Chapter 4 and_5_charter_and_human_rights_code_week_4

BCTA 308:
Administrative Law
Chapters 4 & 5 Administrative Law, Principles &
Advocacy
The 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 Senate
Alberta 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.

–

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.

•

• 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 powers
The 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 Constitution
Act, 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 of
Legislative 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 of
Rights and Freedoms – fundamental rights include freedom
of expression, freedom of association
Protects individuals and collectives in their relations with
the 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 the
aboriginal peoples of Canada are hereby recognized and
affirmed

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 quasiconstitutional 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.


In a nutshell, the Code mandates
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;

43


Prohibited grounds of discrimination
That these rights and obligations exist for certain
Code-protected grounds which include……









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










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

44

How the code is enforced
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

45

The Code is applied everywhere

• 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
46

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.”

47

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.

48

• 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 quasiconstitutional 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.

HRTO

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.

HRTO
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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