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A-891-88
Canadian Human Rights Commission (Appellant) v.
Sun Life Assurance Company of Canada (Respondent)
INDEXED AS: CANADA (HUMAN RIGHTS COMMISSION) V. SUN LIFE ASSURANCE CO. OF CANADA (CA.)
Court of Appeal, Heald, Urie and Stone JJ.A.— Toronto, February 21; Ottawa, March 2, 1990.
Constitutional law Distribution of powers Former bank employee denied disability benefits by insurer Alleg ing discrimination by Bank based on disability Appeal from order quashing warrant allowing Canadian Human Rights Commission investigator to search insurer's premises for employee's long term disability benefits file Trial Judge finding matter under provincial jurisdiction as dealing with insurance Benefits in question employment benefit Banking within federal legislative competence under Constitu tion Act, 1867, s. 91(15) Terms of employment contract part of primary legislative competence Appeal allowed.
Human rights Commission investigator denied access to insurer's files on former bank employee who had complained of discrimination based on disability by denial of disability benefits and refusal to continue employment Trial Judge quashing search warrant on finding adjudication of claim outside Commission's jurisdiction as insurance within provin cial competence Appeal allowed Discrimination in respect of subject-matter over which Parliament having legis lative authority (banking) Term of employment contract integral part of primary federal competence.
Financial institutions Former bank employee's claim for long term disability benefits rejected by insurer Complain ing of discriminatory practice to CHRC Whether Commis sion having jurisdiction to review insurer's decision Com plaint against bank, not insurer Banking under federal legislative competence Contract of employment with bank integral part of primary competence Investigation of com plaint based on administration of insurance policy within federal authority.
Insurance Insurer denying long term disability benefits claim by former bank employee Jurisdiction of CHRC to
investigate discriminatory practice allegation Insurer refus ing Commission access to complainant's file Complaint against bank Insurer's conduct not impeached Although insurance under provincial legislative authority, alleged dis crimination in respect of matter (banking) over which Parlia ment having authority Order quashing search warrant set aside.
Labour relations Entitlement to long term disability payment employment benefit Although terms of employ ment contract not normally within federal competence, may be so when integral part of primary competence over some other single federal subject, i.e. banking.
This was an appeal from an order quashing a warrant authorizing a Canadian Human Rights Commission investiga tor to enter Sun Life's premises and search for the long term disability claim file of a former Bank of Montreal employee, who had lodged a complaint that the Bank had discriminated against her based on her, disability by denying her disability benefits and by refusing to continue to employ her. Sun Life, as issuer and administrator of the Group Policy had refused the claim for long term disability benefits. The respondent refused access to its files on the ground that the Commission had no jurisdiction to review the adjudication of any particular claim. The warrant was quashed for lack of jurisdiction as the denial of the disability claim was a decision made within the ambit of carrying on life insurance business, a matter within provincial jurisdiction. The Commission argued that the complaint was against the Bank which is under federal jurisdiction. Sun Life argued that the Commission was limited to investigating whether the Bank engaged in a discriminatory practice by entering into a Group Policy which in its provision of benefits was discriminatory.
Held, the appeal should be allowed.
Long term disability payments under the Group Policy are employment benefits, notwithstanding that they are available pursuant to the terms of a contract between the Bank and a third party insurer.
Sun Life's arguments lose sight of the essence of the com plaint, which in no way impeached Sun Life's conduct. It would be unduly artificial to distinguish between discrimination brought about by entering into an agreement creating employ ment benefits and discrimination arising out of the administra tion of the agreement. What is important is that the alleged discrimination is in respect of a subject-matter over which Parliament possesses legislative authority. Although Parliament has no authority over labour relations as such or the terms of a contract of employment, it may assert exclusive jurisdiction over these matters where such jurisdiction is an integral part of its primary competence over some other single federal subject. The business of banking falls within federal legislative compe-
tence (Constitution Act, 1867, subsection 91(15)) and the terms of a contract of employment with a bank is an integral part of that primary competence. The investigation of a com plaint of discriminatory practice in such employment based upon the administration of a policy of insurance entered into by a bank falls squarely within federal legislative authority. This is so even though the policy creating the employment benefits may have been issued and is administered by an insurance carrier whose business is provincially regulated.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act to incorporate "The Sum Life Insurance Com pany of Montreal", S.C. 1865, c. 43.
