A-1150-88
Canadian Human Rights Commission (Applicant)
v.
John Lane, Executive Director, Manitoba Divi
sion of the Canadian Paraplegic Association,
Elections Canada—The Office of the Chief Elec
toral Officer of Canada, Anne McDonald—
Returning Officer for the Electoral District—
Winnipeg North Centre, Joan Belisle—Returning
Officer for the Electoral District—Winnipeg-St.
James, Kaye Patterson—Returning Officer for
the Electoral District—Winnipeg-Fort Garry,
Phil Cels—Returning Officer for the Electoral
District—Brandon-Souris (Respondents)
A-1155-88
Elections Canada—The Office of the Chief Elec
toral Officer of Canada, Returning Officer for the
Electoral District—Winnipeg North Centre,
Returning Officer for the Electoral District—
Winnipeg-St. James, Returning Officer for the
Electoral District—Winnipeg-Fort Garry,
Returning Officer for the Electoral District—
Brandon-Souris (Applicants)
v.
Canadian Human Rights Commission and Canadi-
an Paraplegic Association (Respondents)
INDEXED AS: CANADA (HUMAN RIGHTS COMMISSION) V.
LANE (C.A.)
Court of Appeal, Mahoney, Hugessen and Mac-
Guigan JJ.A.—Winnipeg, February 19 and 20,
1990.
Constitutional law — Charter of Rights — Democratic
rights — Right to vote — Disabled voters alleging denial of
access to certain polling stations at 1984 general election —
Human Rights Tribunal dismissing complaint against Chief
Electoral Officer for want of jurisdiction — Whether CEO's
actions shielded by House of Commons privilege as "employee
of Parliament" — Democratic franchise guaranteed by Chart
er s. 3 — Parliamentary privilege not extending to control of
individual elector's right to vote — 1703 case authority for
proposition common law courts having jurisdiction to grant
remedy where right to vote infringed — Parliament having
subjugated CEO's activities to Canadian Human Rights Act
which has paramountcy over all other statute law — CEO
mere statutory creation unlike Speaker or Sergeant at arms.
Elections — Complaints re: denial of access for hand
icapped voters at certain polling stations during 1984 general
election — S. 28 application to set aside Human Rights
Tribunal decision dismissing complaints against Chief Elec
toral Officer (CEO), as "employee of Parliament", for want of
jurisdiction — Application allowed — Parliamentary privilege
not extending to situation complained of and Canadian
Human Rights Act sufficient, when read with Canada Elec
tions Act, to overcome claim to privilege — At issue right of
all Canadians to exercise democratic franchise guaranteed by
Charter, s. 3 — Principle Courts, not Parliament, having
authority to grant remedy where right to vote impeded or
denied established by 1703 case — Even if complaints within
House privilege, Parliament has subjected CEO's activities to
Canadian Human Rights Act — Paramountcy of Act over all
other statute law — CEO subject to Act as creature of statute,
not of privilege.
Human rights — Federal elections — Complaints against
Chief Electoral Officer (CEO) re: denial of access to hand
icapped voters at certain polling stations — Jurisdiction in
Human Rights Tribunal to hear complaint against CEO as not
protected by parliamentary privilege — Privilege not extend
ing to situations of type complained of — Canadian Human
Rights Act sufficient, when read with Canada Elections Act, to
overcome claim to privilege.
Judicial review — Applications to review — Meaning of
"decision" in Federal Court Act, s. 28 — Elections — Com
plaints re: denial of access to handicapped voters at certain
polling stations — S. 28 application to review Human Rights
Tribunal decision accepting jurisdiction to hear complaints
against local returning officers — Application quashed —
That accepting jurisdiction not "decision" within Act, s. 28
established by long line of cases.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, ss.
3 (as am. by S.C. 1980-81-82-83, c. 50, s. 25), 4 (as
am. by S.C. 1977-78, c. 3, s. 2), 33(1), 91(6)(a) (as
am. by S.C. 1977-78, c. 3, s. 49).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 3.
Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 2
(as am. by S.C. 1980-81-82-83, c. 143, s. 28(3)).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
CASES JUDICIALLY CONSIDERED
APPLIED:
Anheuser-Busch, Inc. v. Carling O'Keefe Breweries of
Canada Limited, [1983] 2 F.C. 71 (C.A.); (1982), 142
D.L.R. (3d) 548; 69 C.P.R. (2d) 136; 45 N.R. 126;
Ashby v. White (1703), 92 E.R. 126 (K.B.); Crawford v.
