Reduced Standard of Review Inappropriate: A Case Comment On CHRC v Canada

In Canada (Canadian Human Rights Commission v Canada (Attorney General), [2011] 3 SCR 471, the issue originated in a human rights complaint with the Canadian Human Rights Commission (CHRC), with a claimant alleging that the Canadian Forces had discriminated against her on the ground of sex.

The Tribunal awarded damages, and the claimant then applied for legal costs. The Tribunal held that it had the authority to order costs under the Canadian Human Rights Act, and the Federal Court agreed. However, at the Federal Court of Appeal, the court held that the Tribunal did not have the legislated authority to award costs to claimants. Paul Groarke discussed some aspects of the Supreme Court’s decision on this website. However, there is another theme in the highest court’s decision that I would like to review.

This decision seems to retreat from the general rule that decisions on questions of law by human rights tribunals would be reviewed under the standard of “correctness” and opens the way for a review under the more deferential standard of “reasonableness” under given circumstances. Furthermore, its articulation of those circumstances seems far from clear. These, with respect, are unfortunate developments. I respectfully suggest that all legal questions from a human rights tribunal, and all legal questions from any tribunal on matters of human rights legislation, continue to be reviewed under the standard of “correctness.” I will elaborate below.

The Court held that while courts have played a deferential role for administrative bodies that manage “complex administrative schemes,” reviewing courts have not adopted a similar approach to decisions on legal questions by human rights tribunals. According to the Court, this is because “the tribunals’ comparative level of expertise remained weak and the regimes they administered were not particularly complex…”

The root of the problem, according to the Court, is the nature of human rights tribunals. The Court noted that while Dunsmuir and Khosa affirmed a deferential standard when a tribunal is interpreting its own home statutes and legal rules, the Court has also held that general questions of law that are outside a specialized area of expertise and of central importance to the legal system must be reviewed on a correctness standard.

As a result, the nature of the “home statute” in the statutory human rights context “makes the task of resolving this tension a particularly delicate one.” The Court noted that:

A key part of any human rights legislation in Canada consists in principles and rules designed to combat discrimination. But these statutes also include a large number of provisions, addressing issues like questions of proof and procedure or the remedial authority of human rights tribunals or commissions.

The Court was careful to note that not all questions of general law before a human rights tribunal should attract a standard of correctness.  When the question falls within the purview of the Tribunal’s expertise, or when the question is not of general importance to the legal system, a standard of reasonableness should still be applied.

However, the Court then applied these observations to the legal question at issue in the case:

In summary, the issue of whether legal costs may be included in the Tribunal’s compensation order is neither a question of jurisdiction, nor a question of law of central importance to the legal system as a whole and outside the Tribunal’s area of expertise within the meaning of Dunsmuir. As such, the Tribunal’s decision to award legal costs to the successful complainant is reviewable on the standard of reasonableness.

It would seem that there are very few (if any) legal decisions involving human rights legislation that are not, actually or potentially, “of central importance to the legal system as a whole.” Indeed the “central importance” of  these decisions would apply at least as much to the substantive interpretation and application of the “principles and rules designed to combat discrimination” than to questions of “proof and procedure and the remedial authority of human rights tribunals or commissions,” as important as the latter questions may be.

As has often been pointed out, anti-discrimination provisions in human rights legislation and their interpretation reflect a central value and purpose of our constitutional system: the pursuit of equality. Furthermore, human rights statutes themselves have been ruled to be “quasi-constitutional” and often have been legislatively mandated and/or interpreted to take precedence over conflicting legislation. Human rights legislation applies to many diverse areas of Canadian life, including areas governed by other legislation, in both the governmental and private sectors. Their interpretation and application can have far-reaching effects in industry and commerce, social services, the professions, education and even the administration of justice and policing.

Even when the constitutionality of legislation or practices isn’t in issue, the matters dealt with in human rights cases can involve or overlap with other constitutionally-protected values. For example, a decision requiring an employer to accommodate the religious needs of a worker can enhance freedom of religion, and a decision condemning sexual harassment or sexual orientation discrimination can enhance the protection of potential victims’ privacy as well as their equality rights.

On the other hand, failing to grant an exemption (or interpreting an exemption provision too narrowly) to a religiously based organization can unduly interfere with freedom of religion and an unduly wide interpretation of the concept of “hostile environment” or of legislation dealing with publications, signs or advertisements can cause an excessive interference with freedom of expression (irrespective of how the courts will decide on the constitutional challenges to the various “hate speech” provisions).

