Act. They can transmit Indian status to their children, irrespective of whether the other parent possesses Indian status.

The second generation cut-off rule was found to violate section 15 of the Charter in McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 (CanLII). The federal government responded with the Gender Equity in Indian Registration Act, SC 2010, c 18 [the GEIRA], which adds section 6(1)(c.1) to the Indian Act, providing an entitlement to registration under section 6(2) for those individuals whose grandmothers lost status by marrying non-Indians before April 17, 1985. However, the McIvor decision and the GEIRA that followed it did not completely eliminate the problem of differential entitlement to status under the Indian Act. Sharon McIvor unsuccessfully sought leave to appeal the BC Court of Appeal decision to the Supreme Court (see 2009 CanLII 61383 (SCC)), and she currently has a communication (complaint) pending with the UN Human Rights Committee (see here). In May 2016, Canada asked the UNHRC to suspend consideration of McIvor’s communication to allow the government to implement a response to another constitutional challenge to the status provisions of the Indian Act in Descheneaux c. Canada (Procureur Général), 2015 QCCS 3555 (CanLII). The government’s request – which does not yet appear to have been ruled on by the UNHRC, but to which McIvor objects – states that “Canada is now exploring various opportunities and approaches for engagement with First Nations and other Indigenous groups on necessary legislative changes in response to the Descheneaux decision.”

Another case currently before the courts that challenges the Indian Act’s status policy is Gehl v Attorney-General of Canada, 2015 ONSC 3481 (CanLII). The Ontario Court of Appeal has granted leave to intervene to the Women’s Legal Education and Action Fund (LEAF) to argue that the Proof of Paternity Policy – which assumes that if a father is not listed on a birth certificate, he is non-Indian – is discriminatory. LEAF argues that “there are many reasons why an Indigenous woman would not register her child’s biological father”, including lack of funds, denial of paternity by the father, or sexual violence such as incest and rape.

It is in this complicated context that the Matson and Andrews complaints were made under the CHRA. The Matson complaint concerns three siblings who became eligible for status under section 6(2) of the Indian Act following McIvor and the enactment of the GEIRA, but whose children are ineligible because the complainants married individuals who are not eligible for Indian status. The Andrews complaint involves a man entitled to status under section 6(2) who cannot pass status on to his children; he was born after his father was “enfranchised” (i.e. lost status under the Indian Act), whereas his sister, who was born before their father was enfranchised, is eligible for registration under section 6(1)(d) of the Indian Act and can pass status on to her children.

The issue for the Federal Court of Appeal was whether these complaints fell within the scope of section 5 of the CHRA, which provides that:

5 It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public

(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or

(b) to differentiate adversely in relation to any individual,

on a prohibited ground of discrimination.

The Federal Court of Appeal Decision

After lengthy consideration, the Court of Appeal determined that the appropriate standard of review was reasonableness. That is, were the CHRT’s decisions reasonable in finding that the Matson and Andrews complaints involved direct challenges to the Indian Act, and that the adoption of legislation is not a “service customarily available to the public”?

On the first issue, the Court held that the CHRT reasonably characterized the Matson and Andrews complaints as involving direct challenges to the Indian Act. According to the Court, “The complaints seek to expand the statutory grounds for the grant of Indian status by arguing that the legislation is impermissibly under-inclusive because it makes discriminatory distinctions based on the prohibited grounds of race, national or ethnic origin, sex or family status.” (at para 93). I do not take issue with this aspect of the Court’s decision.

