A-638-78
Normand Latif (Applicant)
v.
Canadian Human Rights Commission and R. G.
L. Fairweather (Respondents)
Court of Appeal, Urie and Le Dain JJ. and Kelly
D.J.—Toronto, June 8; Ottawa, September 17,
1979.
Judicial review — Jurisdiction — Canadian Human Rights
Commission — Commission refused to "accept" complaint
because act complained of occurred before Canadian Human
Rights Act came into force — Second complaint filed stem
ming from Department's refusal, after the Act was in force, to
implement recommendations of Anti-Discrimination Director
ate — Whether or not the Court has jurisdiction to hear this s.
28 application whether or not the decision not to accept the
complaint was judicial — Whether or not the Commission
erred in law in declining to exercise jurisdiction (1) with
respect to the alleged offence that occurred prior to the date of
the Act's being proclaimed, and (2) with respect to the alleged
offence begun or continuing after that date — Canadian
Human Rights Act, S.C. 1976-77, c. 33, ss. 2, 3, 7, 32(1), 33,
34, 41(2), 64 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28.
This is a section 28 application to set aside a decision of the
Canadian Human Rights Commission whereby the Commis
sion refused to "accept" a complaint on the ground that it
lacked jurisdiction because the act of which it complained
occurred before the Canadian Human Rights Act came into
force by proclamation. Applicant was discharged July 4, 1974
from his position with the Department of National Revenue,
Customs and Excise, for alleged irregularities. The Anti-Dis
crimination Directorate of the Public Service Commission
investigated applicant's complaint that he had been subjected
to discriminatory treatment, and reported on May 16, 1978,
that it found applicant's perception of discriminatory practice
to be credible. The Department refused to act in accordance
with that Directorate's recommendation that a severe suspen
sion be substituted for applicant's discharge, and that he be
reinstated with compensation. After legal counsel advised that
applicant's complaint concerning the 1974 discharge was out
side the Commission's jurisdiction, a second complaint dealing
with the Department's refusal to implement the Anti-Discrimi
nation Directorate's recommendations was made. Respondent
contends that this Court is without jurisdiction to hear the
section 28 application. Applicant, on the other hand, contends
that the Commission erred in law in declining to exercise
jurisdiction with respect to applicant's 1974 complaint, and
alternatively, that the Department's refusal to act on the
Anti-Discrimination Directorate's recommendations was a dis
criminatory practice to which the Act applied.
Held, the application is dismissed. For the purposes of the
question of the jurisdiction of the Court to entertain the section
28 application the decision that must be characterized with
reference to that section is a decision, pursuant to section 33,
not to deal with a complaint on the ground that it appears to
the Commission to be beyond its jurisdiction. That decision is
one which is required by law to be made on a judicial or a
quasi-judicial basis. The Court accordingly has jurisdiction to
entertain the section 28 application. The subjective terms
"unless ./.. it appears to the Commission" in which the power
of decision has been conferred do not evidence a legislative
intention to exclude judicial review for error of law, particular
ly where the question of law is one which determines the limits
of the tribunal's statutory authority. The Commission correctly
took the position that the facts of the case could only give rise
to one alleged discriminatory practice—the suspension and
discharge in 1974. The Department's decision to disregard the
Anti-Discrimination Directorate's recommendation cannot be
regarded as a separate and additional discriminatory practice.
The complaints must be regarded as being based on conduct
which occurred before the Act came into force. A fundamental
rule of English law is that no statute shall be construed to have
a retrospective operation unless such construction appears very
clearly in the terms of the Act, or arises by necessary and
distinct implication. There is no clear and unambiguous expres
sion of such intent in the legislation and no necessary implica
tion arising from various provisions in the Act. Other than in
the limited sense that the Act should apply to discriminatory
offences begun before the Act came into force and continuing
on or after that date, the Act does not disclose a clear intention
that it should apply to one that occurred and was completed
before it came into force. The Commission did not err in law in
deciding that it did not have jurisdiction with respect to appli
cant's complaint.
APPLICATION for judicial review.
COUNSEL:
T. G. Bastedo for applicant.
R. G. Juriansz for respondent.
SOLICITORS:
Bastedo, Cooper, Kluwak & Shostack,
Toronto, for applicant.
Canadian Human Rights Commission,
Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is a section 28 application to
set aside a decision of the Canadian Human
Rights Commission whereby the Commission
refused to "accept" a complaint on the ground that
it lacked jurisdiction because the act of which the
applicant complained occurred before the Canadi-
an Human Rights Act, S.C. 1976-77, c. 33, came
into force by proclamation on March 1, 1978.*
* Part II and s. 57 were proclaimed in force August 10, 1977
by SI/77-168.
