Canadian Human Rights Commission v. Attorney General of Canada
(Federal Court) (Civil) (By Leave)
Canadian charter (Non-criminal) - Administrative law, Standard of review, Human rights.
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Canadian Charter of Rights and Freedoms – Equality rights –Administrative law – Standard of review – Human Rights – Discrimination – Meaning of “service customarily available to the general public,” under s. 5 of the Canadian Human Rights Act – Aboriginal law – “Indian” status – Eligibility for registration under Indian Act – Whether Federal Courts erred (i) in applying reasonableness standard of review, or misapplied standard, when assessing impugned decisions of Canadian Human Rights Tribunal, and (ii) by upholding unduly narrow interpretation of protection against discrimination in provision of services – Whether s. 5 can be used to challenge denials of government benefits based on discriminatory eligibility criteria found in federal legislation or whether a challenge must be brought under s. 15 of the Charter – Canadian Charter of Rights and Freedoms, s. 15 – Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 5 – Indian Act, R.S.C. 1985, c. 1-5, s. 6.
Several members of two First Nations filed complaints under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”) with the Canadian Human Rights Commission. The complainants alleged that the eligibility criteria in s. 6 of the Indian Act, R.S.C. 1985, c. I-5, that precludes the registration of their children as “Indians” in their particular circumstances, violates their human rights because the impugned restrictions constitute prohibited discrimination in the provision of a service “customarily available to the public” under s. 5 of the CHRA. In two decisions which relied on Public Service Alliance of Canada v. Canada (Revenue Agency), 2012 FCA 7, 428 N.R. 240, the Canadian Human Rights Tribunal dismissed the complaints for lack of jurisdiction. In doing so, the Tribunal found the complaints were direct challenges to provisions in the Indian Act and the adoption of legislation is not a service customarily available to the general public within the meaning of s. 5 of the CHRA. The Tribunal concluded such a challenge may only be brought under s. 15 of the Canadian Charter of Rights and Freedoms and therefore must be made to a court of law. Applying a reasonableness standard of review, the Federal Court held the Tribunal’s decisions were reasonable and dismissed the Commission’s applications for judicial review. The Federal Court of Appeal dismissed the Commission’s appeal.
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