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 3(1) (as am. by S.C. 1980-81-82-83, c. 143, s. 2), 7(b), 35(2.2) (as enacted by S.C. 1985, c. 26, s. 68), (2.3) (as enacted idem), (2.4) (as enacted idem).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(15).
CASES JUDICIALLY CONSIDERED
APPLIED:
Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; (1979), 98 D.L.R. (3d) 1; 79 C.L.L.C. 14,211; 28 N.R. 107.
REFERRED TO:
Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; (1988), 51 D.L.R. (4th) 161; 85 N.R. 295; 15 Q.A.C. 217.
COUNSEL:
Anne Troller for appellant.
Mary Eberts and Wendy M. Matheson for
respondent.
SOLICITORS:
Canadian Human Rights Commission, Ottawa, for appellant.
Tory, Tory, Deslauriers & Binnington, Toronto, for respondent.
The following are the reasons for judgment rendered in English by
STONE J.A.: This is an appeal from an order of McNair J. in the Trial Division made on June 27, 1989 granting an application for certiorari quash-
ing a warrant issued by Teitelbaum J. on June 1, 1988 pursuant to subsection 35(2.2)' of the Canadian Human Rights Act, S.C. 1976-77, c. 33, as am. by S.C. 1985, c. 26, s. 68 ("the Act"). The warrant authorized an investigator designated by the appellant to enter premises of the respondent and there to search for "The Sun Life Long-Term Disability Claim Files of Betty Abraham" and "to require of any individual found on the premises to produce the above listed documents for inspection or for the purpose of obtaining copies".
BACKGROUND
Betty Abraham is a former employee of the Bank of Montreal with whom she was employed in Toronto as a stenographer for about ten years. In May, 1986, she gave the respondent written notice of a claim for long term disability benefits on the basis that she was suffering "hypertension anxie ty" rendering her unable to continue in employ ment. The respondent is the issuer of Group Policy No. 13520-G in favour of the Bank of Montreal, whereby it undertook to "pay the benefits provided under this policy to the persons entitled to receive them". Premiums are paid by the Bank; claims are paid out of the respondent's own resources. By the terms of this policy, benefits for long term disabili ty are payable where an employee is "totally disa-
' Subsections 35.(2.2), (2.3) and (2.4) read as follows:
35....
(2.2) Where on ex parte application a judge of the Feder al Court is satisfied by information on oath that there are reasonable grounds to believe that there is in any premises any evidence relevant to the investigation of a complaint, the judge may issue a warrant under the judge's hand authoriz ing the investigator named therein to enter and search those premises for any such evidence subject to such conditions as may be specified in the warrant.
(2.3) In executing a warrant issued under subsection (2.2), the investigator named therein shall not use force unless the investigator is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
(2.4) An investigator may require any individual found in any premises entered pursuant to this section to produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom any books or other documents containing any matter relevant to the investigation being conducted by the investigator.
bled" as defined therein. Ms. Abraham's claim was declined in writing by the respondent in December, 1986.
A short time earlier, on November 13, 1986, Ms. Abraham lodged a complaint with the appel lant in which she alleged that she had reasonable grounds for believing that the Bank of Montreal was or had engaged in a discriminatory practice in contravention of the Act:
The Bank of Montreal has discriminated against me on the basis of my disability denying me short term and long term disability benefits and by refusing to continue to employ me in violation of section 7 of the Canadian Human Rights Act.
The particular provisions of the Act relied upon appears to be those of paragraph 7(b):
7. It is a discriminatory practice, directly or indirectly,
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
The prohibited grounds of discrimination enumer ated in subsection 3(1) [as am. by S.C. 1980-81- 82-83, c. 143, s. 2] include "disability".
