T-2358-95
Chief and Council of the Shubenacadie Indian Band (Applicant)
v.
Canadian Human Rights Commission, Darlene MacNutt, Lolita Knockwood, John B. Pictou Jr. and Attorney General of Canada, representing the Minister of Indian Affairs and Northern Development (Respondents)
Indexed as: Shubenacadie Indian Bandv. Canada (Human Rights Commission) (T.D.)
Trial Division, Rothstein J."Halifax, August 20; Calgary, October 30, 1997.
Native peoples — Shubenacadie Band Council administers federally funded welfare program — Denying social assistance to non-Indian spouses of Band members living on Reserve — CHRT finding Band guilty of race, marital status discrimination — Canadian Human Rights Act, s. 67 not interpreted as removing from scope of Act all Indian band council decisions — Immunizes only decisions authorized by Indian Act, Regulations — Discrimination not justified on basis of preserving Band's traditions, culture, languages — Right to administer federally funded welfare program originates from federal spending power, not from Aboriginal treaty rights.
Human rights — Human Rights Tribunal finding Indian Band guilty of discrimination based on race, marital status — Band denying social assistance benefits to non-Indian spouses of Band members living on Indian reserve — Band Council' s policy allowing all non-Indian spouses to reside on Reserve — Social assistance not available from other sources — Non-Indian spouses members of —general public— for whom social assistance services customarily available on Reserve under CHRA, s. 5 — Act, s. 67 not precluding Tribunal's jurisdiction — No bona fide justification for discrimination.
Constitutional law — Distribution of powers — Social assistance provided to non-Indian spouses originating with federal spending power — Federal spending within Parliament's legislative authority under CHRA, s. 2 — Jurisdiction of Human Rights Tribunal over Band Council's distribution of social assistance funds not —regulation— of provincial matter — Band Council statutory body under Indian Act, subject to CHRA — Indian Act not conferring authority on Band Council to decide on eligibility for social assistance.
This was an application for judicial review of a Human Rights Tribunal's decision on the eligibility for social assistance payments of non-Indian spouses of Indian band members living on a Nova Scotia Indian reserve. Two of the three complainants (respondents), who are status Indians, claimed social assistance from the Council of the Shubenacadie Indian Band, which administers a welfare program funded by the federal government, and included their non-Indians spouses as dependents. The third complainant is a non-Indian married to a male Indian who also claimed for social assistance and included his wife as dependent. Prior to April 1992, the Band Council granted social assistance in respect of female non-Indian spouses, but since then, it has refused social assistance in respect of all non-Indians living on the Reserve to avoid any complaint of discrimination on account of gender. The Tribunal found that the applicant had discriminated against the three complainants on account of race and marital status. However, this case does not involve discrimination on the basis of marital status or gender, but only discrimination on the basis of race. Three main issues were raised: (1) whether the three complainants are members of the relevant "general public" eligible to benefit from the social assistance program; (2) whether section 67 of the Canadian Human Rights Act protects the Band Council's decision on social assistance eligibility from human rights review and (3) whether the preservation of the Band's traditions, culture and languages is a bona fide justification for discrimination.
Held, the application should be dismissed.
(1) Section 5 of the Canadian Human Rights Act prohibits discrimination in the provision of services which are customarily available to the general public. Under subsection 3.01(2) of the Native Community Services Guidelines, Policies and Procedures, social assistance may be provided to specific categories of non-Indians permitted to reside on a Reserve as per the Band's policy regarding residency status provided such assistance is not available from other sources. Therefore, not every non-Indian residing on the Reserve is eligible for social assistance. The Band Council did not have a policy against male non-Indian spouses residing on the Reserve. It also had no policy of excluding female non-Indian spouses from the Reserve. The authority given to female non-Indian spouses to reside on the Reserve must apply to male non-Indian spouses and can only be construed as allowing all non-Indian spouses to reside on the Reserve. The individual respondents had either applied for or inquired as to social assistance from the province or municipality but were advised that this was unavailable. Social assistance was not available from other sources and non-Indian spouses residing on the Reserve fall within the specific categories of non-Indians recognized by subsection 3.01(2) of the Guidelines. Since the Band Council has allowed non-Indian spouses to reside on the Reserve in accordance with Band policy and because social assistance is not available from other sources, these spouses must be considered to be members of the "general public" for whom social assistance services are customarily available on the Reserve as required by section 5 of the Canadian Human Rights Act . The word "may" in section 3.01 of the Guidelines should not be read as granting to the Band Council discretion to refuse welfare to Band members or non-Indians who otherwise on "objective criteria" qualify for welfare.
(2) The applicant's decision not to extend social assistance benefits to non-Indian spouses is not one contemplated by section 67 of the Canadian Human Rights Act. There was no evidence to suggest that that decision was made pursuant to a provision of the Indian Act. Section 67 should not be interpreted as taking out of the scope of the Canadian Human Rights Act all decisions of Indian band councils provided they are made under the Indian Band Council Procedure Regulations. It immunizes decisions authorized by the Indian Act and Regulations, but not all decisions made by Indian band councils.
(3) The bona fide justification provision is found in paragraph 15(g) of the Canadian Human Rights Act. The Tribunal was entitled to find that the decision to deny social assistance to non-native spouses was not made in good faith, which is an essential component to establish a bona fide justification. On this aspect of its findings, the Tribunal was entitled to deference from the Court. The Band Council did pay welfare to female non-Indian spouses prior to 1992, which is inconsistent with its justifications and suggests that these justifications are not genuine. With respect to the standard of proof, the case law is clear that the civil standard of proof, namely a balance of probabilities, is the appropriate standard required to establish a bona fide justification. While a bona fide justification may not require the strongest possible evidence, it is still necessary to prove the need for the discriminatory rule with convincing evidence and, if necessary, expert evidence.
