Chapter 4 and_5_charter_and_human_rights_code_week_4

BCTA 308:Administrative Law

Chapters 4 & 5 Administrative Law, Principles & AdvocacyThe Charter, Bill of Rights and Human Rights Code and their place in administrative law

Rights-Consciousness in Canada

Canada’s bilingual and bi-religious heritage

– There were demands in 1864 for guarantees of minority language and minority religious education rights prior to Confederation in 1867

– There existed a “small bill of rights”:

• S. 133 of BNA Act: Eng or Fr in Parl, Quebec leg., and Can & fed courts; similar guarantees in Manitoba in 1870, & AB and Sask in 1905

• S. 93: safeguards existing denominational school rights

Legislative Supremacy– Preamble to BNA Act:

Canada’s constitution “similar in principle” to that of the U.K.

– legislative supremacy one aspect of U.K. constitution: seems to contradict idea of a constitutional bill of rights

– A.V. Dicey: Introduction to the Study of the Law of the Constitution (1885)

• human rights protected by common law

• written constitution is too rigid; trust legislature

Civil Liberty Cases prior to Bill of Rights

B.C.: discrimination legislation against Orientals

– 1899: JCPC struck down law restricting employment of Orientals as ultra vires prov. Jurisdiction

– 1902: JCPC upheld denial of vote to Orientals based on legislative supremacy

Sask: discrimination legislation against Orientals: upheld by SCC, 1914

“Persons” case: 1930 decided that women were eligible to sit in the Canadian SenateAlberta Press Case (1938)

– impugned: package of Social Credit legislation: struck down by court as ultra vires

– “Duff doctrine”: because Can. const is “similar in principle” to that of U.K., courts can strike down legislation violating trad. human rights. “Free public discussion … is the breath of life for parliamentary institutions”

Civil Liberty Cases prior to Bill of Rights

Treatment of Japanese Canadians during WWII: the courts did not intervene“Gouzenko affair” in 1945: secret trials of 26 under War Measures Act without usual procedural protections. Led to formation of the Canadian Civil Liberties Assn.Duplessis era: SCC used division of powers to protect human rights

– Saumur, 1953: SCC struck down Que City bylaw about littering, but that was actually aimed at Jehovah’s Witnesses

– Switzman v. Elbling, 1957: SCC struck down Padlock Law because it entrenched on Parl’s criminal law jurisdiction

– Roncarelli v. Duplessis, 1959: Roncarelli posted bail for Jehovah’s Witness, and Duplessis cancelled his restaurant liquor license. Court held that the premier of Quebec, had overstepped his authority by revoking the liquor license of a Jehovah's Witness. The decision meant that no public official was above the law

Canadian Bill of Rights

The Bill of Rights was proposed by PM John Diefenbaker, and enacted in 1960 for “federal statutes” only.

S. 1: rights to life, liberty, sec of person, enjoyment of property, equality before law, freedom of religion, speech, assembly, association and press have existed and continue to exist without discrimination by reason of race, national origin, colour, religion or sex

S. 2: lists traditional common law legal rights: habeas corpus, no arbitrary detention or imprisonment, no cruel or unusual punishment, no arrest without lawful reason, right to retain lawyer without delay, right not to be forced to incriminate self, innocent until proven guilty, ind and imp tribunal, reasonable bail, interpreter. Right to a fair hearing in accord with fundamental justice to determine rights and obligations. The Bill of Rights allowed for a “notwithstanding clause” to be used.

Cases after the Canadian Bill of Rights

Robertson & Rosetanni v. the Queen (1963)

– impugned: Fed. Lord’s Day Act– Ritchie (for majority):

Freedom of religion “has existed” prior to Bill of Rights therefore no violation

– Freedom of Religion means an absence of disabilities, but governments can promote religious practices

– Although Act has a religious purpose, the effect on those who didn’t observe Sunday prayer was purely secular and financial.

– Cartwright dissented: both purpose & effect of Act compel, under penal sanction, observance of a particular religious holy day, and this was an infringement of religious freedom.

– Courts can strike down laws under Bill of Rights; otherwise the “notwithstanding” clause would not be necessary.


Drybones (1970)– impugned: section of Indian

Act that made it an offence for an Indian to be intoxicated off a reservation. No reservations in the NWT.

– Drybones claimed his equality before the law was violated

– Ritchie (for majority): Where it is “an offence…on account of race…to do something which all Canadians who are not members of that race may do…” there is a violation of equality.