Human rights legislation is indeed somewhat specialized and “complex” in light of all the vital and multidimensional issues it must deal with. However, it is certainly not narrow as are “administrative schemes in domains like labour relations, telecommunications, the regulation of financial markets and international economic relations,” and must not be treated like the law concerning those matters. Human rights law is not only central “to the legal system as a whole,” but central to our entire society. As such, it is the duty of our superior courts to ensure that it is interpreted correctly.

I am certainly not denying that many–perhaps most–human rights tribunal members, adjudicators or commissioners throughout Canada (at the federal, provincial or territorial level) are indeed experts in the field of human rights and make excellent contributions to the development of jurisprudence in that area.

However, whether they have “particular expertise vis-a-vis the courts” entitling their decisions to a more deferential level of judicial review is another matter. I would respectfully suggest that they do not, both as a matter of principle and as a practical matter.

As a matter of principle, as stated above, the quasi-constitutional and paramount nature of human rights legislation and their influence on the entire legal and social system demand that they receive a correct legal interpretation from the highest judicial authorities. In our system, the superior courts, culminating with the Supreme Court of Canada are the highest judicial authorities.

As a practical matter, it seems that Superior Court judges have at least as great experience and expertise as human rights tribunal members or commissioners in dealing with issues facing human rights bodies or related matters. Many judges have in fact served on human rights bodies before their appointment to the bench or have otherwise attained a certain level of expertise in human rights related matters.

Indeed, they are bound to interpret and apply the Canadian Charter of Rights and Freedoms, as well as the entire Constitution of Canada. They are called upon to review the legality of government decisions, often when those decisions   are challenged as conflicting with the rights of individuals or groups, whether based on human rights legislation, other statutory provisions, or principles based on common or civil law. In matters of criminal law and ordinary civil legislation, they often have to consider values related to human rights in the broad sense, even if human rights legislation or the Charter are not directly involved.

Their work involves the careful balancing of all conflicting rights, duties, interests and values in society. This, it seems, makes them especially qualified to deal with the complex issues and competing values and interests present in litigation under human rights legislation.

I would respectfully suggest that institutional and practical factors militate against increasing the level of deference granted to human rights bodies. Although many members are indeed experts in the field, there are no guarantees that this is always the case. Indeed, in some of the smaller provinces, human rights cases that actually reach adjudication are so rare that it would be unrealistic to expect part-time adjudicators to develop the relevant expertise by reason of their position alone. Most adjudicators are well-respected professionals (usually, but not necessarily, lawyers) and community leaders who are dedicated to promoting human rights and the welfare of society.

However, their involvement in human rights adjudication are often a very incidental aspect of their entire careers, rendering it unlikely that their knowledge in that field would necessarily be superior to that of judges. Furthermore, although occasionally human rights tribunals sit collegially, a single tribunal member decides most human rights cases.

In matters as important as interpretation of human rights law, it is essential that an individual’s decision be subjected to a complete review by a court. (It is true that the first level of judicial review is usually by a single judge of the superior court of first instance, but this is usually subject to appeal to the court of appeal, and occasionally reaches the Supreme Court of Canada.)

Furthermore, as recognized by the Federal Court of Appeal in the instant case (2009 FCA 309, paras 45-47), conflicting decisions by tribunals could be upheld by the courts in a jurisdiction if reasonableness was the standard of review, leading to confusion among persons subject to the law.

Additionally, as recognized by the Supreme Court in several cases and alluded to in this case, human tribunals do not necessarily enjoy exclusive jurisdiction in human rights cases. Sometimes other tribunals, and in limited circumstances the courts, have concurrent first instance jurisdiction in human rights matters. Would the standard of review on a human rights matter vary with the nature of the tribunal that first heard the case? Would this lead to conflicting decisions on the same issue? If so, this would also create unnecessary confusion in the law. This could lead to the perception that the standard of justice a party received varied according to the forum chosen.

I would respectfully hope that the Supreme Court would reconsider this issue and restore the general rule that questions of law from human rights tribunals be reviewed on a standard of “correctness.” Should they decide to retain the formula chosen in this decision, I would hope that they would deem all (or almost all) such questions to be “both of central importance to the legal system as a whole and outside the adjudicator’s special area of expertise.” Additionally, legislators may wish to amend their relevant legislation to restore the standard of “correctness” to judicial review of decisions on questions of law from human rights tribunals. And in cases where a reduced standard of review is mandated by the legislation itself – as in section 45.8 of the Ontario Human Rights Code, RSO 1990, c H.19 – I respectfully suggest that such amendment must be made.

Edward H. Lipsett, B.A., LL.B., is a guest contributor to He is an independent legal researcher and writer, with a particular interest in human rights and civil liberties.

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