Cooper v. Canada (Human Rights Commission) [1996] 3 S.C.R. 854: Commissions and tribunals -- Right to decide issues of law, including constitutional issues

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, McLachlin and Iacobucci JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Administrative law -- Commissions and tribunals -- Right to decide issues of law, including constitutional issues -- Human Rights Commission considering allegation of discrimination based on age -- Act providing that no age discrimination occurring if mandatory retirement set at industry standard -- Investigator appointed by Commission recommending that complaint not proceed to tribunal -- Whether provision excusing age discrimination contrary to equality provisions of s. 15 of the Canadian Charter of Rights and Freedoms -- Whether Commission implicitly empowered to refer the matter to a tribunal and so in essence rule on constitutionality of the provision -- Canadian Charter of Rights and Freedoms, ss. 1, 15, 24(1) -- Constitution Act, 1982, s. 52 -- Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 15(c).

The appellants, who were being retired as airline pilots at age 60 pursuant to their collective agreement, alleged age discrimination, given that most employees in Canada are required to retire only at age 65. They filed complaints with the Canadian Human Rights Commission in April and July 1990 and an investigator was appointed. The employer submitted that no discrimination occurred in that the employment policy was a bona fide occupational requirement. The investigator recommended that the Commission dismiss the appellants' complaints. Section 15(c) of the Canadian Human Rights Act (the Act), which provided that no discrimination would occur if persons were retired at a normative industrially determined age, would effectively be struck by the Commission as being contrary to the Charter if it were to refer the matter to a tribunal for determination. The appellants applied for judicial review in the Federal Court Trial Division, seeking an order to quash the Commission's decision and to direct it to request the President of the Human Rights Tribunal Panel to appoint a tribunal to inquire into their complaints. The motion was dismissed and that finding was upheld on appeal. The employer was granted party status after leave to appeal was granted. After hearing oral submissions from the parties, who were all of the view that the Commission had at least a limited jurisdiction to question the constitutionality of the Act, the Court appointed an amicus curiae to present the argument against such a jurisdiction. At issue was whether the Canadian Human Rights Commission or a tribunal appointed by it to investigate a complaint has power to determine the constitutionality of a provision of their enabling statute. In particular, could the Commission ignore s. 15(c) of the Act?

Held (L'Heureux-Dubé and McLachlin JJ. dissenting): The appeals should be dismissed.

Per La Forest, Sopinka, Gonthier and Iacobucci JJ.: The Canadian Human Rights Commission has no jurisdiction under the Act to subject the Act's provisions to constitutional scrutiny. The Commission is limited in its jurisdiction by the dictates of the Act. Similarly, a tribunal appointed at the request of the Commission is also without jurisdiction to determine the constitutional validity of a limiting provision of the Act.

No administrative tribunal has an independent source of jurisdiction pursuant to s. 52(1) of the Constitution Act, 1982. A court must, therefore, as a matter of statutory interpretation determine whether Parliament has granted the administrative tribunal through its enabling statute, either explicitly or implicitly, the power to determine questions of law. If so, the administrative tribunal by the operation of s. 52(1) must be able to address constitutional issues, including the constitutional validity of its enabling statute. There is no need to determine if either the Commission or a tribunal under the Act is a court of competent jurisdiction under s. 24(1) of the Charter.

In considering whether an administrative tribunal has the power to determine questions of law, various practical matters such as the composition and structure of the tribunal, the procedure before the tribunal, the appeal route from the tribunal, and the expertise of the tribunal can appropriately be taken into account. These practical considerations, in so far as they reflect the scheme of the enabling statute, provide an insight into the mandate given to the administrative tribunal by the legislature. At the same time there may be pragmatic and functional policy concerns that argue for or against the tribunal's having constitutional competence, though such concerns can never supplant the intention of the legislature.

The Act sets out a complete mechanism for dealing with human rights complaints. Central to this mechanism is the Commission. There is no provision in the Act which explicitly gives the Commission power to determine questions of law and nothing in the scheme of the Act implies that the Commission has this power. Looking at the Act as a whole, the role of the Commission is to deal with the intake of complaints and to screen them for proper disposition. The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. The Commission's striking down s. 15(c) of the Act (which is what a referral to a tribunal would amount to) would be an assumption by the Commission of an adjudicative role for which it has no mandate. Administrative bodies and tribunals are creatures of statute; the will of the legislature as it appears in that statute must be respected. The role of the Commission as an administrative and screening body, with no appreciable adjudicative role, is a clear indication that Parliament did not intend the Commission to have the power to consider questions of law.

Sections 27, 40 and 41 of the Act do no more than enable the Commission to interpret and apply its enabling statute. It does not follow that it then has a jurisdiction to address general questions of law. Every administrative body, to one degree or another, must have the power to interpret and apply its own enabling statute. Determining jurisdiction over a given complaint through reference to the provisions of the Act is conceptually different from its subjecting the same provisions to Charter scrutiny. The former represents an application of Parliament's intent as reflected in the Act while the latter involves ignoring that intent.