The applicant was suspended and subsequently
discharged effective July 4, 1974, from his position
as an employee in the Department of National
Revenue, Customs and Excise, on the ground that
he had used his position to import goods for his
personal benefit without payment of the required
customs duties. In July, 1976, the applicant com
plained to the Anti-Discrimination Directorate of
the Public Service Commission that in being sus
pended and discharged he had been subjected to
discriminatory treatment on the ground of his
religion and national origin, and he requested that
his complaint be investigated. On May 16, 1978,
the applicant was advised by the Director of the
Anti-Discrimination Directorate that as a result of
its investigation the Directorate had concluded
that the applicant's "perception of discriminatory
practice" was "credible" and that it had recom
mended to the Department of National Revenue,
Customs and Excise, that a severe suspension be
substituted for discharge and that the applicant be
reinstated with compensation. The Department
refused to act in accordance with this recommen
dation.
In May 1978, the applicant sought to file a
complaint with the Canadian Human Rights Com
mission. In a letter to the applicant dated May 23,
1978, enclosing a complaint form, an officer of the
Commission expressed the opinion that the Com
mission had "no jurisdiction to enforce a recom
mendation of the Anti-Discrimination Branch, and
no jurisdiction to look into discriminatory practices
that are alleged to have taken place before March
1, 1978". On May 30, 1978, the applicant submit
ted a complaint to the Commission on a complaint
form furnished by the Commission in which he
alleged that he had reasonable grounds to believe
that the Department of National Revenue, Cus
toms and Excise, "on or about July 4th, 1974 and
May 16, 1978 is engaging or has engaged in a
discriminatory practice in the matter of my sus
pension and dismissal from their department
because of my religion and national origin." The
complaint further stated, "This discrimination has
continued since my dismissal in the department's
failure to divulge information to the Public Service
Commission and to my self and the continued
refusal to treat me equally vis a vis the rest of the
employees and or suspended or dismissed
employees."
Following receipt of the complaint an officer of
the Commission had conversations with the Direc
tor of the Anti-Discrimination Directorate of the
Public Service Commission. A file memorandum
by this officer dated June 7, 1978 states the facts
which are said to be "relevant to a decision wheth
er or not the Canadian Human Rights Commis
sion should investigate" and recommends an inves
tigation into the applicant's complaint. On July 26,
1978, Mr. Russell Juriansz, Legal Counsel of the
Commission, wrote to the applicant as follows:
You have complained to the Canadian Human Rights Com
mission of discriminatory treatment by the Department of
National Revenue, Customs and Excise, Toronto. The act you
complain of is your suspension and dismissal from employment
at the Customs and Excise Office in July of 1974. The Canadi-
an Human Rights Act did not come into effect until March 1,
1978. Thus, this Commission has no jurisdiction to consider or
to accept your complaint.
On August 16, 1978, the applicant submitted a
new complaint form to the Commission in which
he stated that he had reasonable grounds to believe
that the Department of National Revenue, Cus
toms and Excise, "on or about May 16, 1978, is
engaging or has engaged in a discriminatory prac
tice in the matter of refusal to conciliate with the
Anti-Discrimination Directorate regarding the
Directorate's findings that I had been subjected to
discriminatory treatment when dismissed from
Customs & Excise in Toronto, and therefore
should be punished in proportion to the discipli
nary action taken against other customs officers
involved in my case, because of my religion and
national origin." The details of the complaint were
stated to be as follows:
On or about May 16, 1978, the Anti-Discrimination Branch of
the Public Service Commission concluded their two-year inves
tigation of my suspension and dismissal from the Customs &
Excise Division of the National Revenue, and recommended
that severe suspension, rather than dismissal is a more appro
priate punishment, as I had been subjected to discriminatory
treatment and the department is unable to forward any reason
why I was singled out. The Department of National Revenue
refused to either conciliate with the Anti-Discrimination Direc
torate or consider their recommendation.
In his letter accompanying the complaint the
applicant stated:
I have filed a similar complaint on May 30, 1978, but was
refused on account of the fact that the Canadian Human
Rights Act came into effect only on March 1, 1978. I wish to
stress at this point that I am not complaining about my
dismissal in July of 1974, but rather, the refusal of the Depart
ment of National Revenue to consider, or at the least conciliate
about, the Anti-Discrimination Directorate's conclusions and
recommendations about my case, dated May 16, 1978.
On October 5, 1978, the Chief Commissioner,
Mr. R. G. L. Fairweather, wrote to the Minister of
National Revenue stating that "it would help us
deal with Mr. Latif's complaint if you could clari
fy the Anti-Discrimination Directorate's finding
that Mr. Latif was `subjected to differential treat
ment in being singled out for suspension at a time
when other customs officers were also suspected of
irregular clearance of goods'."