Saint John (1898), 34 N.B.R. 560 (C.A.); 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 C.L.L.C.
17,022; 76 N.R. 161.
DISTINGUISHED:
Valin v. Langlois, [1879] 3 S.C.R. 1; Temple v. Bulmer,
[1943] S.C.R. 265; [1943] 3 D.L.R. 649; Tolfree, The
King ex rel. v. Clark, Conant and Drew, [1943] 3 D.L.R.
684 (Ont. C.A.); R. ex rel. Stubbs v. Steinkopf (1964),
47 D.L.R. (2d) 105 (Man. Q.B.); Re Jackman and
Stollery et al. (1981), 33 O.R. (2d) 589 (H.C.); McLeod
v. Noble (1897), 28 O.R. 528 (Div. Ct.).
COUNSEL:
René Duval for applicant in A-1150-88; for
respondent in A-1155-88.
E. William Olson, Q.C. and Vivian E. Rach-
lis for respondents in A-1150-88; for appli
cants in A-1155-88.
SOLICITORS:
Legal Services, Canadian Human Rights
Commission, Ottawa, for applicant in
A-1150-88; for respondent in A-1155-88.
Thompson, Dorfman, Sweatman, Winnipeg,
for respondents in A-1150-88; for applicants
in A-1155-88.
COUNSEL:
Christopher J. Kvas for applicant.
No one appearing for defendants.
Alain Préfontaine for Minister of National
Revenue.
SOLICITORS:
Rogers, Bereskin & Parr, Toronto, for
applicant.
Deputy Attorney General of Canada for Min
ister of National Revenue.
The following are the reasons for judgment of
the Court delivered orally in English by
HUGESSEN J.A.: These two section 28 [Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10]
applications seek to review and set aside a ruling
by a Human Rights Tribunal (Perry W. Schul-
man, Q.C.) made during the hearing of a number
of complaints arising out of the alleged denial of
access for handicapped voters at certain polling
stations during the 1984 general election.' By its
ruling the Tribunal accepted that it had jurisdic
tion in so far as the complaints were brought
against the local returning officers, but dismissed
such complaints against the Chief Electoral Offi
cer on the ground of want of jurisdiction.
As far as concerns the application attacking that
part of the ruling which accepted jurisdiction
(Court file No. A-1155-88), it is clear that such
ruling is not a "decision" within the meaning that
a long line of cases 2 has consistently attributed to
that term and that no section 28 review is possible
at this stage. The application will accordingly be
quashed.
In the other part of the impugned ruling (Court
file No. 1150-88), the Tribunal dismissed the com
plaints against the Chief Electoral Officer. Those
complaints alleged discrimination in the provision
of access to polling places for voters who were
physically disabled. The basis of the ruling was the
Tribunal's view that the Chief Electoral Officer
was "an employee of Parliament" and that his
actions were protected by the privilege of the
House of Commons with regard to all matters
pertaining to elections.
' Because of the date of the alleged events, references to the
relevant statutes will be to them as they stood prior to the 1985
statute revision.
2 See, for example, Anheuser-Busch, Inc. v. Carling O'Keefe
Breweries of Canada Limited, [1983] 2 F.C. 71 (C.A.), and
cases there cited.
The premise that the Chief Electoral Officer is
an employee of Parliament appears to us to be
doubtful, but nothing turns on the point for the
purposes of the present decision. More important,
we are of the view, first, that the scope of parlia
mentary privilege does not extend to protect activi
ties of the type here complained of and, second,
that in any event the reach of the Canadian
Human Rights Act [S.C. 1976-77, c. 33] is suffi
cient, when read with the Canada Elections Act
[R.S.C. 1970 (1st Supp.), c. 14], to overcome any
claim to privilege.
What is at issue here is, at bottom, the right of
all Canadians to exercise their democratic fran
chise. It is not without significance that that right
is enshrined and formally guaranteed in the
Constitution. 3 The cases relied upon by the
respondent 4 deal, without exception, with parlia
mentary privilege as it relates to matters other
than the right to vote itself, as, for example,
whether or not an election should be held, who has
received the majority of votes and who is entitled
to claim a seat in the House. In no case that we
know of has it been asserted that the privilege of
Parliament extends so as to include the right to
control the right of an individual elector to vote in
any particular case. On the contrary, there is
ancient authority, going back to Ashby v. White, 5
to hold that the courts, and not Parliament, have
jurisdiction to grant a remedy where the right to
vote is impeded or denied. And, if the courts could
grant a remedy at common law, the matter was
not then, and is not now, within the exclusive
privilege of Parliament.