A number of arguments, which were not initially advanced before the Human Rights Tribunal, were developed in the present application. One of these arguments was that the Court, on judicial review, has no jurisdiction to deal with issues not raised before the Tribunal. The Court found it appropriate to consider the new jurisdictional arguments raised by the applicant. First, it was required to determine whether Parliament has the ability to provide the social assistance in question. The welfare program respecting non-Indian spouses originates with the exercise of the federal spending power. Money has been appropriated by Parliament, placed in the budget of Indian Affairs and Northern Development and then provided to the Band Council to distribute in accordance with the annual funding agreements. The federal spending power is within the legislative authority of Parliament, even when exercised in relation to provincial matters, and does not amount to regulation. The Band Council is a statutory body constituted by Parliament under the Indian Act and subject to the Canadian Human Rights Act. Second, sections 15 and 25 of the Charter, invoked by the applicant, are inapplicable. Section 25 is not independently enforceable, but acts as a shield to protect Aboriginal, treaty and other rights from being adversely affected by the Charter. This case did not arise under section 15 or any other section of the Charter, but involves a challenge under section 5 of the Canadian Human Rights Act. The right to administer a welfare program funded by the federal government does not derive from any Aboriginal treaty or other right or freedom that pertains to the Aboriginal peoples of Canada. The Charter does not give band council decisions general immunity from human rights review. Third, the argument raised by the applicant, that the social assistance program is an ameliorative program within the meaning of section 16 of the Canadian Human Rights Act, could not be raised for the first time on judicial review. In any case, the refusal to provide social assistance to the respondents is not protected by that provision.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 15, 25.
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 5, 15, 16, 40(2),(4) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 62), 67.
Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 63(2).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(24).
Indian Act, R.S.C., 1985, c. I-5, ss. 28, 30.
Indian Band Council Procedure Regulations, C.R.C., c. 950.
cases judicially considered
applied:
University of British Columbia v. Berg, [1993] 2 S.C.R. 353; (1993), 102 D.L.R. (4th) 665; 79 B.C.L.R. (2d) 273; 13 Admin. L.R. (2d) 141; 26 B.C.A.C. 241; 18 C.H.R.R. D/310; 152 N.R. 99; 44 W.A.C. 241; Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391; (1990), 34 C.C.E.L. 179; 91 CLLC 17,011 (C.A.); Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220; (1981), 127 D.L.R. (3d) 1; 38 N.R. 541; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; (1991), 83 D.L.R. (4th) 297; [1991] 6 W.W.R. 1; 58 B.C.L.R. (2d) 1; 127 N.R. 161.
distinguished:
Toussaint v. Conseil canadien des relations du travail et al. (1993), 160 N.R. 396 (F.C.A.); Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233; (1989), 58 D.L.R. (4th) 475; 37 Admin. L.R. 59; 96 N.R. 34 (C.A.); Canada (Attorney General) v. Sirois (1988), 90 N.R. 39 (F.C.A.).
considered:
Desjarlais (Re), [1989] 3 F.C. 605; (1989), 12 C.H.R.R. D/466; [1990] 1 C.N.L.R. 39; 102 N.R. 71 (C.A.).
referred to:
Saskatchewan Human Rights Commission v. Saskatchewan (Department of Social Services) (1988), 52 D.L.R. (4th) 253; [1988] 5 W.W.R. 446; 9 C.H.R.R. D/5181 (Sask. C.A.); Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R.1; Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202; (1982), 132 D.L.R. (3d) 14; 82 CLLC 17,005; 40 N.R. 159; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; (1990), 111 A.R. 241; 72 D.L.R. (4th) 417; [1990] 6 W.W.R. 193; 76 Alta. L.R. (2d) 97; 12 C.H.R.R. D/417; 90 CLLC 17,025; 113 N.R. 161; Large v. Stratford (City), [1995] 3 S.C.R. 733; (1995), 128 D.L.R. (4th) 193; 14 C.C.E.L. (2d) 177; 95 CLLC 230-033; 24 C.H.R.R. D/11; 188 N.R. 124; 86 O.A.C. 81; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; (1996), 140 D.L.R. (4th) 193; 40 C.R.R. (2d) 81; 204 N.R. 1; Woodward Estate (Executors of) v. Minister of Finance, [1973] S.C.R. 120; (1972), 27 D.L.R. (3d) 608; [1972] 5 W.W.R. 581; [1972] C.T.C. 385; Barron v. Foothills No. 31 and Alberta (1984), 57 A.R. 71; [1985] 2 W.W.R. 711; 36 Alta. L.R. (2d) 27; 10 Admin. L.R. 229; 28 M.P.L.R. 235 (C.A.); Rosenfeld and College of Physicians and Surgeons, Re, [1970] 2 O.R. 438; (1970), 11 D.L.R. (3d) 148 (H.C.); Corbière v. Canada (Minister of Indian and Northern Affairs) (1996), 142 D.L.R. (4th) 122; 206 N.R. 85 (F.C.A.); Ardoch Algonquin First Nation v. Ontario (1997), 148 D.L.R. (4th) 126 (Ont. C.A.); Ontario Human Rights Commission v. Ontario (1994), 19 O.R. (3d) 387; 117 D.L.R. (4th) 297; 94 CLLC 17,030; 73 O.A.C. 20 (C.A.).
authors cited
Hogg, Peter. Constitutional Law of Canada, 3rd ed., Scarborough: Carswell, 1992.
APPLICATION for judicial review of a Human Rights Tribunal's decision ([1995] C.H.R.D. No. 14 (QL)) that the applicant had discriminated against the individual respondents on account of race and marital status contrary to section 5 of the Canadian Human Rights Act. Application dismissed.
counsel:
Bruce H. Wildsmith, Q.C., for applicant.
Margaret Rose Jamieson for respondent Canadian Human Rights Commission.
Michael F. Donovan for respondent Attorney General of Canada.
solicitors:
Bruce H. Wildsmith, Q.C., Barss Corner, Nova Scotia, for applicant.
Canadian Human Rights Commission, Ottawa, for respondent Canadian Human Rights Commission.
Deputy Attorney General of Canada for respondent Attorney General of Canada.
The following are the reasons for order rendered in English by
Rothstein J.: This is a judicial review of a decision by a Human Rights Tribunal, dated October 11, 1995 [[1995] C.H.R.D. No. 14 (QL)], which found that the applicant had discriminated against the three complainants named in the style of cause, on account of race and marital status.1 This case involves the eligibility for social assistance payments of non-Indian spouses of Indian members of the Shubenacadie Indian Band living on the Shubenacadie Indian Reserve in Nova Scotia.2
The basic facts are straightforward. All of the claimants live on the Shubenacadie Indian Reserve in Nova Scotia. The respondents Darlene MacNutt and John B. Pictou, Jr. are status Indians. They claimed social assistance from the Band Council, which administers a welfare program funded by the federal government, and included their spouses, Gordon MacNutt and Christine Pictou, respectively, as dependents. Their spouses are not Indians. The respondent Lolita Knockwood is a non-Indian married to Garfield Knockwood, an Indian. Garfield Knockwood applied to the Band Council for social assistance and included his wife as a dependent.
