T-1159-94
The Attorney General of Canada (Applicant)
v.
Laurence Magee (Respondent)
and
Canadian Human Rights Commission (Intervenor)
Indexed as: Canada (Attorney General)v. Magee (T.D.)
Trial Division, Denault J."Ottawa, September 14 and 18, 1998.
Human rights — Judicial review of CHRC's decision to appoint Human Rights Tribunal to inquire into respondent's complaint alleging discrimination in provision of services on grounds of marital, family status — Treasury Board denying application for surviving spouse's benefits pursuant to Canadian Forces Superannuation Act (CFSA), s. 30 since respondent, husband separating four years prior to his death — CHRA, s. 62 exempting from application of Act pension, superannuation plans established by Act of Parliament before March 1, 1978 — CFSA established in 1959, amended several times before, after March 1, 1978 — CHRC's governing legislation explicitly barring any inquiry by HRT into complaints arising out of application of pre-March 1978 legislation — Complaint grounded in CFSA, s. 30 outside scope of CHRA as former Act established in 1959 — Complaint cannot be referred to HRT — S. 62(2) avenue for addressing discriminatory provisions in Acts outside CHRC's jurisdiction i.e. to include in s. 61 report any provision inconsistent with principle described in CHRA, s. 2.
Construction of statutes — Merger doctrine — Canadian Human Rights Act, s. 62 exempting from application of Act all pension, superannuation plans established by Act of Parliament before March 1, 1978 — Canadian Forces Superannuation Act established in 1959, amended several times before, after March 1, 1978 — CHRC arguing post-1978 amendments having effect of bringing Act within its jurisdiction under doctrine of merger — As Parliament not addressing effect of amendments on pension, superannuation plans subject of s. 62(1), post-1978 amendments to CFSA not creating new plan — Act not within Commission's jurisdiction.
Pensions — Treasury Board denying respondent's application for surviving spouse's benefits pursuant to Canadian Forces Superannuation Act, s. 30 because respondent informally separating from husband four years prior to death — Respondent filing complaint alleging discrimination in provision of services on grounds of marital, family status — Canadian Human Rights Commission deciding to appoint Human Rights Tribunal to inquire into complaint — CHRA, s. 62 exempting from application of Act all pension, superannuation plans established by Act of Parliament before March 1, 1978 — Complaint grounded in CFSA, s. 30, Act established in 1959, though amended several times before, after March 1, 1978, outside scope of CHRA.
This was an application for judicial review of the Canadian Human Rights Commission's decision to appoint a Human Rights Tribunal to inquire into the respondent's complaint. Treasury Board had denied the respondent's application for surviving spouse's benefits under Canadian Forces Superannuation Act (CFSA), section 30, which gives it the discretionary power to deem a surviving spouse to have predeceased the contributor if the surviving spouse had immediately prior to the death of the contributor been living apart from him. The respondent had separated from her husband four years prior to his death in 1985, although the couple had never signed a separation agreement and had never divorced. The respondent filed complaints with the Canadian Human Rights Commission alleging discrimination in the provision of services on the grounds of marital and family status. After investigating the complaints, the Commission requested the appointment of a Human Rights Tribunal. Canadian Human Rights Act, section 62 exempts from the application of the Act pension or superannuation plans established by Act of Parliament before March 1, 1978. The CFSA was established in 1959, but was amended numerous times both before and after March 1, 1978. The issue was whether the Commission erred in law and exceeded its jurisdiction when it referred the respondent's complaint to a Human Rights Tribunal for inquiry.
Held, the application should be allowed.
The Commission's governing legislation explicitly bars any inquiry by a Human Rights Tribunal into complaints which arise out of the application of pre-March 1978 legislation. A complaint grounded in section 30 of the CFSA, an Act which was established in 1959, falls outside the scope of the CHRA and cannot properly be referred by the Commission to a Human Rights Tribunal.
As Parliament did not address the effect of legislative amendments on the pension or superannuation plans which are the subject of subsection 62(1), there was no compelling reason to accept the Commission's argument that the post-1978 amendments to the CFSA brought that Act within the Commission's jurisdiction, particularly in light of the applicability and appropriateness of the doctrine of merger herein. Having found that the post-1978 amendments, even if taken collectively, did not create a new plan, the plan pursuant to which the respondent sought an entitlement was captured by subsection 62(1).
Under subsection 62(2) the Commission may include in a section 61 report "reference to and comment on any provision of any of those Acts [which are subject of the subsection 62(1) limitation] that in its opinion is inconsistent with the principle described in section 2." Subsection 62(2) provides an avenue for addressing the issue of discriminatory provisions within the Acts which are outside the CHRC's jurisdiction. Thus it was within the Commission's jurisdiction to report on section 30 of the CFSA as a potentially discriminatory provision, but not within its jurisdiction to refer the matter to a Tribunal for inquiry.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
Canadian Forces Superannuation Act, R.S.C., 1985, c. C-17, s. 30.