On the second ground, the Court held the CHRT’s decision that the adoption of legislation was not a “service customarily available to the general public” under section 5 of the CHRA was also reasonable. The Court noted that previous case law on the scope of the “services” section required proof of two elements: “first, something of benefit must be available and, second, the benefit must be held out or offered to the public or a segment of the public” (at para 95, citing Gould v. Yukon Order of Pioneers, [1996] 1 SCR 571, 1996 CanLII 231 (SCC) and Watkin v. Canada (Attorney General), 2008 FCA 170 (CanLII); see also University of British Columbia v. Berg, [1993] 2 SCR 353, 1993 CanLII 89 (SCC)). The CHRT recognized that the Indian Act could be seen to confer benefits on those who have status, including benefits related to health and education, tax exemptions, and more “intangible benefits” related to acceptance by one’s indigenous community (at paras 10, 54). LEAF points out in its factum in Gehl that the Indian Act also confers benefits related to band membership, including the ability to vote and run in band elections, and that “the ability to pass on Indian status to one’s child is a significant benefit” (at paras 4-5). The first requirement of section 5 of the CHRA was therefore met.

However, the CHRT concluded that the second element –the benefit must be held out or offered to the public (or a segment thereof) – was not met, and the Court of Appeal found that there was a reasonable basis for this conclusion. It pointed to the unique and fundamental law-making function of Parliament, and asserted that “One simply cannot equate the act of legislating with a service” such as processing a citizenship application (at para 96, citing the CHRT decision in Andrews at para 57). The CHRT had followed the 2012 decision of the Federal Court of Appeal in Murphy that the adoption of legislation is not a service customarily available to the public, and while there is federal case law to the contrary, the CHRT properly found this case law less persuasive (at paras 36 and 97, referencing Canada (Attorney General) v. Druken, [1989] 2 FCR 24, 1988 CanLII 5712 (FCA), where the respondent had admitted that the adoption of the impugned legislation was a service customarily available to the public).

The Court of Appeal also found that the CHRT’s decisions were “not at odds with the case law from the Supreme Court of Canada or other jurisdictions that recognizes that, in appropriate cases, a human rights tribunal may declare inoperative a piece of legislation that conflicts with the human rights legislation due to the primacy of the latter” (at para 98). It is here that I take issue with the Court’s decision.

In Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685 (CanLII), Justice Sheila Greckol – who came to the bench with recognized expertise in human rights law – held that Alberta legislation, the Widow’s Pension Act, SA 1983, c W-7.5, was subject to the “services customarily available to the public” clause in this province’s human rights legislation (then section 3 of the Human Rights, Citizenship and Multiculturalism Act, RSA 1980, c H-11.7 (HRCMA)). The Widow’s Pension Act conferred benefits on certain women but excluded others on the basis of their marital status. Justice Greckol focused on the quasi-constitutional nature of human rights legislation, and the “clear … expression of supremacy” in section 1(1) of the HRCMA, which provided that “Unless it is expressly declared by an Act of the Legislature that it operates notwithstanding this Act, every law of Alberta is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act.” (at para 73; emphasis added). Her decision that the Widow’s Pension Act was inoperative to the extent it discriminated on the basis of marital status was upheld by the Alberta Court of Appeal and leave to appeal was denied by the Supreme Court of Canada (see 2004 ABCA 210 (CanLII); [2004] SCCA No 342).

Similarly, in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII), [2006] 1 SCR 513, a majority of the Supreme Court recognized the jurisdiction of tribunals other than human rights bodies to apply human rights legislation. Part of the rationale for this decision was the primacy of human rights legislation, codified in Ontario in section 47(2) of the Human Rights Code, RSO 1990, c H.19: “Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act” (emphasis added). In Tranchemontagne, the majority held that the Social Benefits Tribunal should not have declined to exercise its jurisdiction to apply the Human Rights Code to its own legislation, which excluded persons with addiction-related disabilities from receiving benefits.

In the Matson and Andrews cases, the CHRT found that “in those cases where legislation had been declared inoperative by reason of a conflict with human rights legislation, the Tribunal possessed jurisdiction on an alternate basis, often because the complaint stemmed from an employment relationship where the employer applied an impugned legislative provision” (at para 34; see also paras 98-99). The Federal Court of Appeal found that this was a reasonable basis for distinguishing cases such as Tranchemontagne. However, the sole basis of the complaints in Gwinner and Tranchemontagne was the legislation itself, so this basis for dismissing case law other than Murphy is not persuasive.