– Ritchie adopts Cartwright’s reasoning from Rosetanni that the notwithstanding clause means Bill of Rights is more than a rule of construction.

– Cartwright dissented. Said he’d changed his mind since Rosetanni. Felt it would be dangerous for the the courts to usurp legislature’s role by deciding what statutes violated the Bill of Rights.


Lavell & Bedard (1974) – impugned: part of Indian Act

that states that if an Indian man marries a non-Indian, he retains status and his children inherit it, but if an Indian woman marries a non-Indian, she forfeits her status, as do her children.

– Ritchie for majority (5-4): equality before the law was not violated by Act. Equality according to Justice Ritchie meant equality in the administration of the law as it was when B of R was passed.

– If all Indian women are treated equally, there’s no necessary discrimination. (Indian women aren’t compelled by law to marry non-Indians).

Bliss (1979): – impugned: parts of the

Unemployment Insurance Act that stipulated longer qualifying period for work absence due to pregnancy. SCC: no discrimination, as the provision applies to everyone.


– Oil, Chemical and Atomic Workers case (1963): SCC says it’s OK for BC government to prohibit union political contributions if received from check-off.

– 1969: SCC upheld Alberta’s discriminatory legislation against Hutterites.

– Dupond (1978): SCC upholds a Montreal by-law that allowed Council to ban all demonstrations for 30-day periods.

– Beetz: Demonstrations are not “speech in action,” therefore no violation of freedom of speech

– Beetz dismissed the Duff Doctrine

– Laskin: strong dissent

SCC’s weak record under Bill of Rights led to support for the idea of a Charter of Rights embedded in the constitution.

Canadian Charter of Rights and Freedoms

•Like administrative law principles, the Charter can be used to prevent abuse and unfairness in administrative actions and delegated law making.

•In this respect, its requirements supplement those of administrative law.


The rights and freedoms of the Charter can impose fairness requirements on agencies in two ways:

• If a statutory provision weakens the fairness protections provided by the common law in a way that violates rights under the Charter, the courts can strike down that provision.

• If a statute or common-law procedural fairness requirement does not require a procedure that gives effect to a right or freedom set out in the Charter, the courts can read into the statute or common law a requirement to follow such a procedure.


Section 32 of the Charter states that the Charter applies to the Parliament and Government of Canada as well as to the legislature and government of each province. This means that it also applies to the ministries and departments of the government, as well as to the ABCs created (by statutes passed by Parliament and the provincial legislatures) to carry out delegated government functions such as regulation and adjudication.


The Charter may apply to other bodies established by statute that regulate trades and professions (e.g., those that govern lawyers, paralegals, engineers, doctors, and nurses) or that carry out public functions and rely on public funding (e.g., hospitals and community colleges). To decide whether the Charter applies to a body, the courts must determine:• the extent to which the government exercises control over the

body, and• the extent to which the body is carrying out functions that are

essentially governmental in nature.

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The obligation for procedural fairness arises when an agency makes “any administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual.” The kinds of decisions that typically attract a duty to act fairly include the following:


• Licensing: Licensing is the approval of some ongoing activity, usually professional or commercial in nature. All regulated activities are subject to specific criteria for qualification and to standards or rules of conduct.

• Issuing permits: The issuing of permits usually involves approval of individual projects. For example, building a house, constructing a septic system, installing a dock at the cottage, or damming a stream are all activities requiring an application to government for permission to proceed with the project.

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• Granting or denying a benefit: Government administrators decide whether individuals qualify for financial allowances such as social assistance, insurance benefits, pension payments, or tax relief.

• Determining eligibility to receive a service: Government officials also decide whether individuals qualify to receive certain publicly funded services. For example, some people may qualify to be eligible for a rent subsidy.


The two primary features of the constitution that limit the powers of government are: division of powers; and the Charter of Rights.

Division of powers is the division of legislative powers between the federal and provincial legislatures. It is the basis of federalism – a sharing of power between a national (federal) government and the provincial governments. It prevents the concentration of power in too few hands, and provides a greater voice for local concerns.


Division of powersThe Constitution Act, 1867 divides power between the federal and provincial governments. Federal powers are provided under s.91, and include subjects that are of general national importance, such as defence, immigration and banking. Provincial powers are provided under s.92, and include subjects that are more local in nature such as education and health care. There is some overlap.

Provincial governments may not pass laws that are solely within federal (s.91) jurisdiction. The federal government may not pass laws that are solely within provincial (s.92) jurisdiction. If a government passes a law outside of its jurisdiction, the law may be challenged in court and struck down as ultra vires (out of jurisdiction).