On November 8, 1978, the Chief Commissioner
wrote to Mr. Latif as follows:
I am confirming that because your suspension and dismissal
occurred in July 1974, prior to the coming into force of the
Canadian Human Rights Act, the Commission cannot accept
the filing of your complaint.
However, I have requested the Minister of National Revenue
to review your case, and I enclose a copy of my letter to him
and the initial reply of his department.
I will write you as soon as I hear from the Minister of
National Revenue.
On November 16, 1978, the Minister of Nation
al Revenue replied to the Chief Commissioner's
request for clarification of the finding and recom
mendation of the Anti-Discrimination Directorate
and set out the facts of the case as the Department
saw them. His letter contained the following pas
sages bearing on the question of alleged discrimi
nation:
The goods in question were two Seiko watches which were
imported by Mr. Latif. These goods were valued at $40.00,
which value was clearly marked on the package. Mr. Latif, in
declaring the goods to a fellow Customs Officer indicated that
they were two watches, gifts to both himself and his wife. This
Officer, who was somewhat unsatisfied with this response,
showed the package to a second Officer who, with the first
Officer's concurrence, stamped the package "duty paid" and
returned it to the Post Office. A third Customs Officer
retrieved the package and turned it over to the supervisor who
caused it to be entered into Customs for examination and
proper cleararce.
Mr. Latif, after attempting to have the watches cleared by a
fourth Customs Officer without the payment of duty, made up
a Customs entry form on which he undervalued the goods by
placing a value of $28.00 on them, and then he presented it to
yet another fellow Customs Officer who signed the entry
without properly examining the goods.
In the opinion of the Department, Mr. Latif made a false
declaration to the first Officer in indicating that the goods were
a gift for him and his wife, he improperly attempted to have the
fourth Officer clear the goods without the payment of duty, he
improperly removed the goods from Customs prior to Customs
clearance and he caused the fifth Officer to commit an error in
declaring to him that the goods were only valued at $28.00.
The first Officer made an error in judgment when he accept
ed Mr. Latif's statement; the second Officer made an error in
judgment when he stamped the package "duty free"; and the
fifth Officer made an error in judgment when he accepted the
word of a fellow employee as to the value of goods without
examining the goods and satisfying himself that the value was
as had been stated. These three Officers were considered by the
Department to be guilty of judgmental errors and were disci
plined to the extent of an oral reprimand.
Mr. Latif was not guilty of errors in judgment, but rather,
was guilty of the improper importation of goods. This was an
action which was completely at variance with the duties for
which Mr. Latif was paid and was sufficient to convince the
Department that Mr. Latif had so jeopardized his position and
his integrity that the employment relationship could no longer
be sustained. It was on these grounds that Mr. Latif was
discharged.
The Minister reaffirmed the refusal to follow
the recommendation of the Anti-Discrimination
Directorate and to reinstate the applicant.
The applicant contends that the Commission
erred in law in declining to exercise jurisdiction
with respect to the applicant's complaint. He sub
mits that the nature of the Canadian Human
Rights Act is such as to displace the presumption
against retrospective operation, and that the Act
applies to discriminatory practices occurring
before it came into force and therefore to the
suspension and discharge of the applicant in July,
1974. Alternatively, he argues that the Act applies
in any event to the failure of the Department of
National Revenue to act on the finding and recom
mendation of the Anti-Discrimination Directorate
of the Public Service Commission as a discrimina
tory practice which began or continued after the
Act came into force.
The Commission contends that this Court is
without jurisdiction to entertain the application
because the Commission's decision with respect to
the applicant's complaint was not a decision within
the meaning of section 28 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, or if a
decision at all, was not a decision required by law
to be made on a judicial or quasi-judicial basis.
Alternatively, counsel for the Commission con
tended in his memorandum that the complaint was
based on circumstances which occurred before the
Act came into force on March 1, 1978, and was
for this reason beyond the jurisdiction of the Com
mission. At the hearing of the application, how
ever, counsel for the Commission declined to make
any submissions in support of this contention,
although I did not understand him to have aban
doned the contention.
Before considering the issues raised by the
application it is necessary to refer briefly to the
general scheme of the Canadian Human Rights
Act.
The Act defines certain categories of prohibited
discriminatory practice in areas of federal legisla
tive jurisdiction. Section 7, for example, which is
one of the provisions on which the applicant relies
in his complaint to the Commission, provides as
follows:
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual,
or
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
Section 3 of the Act defines prohibited grounds
of discrimination as follows:
3. For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, conviction for
which a pardon has been granted and, in matters related to
employment, physical handicap, are prohibited grounds of
discrimination.