Prior to April 1992, the Band Council granted social assistance in respect of female non-Indian spouses, and up to that time social assistance was paid in respect of the two female respondents. Commencing in April 1992, the Band Council refused social assistance in respect of all non-Indians living on the Reserve. This change was intended to avoid any complaint of discrimination on account of gender.
Applications were made to the Canadian Human Rights Commission alleging that the Chief and Council were discriminating on the basis of gender, race and marital status. A Human Rights Tribunal found that the complaints were justified and awarded compensation. The applicant now seeks judicial review of that decision.
I note that this case does not really involve discrimination on the basis of marital status or gender. Gender discrimination deals with distinctions between males and females. Although prior to 1992 the Band Council did decline social assistance in respect of non-Indian males living on the Reserve, the practice of treating male and female non-Indian spouses differently has ceased and was not an issue in this judicial review. Similarly, discrimination on the basis of marital status typically involves distinctions between persons who are single, married or living in common law relationships. However, all of the individuals involved in this case are married and do not claim that others, either common law or single, are being treated differently in the provision of social assistance. Although the Tribunal considered marital status in addition to race, the real issue involved, as will become clear from these reasons, and indeed the sole issue argued before this Court, was discrimination on the basis of race.
I. THE ISSUES
The Tribunal found that the Band Council's refusal to provide social assistance in respect of non-Indian spouses of Band members contravened section 5 of the Canadian Human Rights Act. The applicant now seeks judicial review of the Tribunal's decision on the following grounds:
(1) that the three complainants are not members of the relevant "general public" eligible to benefit from the social assistance program;
(2) that section 67 of the Canadian Human Rights Act protects the Band Council's decision on social assistance eligibility from human rights review;
(3) that if the Band Council's decision is discriminatory, the preservation of the Band's traditions, culture and languages is a bona fide justification for the discrimination.
1. Are non-Indian spouses included in the relevant general public?
Section 5 of the Canadian Human Rights Act prohibits discrimination in the provision of services which are customarily available to the general public:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
The applicant argues that non-Indians are not part of the relevant "general public" eligible for social assistance provided through the Band Council. Therefore, denying non-Indians welfare does not constitute discrimination. Since the general public in this case consists of Indian members of the Shubenacadie Band, the Band Council claims there has been no denial of welfare to any member of this group.
The approach to follow in determining the "general public" is outlined by the Supreme Court of Canada in University of British Columbia v. Berg , [1993] 2 S.C.R. 353, at page 383, per Lamer C.J.:
Therefore, I would reject any definition of "public" which refuses to recognize that any accommodation, service or facility will only ever be available to a subset of the public. Students admitted to a university or school within the university, or people who enter into contracts of insurance with a public insurer, or people who open accounts with financial institutions, become the "public" for that service. Every service has its own public, and once that "public" has been defined through the use of eligibility criteria, the Act prohibits discrimination within that public.
At page 384:
Eligibility criteria, as long as they are non-discriminatory, are a necessary part of most services, in that they ensure that the service reaches only its intended beneficiaries, its "public", thereby avoiding overuse and unnecessary depletion of scarce resources. The benefits of such screening tools, however, should not come at the cost of excluding the protection of human rights legislation.
This is not to say that all of the activities of an accommodation, service or facility provider are necessarily subject to scrutiny under the Act just because some are.
. . . in determining which activities of the School are covered by the Act, one must take a principled approach which looks to the relationship created between the service or facility provider and the service or facility user by the particular service or facility. Some services or facilities will create public relationships between the School's representatives and its students, while other services or facilities may establish only private relationships between the same individuals. [Emphasis in original.]
And at page 386:
The idea of defining a "client group" for a particular service or facility focuses the inquiry on the appropriate factors of the nature of the accommodation, service or facility and the relationship it establishes between the accommodation, service or facility provider and the accommodation, service or facility user, and avoids the anomalous results of a purely numerical approach to the definition of the public. Under the relational approach, the "public" may turn out to contain a very large or very small number of people.
I would summarize the approach in this way:
(1) The term "general public" does not refer to the public at large. It is a subset of the public defined through the use of non-discriminatory eligibility criteria.
(2) The term "general public" refers to those who enjoy a "public relationship" with the service provider. Once the relevant subset of the general public is defined, the Canadian Human Rights Act prohibits discrimination within that subset.
(3) In Berg, the Court concluded that a public relationship existed where a publicly-funded university made its facilities and resources available to all who had been admitted as students.
In the case at bar, the Government of Canada and the Shubenacadie Indian Band entered into annual contracts which stipulated that the Government would provide funding for social assistance on the Reserve, and that the Band Council would be responsible for administering the social assistance program in accordance with the provisions of the contract. The annual contracts were between Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development, and the Band, as represented by the Band Council. I will refer to the 1992/93 contract as representative of all relevant years, except where a relevant provision is different in another year's contract. Section 1 of the agreement provides in part:
1. The purpose of this Arrangement is to describe the responsibilities and obligations of the Department and the First Nation.
Section 2 sets forth that welfare is to be provided by the Band in accordance with the Program Administration Manual. The Program Administration Manual provides in part:
The First Nation agrees to administer Social Assistance funds to provide for basic needs, special needs and service delivery in accordance with the program standards described in the First Nation's Social Assistance Manuals for New Brunswick and Nova Scotia,3 which may be amended from time to time.
Section 3.01 of the Guidelines sets forth who may be provided social assistance:
3.01 Social Assistance may be provided to:
(1) registered Indians resident on Reserves or on land, the legal title to which is vested in Her Majesty the Queen, in the Right of Canada;
(2) specific categories of non-Indians permitted to reside on a Reserve as per the Band's policy regarding residency status provided such assistance is not available from other sources, e.g.:
(a) persons of former Indian status who return to Reserves because of desertion, divorce or death of their spouses or parents, or for other reasons (that is Bill C-31);
(b) persons either living with their mother or in care of friends or relatives on a Reserve;
(c) un-registered children of Indian families;
(d) children apprehended on a Reserve and whose residence cannot be established in a community other than the Reserve;
(e) other non-Indians who reside on-Reserve in accordance with Band policy.