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 5, 41(c), 44(1),(3) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64), 61, 62.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5).
cases judicially considered
considered:
Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 64 N.R. 161; 12 O.A.C. 241.
referred to:
Winnipeg School Division No. 1 v. Craton et al., [1985] 2 S.C.R. 150; (1985), 21 D.L.R. (4th) 1; [1985] 6 W.W.R. 166; 38 Man. R. (2d) 1; 15 Admin. L.R. 177; 8 C.C.E.L. 105; 85 CLLC 17,020; 61 N.R. 241; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; (1987), 40 D.L.R. (4th) 193; 27 Admin. L.R. 172; 87 CLLC 17,022; 76 N.R. 161.
authors cited
Driedger, E. A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
APPLICATION for judicial review of Canadian Human Rights Commission's decision to appoint a Human Rights Tribunal to inquire into respondent's complaint of discrimination under Canadian Forces Superannuation Act, section 30. Application allowed.
appearances:
Brian J. Saunders for applicant.
René Duval for intervener.
solicitors of record:
Deputy Attorney General of Canada for applicant.
Canadian Human Rights Commission for intervener.
The following are the reasons for order and order rendered in English by
Denault J: This application for judicial review is being brought by the Attorney General of Canada pursuant to sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as enacted idem, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7]. The applicant seeks an order setting aside the December 16, 1992 decision of the Canadian Human Rights Commission on the basis that the Commission, in arriving at that decision, erred in law and exceeded its jurisdiction.
Laurence Magee is the widow of Charles Magee who built a career in the Canadian Armed Forces while he was married to Laurence. In 1981, after 22 years of marriage, Laurence and Charles separated although the couple never signed a formal separation agreement. They never divorced, thus retaining their status as legal spouses. In 1985, Charles passed away leaving Laurence as sole executrix and beneficiary of his will.
In 1985, Laurence Magee inquired about any pension entitlement she might have as the surviving spouse of a former member of the Canadian Armed Forces. In November 1986, the Treasury Board informed her that her application for surviving spouse's benefits had been denied on the basis of section 30 of the Canadian Forces Superannuation Act, R.S.C., 1985, c. C-17 (hereinafter CFSA).1
Laurence Magee filed complaints with the Canadian Human Rights Commission on July 9, 1989 and on December 7, 1989 alleging that, in denying her a widow's pension because she had been living apart from Charles prior to his death, the Treasury Board and the Department of National Defence had discriminated against her in the provision of services on the grounds of marital status and family status, contrary to section 5 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (hereinafter CHRA).
The Commission investigated the complaints and, in a letter dated December 16, 1992, requested that the President of the Human Rights Tribunal Panel appoint a Human Rights Tribunal to inquire into Laurence Magee's complaints against the Treasury Board and the Department of National Defence. The Attorney General of Canada now impugns the Commission's decision to appoint a Human Rights Tribunal to inquire into the matter.
Significantly, the parties are agreed on the facts and on the applicability of correctness as the standard of review. They disagree, however, on the interpretation which should be given to section 62 of the CHRA2 and, consequently, on the effect which that section has on the Commission's authority to appoint a Tribunal to enquire into Laurence Magee's complaint.
Section 62 of the CHRA purports to exempt from the application of the Act any and all pension plans or superannuation plans established by Act of Parliament before March 1, 1978. The CFSA, under which Laurence Magee sought an entitlement to widow's benefits, was established in 1959 but was amended numerous times both before and after the March 1, 1978 cutoff date.
The issue in the case at bar is whether the Commission erred in law and exceeded its jurisdiction when it referred Laurence Magee's complaint to the Canadian Human Rights Tribunal for inquiry. The applicant submits that the Commission, in failing to dismiss the respondent's complaint as it was bound to do by the operation of subparagraph 44(3)(b)(ii) [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64]3 of its enabling legislation, misinterpreted the CHRA and thereby failed to recognize that the complaint fell outside its jurisdiction.
On the strength of Winnipeg School Division No. 1 v. Craton et al.,4 counsel for the respondent submits that the special nature of human rights legislation demands that exceptions to the CHRA be very narrowly construed. He argues, therefore, that subsection 62(1) of the CHRA should be construed in a manner which is consistent with this principle, which is to say in such a manner as to effectively limit the scope of subsection 62(1) to those plans which have not been altered since March 1, 1978. In essence, counsel for the respondent maintains that, collectively, the numerous post-1978 amendments to the CFSA have had a transformative effect on the Act such that the plan at issue in the instant case cannot be said to be the same plan as that which was established in 1959. It follows, argues counsel, that such a plan, having effectively been "re-created" or "re-established" as a result of having undergone several post-1978 amendments, can no longer be captured by subsection 62(1) of the CHRA and is, therefore, within the Commission's jurisdiction.
Counsel for the respondent further contends that human rights legislation should be broadly and purposively construed, having regard to the object and scheme of the Act, and that its construction should ultimately be informed by the same values which inform our Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. He relies on Canadian National Railway Co. v. Canada (Canadian Human Rights Commission)5 for the proposition that human rights legislation should be construed so as to advance and give effect to its broad purposes. In the result, he argues, subsection 62(1) should not be construed as capable of capturing amended superannuation or pension plans.