The practical advantages in having the Commission consider the constitutionality of its own statute are limited. First, since the Commission is not an adjudicative body it cannot be considered a proper forum in which to address fundamental constitutional issues. Allowing the parties to raise such issues would of necessity require a more involved and lengthy process that would interfere with the Commission's screening process. Second, the Commission has no special expertise with respect to questions of law. Having the complainant seek a declaration of constitutional invalidity in either the Federal Court or a provincial superior court would be more efficient, both to the parties and to the system in general, given that any ruling of the Commission on the constitutional validity of a provision of the Act would be the subject of judicial review proceedings. In such a setting, the question can be debated in the fullness it requires in such a setting and the proper expertise can be brought to bear on its resolution.

Given the limited jurisdiction of the Commission it logically follows that a tribunal appointed under the Act must also lack the jurisdiction to declare unconstitutional a limited provision of the Act. It could not have been the intent of Parliament to grant a tribunal a jurisdiction that could never be exercised.

Sections 50(1) and 53(2) of the Act empower a tribunal appointed under the Act to inquire into a complaint referred by the Commission. This is primarily and essentially a fact-finding inquiry. In the course of such an inquiry a tribunal has the jurisdiction to consider questions of law, including questions of statutory interpretation and constitutional questions. Where a tribunal does make legal findings it is not entitled to deference by a reviewing court.

Per Lamer C.J.: Judicial review, while necessary to preserve important constitutional values, is inherently controversial in a democracy like Canada because it confers on unelected officials the power to question decisions arrived at through the democratic process. As a matter of constitutional principle that power must accordingly be reserved to the courts and should not be given over to bodies that are mere creatures of the legislature, whose members are usually vulnerable to removal with every change of government, and whose decisions in some circumstances are made within the parameters of guidelines established by the executive branch of government. The previous judgments of this Court may have misunderstood and distorted the web of institutional relationships between the legislature, the executive and the judiciary by giving administrative tribunals access to s. 52 of the Constitution Act, 1982. The application of this section should be reserved to the courts because the task of declaring invalid legislation enacted by a democratically elected legislature is within the exclusive domain of the judiciary. (The role of administrative tribunals in relation to s. 24(1) was not addressed.)

The premise relied on by the other members of the Court -- that the intent to confer a power to interpret general law on tribunals implies an intent to confer on tribunals a power to refuse systematically to apply laws which violate the Charter --is suspect. Firstly, this inference is artificial. Many, if not most of the tribunals which have been set up by Parliament and the provincial legislatures were created before the enactment of the Charter in 1982. Granting the power to tribunals to refuse systematically to apply laws which violate the Charter could not have possibly been within the contemplation of Canada's legislatures. Secondly, this inference is profoundly illogical. A legislature could only intend to confer on a tribunal the power to judge the constitutionality of that tribunal's enabling legislation if the legislature had knowingly passed a constitutionally suspect law; otherwise, the conferral of the power would be unnecessary. A legislature would not knowingly pass constitutionally suspect legislation. The presumption of constitutionality suggests that legislatures assume the constitutionality of their enactments. In any event, if the legislature did know that a piece of legislation was constitutionally suspect, and nonetheless enacted it into law, it is not readily apparent why the legislature would also confer on the tribunal to which the legislature assigns the responsibility of giving effect to the legislation the power to hold various provisions of the legislation inoperative.

First principles of the Constitution must be revisited in order to comprehend properly the relationship between s. 52 and administrative tribunals.

Douglas College, Cuddy Chicks and Tétreault-Gadoury offend the constitutional principle of separation of powers which is one of the defining features of the Canadian Constitution. Although the separation of powers under the Canadian Constitution is not strict, Canadian constitutional law recognizes some notion of the separation of powers. The existence of courts flows from the separation of powers as is evidenced from the jurisprudence on s. 96 of the Constitution Act, 1867 and from the case law interpreting the preamble of the Constitution Act, 1867 which states that Canada is to have "a Constitution similar in Principle to that of the

United Kingdom".

The constitutional status of the judiciary, flowing as it does from the separation of powers, requires that certain functions be exclusively exercised by judicial bodies. The judiciary, while it does not have an interpretive monopoly over questions of law, must nevertheless have exclusive jurisdiction over challenges to the validity of legislation under the Constitution of Canada, and particularly the Charter. Only courts have the requisite independence to be entrusted with the constitutional scrutiny of legislation when that scrutiny leads a court to declare invalid an enactment of the legislature. Mere creatures of the legislature, whose very existence can be terminated at the stroke of a legislative pen, whose members usually serve at the pleasure of the government of the day and whose decisions in some circumstances are properly governed by guidelines established by the executive branch of government, are not suited to this task. Security of tenure, financial security, and independence with respect to matters of administration bearing directly on the exercise of the courts' judicial function define judicial independence. In the context of Charter adjudication, these features help to insulate the courts from interference, inter alia, by elected legislatures, and thus ensure that courts can safeguard the supremacy of Charter rights through the vehicle of s. 52.