Section 3.01 determines the general public eligible for the social assistance program. It is of some significance that the examples listed in subsection 3.01(2) are examples only and not conditions which must strictly be met in order to qualify. The binding qualifying term is in the main part of subsection 3.01(2):
(1) that the specific categories of non-Indians are permitted to reside on the Reserve as per the Band's policy; and
(2) that social assistance not be available from other sources.
It can readily be seen that not every non-Indian residing on the Reserve is eligible for social assistance. The categories listed as examples in subsection 2 appear to be non-Indians having a personal (as opposed to a business) relationship with the Band or members of the Band. Thus non-Indians who may be leaseholders of land on a reserve or who may simply be employees of the Band do not seem to be covered. The example that most closely relates to the facts in this case is (e) "other non-Indians who reside on reserve in accordance with Band policy".
(i) Band policy on residency
I was not told of any express Band policy respecting residency on the Reserve of non-Indian spouses of Band members. However, the evidence is that the non-Indian spouses in this case have all resided on the Reserve for a number of years: Gordon MacNutt since 1980 (married to Darlene MacNutt on April 24, 1987), Christine Pictou from July 1990 (married to John B. Pictou on July 29, 1990) and Lolita Knockwood from March 1985 (married to Garfield Knockwood on August 24, 1985). The Tribunal found that "the Band had an unwritten policy (or perhaps a policy by default)" of allowing these, and other non-Indian spouses to reside on the Reserve.4
However, the Band Council appears to have attempted to restrict non-Indian residency on the Reserve by passing a trespassing by-law, pursuant to section 30 of the Indian Act, R.S.C., 1985, c. I-5, permitting guests in Band owned housing to remain for only two weeks of every twelve-month period, and imposing a $100 fine for violations. The by-law was disallowed by the Minister because, according to his decision, it only applied to persons residing in Band owned housing, the fines that it imposed were greater than those permitted under section 30 of the Indian Act, and the Minister was of the view that the Band Council could not bring a trespass action against the invited guest of a Band member who is legally occupying a home on the Reserve. The Minister informed the Band Council that had it intended a policy of excluding non-Indians, it could have attempted to make proper use of the procedures available to it.5 The failed attempt to pass the trespassing by-law cannot be said to amount to a policy of exclusion because the by-law was disallowed by the Minister and the Band Council never followed through with the Minister's suggestions with respect to passing a valid by-law.
The Band Council also attempted to remove Mr. MacNutt, the only male non-Indian spouse involved in these proceedings, from the Reserve. The Tribunal found that the Band Council resorted to harassing the MacNutt family in its effort to make Mr. MacNutt leave. The Tribunal did not address the question of whether these attempts to remove Mr. MacNutt constituted a policy of not allowing male non-Indian spouses to reside on the Reserve.6
However, in my view the Band did not have a policy against male non-Indian spouses residing on the Reserve. Given that the Band Council had no policy of excluding female non-Indian spouses from the Reserve, its attempts to remove Mr. MacNutt were discriminatory on account of sex. A discriminatory policy would obviously be invalid. The only possible conclusion is that the Band Council's policy of allowing female non-Indian spouses to reside on the Reserve must apply to male non-Indian spouses. Therefore the Band Council's policy can only be construed as allowing all non-Indian spouses to reside on the Reserve.
(ii) Was social assistance available from other sources?
There was evidence before the Tribunal that pursuant to unwritten policies of Nova Scotia and the municipality of East Hants, welfare was not available to non-Indian spouses living on the Reserve. Gordon MacNutt had applied for social assistance from the municipality of East Hants but was refused. Knockwood and Pictou made telephone inquiries but were informed that they were not eligible for provincial assistance. There has been no judicial determination as to whether the provincial or federal government bears legal responsibility for the provision of social assistance to these non-Indians living on the Reserve with their Indian spouses. However, I do not read subsection 3.01(2) to require those non-Indian spouses to take, and be unsuccessful in, legal proceedings involving complex constitutional issues in order to establish that social assistance is not available from the province or municipality. It is sufficient that applications and inquiries were made and were refused. I am satisfied that social assistance was not available from other sources and that non-Indian spouses residing on the Reserve fall within the specific categories of non-Indians recognized by subsection 3.01(2) of the Guidelines.
In summary, section 3.01 of the Guidelines establishes eligibility criteria which define the class of people entitled to receive social assistance from the Band Council. The involvement of the federal government, the use of public funds, and the characterization of social assistance as a public service (see Saskatchewan Human Rights Commission v. Saskatchewan (Department of Social Services) (1988), 52 D.L.R. (4th) 253 (Sask. C.A.)) are indicative of a public relationship existing between the non-Indian spouses involved in the case at bar and the Band Council. Having regard to the fact that the Band Council has allowed these non-Indians to reside on the Reserve in accordance with Band policy and that social assistance is not available from other sources, these non-Indian spouses must be considered to be members of the "general public" for whom social assistance services are customarily available on the Reserve as required by section 5 of the Canadian Human Rights Act.
(iii) Other arguments on the "general public"
The applicant's arguments to the contrary are not persuasive. First, while it is true the document containing subsection 3.01(2) is a guideline, the linkage between it and the contract effectively incorporates it by reference into the contract and its terms are, to all intents and purposes, contractual terms.
Next, the fact that "persons" are defined in section 2.07 as registered Indians cannot displace subsection 3.01(2) nor section 1.02 which provides in part:
1.02 The Social Assistance program for the Nova Scotia Bands and the Department of Indian and Northern Affairs is for the provision of services and assistance primarily for Indian people . . . . [Emphasis added.]
Further, that section 3.01 contains the term "may", signifying discretion, does not assist the applicant. The relevant words are "Social Assistance may be provided to". The Band must have discretion to determine whether an applicant is eligible for welfare. Subsection 3.03(1) provides:
3.03 Eligibility Requirements:
(1) Every applicant shall complete an application form, and a release of information form. The fact of need rather than cause is the most significant determinative of eligibility. Eligibility is to be determined on the basis of objective criteria rather than on value judgments as to who is "deserving".
However, in order to determine eligibility the applicant must first be prepared to provide the basic information requested on the application form. From this information the Social Development Administrator learns whether or not the applicant meets the requirements of residence and Indian Status and other facts which are essential in determining the amount of assistance to which the applicant may be entitled. [Emphasis added.]