The Act is administered by the Canadian
Human Rights Commission. The Commission has
the power to investigate complaints. It may
attempt to effect a settlement by conciliation. It
has power to dispose of a complaint after receiving
the report of an investigation. It may refer a
complaint at any time to a Human Rights Tri
bunal which conducts a hearing and has the power
to award consequential relief, as indicated by sub
section 41(2) which reads as follows:
41....
(2) lf, at the conclusion of its inquiry, a Tribunal finds that
the complaint to which the inquiry relates is substantiated,
subject to subsection (4) and section 42, it may make an order
against the person found to be engaging or to have engaged in
the discriminatory practice and include in such order any of the
following terms that it considers appropriate:
(a) that such person cease such discriminatory practice and,
in consultation with the Commission on the general purposes
thereof, take measures, including adoption of a special pro
gram, plan or arrangement referred to in subsection 15(1), to
prevent the same or a similar practice occurring in the
future;
(b) that such person make available to the victim of the
discriminatory practice on the first reasonable occasion such
rights, opportunities or privileges as, in the opinion of the
Tribunal, are being or were denied the victim as a result of
the practice;
(c) that such person compensate the victim, as the Tribunal
may consider proper, for any or all of the wages that the
victim was deprived of and any expenses incurred by the
victim as a result of the discriminatory practice; and
(d) that such person compensate the victim, as the Tribunal
may consider proper, for any or all additional cost of obtain
ing alternative goods, services, facilities or accommodation
and any expenses incurred by the victim as a result of the
discriminatory practice.
Three provisions of the Act require particular
consideration in attempting to understand the
nature of the Commission's decision and its proper
characterization in so far as the jurisdiction of the
Court is concerned. They are subsection 32(1) and
sections 33 and 34. Subsection 32(1) reads as
follows:
32. (1) Subject to subsections (5) and (6), any individual or
group of individuals having reasonable grounds for believing
that a person is engaging or has engaged in a discriminatory
practice may file with the Commission a complaint in a form
acceptable to the Commission.
Subsections (5) and (6) lay down certain condi
tions for jurisdiction based on the place where the
alleged discriminatory act occurred and the status
of the victim at the time it occurred. They are not
in issue in the present case.
Section 33 reads as follows:
33. Subject to section 32, the Commission shall deal with
any complaint filed with it unless in respect of that complaint it
appears to the Commission that
(a) the alleged victim of the discriminatory practice to which
the complaint relates ought to exhaust grievance or review
procedures otherwise reasonably available; or
(b) the complaint
(i) is one that could more appropriately be dealt with,
initially or completely, according to a procedure provided
for under an Act of Parliament other than this Act,
(ii) is beyond the jurisdiction of the Commission,
(iii) is trivial, frivolous, vexatious or made in bad faith, or
(iv) is based on acts or omissions the last of which
occurred more than one year, or such longer period of time
as the Commission considers appropriate in the circum
stances, before receipt of the complaint.
Section 34 provides:
34. (1) Subject to subsection (2), when the Commission
decides not to deal with a complaint, it shall send a written
notice of its decision to the complainant setting out the reason
for its decision.
(2) Before deciding that a complaint will not be dealt with
because a procedure mentioned in paragraph 33(a) has not
been exhausted, the Commission shall satisfy itself that the
failure to exhaust the procedure was attributable to the com
plainant and not to another.