3 See Canadian Charter of Rights and Freedoms, being Part
I of the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.).
4 Valin v. Langlois, [1879] 3 S.C.R. 1; Temple v. Bulmer,
[1943] S.C.R. 265; Tolfree, The King ex rel. v. Clark, Conant
and Drew, [1943] 3 D.L.R. 684 (Ont. C.A.); R. ex rel. Stubbs
v. Steinkopf (1964), 47 D.L.R. (2d) 105 (Man. Q.B.); Re
Jackman and Stollery et al. (1981), 33 O.R. (2d) 589 (H.C.);
McLeod v. Noble (1897), 28 O.R. 528 (Div. Ct.).
5 (1703), 92 E.R. 126 (K.B.). See also Crawford v. Saint
John (1898), 34 N.B.R. 560 (C.A.).
Even if the subject matter of these complaints
did fall within the privilege of the House, however,
it is also our view that Parliament has subjected
the activities of the Chief Electoral Officer to the
provisions of the Canadian Human Rights Act. 6
That Act states its purpose in section 2, as follows:
2. The purpose of this Act 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 Canada to
the principle that every individual should have an equal oppor
tunity with other individuals to make for himself or herself the
life that he or she is able and wishes to have, consistent with his
or her duties and obligations as a member of society, without
being hindered in or prevented from doing so by discriminatory
practices based on race, national or ethnic origin, colour,
religion, age, sex, marital status, family status, disability or
conviction for an offence for which a pardon has been granted.
The highest authority tells us that that section
mandates a purposive and generous
interpretation.' The words of the section them
selves dictate the paramountcy of the Canadian
Human Rights Act over all other statute law. But
the Chief Electoral Officer is himself a creature of
statute and not of privilege. The contrast of his
position with that of, say, the Speaker or the
Sergeant at Arms, is striking. His rank, powers,
duties, appointment, tenure, term and removal, are
all set out in great detail in the Canada Elections
Act, 8 in particular sections 3 [as am. by S.C.
1980-81-82-83, c. 50, s. 25] and 4 [as am. by S.C.
1977-78, c. 3, s. 2], which read:
3. (1) The Chief Electoral Officer shall exercise and perform
all the powers and duties specified in this Act as exercisable
and performable by him.
(2) The Chief Electoral Officer shall rank as and have all the
powers of a deputy head of a department, shall devote himself
exclusively to the duties of his office and shall not hold any
office under Her Majesty or engage in any other employment.
(3) The Chief Electoral Officer shall communicate with the
Governor in Council through such member of the Queen's
Privy Council for Canada as is designated by the Governor in
Council for the purposes of this Act.
(4) The Chief Electoral Officer shall be paid a salary equal
to the salary of a judge of the Federal Court of Canada, other
6 S.C. 1976-77, c. 33 (as am. by S.C. 1980-81-82-83, c. 143,
s. 28(3)).
7 See Canadian National Railway Co. v. Canada (Canadian
Human Right Commission), [1987] 1 S.C.R. 1114.
8 R.S.C. 1970 (1st Supp.), c. 14, as amended.
than the Chief Justice or the Associate Chief Justice of that
Court, and is entitled to be paid reasonable travelling and living
expenses while absent from his ordinary place of residence in
the course of his duties.
(5) The Chief Electoral Officer shall be deemed to be a
person employed in the Public Service for the purposes of the
Public Service Superannuation Act and to be employed in the
public service of Canada for the purposes of the Government
Employees Compensation Act and any regulations made pursu
ant to section 7 of the Aeronautics Act.
(6) Any sums payable to the Chief Electoral Officer shall be
paid out of any unappropriated moneys forming part of the
Consolidated Revenue Fund.
(7) The Chief Electoral Officer ceases to hold office as Chief
Electoral Officer upon attaining the age of sixty-five years but,
until he attains that age, he shall be removable only for cause
by the Governor General on address of the Senate and House
of Commons.
(8) Where there is a vacancy in the office of Chief Electoral
Officer, the vacancy shall be filled by resolution of the House
of Commons.