On the primacy argument more generally, the Federal Court of Appeal found that “there is no reason to read [section 5 of the CHRA] as providing jurisdiction to hear legislative challenges merely because in cases where the Tribunal otherwise possesses jurisdiction it may declare conflictual legislation inoperative” (at para 99). With respect, this guts the primacy of human rights legislation – tribunals should not be restricted to hearing challenges to legislation in the limited circumstances where they otherwise possesses jurisdiction.

More specific to the Indian Act context of the Matson and Andrews complaints, until 2008, section 67 of the CHRA provided that nothing in the Act “affects any provision of the Indian Act or any provision made under or pursuant to that Act”. This section was repealed in An Act to amend the Canadian Human Rights Act, SC 2008, c 30, s 1, an amendment which had been long in the making. In the Matson and Andrews cases, the Canadian Human Rights Commission argued that an interpretation of section 5 of the CHRA that did not include review of discriminatory legislation “would render … former section 67 of the CHRA virtually meaningless” (at para 43). The Tribunal rejected this argument, in part because section 67 covered collateral challenges to the Indian Act, such that its repeal was not conclusive about the CHRT’s jurisdiction to consider direct legislative challenges (at paras 43-44). The Federal Court of Appeal found this to be a reasonable conclusion.

Also relevant was the remedial jurisdiction of human rights tribunals. The Federal Court of Appeal noted that the Matson and Andrews complaints “did not merely seek to have provisions in the Indian Act declared inoperative. Rather, their complaints of under-inclusiveness are ultimately aimed at having the provisions in section 6 of the Indian Act broadened to include the complainants’ children and those who are similarly situated to them” (at para 101). The Court noted that the CHRT does not have remedial powers to declare legislation invalid or to read in excluded groups so as to cure underinclusive legislation; these are Charter remedies. In Gwinner, however, Justice Greckol also dealt with underinclusive legislation, and noted that a finding that the legislation was inoperative combined with an order to the respondent that it cease its discriminatory practices was within a tribunal’s remedial powers (Gwinner at para 77).

Lastly, the Federal Court of Appeal dealt with the Commission’s argument that allowing challenges to discriminatory legislation to proceed before human rights tribunals in appropriate cases would result in greater access to justice. It rejected this argument, noting “the lengthy delays that are all too often seen in human rights adjudications” (at para 103). While delays in the human rights system cannot be denied, there are other access to justice advantages that may apply in human rights challenges as compared to Charter challenges, including less stringent evidentiary rules and approaches to discrimination (although see here), the ability of agents to appear on behalf of claimants (see e.g. the work of Pro Bono Students Canada), and the supportive role of human rights commissions in tribunal hearings in many jurisdictions.

Although the context of the Matson and Andrews complaints are admittedly complex and arise in the midst of a number of Charter challenges to the same provisions, I believe a blanket rule that discriminatory legislation cannot be directly challenged in human rights proceedings is contrary to the wording of human rights legislation and previous case law, and has serious access to justice consequences for claimants. To close with the words of the Supreme Court in Tranchemontagne, human rights legislation “must be recognized as being the law of the people… Accordingly, it must not only be given expansive meaning, but also offered accessible application.” (at para 33). Hopefully the Supreme Court will grant leave to appeal in Canadian Human Rights Commission v. Canada (Attorney General) and affirm that principle by recognizing the jurisdiction of human rights tribunals to hear challenges to discriminatory legislation.

This post may be cited as: Jennifer Koshan, “Human Rights, the Charter, and Access to Justice ” (Sept 29, 2016), on-line: ABlawg,

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About Jennifer Koshan

B.Sc., LL.B (Calgary), LL.M. (British Columbia). Professor. Member of the Alberta Bar. Please click here for more information.
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