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A-7-87
In the Matter of the Canadian Human Rights Act
And in the Matter of a complaint by Subhaschan Singh dated November 27, 1986, filed pursuant to section 32(1) of the Canadian Human Rights Act against Department of External Affairs
And in the Matter of the jurisdiction of the Canadian Human Rights Commission to conduct an investigation into the said complaint pursuant to section 35 of the Canadian Human Rights Act
INDEXED As: SINGH (RE) (C.A.)
Court of Appeal, Mahoney, Hugessen and Desjar- dins JJ.—Ottawa, April 20, 21, and May 9, 1988.
Human rights — References from Canadian Human Rights Commission as to whether it has jurisdiction to investigate complaints of discrimination in refusal to grant visitors' visas and to allow close relatives to sponsor family members for landing — Impossible to say Departments concerned not engaged in provision of services customarily available to gen
eral public, within meaning of Act, s. 5 Cannot be said person who, on prohibited grounds, is denied opportunity to sponsor application for landing is not victim within Act, and if Canadian citizen or permanent resident within meaning of s. 32(5)(6), Commission can hear complaint.
Immigration Whether Department of External Affairs
and Canada Employment and Immigration Commission are engaged in provision of services customarily available to gen eral public, within meaning of s. 5 Canadian Human Rights Act — Person denied opportunity, on prohibited grounds, to sponsor application for landing may be victim within Act, and Canadian Human Rights Commission has jurisdiction to investigate complaint.
These are ten references to the Court by the Canadian Human Rights Commission for a determination as to whether it has jurisdiction to investigate complaints concerning refusals by the Department of External Affairs and the Canada Employment and Immigration Commission to grant visitors' visas to close family relatives and to allow close relatives to sponsor members of the family class for immigration to Canada. It was argued that the Commission lacked jurisdiction because the Departments concerned are not engaged in the provision of services customarily available to the general public within the meaning of section 5 of the Canadian Human Rights Act, and that the victims of the alleged discriminatory practices are not Canadian citizens or permanent residents of Canada so as to bring the cases within the provisions of paragraph 32(5)(b) of the Canadian Human Rights Act.
Held, the questions in the references should be answered in the affirmative.
The Commission has the right to investigate a complaint which may turn out to be beyond the Commission's jurisdiction. Subparagraph 36(3)(b)(ii) clearly envisages that the Commis sion will determine whether or not a complaint is within its jurisdiction. The Court should prohibit it from acting only where it is clear that the tribunal is without jurisdiction. The questions raised are whether the complaints cannot possibly relate to discriminatory practices in the provision of services customarily available to the general public and whether com plainants could not possibly be described as victims of the alleged discriminatory practices. It is not clear that services rendered, both in Canada and abroad, by the officers charged with the administration of the Immigration Act, 1976, are not services customarily available to the general public. The spon sor's interest is expressly recognized in the Act and consistent with the objective of paragraph 3(c) which is to facilitate the reunion of close relatives. A person who, on prohibited grounds, is denied the opportunity to sponsor an application for landing is a "victim" within the meaning of the Act. That being so, it cannot be said that the victim in any of the subject references was not a Canadian citizen or permanent resident within the meaning of paragraph 32(5)(b) of the Act.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 2, 5, 32(5)(b), 33(b)(ii), 36(3)(b)(ii) (as am. by S.C. 1985, c. 26, s. 69).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(4).
Immigration Act, /976, S.C. 1976-77, c. 52, ss. 3(c),(e), 79.
Immigration Regulations, 1978, SOR/78-172, ss. 4, 5, 6. Sex Discrimination Act 1975 (U.K.), 1975, c. 65, s. 29.
CASES JUDICIALLY CONSIDERED APPLIED:
Lodge v. Minister of Employment and Immigration, [ 1979] 1 F.C. 775 (C.A.); Attorney General of Canada v. Cumming, [1980] 2 F.C. 122 (T.D.); Gomez v. City of Edmonton (1982), 3 C.H.R.R. 882.
CONSIDERED:
Amin v. Entry Clearance Officer, Bombay, [ 1983] 2 All E.R. 864 (H.L.); Kassam v. Immigration Appeal Tri bunal, [1980] 2 All E.R. 330 (C.A.); Canadian National Railway Co. v. Canada (Canadian Human Rights Com mission), [1987] I S.C.R. 1114; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Limited et a/., [1985] 2 S.C.R. 536.
COUNSEL:
Russell G. Juriansz for the Canadian Human Rights Commission.
J. Grant Sinclair, Q.C. for the Department of External Affairs, Canada Employment and Immigration Commission and the Attorney General of Canada.
SOLICITORS:
Blake, Cassels & Graydon, Toronto, for the Canadian Human Rights Commission.
Deputy Attorney General of Canada for the Department of External Affairs, Canada Employment and Immigration Commission and the Attorney General of Canada.
The following are the reasons for judgment rendered in English by
HUGESSEN J.: These are ten references by the Canadian Human Rights Commission pursuant to subsection 28(4) of the Federal Court Act.' The resolutions authorizing the references are as follows:
[Court File No. A-7-87]
Subhaschan Singh v. Department of External Affairs
The Commission resolved to refer the following question to the Federal Court of Canada:
"Can the Canadian Human Rights Commission authorize an investigator under subsection 35(2) of the Canadian Human Rights Act to carry out or continue an investigation in respect of a complaint made by Subhaschan Singh, a person lawfully present in Canada, that the Department of External Affairs is engaging or has engaged in a discriminatory practice because of family status, marital status and age by refusing to issue a visitors' visa to Subhaschan Singh's sister, Ousha Davi Singh?"