I turn now to a consideration of the issues raised
by the section 28 application. It is first necessary
to determine what it was that the Commission
actually decided. Counsel for the Commission con
tended that the Commission decided not to accept
the complaint for filing on the ground that it did
not disclose on its face reasonable grounds for
believing that someone had engaged in a dis
criminatory practice to which the Act applied. He
contended that the Commission had an implied
authority in virtue of the terms of section 32 of the
Act to screen out complaints in this manner. I do
not agree with this view of the Commission's
powers and of what the Commission must be
considered to have decided. In my view the
requirement of "reasonable grounds for believing"
in subsection 32(1) is simply there to indicate that
it is sufficient for a person to be able to affirm
reasonable grounds for belief, and that it is un
necessary to be able to affirm direct, personal
knowledge, in order to be able to lodge a complaint
with the Commission. If a person submits a com
plaint in a form which is acceptable to the Com
mission (which I take it is a form that has been
approved by the Commission) and affirms in that
complaint that he or she has reasonable grounds
for believing that someone has engaged in or is
engaging in a discriminatory practice, then in my
opinion the Commission has a duty in virtue of
section 33 to deal with the complaint unless it falls
within one of the exceptions specified in that sec
tion or in section 32. Apart from the cases men-
tioned in subsections (2) and (5) of section 32 the
specific grounds on which the Commission may
decide not to deal with a complaint are set out in
section 33. By section 34 the Commission is
required to give written notice to the complainant
of a decision not to deal with a complaint with a
statement of the reason for its decision. Subpara-
graph 33(b)(ii) covers the case of a complaint
which alleges a discriminatory practice to which
the Act does not apply. That was the ground
invoked by the Commission for its decision in the
present case. Subparagraph 33(b)(iii) covers other
cases which in the opinion of the Commission are
totally lacking in merit. I do not think the Com
mission can evade the terms of section 33 and the
requirement of section 34 by the device of refusing
to accept for filing a complaint that is in a form
acceptable to the Commission because in the view
of the Commission the grounds for belief affirmed
in the complaint are not in fact reasonable grounds
for belief. It is quite clear that from the beginning
the Commission took the position that the appli
cant's complaint was beyond its jurisdiction. That
is a ground of disposition that must be invoked by
a decision pursuant to section 33. I am, therefore,
of the opinion that for purposes of the question of
the jurisdiction of the Court to entertain the sec
tion 28 application the decision that must be char
acterized with reference to that section is a deci
sion, pursuant to section 33, not to deal with a
complaint on the ground that it appears to the
Commission to be beyond its jurisdiction.
It is necessary then to consider whether such a
decision is one that is required by law to be made
on a judicial or quasi-judicial basis. I observe, first,
that in my opinion it is a "decision" within the
meaning of that word in section 28. It is referred
to as a "decision" by section 34 of the Canadian
Human Rights Act, it is a decision made in the
exercise of a statutory authority or power, and it is
final, at least in so far as the grounds in subpara-
graphs 33(b)(ii) to (iv) are concerned. As such it is
distinguishable from those decisions of a prelim
inary or interlocutory nature that have been held
by this Court not to be decisions within the mean
ing of section 28. See, for example, B.C. Packers
Ltd. v. Canada Labour Relations Board [1973]
F.C. 1194.
Whether the decision is one that is required by
law to be made on a judicial or quasi-judicial basis
raises the practical question whether the Commis
sion should be required, before making a decision
not to deal with a complaint pursuant to section
33, to offer the complainant an opportunity to be
heard, at least by written submissions, on the
ground which the Commission proposes to invoke.
Such a requirement would undoubtedly add to the
Commission's administrative burden, but this con
sideration cannot be permitted to be determina-
tive, so long, as appears to be the case, the require
ment would not wholly defeat the purpose of the
legislation. Whether such a duty is to be implied,
in the absence of an express provision for hearing,
depends on a number of factors, chief of which in
my opinion are the effect of the decision and the
nature of the issues involved in making it. See
Durayappah v. Fernando [1967] 2 A.C. 337, per
Lord Upjohn at page 349; M.N.R. v. Coopers and
Lybrand [1979] 1 S.C.R. 495 per Dickson J. at
pages 504-505.
There can be little doubt that the Canadian
Human Rights Act creates new rights of a sub
stantive and procedural nature. In effect it creates
the right to be dealt with free from discrimination
of certain kinds in respect of certain matters
within federal legislative jurisdiction, and it pro
vides special machinery for obtaining relief from
discriminatory practices. A decision not to deal
with a complaint on a ground specified in section
33 is a decision which effectively denies the possi
bility of obtaining such relief. It is in a real sense
determinative of rights. It should be noted that
subsection 36(3) of the Act, which provides for the
disposition of a complaint by the Commission upon
receipt of the report of an investigator, speaks of a
complaint being "dismissed" on one of the grounds
specified in subparagraphs 33(b)(ii) to (iv). In
effect, the Act provides for the dismissal of a
complaint on one of these grounds before or after
investigation.
If we look at the terms of section 33 in order to
determine . the nature of the issues involved in
making a decision not to deal with a complaint we
note first of all the subjective terms in which the
power of decision is conferred. The Commission
may decide not to deal with a complaint if it
appears to it that one of the grounds specified in
section 33 exists. Those grounds involve in varying
degrees questions of fact, law and opinion. For
example, in paragraph 33(a), whether there is a
grievance or review procedure "reasonably avail
able" is a question of law or mixed law and fact,
but whether the complainant "ought" to exhaust
the procedure is a question of opinion or discre
tion. Before the Commission decides not to deal
with a complaint on this ground it is required by
section 34 to "satisfy itself that the failure to
exhaust the procedure was attributable to the com
plainant and not to another." That is obviously a
question of fact. Similarly, in subparagraph
33(b)(i), whether a complaint could be dealt with
"more appropriately" according to a procedure
provided for under another Act of Parliament
involves questions of law, fact and opinion. In
subparagraph 33(b)(ii), whether a complaint is
beyond the jurisdiction of the Commission is a
question of law or mixed law and fact. In subpara-
graph 33(b)(iii), whether a complaint is trivial,
frivolous, vexatious or made in bad faith involves
questions of law and fact. Finally, in subparagraph
33(b)(iv), whether the complaint is based on acts
or omissions the last of which occurred more than
one year before receipt of the complaint is essen
tially a question of fact, but it may involve ques
tions of law. Whether the Commission is to apply
a longer period that is considered by it to be
"appropriate" is a matter of discretion.