For his part, the counsel for the applicant relies, in the main, on rules of statutory interpretation, namely the plain meaning doctrine and the doctrine of merger, to buttress his two principal arguments. First, the applicant maintains that principles of construction demand that the constituent words of an Act be given their ordinary and plain meaning.6 The applicant further maintains that, in the case at bar, the application of the plain meaning rule to subsection 62(1) of the CHRA leaves no room for doubt or ambiguity relative to the legislative intent which informs that particular provision of the Act.
The language of subsection 62(1), specifically the words "in respect of", "plan", "established" and "March 1, 1978", is indeed clear and unambiguous, both in form and effect. As such, I find that subsection 62(1) of the CHRA expressly excludes from catchment those plans which were created prior to March 1, 1978, including the CFSA plan pursuant to which Laurence Magee sought an entitlement. In short, the Commission's governing legislation explicitly and effectively operates as a bar to any inquiry by a Human Rights Tribunal into complaints which arise out of the application of pre-March 1978 legislation. It follows that a complaint grounded in section 30 of the CFSA, that Act having been established in 1959, falls outside the scope of the CHRA and cannot properly be referred by the Commission to a Human Rights Tribunal.
Second, relying on the doctrine of merger,7 the applicant contends that amending legislation is not tantamount to creating new legislation. As such, argues the applicant, the numerous post-1978 amendments to the CFSA do not effectively position that Act beyond the reach of subsection 62(1) of the CHRA.
Given the fact that Parliament did not address the effect of legislative amendments on the pension or superannuation plans which are the subject of subsection 62(1), I find no compelling reason to agree with the Commission's argument that the post-1978 amendments to the CFSA have the effect of bringing that Act within the Commission's jurisdiction, particularly in light of the applicability and appropriateness of the doctrine of merger in the instant case. Having found that the post-1978 amendments, even if taken collectively, did not in effect create a new plan, I find that the plan pursuant to which Laurence Magee sought an entitlement was in fact captured by subsection 62(1) of the CHRA. It follows that the Commission erred in law and exceeded its jurisdiction when it decided to refer the respondent's complaint to a Tribunal for inquiry.
Of significance also in the instant case is the fact that subsection 62(2) of the CHRA provides the Commission with an ongoing opportunity to review those Acts of Parliament which are the subject of the subsection 62(1) limitation. Should the Commission wish to do so, it may include in a section 61 report "reference to and comment on any provision of any of those Acts that in its opinion is inconsistent with the principle described in section 2." In enacting subsection 62(2), the Legislature provided the Commission with an avenue for addressing the issue of discriminatory provisions within the very Acts which are outside its jurisdiction. In short, when the Commission identified section 30 of the CFSA as a potentially discriminatory provision, it was within its jurisdiction to report on the matter but not within its jurisdiction to refer the matter to a Tribunal for inquiry. Subsection 62(2) operates as a statutory alternative to condoning whatever discriminatory provisions may be identified in those pre-1978 Acts which are the subject of the subsection 62(1) limitation. Clearly, Parliament could, pursuant to a section 61 report, undertake to amend potentially discriminatory legislative provisions. Indeed, Parliament could undertake to amend subsection 62(1) itself, if it saw fit to do so. However, as it currently reads, subsection 62(1) bars the Commission from referring the respondent's complaint to a Tribunal for inquiry.
For the above reasons, I find that the Commission erred in law and exceeded its jurisdiction. In the result, the herein application is granted.
ORDER
This application for judicial review is granted, the decision of the Canadian Human Rights Commission, dated December 16, 1992, is set aside and the Human Rights Tribunal is prohibited from inquiring into the respondent's complaint.
1 S. 30(1) of the CFSA gives the Treasury Board the discretionary power to deem a surviving spouse to have predeceased the contributor if the surviving spouse of the contributor had immediately prior to the death of the contributor been living apart from him.
2 S. 62 of the CHRA reads as follows:
62. (1) This Part and Parts I and II do not apply to or in respect of any superannuation or pension fund or plan established by an Act of Parliament enacted before March 1, 1978.
(2) The Commission shall keep under review those Acts of Parliament enacted before March 1, 1978 by which any superannuation or pension fund or plan is established and, where the Commission deems it to be appropriate, it may include in a report mentioned in section 61 reference to and comment on any provision of any of those Acts that in its opinion is inconsistent with the principle described in section 2.
3 44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
. . .
(3) On receipt of a report referred to in subsection (1), the Commission . . .
. . .
(b) shall dismiss the complaint to which the report relates if it is satisfied
. . .
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
. . .
41. Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
. . .
(c) the complaint is beyond the jurisdiction of the Commission.
4 [1985] 2 S.C.R. 150, at p. 156.
5 [1987] 1 S.C.R. 1114, at p. 1136. There, McIntyre J. is quoted as having stated, in Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd. et al., [1985] 2 S.C.R. 536, at pp. 546-547, the following:
It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment . . . and give to it an interpretation which will advance its broad purposes.
6 The applicant quotes Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134:
Today, there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
7 Driedger on the Construction of Statutes (3rd ed., 1994), at p. 506:
Where a statute or regulation is amended, under the doctrine of merger the new law that is added becomes an integral part of the amended legislation and, except for the date of commencement, has the same operation as the amended legislation.