Thus if an application form is not completed or the basic information discloses that the applicant does not meet other eligibility requirements, social assistance may not be provided to the applicant. In other words, simply because a person fits the criteria of section 3.01 does not entitle him or her to welfare. Section 3.01 is only an initial screening test. Viewed as an initial screening test, it is clear why the term "may" is used. I do not read "may" in section 3.01 as granting to the Band Council discretion to refuse welfare to Band members or non-Indians who otherwise on "objective criteria" qualify for welfare.
Next, the applicant relies on section 1.10 of the Guidelines which vests the Band Council with the administration and interpretation of the Guidelines:
1.10 The Council of the Band is responsible for the administration and interpretation of these guidelines and determining need of the client. Program integrity depends on no interference from other officials.
Counsel for the applicant submits that the Band's authority to interpret the Guidelines entitles the Band Council to interpret subsection 3.01(2) as excluding all non-Indians and specifically non-Indian spouses of Band members. The power to interpret, however, is not a power to change the terms of the Guidelines and that indeed is what the Band Council is purporting to do by excluding non-Indian spouses when subsection 3.01(2) includes them. The agreement made between the Band and the Government was that social assistance was to be available for specific categories of non-Indians as described in subsection 3.01(2) and non-Indian spouses fit within those categories.
Another argument of the applicant relates to section 28 of the Indian Act which provides:
28. (1) Subject to subsection (2), any deed, lease, contract, instrument, document or agreement of any kind, whether written or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.
(2) The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve.
The applicant argues that a Band policy is subject to section 28 of the Indian Act and without a permit granted by the Minister, non-Indian spouses may not reside or exercise rights on the Reserve. Therefore no valid Band policy in this case can exist as no ministerial permits were obtained in respect of the non-Indian spouses. However, I accept the argument presented by counsel for the Attorney General that section 28 deals with commercial transactions involving the disposition of land or interests in land on the Reserve. This interpretation is supported by reference to the words "deed, lease, contract, instrument, document or agreement of any kind" in subsection 28(1). I think this is the correct interpretation of section 28 and that it is not referrable to the situation of non-Indians residing on the Reserve as spouses of Band members.
The definition of the general public for purposes of social assistance eligibility in this case is set forth by the Band's funding agreement with the Government of Canada. If the Band Council was unwilling to abide by the terms of the agreement including subsection 3.01(2), it was open to the Band Council not to enter into the agreement. Once it did so, however, it was bound by its terms.7 For the above reasons, I find that non-Indian spouses living on the Reserve are members of the "general public" for the purpose of section 5 of the Canadian Human Rights Act.
2. Does section 67 of the Canadian Human Rights Act preclude the Tribunal's jurisdiction?
This next argument of the applicant is that the Canadian Human Rights Act is excluded from application in this case by reason of section 67 of that Act. Section 67 reads:
67. Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.
Desjarlais (Re), [1989] 3 F.C. 605 (C.A.) explains the type of "provision" contemplated by section 67 (then subsection 63(2)). Desjardins J.A. found, at pages 608-609, that:
. . . "or any provision made under or pursuant to" mean more than a mere stipulation of a legal character. I interpret such words as covering any decision made under or pursuant to the Indian Act .
In that case, there was some doubt as to the way in which Indian bands could make legal decisions: by by-law, by resolution transmitted to the Minister, or under the Indian Band Council Procedure Regulations, C.R.C., c. 950. Desjardins J.A. found that regardless of how the decision was made, any decision taken by a band council under specific sections of the Indian Act would be made "under or pursuant to the Indian Act ." However, a vote of non-confidence in an employee of a band was "nowhere, expressly or by implication, provided for by the Indian Act" and was determined not to come within the exception provided by section 67 (then subsection 63(2)).
The applicant says that its decision not to extend social assistance benefits to non-Indian spouses is made pursuant to the Indian Act and therefore is not subject to review pursuant to section 5 of the Canadian Human Rights Act. Applicant's counsel does not rely on any specific provision of the Indian Act but on the fact that the decision was made pursuant to the Indian Band Council Procedure Regulations.
I do not think that the decision in this case is one contemplated by section 67 of the Canadian Human Rights Act. While there is no doubt that a decision was made by the Band Council, and it may well have been made under the Indian Band Council Procedure Regulations, there is no evidence to suggest that the decision was made pursuant to a provision of the Indian Act. While undoubtedly section 67 recognizes that certain provisions of the Indian Act and Regulations may conflict with the Canadian Human Rights Act and in such cases the Indian Act and Regulations will prevail, I do not think section 67 is to be interpreted as taking out of the scope of the Canadian Human Rights Act all decisions of Indian band councils provided they are made under the Indian Band Council Procedure Regulations. If it was Parliament's intention to immunize all decisions of Indian band councils from overview by the Human Rights Commission, Parliament would have expressly so provided rather than enacting section 67. Section 67 immunizes decisions authorized by the Indian Act and Regulations, but not all decisions made by Indian band councils. I think that this conclusion is consistent with the dicta in Desjarlais (Re). Section 67 therefore does not assist the applicant in this case.
3. Bona fide justification
The applicant then relies on paragraph 15(g) of the Canadian Human Rights Act"the bona fide justification provision. Paragraph 15(g) of the Canadian Human Rights Act provides:
15. It is not a discriminatory practice if
. . .
(g) in the circumstances described in section 5 or 6, an individual is denied any goods, services, facilities or accommodation or access thereto or occupancy of any commercial premises or residential accommodation or is a victim of any adverse differentiation and there is bona fide justification for that denial or differentiation.
The Human Rights Tribunal dealt with this argument at page 79 of its decision [at pages 125-126 of QL]:
A bona fide justification defence requires proof both of a subjective element (good faith) and an objective element (related to the provision of the service) (Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202).
The Tribunal is unable to say that the decision to refuse benefits to non-native spouses was made with a sincerely held belief that it was in the best interests of the Reserve residents, particularly prior to May 1992. If the Tribunal is wrong and the objective element requires consideration, the Tribunal notes that counsel for the Respondent suggests that the evidence of the Chief, former Chief and Council members support concerns about the homogeneous population of Reserves and the First Nations' desire to preserve their culture, traditions and language. This argument is not supported by the "strongest possible evidence". Further, there was no suggestion that the Respondent had attempted to accommodate non-native spouses within the Social Services program on Reserve. Both of these elements must be present if the Respondent is to succeed in proving the objective element of the bona fide justification defence. [References omitted.]