The foregoing issues are suitable for judicial
determination. Indeed, they are issues of a kind
which are decided in practice by the courts. They
are issues on which it is fair and appropriate, and
indeed useful, to hear the person affected. I cannot
think of any good reason, other than that of the
practical convenience of the Commission, why the
complainant should not be heard. I do not find
anything in the terms of section 33 or the other
provisions of the Act which exclude an implied
duty to act judicially in making a decision not to
deal with a complaint on one of the grounds in
section 33. The subjective terms in which the
power of decision has been conferred—"unless in
respect of that complaint it appears to the Corn-
mission"—do not by themselves exclude such a
duty: Durayappah v. Fernando [1967] 2 A.C. 337
at page 348. Nor does the fact that express provi
sion for a hearing by a Human Rights Tribunal
has been made in section 40 necessarily exclude an
implied duty under section 33: L'Alliance des Pro-
fesseurs catholiques de Montréal v. The Labour
Relations Board of Quebec [1953] 2 S.C.R. 140 at
pages 153-154. Finally, the requirement in section
34 that the Commission give written notice of the
reason for its decision is not inconsistent with a
duty to offer the complainant an opportunity to be
heard. If anything, it serves to emphasize the
judicial or quasi-judicial nature of the decision. It
reinforces the impression that the decision is to be
based on specific statutory criteria to which the
party affected should have an opportunity to
address himself. For these reasons I am of the
opinion that the decision not to deal with a com
plaint on one of the grounds specified in section 33
of the Act is one which is required by law to be
made on a judicial or quasi-judicial basis, and that
this Court accordingly has jurisdiction to entertain
the section 28 application.
There remains the question whether the Com
mission erred in law in deciding, as it did, that the
complaint was beyond its jurisdiction because it
was based on conduct that occurred before the Act
came into force. There are several issues involved
here. The first is whether the subjective terms in
which the power of decision has been conferred
exclude judicial review for error of law. This is not
the same question as that which was considered
earlier—whether they exclude an implied duty to
act judicially—although there may appear to be a
certain relationship between the two. A person
affected by a decision may have a right to be heard
by an administrative tribunal but may not have a
right to judicial review on a particular question.
Judicial decisions are far from uniform as to the
effect on the scope of judicial review of words such
as "unless ... it appears to the Commission". See
de Smith, Judicial Review of Administrative
Action, 3rd ed., 1973, pages 103-104, 257-259,
318-320; Halsbury's Laws of England, 4th ed.,
vol. 1, paras. 22, 52, 56. I confess that I have not
been able to find very precise guidance in any of
the decisions referred to in these commentaries,
but the commentaries themselves and some of the
judicial dicta found in the cases cited do seem to
lend some support for a conclusion that such words
do not evidence a clear legislative intention that
judicial review for error of law is to be excluded,
particularly where the question of law involved is
one which determines the limits of the tribunal's
statutory authority. In any event, that is the con
clusion I choose to come to in this case. I do not
think it could have been intended by the words
"unless ... it appears to the Commission" in sec
tion 33 to empower the Commission to determine
the limits of its jurisdiction in a restrictive manner,
thus affecting the scope and reach of the remedies
created by Parliament to deal with discrimination,
without the possibility of judicial review.
The Commission's conclusion that the complaint
was beyond its jurisdiction was based on the view
that the conduct which formed the basis of the
complaint occurred before the Act came into force.
This assumption, which in my opinion involves a
question of law, must be examined. There appear
to have been two complaints. The first, on May 30,
1978, was essentially a complaint that the suspen
sion and discharge in July 1974, was a discrimina
tory practice. The second, on August 15, 1978 was
essentially a complaint that the Department of
National Revenue's refusal to act on the recom
mendation made by the Anti-Discrimination
Directorate of the Public Service Commission in
May 1978, was a discriminatory practice. The
Commission appears to have taken the position
that the facts of the case could only give rise to one
alleged discriminatory practice—the suspension
and discharge in July 1974. I agree with that
position. The decision of the Department of Na
tional Revenue to adhere to its original decision,
despite the finding and recommendation of the
Anti-Discrimination Directorate, cannot be
regarded, for purposes of the Act, as a separate
and additional discriminatory practice. The dis
charge was an act that took place and was com
pleted at a specific point of time. All that has
happened since then can be summed up as a
continued insistence that the decision was justified.