The case law relies on a distinction between refusals to apply legislation and declarations of invalidity in order to claim that tribunals are not encroaching upon the judicial role. Many tribunals, however, operate according to an informal doctrine of precedent. The de facto equivalence between refusals to apply legislation and declarations of invalidity decisively demonstrates that tribunals, when they refuse to apply their enabling legislation under s. 52 of the Constitution Act, 1982, are improperly exercising the role of the courts. This Court's decisions authorizing tribunals to overstep their constitutional role are, accordingly, in serious need of revision. And for the same reasons, tribunals cannot be expressly given the power to consider the constitutionality of their enabling legislation.

This conclusion does not detract from the power of the Commission to determine whether complaints fall within federal jurisdiction according to the division of powers. An important conceptual difference exists between the Commission's interpreting its enabling legislation in light of the division of powers, and the Commission's questioning the validity of that legislation in light of the Charter. When it performs the former role, the Commission is merely determining whether it has jurisdiction over a matter, because the clear intent of Parliament was that the Commission should only operate within the confines of federal jurisdiction. As well, these comments should not to be construed as detracting from the general duty to interpret statutes in light of Charter values.

Douglas College, Cuddy Chicks and Tétreault-Gadoury also offend a second defining feature of the Canadian Constitution, its commitment to Parliamentary democracy. The Constitution Act, 1867 incorporated those aspects of Parliamentary democracy that have taken legal form. One of those aspects is the legal relationship between the executive and the legislature. The role of the executive is to effectuate legislative intent. The justification for this hierarchical relationship, in present-day Canada, is a respect for democracy because legislatures are representative institutions accountable to the electorate. The assumption by administrative tribunals of jurisdiction over the Charter, however, inverts this hierarchical relationship. Instead of putting the intent of the legislature into effect, the case law of this Court enables tribunals to challenge the decisions of the democratically elected legislature. A tribunal has, in these circumstances, unconstitutionally usurped power which it did not have. The framers of the Charter did not intend to alter so fundamentally the nature of the relationship between the executive and the legislature.

Per L'Heureux-Dubé and McLachlin JJ. (dissenting): Every tribunal charged with the duty of deciding issues of law has the concomitant power to decide those issues. The fact that the question of law concerns the effect of the Charter does not change the matter.

Two related principles of general application apply. First, all decision-making tribunals, whether courts or administrative tribunals, are bound to apply the law, including the Charter. Second, a tribunal's ruling that a law is inconsistent with the Charter is nothing more than a case of applying the law.

Douglas College, Tetréault-Gadoury and Cuddy Chicks stand for two related propositions. First, an administrative tribunal which has the power to decide questions of law has the power to decide the validity of particular laws under the Charter. Second, an administrative tribunal provided that it is discharging a function assigned to it by its legislation may, in the course of doing so, consider and decide Charter issues. As a corollary, the cases affirm a third proposition: no express term is required for the tribunal to apply the Charter. The power of the Commission to consider legal questions, while not expressly stated, may be inferred from the Act. Many of its duties could not be accomplished without the power to consider issues of law generally and the effect of the Charter on human rights law more particularly. Parliament did not intend that the

Commission, which was required to interpret the law for the purposes of Part I of the Act (Proscribed Discrimination), should be forbidden from making legal interpretation in discharging its Part III (Discriminatory Practices and General Provisions) duties. The Commission accordingly has the power to interpret the law in determining whether to refer a complaint to a tribunal or dismiss it. The Act confers the same power to consider and decide issues of law on the tribunals appointed to investigate and decide particular complaints.

A tribunal may consider the Charter in carrying out the mandate conferred upon it by Parliament or the legislature. Several provisions of the Act support the conclusion that not only is the Commission empowered to consider questions of law but also that it is obliged to do so. This obligation extends to permitting boards and tribunals appointed under human rights legislation to hold that provisions of the law are invalid. Often this has been assumed without challenge. The Commission functions as gatekeeper to the tribunal process and accordingly cannot be barred from considering questions of law which the tribunal is permitted to consider for the Commission must first consider that question.

The Commission accordingly has the power to consider the issue of whether the Charter renders invalid the "normal age of retirement" defence. Given that the

Commission's only duty is to screen the complaint, it need not decide the question finally but only determine whether it has a reasonable chance of success. In the context of its duties under the Act, the Commission has the expertise to carry out its duty in this regard. The Commission should refer the matter to a tribunal which can hear full representations on the matter and make its decision accordingly if it decides that the complaint has a reasonable chance of success. The tribunal's decision on the issue of law may in turn be reviewed by the review tribunal. The review tribunal's decision in turn may be filed as a decision of the Federal Court, from which appeal lies to the Federal Court of Appeal.

The argument that McKinney v. University of Guelph (which held a provision setting mandatory retirement at age 65 to be contrary to s. 15 of the Charter but saved under s. 1) was based on the conclusion of the Court that age 65 was the "normal" age of retirement for the occupation at issue and that, similarly, a statute providing for retirement at the normal age for the occupation in question must also be saved under s. 1, oversimplifies the process envisaged under s. 1 of the Charter. Section 1 is about much more than what is usual or "normal". The usual practice may be unjustifiable, having regard to the egregiousness of the infringement or the insubstantiality of the objective alleged to support it. Each case must be looked at on its own circumstances.

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