The Charter Rights

The Charter of Rights is a safeguard to protect individual rights against the government. It provides for substantive rights and freedoms such as equality, religion and assembly. It provides procedural rights such as the right to be free of arbitrary search and seizure, and arbitrary detention. When a government makes, applies or enforces a law, it must be in compliance with the Charter.The Constitution Act, 1982 contains the Charter. It is more recent than the division of powers, which we have had since 1867.


The Charter Rights Available to Citizens

The Charter applies to all governments within Canada. This includes the federal and provincial legislatures and municipal councils. It applies to the executive branch as well. Any government action or decision must comply with the Charter.

The Charter only applies to government actions or decisions – not the actions of individuals, businesses, etc. The Charter does not govern the relationship between private individuals or groups – only between private individuals or groups AND GOVERNMENT. In other words, you can discriminate against your classmate or your tenant and the Charter does not apply.

Canadian Constitution

Written Documents and constitutional conventions

Key constitutional documents –Constitution Act, 1867 and ConstitutionAct, 1982

Charter creates a system of government which has three branches – legislative, executive and judicial

Constitution Act, 1867

Created a federal system for Canada; created federal and provincial regimes – legislatures, judiciary and division of powers

The parts are as follows: Preliminary; Union; Executive Power; Legislative Power; Provincial Constitutions; Distribution ofLegislative Powers; Judicature; Revenues, Debts, Assets, Taxation; Miscellaneous; Intercolonial Railway; Admission of other colonies

The distribution of powers (ss. 91, 92) between the federal and provincial governments has been the source of much debate since confederation.

The Canadian Charter of Rights and Freedoms

And finally since 1982 we have…

•A bill of rights entrenched in the Constitution of Canada.

•Guarantees certain political and civil rights of people in Canada from the policies and actions of all levels of government.

•Greatly expands the scope of judicial review.

The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867. Elizabeth II, Queen of Canada brought the act into effect with a proclamation she signed in Ottawa on April 17, 1982.

The Canadian Charter of Rights and Freedoms forms the first thirty-five sections of the Constitution Act, 1982.

As of 2012, the government of Quebec has never formally approved of the enactment of the Act, though formal consent was never necessary.[2] Nonetheless, it has remained a persistent political issue in Quebec. The Meech Lake and Charlottetown Accords were designed to secure approval from Quebec, but both efforts failed to do so.


Entrenches fundamental rights through the Charter ofRights and Freedoms – fundamental rights include freedomof expression, freedom of association

Protects individuals and collectives in their relations withthe state – Charter applies to governmental, state action

Example of individual right: 6. (1) Every citizen of Canada has the right to enter,remain in and leave Canada.

Example of Collective Right: 35. (1) The existing aboriginal and treaty rights of theaboriginal peoples of Canada are hereby recognized andaffirmed


Limitation of the Charter Rights

But freedoms are not absolute – s. 1

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.


Also has the notwithstanding clause:

Unlike the limitation prescribed by s. 1, s. 33 does not require any proof that overriding the right or freedom is justified by the need to solve some important social problem. The only limit on notwithstanding clauses is their shelf life; to stay in effect, they must be renewed every five years.


Also has the notwithstanding clause:33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. Five year limitation………(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Constitution is the Supreme law of Canada

Since 1982 any statute or action by a government delegate is subject to review. This includes not just administrative decisions, but also legislative provisions. This is true because……

52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Impact of the Charter

Before the Charter in 1982, courts were primarily concerned with resolving issues of federalism.

Since the Constitution Act of 1982, the Charter applies directly to government laws and actions (including the laws and actions of federal, provincial, and municipal governments.)

Impact of the Charter

More explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Bill of Rights.

The courts when confronted with violations of Charter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations.

Rights & Freedoms Under the Charter

•Fundamental freedoms (section 2) namely, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, and freedom of association.

•Democratic rights: generally, the right to participate in political activities and the right to a democratic form of government:

•Section 3: the right to vote and to be eligible to serve as member of a legislature.


•Mobility rights: (section 6): the right to enter and leave Canada, and to move to and take up residence in any province, or to reside outside Canada.

•Legal rights: rights of people in dealing with the justice system and law enforcement, namely:

• Section 7: right to life, liberty, and security of the person.

• Section 8: right from unreasonable search and seizure

• Section 9: freedom from arbitrary detainment or imprisonment.