Adherence to the decision cannot have the effect
of making the act of discharge a continuing dis
criminatory practice. In my opinion the complaints
of the applicant must be regarded as being based
on conduct which occurred before the Act came
into force.
There remains then the question whether the
Canadian Human Rights Act applies to dis
criminatory practices which were engaged in and
completed before it came into force on March 1,
1978. There can be no doubt in my opinion that
such an application would be a retrospective one.
It would be an application not to a characteristic
or status acquired partly or wholly before the Act
came into force but to an event—having engaged
in proscribed conduct defined by the Act as dis
criminatory practice. For the nature and signifi
cance of this distinction see Driedger in The Con
struction of Statutes, pages 140-141, as revised in
the 1976 Supplement, and in his article, "Statutes:
Retroactive Retrospective Reflections" (1978) 56
Can. Bar Rev. 264. Moreover, it would be an
application with prejudicial effects, resulting in
interference with contractual rights and relation
ships, obligations to do and not to do, and liability,
as appears from the kind of order that a Human
Rights Tribunal is empowered to make. It thus
gives rise to the application of the rule of construc
tion against retrospective operation. An expression
of that rule that has often been cited with judicial
approval is to be found in Maxwell on The Inter
pretation of Statutes, 12th ed., 1969, page 215 as
follows:
Upon the presumption that the legislature does not intend what
is unjust rests the leaning against giving certain statutes a
retrospective operation. They are construed as operating only in
cases or on facts which come into existence after the statutes
were passed unless a retrospective effect is clearly intended. It
is a fundamental rule of English law that no statute shall be
construed to have a retrospective operation unless such a
construction appears very clearly in the terms of the Act, or
arises by necessary and distinct implication.
There have been various attempts to express
what must be looked at in determining whether the
presumption against retrospective operation has
been rebutted, but none of them, it must be said,
affords a very precise guide. The cases in which
the courts have found an intention that a statute
should have retrospective operation, several of
which are referred to in Maxwell, op. cit., at pages
225-227, are all so special, turning on the particu
lar purpose and provisions of the legislation, that it
is virtually impossible to draw any useful generali
zations from them. In The Board of Trustees of
the Acme Village School District No. 2296, of the
Province of Alberta v. Steele-Smith [19331
S.C.R. 47 at page 50, Lamont J. quoted two of the
general statements of the approach to be adopted
as follows:
If, however, any doubt as to the legislative intention exists
after a perusal of the language of the Act, then, as Lord
Hatherly, L.C. said in Pardo v. Bingham [(1869) 4 Ch. App.
735, at 740]:—
We must look to the general scope and purview of the
statute, and at the remedy sought to be applied, and consider
what was the former state of the law, and what it was that
the Legislature contemplated.
In this Court in the case of Upper Canada College v. Smith
[(1920) 61 Can. S.C.R. 413], Mr. Justice Duff, at page 419,
pointed out various ways in which the legislative intention
might be expressed. He said:—
That intention may be manifested by express language or
may be ascertained from the necessary implications of the
provisions of the statute, or the subject matter of the legisla
tion or the circumstances in which it was passed may be of
such a character as in themselves to rebut the presumption
that it is intended only to be prospective in its operation.
Counsel for the applicant relied on the general
nature of the legislation, as well as certain specific
provisions of the Act, as indicating clearly, in his
submission, an intention that the Act should apply
retrospectively to discriminatory practices which
were completed before it came into force. I have
not been persuaded by his submissions that there is
such a clear and unambiguous expression of inten
tion. Counsel did not elaborate on his submission
based on the general nature and importance of the
legislation. He seemed to treat it as self-evident.
The fact that legislation serves a generally laud
able or desirable purpose is not by itself sufficient
to displace the rule against retrospective operation.
Reference was made in particular to the reasoning
of the Ontario Court of Appeal in Re Sanderson
and Russell (1980) 24 O.R. (2d) 429 (released on
May 24, 1979) in which the issue was the applica
tion of The Family Law Reform Act, 1978, S.O.