With respect to the Tribunal's finding that the decision to deny social assistance to non-native spouses was not made in good faith, which is an essential component to establish a bona fide justification, it was entitled to make the finding that it did. On this aspect of its findings the Tribunal is entitled to deference from the Court (see Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at page 578, per Lamer C.J.). Indeed, the Band Council did pay welfare to female non-Indian spouses prior to 1992, which is inconsistent with the justifications advanced by the Band Council and suggests that these justifications are not genuine.
With respect to the Tribunal's finding respecting the standard of proof, the case law is clear that the civil standard of proof, namely a balance of probabilities, is the appropriate standard required to establish a bona fide justification (see Ontario Human Rights Commission et al. v. Burough of Etobicoke, [1982] 1 S.C.R. 202, at page 208). Linden J.A. explained the standard more fully in Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391 (C.A.), at page 409:
The onus is on the employer to establish that the rule or standard is a BFOR. It is not enough to rely on assumptions and so-called common sense; to prove the need for the discriminatory rule convincing evidence and, if necessary, expert evidence is required to establish this on the balance of probabilities. Without that requirement, the protection afforded by human rights legislation would be hollow indeed. Hence, it is necessary, in order to justify prima facie direct discrimination, to demonstrate that it was done in good faith and that it was "reasonably necessary" to do so, which is both a subjective and an objective test.
Thus, while a bona fide justification may not require the "strongest possible evidence", as found by the Tribunal, it is still necessary to prove the need for the discriminatory rule with "convincing evidence and, if necessary, expert evidence". In argument before me, counsel hardly dealt with the sufficiency of the bona fide justification evidence. There was no expert evidence tendered before the Tribunal to explain why the rule against providing welfare to non-Indian spouses was reasonably necessary and it would seem the evidence was more in the nature of "assumptions" which Linden J.A., in Rosin , found to be insufficient.
Finally, contrary to the Tribunal's reasons, the issue of accommodation does not arise in instances of direct discrimination, which this undoubtedly is. The discriminatory rule must stand or fall on its own (see Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at page 514, per Wilson J.; Large v. Stratford (City), [1995] 3 S.C.R. 733, at pages 749-750, per Sopinka J.). The Tribunal may have erred in its statement of the duty to accommodate. However, the absence of a duty to accommodate does not invalidate the Tribunal's decision which is supported, if for no other reason, than on the basis of its finding respecting the "subjective" branch of the test. Based on the evidence before it, the Tribunal was entitled to find that there was no bona fide justification.
II. NEW ARGUMENTS
The arguments in this case have been complex. Part of the problem appears to be that a number of the arguments were not initially advanced before the Human Rights Tribunal and were developed for the first time for this judicial review. The issues not raised before the Tribunal that were raised for the first time here were:
(1) whether the complaint concerns a matter "within the purview of matters coming within the legislative authority of Parliament";
(2) whether section 25 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (Charter) protects the decision of the Band Council;
(3) whether the decision not to pay welfare to non-Indian spouses is justified as an affirmative action measure under section 16 of the Canadian Human Rights Act.
Counsel for the Attorney General submitted that the Court on judicial review has no jurisdiction to deal with issues not raised before the Tribunal.8 In Toussaint v. Conseil canadien des relations du travail et al. (1993), 160 N.R. 396 (F.C.A.), Décary J.A. stated at page 399:
. . . it seems to us that the applicant is trying to argue in this court that clause 44.05 of the collective agreement is invalid having regard to s. 57(1) of the Code. Even if we admit, for the purposes of argument, that this question could have been argued in this case before an arbitrator and subsequently before the Board, it was not argued, and it has been clearly established that in the context of an application for judicial review this court cannot decide a question which was not raised before the administrative tribunal (Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233; 96 N.R. 34, at p. 247 (F.C.).
The Attorney General further argues that because the Tribunal has no jurisdiction to subject provisions of the Canadian Human Rights Act to Charter scrutiny (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at page 898, the Court reviewing the Tribunal's decision cannot rule on these issues either (Canada (Attorney General) v. Sirois (1988), 90 N.R. 39 (F.C.A.), at page 42; Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233 (C.A.), at page 247, per Marceau J.A.). The Attorney General submits that had the applicant intended to challenge the Canadian Human Rights Act, it should have brought an application for prohibition to prevent the Tribunal from sitting.
My concern is with the argument that the Court cannot review a tribunal decision, even where that decision is either in excess of that tribunal's statutory jurisdiction, or is made pursuant to a statutory jurisdiction that is unconstitutional.
In Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220, the Supreme Court of Canada held that a statutory tribunal cannot be immunized from review for errors of jurisdiction. Laskin C.J. states, at page 236:9
. . . if such a tribunal has acted beyond its jurisdiction in making a decision, it is not a decision at all within the meaning of the statute which defines its powers because Parliament could not have intended to clothe such tribunal with the power to expand its statutory jurisdiction by an erroneous decision as to the scope of its own powers. [Emphasis added.]
Given that a decision of an administrative tribunal in excess of its jurisdiction "is not a decision at all", it seems paradoxical that the same "decision" would be immunized from review where jurisdiction is never raised and the tribunal's jurisdiction and/or the constitutionality of its enabling legislation is assumed . This is tantamount to saying that parties to an administrative proceeding may, by waiver or acquiesence, confer jurisdiction on a tribunal that was not, or could not be, conferred by Parliament, and that this conferral of authority by the parties is unreviewable once the decision is made. Indeed, it is not difficult to imagine a tribunal falling into jurisdictional error simply because it did not hear arguments on that issue.
Viewed in this light, the decisions of the Federal Court of Appeal in Toussaint, Poirier and Sirois are distinguishable from the case at bar because of the jurisdictional nature of the new arguments being raised here.10 The Alberta Court of Appeal and Ontario High Court have considered this issue and held that a reviewing court may consider a challenge to a tribunal's jurisdiction that was never raised before the tribunal itself (see: Barron v. Foothills No. 31 and Alberta (1984), 57 A.R. 71 (C.A.), at page 76, and Rosenfeld and College of Physicians and Surgeons, Re, [1970] 2 O.R. 438 (H.C.)). I find this approach to jurisdictional questions more consistent with the reasoning in Crevier and conclude that it is appropriate to consider the new jurisdictional arguments raised by the applicant in this proceeding.
I should not be taken to be saying that a court on judicial review must decide any and all jurisdictional questions. Some questions of this nature will depend on an evidentiary foundation that could only be introduced before the Tribunal, and in other cases the responding party may need to adduce evidence in reply to the new argument. However, no party to this case suggested a need for evidence that was not already part of the record.