(9) Where, while Parliament is not sitting, the Chief Elector
al Officer dies or neglects or is unable to perform the duties of
his office, a substitute Chief Electoral Officer shall, upon the
application of the member of the Queen's Privy Council desig
nated pursuant to subsection (3), be appointed by the Chief
Justice of Canada or, in his absence, by the senior judge of the
Supreme Court of Canada then present in Ottawa.
(10) Upon his appointment, a substitute Chief Electoral
Officer shall exercise the powers and perform the duties of the
Chief Electoral Officer in his place until fifteen days after the
commencement of the next following session of Parliament
unless the Chief Justice of Canada, or the judge by whom the
order appointing him was made sooner directs that such order
be rescinded.
(11) In the absence of both the Chief Justice of Canada and
of the judge of the Supreme Court of Canada by whom a
substitute Chief Electoral Officer has been appointed, the order
appointing the substitute may be rescinded by any other judge
of that court.
(12) The remuneration of a substitute Chief Electoral Offi
cer may be fixed by the Governor in Council.
4. (1) The Chief Electoral Officer shall
(a) exercise general direction and supervision over the
administrative conduct of elections and enforce on the part of
all election officers fairness, impartiality and compliance
with the provisions of this Act;
(b) issue to election officers such instructions as from time to
time he may deem necessary to ensure effective execution of
the provisions of this Act; and
(c) execute and perform all other powers and duties assigned
to him by this Act.
(2) Where, during the course of an election, it appears to the
Chief Electoral Officer that, by reason of any mistake, miscal
culation, emergency or unusual or unforeseen circumstance,
any of the provisions of this Act do not accord with the
exigencies of the situation, the Chief Electoral Officer may, by
particular or general instructions, extend the time for doing any
act, increase the number of election officers or polling stations
or otherwise adapt any of the provisions of this Act to the
execution of its intent, to such extent as he considers necessary
to meet the exigencies of the situation;
(3) The Chief Electoral Officer shall not exercise his discre
tion pursuant to subsection (2) in such a manner as to permit a
nomination paper to be received by a returning officer after two
o'clock in the afternoon on nomination day or to permit a vote
to be cast before or after the hours fixed in this Act for the
opening and closing of the poll on ordinary polling day or on
the days on which the advance poll is held.
(4) Notwithstanding subsection (3), where
(a) a returning officer informs the Chief Electoral Officer
that, by reason of accident, riot or other emergency, it has
been necessary to suspend voting at any polling station
during any part of the ordinary polling day, and
(b) the Chief Electoral Officer is satisfied that, if the hours
of voting at the polling station are not extended, a substantial
number of electors who are qualified to vote at the polling
station will be unable to vote thereat,
the Chief Electoral Officer may extend the hours of voting at
the polling station to allow votes to be cast on the ordinary
polling day after the hour fixed by or pursuant to this Act for
the closing of the poll at the polling station, but shall not, in so
doing, permit votes to be cast at the polling station during an
aggregate period of more than eleven hours.
(5) Subject to section 103, the Chief Electoral Officer may
authorize the Assistant Chief Electoral Officer or any other
officer on the staff of the Chief Electoral Officer to exercise
and perform any of the powers and duties assigned to the Chief
Electoral officer by this Act.
Since the complaints here in issue have to do
with access by handicapped persons to polling
stations, it may also be appropriate to refer specifi
cally to subsection 33(1) and paragraph 91(6)(a)
[as am. by S.C. 1977-78, c. 3, s. 49]:
33. (1) The poll shall be held in one or more polling stations
established in each polling division in premises of convenient
access, with an outside door for the admittance of electors, and
having, if possible, another door through which they may leave
after having voted.
91....
(6) A returning officer shall
(a) where possible, locate an advance polling station at a
place in a building that will provide ease of access to any
elector who is confined to a wheel chair or otherwise
incapacitated or who is of advanced age ....
Those provisions are all part of the statute law
of Canada, which Parliament has decreed shall be
read subject to the provisions of the Canadian
Human Rights Act and for which, when so read, it
has provided an enforcement mechanism through
the Commission and the Human Rights Tribunal.
Indeed, one of the functions of the Act is to
provide effective remedies where there were none.
Parliament itself having spoken, there remains no
room for the assertion of parliamentary privilege.
The section 28 application will be allowed. The
decision of the Tribunal will be set aside and the
matter will be referred back to the Tribunal for
resumption of its hearing on the basis that it has
jurisdiction to deal with the complaints against the
Chief Electoral Officer.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.