1978, c. 2, to a claim for support by a person who
had acquired the necessary status by virtue of a
period of cohabitation which had ended before the
Act came into force. The operation of the legisla
tion in that case involved quite different consider
ations. Indeed, the Court held in the first part of
its judgment that the application of the Act to the
circumstances of that case would not be a retro
spective one. In the second part of its judgment,
which is the one relied on by counsel for the
applicant, it went on to consider, on the assump
tion that it would be retrospective, whether there
was an intention that it should be so. The Court
described the Act [at page 437] as "social legisla
tion designed to provide a remedy for people who
find themselves in the situation of need described
in the early sections of Part II of the Act." It
observed that the need might arise as a result of
cohabitation and that the obligation of support was
not based on a concept of fault. "With these
factors in mind," the Court concluded [at page
438], "it is reasonable to conclude that the Legis
lature intended Part II to be applicable to all
spouses, as defined by s. 14(b)(i), para. 1, from the
date the legislation came into force, even if the
requisite period of cohabitation ended before this
time." The legislation in the present case is quite
different in its impact, in so far as the rule against
retrospective application is concerned. Its opera
tion is not based on a status, combined with an
existing need and capacity to pay, but on conduct
which is stigmatized by the legislation with results
that interfere with or overturn what were formerly
lawful exercises of freedom of contract.
Counsel for the applicant laid particular stress
in his argument in favour of retrospective opera
tion on the terms of section 2 of the Act, the
applicable part of which reads as follows:
2. The purpose of this Act is to extend the present laws in
Canada to give effect, within the purview of matters coming
within the legislative authority of the Parliament of Canada, to
the following principles:
(a) 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 based on race, national or ethnic origin, colour,
religion, age, sex or marital status, or conviction for an
offence for which a pardon has been granted or by dis
criminatory employment practices based on physical hand
icap; ...
I understood counsel to argue from this provi
sion that the purpose of the Act was to give effect
to principles that were already reflected in the
existing law, but he was unable to show that the
Act was in any way declaratory or a codification
of existing law. Neither the common law nor fed
eral legislation in force at the time the Act was
adopted, such as the Public Service Employment
Act, R.S.C. 1970, c. P-32, and the Canada Labour
Code, R.S.C. 1970, c. L-1, contained prohibitions
of discrimination of the scope and extent reflected
in the statement of prohibited grounds in section 3
and the description of discriminatory practices in
sections 7 to 15.
The other specific provisions to which counsel
for the applicant referred are not in my opinion
conclusive of an intention that the Act should have
retrospective operation. He referred to several
provisions in which the past, as well as the present,
tense is used in describing the conduct which
constitutes a discriminatory practice. Examples
are section 4 ("found to be engaging or to have
engaged in a discriminatory practice") and subsec
tion 32(1) ("is engaging or has engaged in a
discriminatory practice"). This use of the past
tense is not inconsistent with an intention that the
Act should have only a prospective application. As
Wright J. said in In re Athlumney Ex parte
Wilson [1898] 2 Q.B. 547 at page 553, "this form
of words is often used to refer, not to a past time
which preceded the enactment, but to a time which
is made past by anticipation—a time which will
have become a past time only when the event
occurs on which the statute is to operate." Counsel
also argued that subparagraph 33(b)(iv) of the
Act indicates an intention that it is to have retro
spective operation. That subparagraph provides
that the Commission may decide not to deal with a
complaint if it appears to the Commission that the
complaint is based on acts or omissions the last of
which occurred more than one year, or such longer
period of time as the Commission considers appro
priate in the circumstances, before receipt of the
complaint. I do not think it is an unreasonable
construction of this provision to see it as one that
would not have effective application until at least a
year after the Act came into force. Finally, counsel
drew an argument in favour of retrospective opera
tion from the terms of section 64 of the Act which
reads:
64. After the coming into force of Part III, the Commission
may, with the approval of the Governor in Council, by by-law,
limit or restrict the filing of complaints under that Part in
respect of any discriminatory practice until such time as the
Commission is able to process all complaints under that Part in
an orderly manner.
It is not in my opinion a necessary implication of
this provision that it was intended that the Act
should have retrospective application. Such a
provision might well be considered necessary
because of the volume of complaints that might be
anticipated in the initial stage of the Act's opera-
tion based on discriminatory practices in which
persons were allegedly engaging at the time the
Act came into force and during a period of time
shortly thereafter. In that limited sense the Act
could have a retrospective application—to dis
criminatory practices begun before the Act came
into force but continuing on or after that date. In
the result, I am of the view that the Act does not
disclose a clear intention that it should apply to a
discriminatory practice that occurred and was
completed before it came into force. Accordingly,
the Commission did not err in law in deciding as it
did that it did not have jurisdiction with respect to
the applicant's complaint.
For all of these reasons I would dismiss the
section 28 application.
* * *
URIE J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
KELLY D.J.: I have read and considered the
reasons for judgment herein of Le Dain J. and
concur therein.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.