The third argument raised by the applicant, that the social assistance program is an ameliorative program within the meaning of section 16 of the Canadian Human Rights Act, in no way relates to the Tribunal's jurisdiction. For the reasons given by the Court of Appeal in Poirier and Toussaint, this argument cannot be raised for the first time in this application for judicial review.
1. Division of Powers
Counsel for the applicant argued that by virtue of section 2 of the Canadian Human Rights Act a Human Rights Tribunal has no jurisdiction unless the subject-matter of the complaint is within the legislative jurisdiction of Parliament. Section 2 of the Canadian Human Rights Act provides:
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices . . . . [Emphasis added.]
The resolution of this issue requires that the Court determine whether Parliament has the ability to provide the social assistance in question. The applicant submitted that welfare is a matter falling within provincial jurisdiction, more specifically, property and civil rights, and therefore the Canadian Human Rights Act can have no application. Counsel for the applicant further argues that a federal human rights tribunal purporting to exercise jurisdiction over a band council, and requiring it to make social assistance payments to non-Indians, is in fact regulating this sphere of band activity which is beyond the legislative jurisdiction of Parliament.
Counsel for the Attorney General suggested that an analysis pursuant to Class 24 of section 91 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]], ("Indians, and Lands reserved for the Indians"), would raise more issues than it settles and he recommended that the social assistance plan be analyzed as a manifestation of the federal spending power. I agree. The welfare program in respect of which the decision was made respecting non-Indian spouses in this case originates with the exercise of a spending power by the Government of Canada. Money has been appropriated by Parliament, has been placed in the budget of Indian Affairs and Northern Development and is then provided to the Band Council to distribute in accordance with the annual funding agreements.
The federal spending power is within the legislative authority of Parliament, even when exercised in relation to provincial matters, and does not amount to regulation. This is made clear in Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at page 567:
The written argument of the Attorney General of Manitoba was that the legislation "amounts to" regulation of a matter outside federal authority. I disagree. The Agreement under the Plan set up an open-ended cost-sharing scheme, which left it to British Columbia to decide which programmes it would establish and fund. The simple withholding of federal money which had previously been granted to fund a matter within provincial jurisdiction does not amount to the regulation of that matter. [Emphasis added.]
Further, Professor Peter Hogg describes the spending power as follows:
When the federal government makes an unconditional grant to a province, the grant is of course used by the province for its own purposes. This means that funds raised by federal taxes end up being applied to objects which are outside federal legislative authority. . . If, in addition, those federal funds are granted on condition that the programme accord with federal stipulations, then those stipulations will effectively regulate the programme even though it lies outside federal legislative authority. In fact, many of the shared-cost programmes do lie outside federal legislative authority, and yet are administered in accordance with federally-imposed stipulations . . . .
. . .
This [the Canada Assistance Plan decision] is a rather clear affirmation both of the Parliament's power to authorize grants to the provinces for use in fields of provincial jurisdiction, and the power to impose conditions on the recipient provinces. Provided the Parliament's intervention does not go beyond the granting or withholding of money, there is no unconstitutional trespass on provincial jurisdiction.11 [Emphasis added.]
I therefore conclude that irrespective of whether the provision of social assistance to non-Indians residing on the Shubenacadie Reserve falls within federal or provincial legislative authority, federal spending itself is within Parliament's legislative authority and section 2 of the Canadian Human Rights Act therefore applies.
Finally the jurisdiction of the Human Rights Tribunal over the Band Council's distribution of the social assistance funds is not "regulation" of a provincial matter. The Band Council is a statutory body constituted by Parliament under the Indian Act and is therefore subject to the Canadian Human Rights Act unless Parliament provides otherwise.
2. Sections 15 and 25 of the Charter
The applicant's argument is that section 15 of the Charter"the equality rights provision"must be considered through the "prism" of section 25 which protects Aboriginal rights and freedoms. To the extent that section 5 of the Canadian Human Rights Act is not construed in the same way, the applicant argues it is "unconstitutional and must be read as subject to this limitation".
Subsection 15(1) and section 25 of the Charter provide:
15. (1) 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.
. . .
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
There are a number of difficulties with the applicant's argument. First, section 25 is not independently enforceable, but acts as a shield to protect Aboriginal, treaty and other rights from being adversely affected by the Charter (Corbière v. Canada (Minister of Indian and Northern Affairs) (1996), 142 D.L.R. (4th) 122 (F.C.A.), at page 135). However, this case did not arise under section 15 or any other section of the Charter. Rather, it involves a challenge under section 5 of the Canadian Human Rights Act.
In any event the applicant's claim to an Aboriginal right is not made out. The applicant argues that to require the Band Council to pay welfare to non-Indian spouses on the Reserve would derogate from Aboriginal treaty or other rights or freedoms that pertain to the Aboriginal people. The rights and freedoms in question are said to derive either from the Indian Act or the inherent right of Indian bands to make decisions.
With respect to the Indian Act, the applicant argues that the Band Council's capacity to administer a social assistance program is a "right or freedom" conferred or recognized by the Indian Act . The simple answer is that to the extent a band council decision is authorized by the Indian Act, it is protected by section 67 of the Canadian Human Rights Act. However, for the reasons I expressed in addressing the applicant's arguments under section 67 of the Canadian Human Rights Act, the Indian Act does not confer any authority on the Band Council to make decisions respecting eligibility for social assistance.
The applicant's alternative argument is that if the Band Council did not act pursuant to the Indian Act, "it must have acted pursuant to its inherent powers of self government and its residual sovereignty" and that "this inherent power/residual sovereignty is one of the `rights or freedoms that pertain to the aboriginal peoples of Canada' shielded from erosion by the Charter through s. 25". No evidence has been pointed out which would suggest that the right to administer a welfare program funded by the federal government derives from any Aboriginal treaty or other right or freedom that pertains to the Aboriginal peoples of Canada.
Moreover, if the applicant's position was correct, any decision of an Indian band council would be protected under section 25 of the Charter from scrutiny by a human rights tribunal. Even applicant's counsel acknowledges that section 25 does not grant to a band council a general right to discriminate, e.g. in relation to physical disability. However, he contends that any decision that pertains to Aboriginal differences are protected. I cannot understand the distinction if indeed the argument is that section 25 protection for such decisions originates with either the creation of the Band pursuant to the Indian Act or inherent powers. If the applicant were correct, all discriminatory decisions of the Band Council would be immune from human rights scrutiny under the defence that they arise from the Indian Act or inherent powers. Clearly the Charter does not give band council decisions general immunity from human rights review.
