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CHAPTER 1
ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS
1.1 General Characteristics of Administrative Proceedings
1.1.1 The Board is a Tribunal
1.1.1.4 Charters of Rights
As we have just seen, it is accepted that a litigant may rely on charters of rights before an administrative tribunal, which must take them into account in exercising its jurisdiction.62 This is true of the Canadian Charter of Rights and Freedoms, s. 32 of which states that it applies to the Parliament and government of Canada. The same thing is true of the Canadian Bill of Rights and the Canadian Human Rights Act but not of the Quebec Charter or other provincial human rights codes, which do not apply to federal authorities. These provincial charters may sometimes apply to employer-employee relations.
The question as to whether any tribunal may also rule on the constitutional validity of the Act and the Regulations is altogether different. In Tétreault-Gadoury, the Supreme Court held that only administrative tribunals that were expressly or implicitly authorized to decide questions of law could refuse to apply an Act on the ground that it was unconstitutional. The Court concluded that in our particular context, the intention of Parliament was that only the Umpire and not the board had the power to rule on the constitutionality of the Act.63 In Cooper, the Supreme Court redefined the tests used to identify those administrative tribunals that had authority to rule on the constitutionality of the Act and the Regulations.64 Furthermore, for the Umpire to rule on the constitutionality of a text, the appellant must specifically challenge its validity or inapplicability.65
The provisions of the Canadian Charter likely to be relied upon before a Board of Referees are primarily ss. 15 and 7; as a rule, Charter arguments are raised before the Umpire.66
Section 15 of the Canadian Charter sets out the right to equality in very broad terms:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Supreme Court has considered this provision on at least a dozen occasions and in May 1991, in its decision in Swain, It maintained that these cases provided "a basic framework with which particular . . . claims can be analysed . . . ".67
The Court must first determine whether the complainant has established that one of the four fundamental rights to equality has been violated (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This analysis will look above all at the question as to whether the law (intentionally or otherwise) makes a distinction between the complainant and other persons on the basis of personal characteristics. Then the Court must determine whether the violation of the right gives rise to "discrimination." This second analysis will to a large extent look at the question as to whether the different treatment has the effect of imposing burdens, obligations or disadvantages that are not imposed on others or preventing or limiting access to the opportunities and benefits provided to others. Moreover, to determine whether the rights that s. 15(1) recognizes the complainant as having have been violated, the Court must determine whether the personal characteristic in question is covered by the grounds listed in this provision or a similar ground to ensure that the complaint corresponds to the general purpose of s. 15, that is to correct or prevent discrimination against groups that are stereotyped, were subject to disadvantages in the past or have suffered political and social prejudice in Canadian society.
What must be considered above all is "the effect of the law on the individual and the group concerned" while seeking the "ideal complete equality before the law and under the law", and
[r]ecognizing that there will always be an infinite variety of personal characteristics, capacities, entitlements and merits among those subject to a law, there must be accorded, as nearly as may be possible, an equality of benefit and protection and no more of the restrictions, penalties or burdens imposed upon one than another. In other words, the admittedly unattainable ideal should be that a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another.68
However, it is not sufficient for persons placed in similar situations to be treated in a similar manner for equality to exist: that "cannot be a realistic test . . . consideration must be given to the content of the law, to its purpose, and its impact upon those to whom it applies and also upon those whom it excludes from its application",69 because there are distinctions and differences in treatment before the law that violate the guarantee of equality in s. 15 of the Canadian Charter and others that do not.
Since the decision in Andrews, the Court has repeated that not all distinctions and differences in treatment before the law violate s. 15; an element of discrimination is required. This discriminatory element may be found by determining the harmful effect of the impugned measure. It unanimously repeated this in its decision in Tétreault-Gadoury in June 1991:
As in McKinney, supra, it was argued here that the policy is not motivated by stereotypical assumptions, but is based upon "administrative, institutional and socio-economic" considerations. In McKinney, however, I concluded (at p. 279) that this is all irrelevant, since as Andrews v. Law Society of British Columbia made clear . . . . not only does the Charter protect from direct or intentional discrimination; it also protects from adverse impact discrimination, which is what is in issue here.70
Section 15 does not contain a complete list of the grounds of discrimination. This is what led the Supreme Court to provide a broad definition of discrimination as being a distinction based on a personal characteristic of an individual or a group. It then hastened to add in Andrews:
The enumerated grounds in s. 15(1) are not exclusive and the limits if any, on grounds for discrimination, which may be, established in future cases await definition. The enumerated grounds do, however, reflect the most common and probably the most socially destructive and historically practised cases of discrimination and must, in the words of s. 15(1), receive particular attention. Both the enumerated grounds themselves and other possible grounds of discrimination recognised under s. 15(1) must be interpreted in a broad and general manner, reflecting the fact that they are constitutional provisions not easily repealed or amended but intended to provide a "continuing framework for the legitimate exercise of governmental power" and, at the same time, for "the unremitting protection" of equal rights.71
Parliament may nevertheless enact legislation that makes distinctions that are reasonable and demonstrably justified in a free and democratic society. Under s. 1 of the Charter, Parliament and the government are justified in making distinctions in the general interest and to ensure that the community is not deprived of the benefits of social and economic laws and programs. A certain amount of flexibility is required in assessing legislative and administrative measures. The Court unanimously stated the following in Tétreault-Gadoury:
Nevertheless, the Court found that s. 31 of the Act , which prohibited the payment of unemployment insurance benefits to persons of 65 years and over, was not an acceptable means of attaining any of Parliament's objectives, since each of them could easily have been attained by less invasive means. The Court's main criticism of the government was that it had not established the importance of the two objectives, which it based on allegations that were not really substantiated. The third of these objectives, which was to avoid duplication in social benefits, could be attained by other means, namely by simply deducting pension income from the unemployment insurance benefits. Thus, the Court found that s. 31 was not carefully designed to attain this objective, which it felt was otherwise valid. The idea of harmonizing social policies and schemes by imposing age limits was accordingly a sufficiently important objective but the measure adopted must not be too radical or too invasive. In that case it was.
The case law on the subject of equality recognizes three kinds of discrimination: direct, indirect and systemic.
Direct discrimination, whether conscious or not, takes the obvious form of a distinction, exclusion or preference with respect to an individual or a group defined on the basis of its own characteristics and relating to prohibited grounds.
Indirect discrimination or adverse effect discrimination is the result of measures that appear to be neutral and, in principle, apply to everyone but inevitably produce adverse effects in the form of distinctions, exclusions or preferences relating to prohibited grounds. The best known example of such measures relates to laws or policies of general application that do not take account of persons with disabilities who therefore find themselves in a disadvantageous and thus a discriminatory situation in comparison with the situation of people as a whole.
Section 15 of the Charter has been relied on several times to attack certain provisions of the Act or Regulations or certain purportedly discriminatory practices, albeit without success in most cases.73
The claimant or employer who claims to have been subject to a discriminatory measure on the part of the Commission could also rely on s. 1(b) of the Canadian Bill of Rights, which protects "the right of the individual to equality before the law and the protection of the law".
Section 7 of the Charter concerns the right to security, which may be infringed only "in accordance with the principles of fundamental justice". Although the case law is not completely settled on this issue, it would appear that professional rights and socio-economic rights, as with those involved in employment cases, are covered by s. 7.74 As far as the principles of fundamental justice are concerned, in the field of administrative justice they are intermingled with the principles of natural justice. The individual may also rely on s. 2(e) of the Canadian Bill of Rights for the same purpose.
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