In the course of investigating the complaint, the appellant was informed by the Bank of Montreal that:
The Long Term Disability (LTD) plan of the Bank is adminis tered by Sun Life Company of Canada. Eligibility for long term disability benefits is determined by Sun Life on the basis of records provided by the employee and records forwarded by the Bank's Medical Centre. We are advised however that Sun Life has rejected Mrs. Abraham's claim. 2
The appellant then pursued its investigation with the respondent on the ground that the long term disability plan constituted "an employment benefit", and requested "access to the complai nant's file to review the decision taken by Sun Life of Canada to disallow her long term disability
2 Appeal Book, p. 23.
benefits".' The respondent resisted this request on the basis that it was "completely independent of the Bank of Montreal" which "plays no part in the claim decision process", and that while the appel lant "may have the authority to review the terms of the policy ... it has no jurisdiction to review Sun Life's adjudication of any particular claim" and, accordingly, that the appellant lacked "authority to demand access to Sun Life's file on Ms. Abraham's claim". 4
Thereafter, correspondence ensued between the appellant's legal counsel and the respondent's solicitors, but the impasse between the parties remained unresolved. In an affidavit supporting the application for the warrant, the investigator designated under the Act to conduct the investiga tion expressed belief "that the material contained in this file would be relevant to my investigation of the complaint . .. in that they will provide evidence of the treatment of Betty Abraham's long-term disability claim by Sun Life which was operating the Bank of Montreal's long-term disability plan". 5
The reason for quashing the warrant appears on the face of the order under attack. The learned Motions Judge first noted "a defect of jurisdiction ... in that the decision to deny Betty Abraham's long term disability claim was a decision made by Sun Life Assurance Company of Canada within the ambit of carrying on the business of life insur ance which is constitutionally a matter within the provincial jurisdiction and not the federal jurisdic tion"; he then observed that section 2 of the Act provides that the purpose of the statute is "to extend the present laws in Canada to give effect within the purview of matters coming within the legislative authority of the Parliament of Cana- da...".
3 Ibid., p. 27.
' Ibid., pp. 28-29.
5 Ibid., p. 16.
ARGUMENT
The appellant points out that the complaint is not directed against the respondent, but against the Bank of Montreal over which the Parliament of Canada has jurisdiction by virtue of subsection 91(15) of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]]. 6 It says, moreover, that the warrant is in aid of that investigation and is for that purpose only. The information sought from the claim file is "evidence relevant to the investigation of a com plaint" within the meaning of subsection 35(2.2) of the Act, and could be made the subject of a warrant. Without that information, it claims, the appellant would be powerless to properly investi gate the complaint of a person engaged in federal ly regulated employment.
The respondent, incorporated in 1865 under a statute of the late Province of Canada,' asserts that its business as a mutual insurance corporation in Ontario is a matter exclusively within the legis lative authority of the provincial legislature. It holds a licence from the Department of Financial and Commercial Affairs of the province of Ontario and the Office of the Superintendent of Insurance of Ontario pursuant to which it may "undertake contracts of insurance of the following classes: life, accident and sickness". 8 That being so, the respondent contends that the appellant is quite without authority to investigate its decision to decline the long term disability claim, and that the dispute is one for determination in the civil courts
6 By the terms of this head of power, it is declared that "the exclusive Legislative Authority of the Parliament of Canada extends to"
15. Banking, Incorporation of Banks, and the Issue of Paper Money.
' [An Act to incorporate "The Sun Insurance Company of Montreal"] S.C. 1865, c. 43 (assented to 18th March, 1865). This statute was subsequently amended by the Parliament of Canada.
8 Appeal Book, p. 51.
of Ontario or by the Human Rights Commission of that province rather than by the appellant.