• Section 10: The right to legal counsel and the guarantee of habeas corpus


•Legal rights (cont): rights of people in dealing with the justice system and law enforcement, namely:

•Section 11: rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.

•Section 12: Right not to be subject to cruel and unusual punishment

•Section 13: rights against self-incrimination •Section 14: rights to an interpreter in a court

proceeding.


•Equality rights: (section 15): equal treatment before and under the law, and equal protection and benefit of the law without discrimination.

•Language rights: generally, the right to use either the English or French language in communications with Canada's federal government and certain provincial governments.

•Minority language education rights: (Section 23): rights for certain citizens belonging to French or English-speaking minority communities to be educated in their own language.

Remedies Under the Charter

The two sources of remedies for violations of the rights and freedoms guaranteed by the Charter are s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982.

• Section 24(1) allows an individual to apply for a remedy for any breach of a Charter right or freedom; this includes the right to challenge any administrative action that allegedly violates a right under the Charter. Only a court “of competent jurisdiction”—that is, a body that (a) possesses jurisdiction over the parties, (b) possesses jurisdiction over the subject matter, and (c) has jurisdiction to grant the remedy requested—can grant remedies under s. 24


S. 24(1) of the Charter allows a person to apply to a Court of competent jurisdiction for a remedy

• Under s. 24, a court of competent jurisdiction may provide any remedy that it considers “appropriate and just in the circumstances.” While this is potentially broad, if the individual applies to a tribunal rather than a court, the remedies may be limited in practice, as tribunals can only award the remedies provided for in their enabling statutes.


S. 24(1) of the Charter allows a person to apply to a Court of competent jurisdiction for a remedy

• Because tribunals are creatures of statute, it is necessary to examine a particular tribunal’s enabling statute to determine whether the context and purpose of the statute require that it be interpreted in a way that would grant these powers to the tribunal.


S. 52(1) of the Charter allows a Court to strike down a law as having no force or effect

• Section 52(1) of the Constitution Act, 1982 provides a remedy where the law itself—whether a statute, regulation, bylaw, or common-law principle—is inconsistent with the Charter.


S. 52(1) of the Charter allows a Court to strike down a law as having no force or effect

• It also applies where a legislative body passes a law that it is not permitted to pass under the division of legislative powers in the Constitution (for example, where a province passes a criminal law, which is within the exclusive jurisdiction of the federal government). The remedy provided by s. 52 is to declare the unconstitutional law to be void—that is, “of no force or effect.”

Protections Found in Human Rights Legislation

•Human Rights legislation has been said to be quasi-constitutional in nature. Quasi-constitutional laws embody important, or even fundamental, rights and freedoms. They often embody values recognized not only throughout Canada, but often recognized throughout the world by being incorporated into international conventions.


•The Ontario Human Rights Commission was created in 1961.

•The Ontario Human Rights Code came into force in 1962.

That every person has a right to equal treatment with respect to services, goods, facilities, accommodation, contract & employment;

That certain types of discrimination (making choices) are not permitted;

That persons who provide the above have a duty to accommodate a person’s inability to comply with a policy or behavioral standard;

In a nutshell, the Code mandates

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Prohibited grounds of discrimination

That these rights and obligations exist for certain Code-protected grounds which include……

Gender expression Sex (i.e. gender) Sexual orientation Age Marital status Family status Disability Receipt of public assistance

Race Ancestry Place of origin Colour Ethnic origin Citizenship Creed Gender Identity

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Prior to 2008, complaints were investigated by the Human Rights Commission.Major reforms to the human rights system became effective June 30, 2008:

• Commission no longer receives complaints

• A person can file an application directly to the Human Rights Tribunal

• Created the Human Rights Legal Support Centre

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How the code is enforced

• All Courts and Tribunals must take note of any Code issues that may affect the subject matter of a claim.

• This includes all agencies, boards, commissions and tribunals (even if a complainant can bring a claim directly to the Ontario Human Rights Commission)

• This broad scope allowing ALL ABCT’s to deal with Code related issues was decided at the SCC in a case called Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513

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The Code is applied everywhere

In 2006, the Supreme Court concluded that the Social Benefits Tribunal has jurisdiction to consider the Code:

“Statutory tribunals [such as the SBT] empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the whole law to a matter properly before them. Here, the ODSPA and the Ontario Works Act, 1997 confirm that the SBT can decide questions of law. As a result, when the SBT decides whether an applicant is eligible for income support, it is presumed to be able to consider any legal source that might influence its decision on eligibility, including the Code.”

