Case Summary and Analysis: Canada (Canadian Human Rights Commission) v. Canada (Attorney General) – over one year later
In June 2018, the Supreme Court of Canada (SCC) released its decision in Canada (Human Rights Commission) v Canada (Attorney General) (Matson and Andrews) affirming that allegations of discrimination resulting from the wording of a federal statute cannot be filed as human rights complaints to the Canadian Human Rights Commission (the Commission). Instead it held that complaints of this nature must be brought pursuant to the Canadian Charter of Rights and Freedoms in the court system, which is a significantly less accessible forum. Matson and Andrews was immediately interpreted as undermining access to justice for persons with disabilities and persons from other equity-seeking communities.
Since its release, the SCC’s decision has been cited 181 times, largely in relation to the standard of review. Less than a handful of decisions have engaged with the SCC’s reasoning in relation to the substantive issue in the case, namely, where to bring allegations of discrimination flowing from the language of a federal piece of legislation. This is arguably the more interesting issue brought forth by Matson and Andrews and the one that has a direct impact on persons who experience discrimination and can only seek relief by bringing a Charter challenge.
This post will set out the background of Matson and Andrews and some of the concerns raised by persons with disabilities and other equity-seeking groups with respect to access to justice. It will then highlight one case, Reed v Province of Nova Scotia (Department of Environment) (Reed), which applies Matson and Andrews in a way that does not operate as a complete bar to human rights challenges to the wording of a statute.
Background of Matson and Andrews
In Matson and Andrews, the SCC considered appeals from two decisions of the Canadian Human Rights Tribunal (the Tribunal) – Matson v Indian and Northern Affairs Canada(Matson) and Andrews v Indian and Northern Affairs Canada (Andrews) – concerning the transmission of “Indian” status under subsections 6(1) and 6(2) of the Indian Act.
The complainants in Matson and Andrews alleged that Indian and Northern Affairs Canada (INAC) engaged in a discriminatory practice contrary to section 5 of the CHRA when it denied granting the complainants “Indian” status. The Tribunal found that the status eligibility criteria were not a “service” under the CHRA. The Tribunal reasoned that while INAC does offer a service in processing applications for Indian status, it does not have any discretion as to the eligibility criteria, since these criteria are clearly set out in the Indian Act. As such, the Tribunal interpreted the complaints as direct challenges to the language of the Indian Act, not as complaints about the provision of services. The Tribunal’s conclusions were upheld by the Federal Court and Federal Court of Appeal.
The key issue before the SCC was whether the Tribunal correctly characterized the Matson and Andrews complaints. Writing for the majority, Gascon J. concluded that the Tribunal’s decisions were reasonable and dismissed the Appeal. According to the SCC, the Matson and Andrews complaints substantively targeted the eligibility criteria as set out in the Indian Act that INAC was mandated to apply, and not the manner in which INAC applied them.
Intervenors’ Role in Matson and Andrews
A number of groups intervened at the SCC, including the Council of Canadians with Disabilities (CCD) represented by ARCH. The CCD argued that upholding the Tribunal’s decision was inconsistent with existing decisions of provincial human rights tribunals. The interveners further argued that it would undermine access to justice by preventing equity-seeking communities from using the more accessible administrative tribunal system for challenging discrimination that results from the application of a federal statute. SCC was not swayed by these arguments. It held that, as a reviewing court, it would not disturb the manner in which the Tribunal had weighed these policy arguments.
To account for the inconsistent decisions of provincial human rights tribunals on this issue, the SCC commented that whether a complaint falls within the meaning of “services” is a question of mixed fact and law that falls within the expertise of human rights tribunals. Therefore, it held that each provincial human rights tribunal is best suited to develop its own approach to determining the scope of “services.”
In Ontario, for example, prior to the release of Matson and Andrews the Human Rights Tribunal has held that the language or wording of a statute does fall within the scope of “services” for the purposes of Ontario’s Human Rights Code.
Despite this caveat, many persons with disabilities and other equity-seeking groups took Matson and Andrews as a threat to access to justice, fearing that respondents would attempt to raise the decision as a threshold defense both federally and provincially.
To some degree, these fears have materialized. In at least two cases so far, Matson and Andrews has been raised to defend against human rights challenges; see Phillips v BC Ministry of the Attorney General, see Attaran v Immigration, Refugees and Citizenship Canada at paras 18 – 21, and see Reed, discussed below.
Reed v Province of Nova Scotia
Despite the potentially sweeping implications of Matson and Andrews, Reed provides an example of applying Matson and Andrews in a manner that does not perpetuate barriers to access to justice.
In Reed, four manual wheelchair users applied to the Nova Scotia Board of Inquiry (the Board), alleging that the Nova Scotia Department of Environment (NSCE) discriminated against persons with disabilities through its interpretation and enforcement of provincial Food Safety Regulations (the Regulations) made under the provincial Health Protection Act, which required food establishments to have washroom facilities for the public in a “convenient location”.
NSCE applied this provision strictly in relation to food safety. When it assessed whether a food establishment was compliant with the Regulations, it did not require washrooms to be convenient for all members of the public, including those who use wheelchair or other mobility devices. Consequently, it issued permits to restaurants without accessible washrooms.
The complainants alleged that this constituted discrimination on the basis of disability in the provision of or access to services, contrary to the Nova Scotia Human Rights Act. They complained that a lack of accessible washrooms posed significant health risks for persons with mobility devices since they could not access a toilet or wash their hands before eating.
NSCE relied on the SCC decision in Matson and Andrews to argue that its enforcement of the Regulationswas not a “service” within the definition of the Nova Scotia Human Rights Act. NSCE claimed that interpreting the Regulations to also require restaurants to have accessible washrooms was incorrect, as this would exceed the purpose of food safety. Moreover, NSCE argued that the Health Protection Act, as the overarching statute, supported a narrow, food-safety oriented interpretation of the Regulations, to align with its public health goals.
The Board rejected NSCE’s arguments and expressly distinguished Matson and Andrews. It found that Matson and Andrews did not apply because the complainants were not attacking a particular provision, but rather, they were challenging NSCE’s administration and application of the Regulations. It held that the ordinary meaning of “services” includes the administration and enforcement of regulations. Accordingly, the Board found that the alleged discriminatory acts fell within the meaning of “services” under the Nova Scotia Human Rights Act.
Further, the Board found that the purpose of the Nova Scotia Human Rights Act is broad and recognizes that public agencies have a responsibility to ensure that every person is afforded an equal opportunity to enjoy a full and productive life. Including the administration and enforcement of regulations in the scope of “services” better accomplished this purpose.
In this way, Reed exemplifies a narrow application of Matson and Andrews. The approach taken in Reed draws a distinction between challenging the administration and application of legislation versus challenging the statutory language. Reed makes it clear that the former falls within “services” for the purposes of making complaints under Nova Scotia human rights legislation, and limits the type of cases that, following Matson and Andrews, would need to be brought as a Charter challenge.
A narrow application of Matson and Andrews, like the analysis in Reed, would be welcomed by equity-seeking complainants, as it would mean greater access to human rights commissions and tribunals, and fewer discrimination complaints being directed to the more costly, less accessible court process. It would also be in keeping with a broad and purposive interpretation of human rights laws, which the SCC has affirmed in numerous decisions.