DISCUSSION
I accept the submission that the monthly indem nity or other amounts payable in respect of long term disability to an "eligible" "employee" with an "employer" in "employment", as defined in the Group Policy, 9 are benefits arising out of Ms. Abraham's employment with the Bank of Mon- treal and that she was eligible for this kind of protection only because of her employment. I cannot see that these amounts, which are subject to the terms and conditions of the Group Policy, are any less employment benefits because they happened to be available pursuant to the terms of a contract entered into by the Bank with a third party insurance carrier rather than directly from the Bank as in the case of short term disability benefits.
The respondent contends that the power of the appellant to investigate Ms. Abraham's complaint on a ground of discrimination does not extend to the production of its claim files but, rather, is limited to investigating whether the Bank engaged in a discriminatory practice by entering into a Group Policy which in its provision of benefits is discriminatory, and that discrimination in the processing of Ms. Abraham's claim, if any exists, is a matter falling wholly within provincial legisla tive authority. The granting of the warrant, there fore, was an intrusion into the provincial domain and was quite beyond the powers which Parlia ment could, and in fact, did confer under subsec tion 35(2.2) of the Act. The effect of upholding the warrant would be to allow the appellant to determine that the respondent itself engaged in a discriminatory practice, a matter within the juris diction of the provincial Human Rights Commis sion.
In my view, these arguments lose sight of the true essence of the complaint. To begin with, that
9 Appeal Book, p. 56.
complaint in no way impeaches the respondent's conduct. It states in terms that it is the Bank that "has discriminated against me on the basis of my disability denying me ... long-term disability benefits". Secondly, it would be unduly artificial in the context of this case to distinguish between discrimination brought about by virtue of the entering into of an agreement creating employ ment benefits and discrimination arising out of the administration of the agreement. What is impor tant in either case is that the alleged discrimina tion is in respect of a subject-matter over which the Parliament of Canada possesses legislative authority.
The principles applicable for determining whether an operation falls within federal legisla tive authority were summarized by Dickson J. (as he then was) in Northern Telecom Ltd. v. Com munications Workers of Canada, [1980] 1 S.C.R. 115, at pages 132-133:
(1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule.
(2) By way of exception, however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject.
(3) Primary federal competence over a given subject can pre vent the application of provincial law relating to labour rela tions and the conditions of employment but only if it is demon strated that federal authority over these matters is an integral element of such federal competence.
(4) Thus, the regulation of wages to be paid by an undertak ing, service or business, and the regulation of its labour rela tions, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one.
(5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation.
(6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of "a going concern", without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity.
A recent decision of the British Columbia Labour Relations Board, Arrow Transfer Co. Ltd., [[1974] 1 Can. L.R.B.R. 29] provides a useful statement of the method adopted by the courts in determining constitutional jurisdiction in labour mat ters. First, one must begin with the operation which is at the core of the federal undertaking. Then the courts look at the
particular subsidiary operation engaged in by the employees in question. The court must then arrive at a judgment as to the relationship of that operation to the core federal undertaking, the necessary relationship being variously characterized as "vital", "essential" or "integral". As the Chairman of the Board phrased it, at pp. 34-5:
In each case the judgment is a functional, practical one about the factual character of the ongoing undertaking and does not turn on technical, legal niceties of the corporate structure or the employment relationship.
See also Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749.
The business of banking in Canada is, as I have indicated, a subject falling within federal legisla tive competence under subsection 91(15) of the Constitution Act, 1867, and the terms of a con tract of employment with a bank is an integral part of that primary competence. In my view, the investigation of a complaint of discriminatory practice in such employment based upon the administration of a policy of insurance entered into by a bank falls squarely within federal legisla tive authority. This is so even though the policy creating the employment benefits may have been issued and is administered by an insurance carrier whose business is provincially regulated. To accept the distinction put forward by the respondent would frustrate the appellant's power to investi gate and determine the existence of a discriminato ry practice at the point where that practice may truly exist.
For the foregoing reasons, I would allow this appeal with costs and would restore the warrant issued by Teitelbaum J. on June 1, 1988.
HEALD J.A.: I concur. URIE J.A.: I agree.
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