3. Section 16 of the Canadian Human Rights Act
The applicant's argument appears to be that the welfare program is a program contemplated by section 16 of the Canadian Human Rights Act, and that the fact that non-Indians are excluded is permissible by reason of this provision. I have already concluded that this new argument cannot be raised for the first time on judicial review. However, since both parties addressed this argument I do not consider it out of place to indicate that in my view it would not assist the applicant. I will briefly explain my reasons.
Subsection 16(1) of the Canadian Human Rights Act reads:
16. (1) It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be or are based on or related to the race, national or ethnic origin, colour, religion, age, sex, marital status, family status or disability of members of that group, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.
Assuming, without deciding, that the social assistance program is the type of program contemplated by subsection 16(1) of the Canadian Human Rights Act, the exclusion of a person or group from eligibility under such a program will usually be discriminatory if that person or group falls within the larger group that the program was designed to benefit and the exclusion is not rationally related to the program's objectives (see: Ardoch Algonquin First Nation v. Ontario (1997), 148 D.L.R. (4th) 126 (Ont. C.A.), at pages 145-148; Ontario Human Rights Commission v. Ontario (1994), 19 O.R. (3d) 387 (C.A.) (the Roberts case), at pages 428-429, per Houlden J.A., and at pages 406-407, per Weiler J.A.).
Counsel has not satisfied me that the refusal to provide social assistance in respect of the respondents is protected by subsection 16(1). Indeed, the opposite appears to be true. As I concluded above, subsection 3.01(2) of the funding agreement Guidelines renders specific categories of non-Indians eligible for welfare. Non-Indian spouses of Band members residing on the Reserve fall into these specific categories. It cannot, therefore, be said they are outside the group intended to benefit from the welfare program, or that their exclusion is rationally related to the objectives of the program. As a result, section 16 would be of no assistance to the applicant.
The judicial review is dismissed.
1 This matter arose as a result of three separate complaints brought to the Canadian Human Rights Commission. Darlene MacNutt cited the grounds of sex and marital status in her complaints. John B. Pictou cited marital status and Lolita Knockwood cited race, national or ethnic origin and marital status. The Commission requested the appointment of a single Tribunal to examine the three complaints. S. 40(4) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 62], allows separate complaints to be grouped together in this manner:
40. . . .
(4) Where complaints are filed jointly or separately by more than one individual or group alleging that a particular person is engaging or has engaged in a discriminatory practice or a series of similar discriminatory practices and the Commission is satisfied that the complaints involve substantially the same issues of fact and law, it may deal with those complaints together under this Part and may request the President of the Human Rights Tribunal Panel to appoint a single Human Rights Tribunal pursuant to section 49 to inquire into those complaints.
The Tribunal then examined for discrimination on the basis of race and marital status with respect to all three complaints.
2 Of the three complainants, only Lolita Knockwood is a non-Indian claiming discrimination on the basis of her race. The other complainants are Indian heads of households who are seeking redress for the alleged harm they suffered because their spouses are non-Indians. Although the issue was not clearly canvassed by the Tribunal, it is my view that this case revolves around discrimination against the non-Indians themselves rather than the indirect effects suffered by their Indian spouses or families. Since the complaints here concern the denial of social assistance in respect of particular individuals, it is the discrimination against those individuals, and not the effects on those near to them, that brings the complaints within the scope of the Canadian Human Rights Act.
The complaints initiated by the heads of non-Indian households raise the further issue of whether the complaints were properly before the Tribunal. S. 40(2) of the Canadian Human Rights Act provides:
40. . . .
(2) If a complaint is made by someone other than the individual who is alleged to be the victim of the discriminatory practice to which the complaint relates, the Commission may refuse to deal with the complaint unless the alleged victim consents thereto.
The question of whether the alleged victims of discrimination consented to the complaints being brought by their Indian spouses was not addressed by the Tribunal, nor was it raised by the parties. However, the Commission appears to have exercised its discretion to deal with the complaints, which s. 40(2) allows it to do.
3 Counsel advised that the First Nations Social Assistance Manual for New Brunswick and Nova Scotia was one and the same as the Native Community Services Guidelines, Policies and Procedures dated April 1, 1991. For the sake of clarity I will hereinafter refer to these documents as "the Guidelines".
4 Tribunal decision, at pp. 22 and 47.
5 Tribunal decision, at pp. 54-56.
6 Tribunal decision, at pp. 57-58.
7 Prior to the 1992/93 contract year, s. 3.01(2)(g) provided:
3.01 Social Assistance may be provided to:
. . .
(2) specific categories of non-Indians residing on reserves, provided such assistance is not available from other sources:
. . .
(g) other non-Indians for whom assistance, in the opinion of the Minister of Indian Affairs and Northern Development, is justified.
The only difference of note between the version of s. 3.01(2) prior to 1992/93 and after is that specific categories in s. 3.01(2) are not examples but appear to be exhaustive of the possible categories and that the Minister must have been satisfied that assistance to "other non-Indians" is justified. That the categories may have been exhaustive is not significant because non-Indian spouses would qualify under s. 3.01(2)(g). In so far as the Minister's opinion is concerned, there is no formal opinion in the evidence that was disclosed to me. However, in the period prior to 1992, assistance was provided in respect of Darlene Knockwood and Christine Pictou, both non-Indian spouses. Had the Minister been of the view that assistance to these persons was not justified he had ample time to express his opinion. I infer that the Minister was of the opinion that welfare to these persons was justified.
8 The Attorney General's written argument only addressed the applicant's argument relating to s. 25 of the Charter. In oral argument counsel agreed that his submission would apply to all of the new arguments raised by the applicant.
9 Quoting Martland J. in Woodward Estate (Executors of) v. Minister of Finance, [1973] S.C.R. 120.
10 Toussaint concerned an application for judicial review of a decision of the Canada Labour Relations Board in which the Court refused to consider a new argument relating to the applicant's right to bring his dismissal to an arbitrator. Although the new argument arguably related to the "jurisdiction" of arbitrators, it did not concern the jurisdiction of the Board whose decision was under review.
11 Hogg, Peter. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992, at pp. 149 and 153.