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In Tranchemontagne, the Supreme Court of Canada created the tests for determining whether a tribunal has the authority to determine questions involving the Code that arise in the course of their proceedings. This capacity exists whenever a tribunal is specifically given authority to deal with questions of law that arise in the course of its proceedings unless there is explicit statutory direction to the contrary. Indeed, even where there is no specific authority to decide questions of law that arise in the course of its proceedings, an adjudicative tribunal will presumptively have the ability to deal with such questions.

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• Human Rights legislation has a wider scope of protection than Constitutional Protections because…

• It governs actions or decisions by landlords, employers, and goods and services providers (such as a retail store or paralegal office). Constitution only deals with government against the citizen.

• If you discriminate against an employee, you may be violating human rights legislation, in Ontario called the Ontario Human Rights Code.


•Recognizing a law such as the Human Rights Code as quasi-constitutional has three effects on its interpretation:

1.First, the protected rights are to receive a broad interpretation, while exceptions and defences are narrowly construed;


Recognizing a law as quasi-constitutional has three effects on its interpretation:

2.Second, in cases of conflict or inconsistency with other types of legislation, the quasi-constitutional legislation prevails regardless of which statute was enacted first. If there are two ways of interpreting the other statute, one of which is consistent with upholding the rights granted by a quasi-constitutional statute and one of which is not, the consistent interpretation will prevail. Some quasi-constitutional statutes explicitly state that they prevail over other statutes if there is a conflict. In other cases, this predominance results from a rule of statutory interpretation;


Recognizing a law as quasi-constitutional has three effects on its interpretation:

3.And finally, in interpreting a quasi-constitutional law, the key provisions of the legislation are to be adapted not only to changing social conditions but also to evolving conceptions of the quasi-constitutional right.


Human rights codes typically prohibit discrimination or harassment based on grounds such as race, ancestry, place of origin, colour, ethnic origin, citizenship, creed or religion, sex, sexual orientation, age, marital status, family status, disability (formerly called “handicap”), or the receipt of public assistance.

Human rights codes generally apply to employment, accommodation, the provision of goods and services, access to facilities, entering into contracts, and membership in trade unions, professional associations, and similar kinds of organizations.


Because of the use of Human Rights legislation to check the actions of governments as well as individuals, it sometimes intersects with the realm of public law and the area of administrative law:


Examples of Human Rights grounds Interacting with Government laws and decision makers:

1. Tribunals not allowing litigants with Code-related illnesses accommodation in presenting their case

2. Laws allowing landlords and courts to evict the mentally ill for conduct reasons without first making efforts at accommodation of disabilities

3. Bylaws regarding municipal occupancy standards being challenged as not having regard for ethnic background, family status etc.

4. Individuals challenging laws related to the definition of marriage so that same-sex couples can wed


Examples of Human Rights grounds Interacting with Government laws and decision makers:

5. Pay equity and employment equity programs coming about as a result of challenges on Human Rights grounds

6. Natives on reserves relying on Federal Human Rights legislation to demand better conditions on reserves and claiming discriminatory treatment

Example of administrative decision challenged

XY v. Toronto Housing Connections, 2011 HRTO

The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 9, 2011, alleging discrimination on the basis of disability in the areas of housing, and goods, services, and facilities. She claims she was denied a rent geared to income unit and was not put on a special priority list despite her disability.



In her Application, the applicant alleges that the respondent, which keeps a list of individuals waiting for subsidized units in various buildings throughout the City, granted her special priority for being a victim of abuse in March. She alleges that she was told that she was on the “highest priority” due to her high risk factors. She subsequently declined two available units because she alleges they triggered her environmental sensitivities. She alleges that her disability was not taken into consideration.



The applicant alleges that, in early April, she searched for and found an available unit suitable for individuals with environmental sensitivities.

The property manager for the building advised her that she could have the unit as a subsidized unit for May 1, with the permission of the respondent. She alleges that she approached the respondent and asked for a letter of permission but the respondent refused.

Remedies Under the Human Rights Codes

Remedies under Code violations vary as each province and the Federal government has its own Human Rights Code, but remedies are sweeping and can include

• Fines against those breaching the Human Right, to both individuals and corporations

• Laws are found to be contrary to the Code and therefore of no force and effect

• Orders to those violating a human right requiring them to change their practices, for instance hiring, workplace, rental application etc.

Chapter 4 and_5_charter_and_human_rights_code_week_4

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