'Court File No. A-8-87j
Subhaschan Singh v. Canada Employment and Immigration Commission
The Commission resolved to refer the following question to the Federal Court of Canada:
"Can the Canadian Human Rights Commission authorize an investigator under subsection 35(2) of the Canadian Human Rights Act to carry out or continue an investigation in respect of a complaint made by Subhaschan Singh, a person lawfully present in Canada, that the Canada Employment and Immigra tion Commission is engaging or has engaged in a discriminatory practice because of family status, marital status and age by refusing to issue a visitors' visa to Subhaschan Singh's sister, Ousha Davi Singh?"
' R.S.C. 1970 (2nd Supp.), c. 10.
[Court File No. A-9-87]
Gabriela Rebeca Miralles Etcheverry v. Department of Exter nal Affairs
The Commission resolved to refer the following question to the Federal Court of Canada:
"Can the Canadian Human Rights Commission authorize an investigator under subsection 35(2) of the Canadian Human Rights Act to carry out or continue an investigation in respect of a complaint made by Gabriela Rebeca Miralles Etcheverry lawfully present in Canada, that the Department of External Affairs is engaging or has engaged in a discriminatory practice because of national or ethnic origin, by refusing to issue a visitors' visa to Mrs. Etcheverry's sister and nephews?"
[Court File No. A-10-87]
Gabriela Rebeca Miralles Etcheverry v. Canada Employment and Immigration Commission
The Commission resolved to refer the following question to the Federal Court of Canada:
"Can the Canadian Human Rights Commission authorize an investigator under subsection 35(2) of the Canadian Human Rights Act to carry out or continue an investigation in respect of a complaint made by Gabriela Rebeca Miralles Etcheverry lawfully present in Canada, that the Canada Employment and Immigration Commission is engaging or has engaged in a discriminatory practice because of national or ethnic origin by refusing to issue a visitors' visa to Mrs. Etcheverry's sister and nephews?"
[Court File No. A-11-87]
Hameed and Massarat Naqvi v. Canada Employment and Immigration Commission
The Commission resolved to refer the following question to the Federal Court of Canada:
"Can the Canadian Human Rights Commission authorize an investigator under subsection 35(2) of the Canadian Human Rights Act to carry out or continue an investigation in respect of a complaint made by Hameed and Massarat Naqvi, persons lawfully present in Canada, that the Canada Employment and Immigration Commission is engaging or has engaged in a discriminatory practice because of race, colour, national or ethnic origin, or marital status, by refusing to issue a visitors' visa to Massarat Naqvi's sister—Hameed Naqvi's sister-in-law, Naz Sultan?"
[Court File No. A-12-87]
Jawaharlal Menghani v. Canada Employment and Immigration Commission and Department of External Affairs
The Commission resolved to refer the following question to the Federal Court of Canada:
"Can the Canadian Human Rights Commission appoint a person for the purpose of attempting to bring about a settle-
ment in respect of a complaint made by Jawaharlal Menghani, a person lawfully present in Canada, alleging that the Canada Employment and Immigration Commission and the Depart ment of External Affairs are engaging or have engaged in a discriminatory practice because of national or ethnic origin, by refusing to allow the Complainant, Jawaharlal Menghani, to sponsor his brother, Nandlal Menghani, and refusing to issue an immigrant visa to the Complainant's brother?"
[Court File No. A-13-87]
Kashmir Kaur Uppal v. Canada Employment and Immigration Commisison and Department of External Affairs
The Commission resolved to refer the following question to the Federal Court of Canada:
"Can the Canadian Human Rights Commission authorize an investigator under subsection 35(2) of the Canadian Human Rights Act to carry out or continue an investigation in respect of a complaint made by Kashmir Kaur Uppal, a person lawful ly present in Canada, that the Canada Employment and Immi gration Commission and the Department of External Affairs are engaging or have engaged in a discriminatory practice because of national or ethnic origin by having refused to allow the Complainant to sponsor her spouse, Makhan Singh Uppal, and having refused to issue an immigrant visa to the Com plainant's spouse?"
[Court File No. A-14-87]
Tarsem Singh Bains v. Canada Employment and Immigration Commission and Department of External Affairs
The Commission resolved to refer the following question to the Federal Court of Canada:
"Can the Canadian Human Rights Commission authorize an investigator under subsection 35(2) of the Canadian Human Rights Act to carry out or continue an investigation in respect of a complaint made by Tarsem Singh Bains, a person lawfully present in Canada, that the Canada Employment and Immigra tion Commission and the Department of External Affairs are engaging or have engaged in a discriminatory practice because of race and national or ethnic origin by not accepting the legality of the Complainant's adoption of the Complainant's brother's son in India?"
[Court File No. A-15-87]
Saeeda Mansoory v. Canada Employment and Immigration Commission
The Commission resolved to refer the following question to the Federal Court of Canada:
"Can the Canadian Human Rights Commission authorize an investigator under subsection 35(2) of the Canadian Human Rights Act to carry out or continue an investigation in respect of a complaint made by Saeeda Mansoory, a person lawfully present in Canada, that the Canada Employment and Immigra tion Commission is engaging or has engaged in a discriminatory practice because of national or ethnic origin, by refusing to allow the Complainant to sponsor her father, Yasin Mansoory,
and refusing to issue an immigrant visa to Saeeda Mansoory's father?"
[Court File No. A-16-87]
Saeeda Mansoory v. Department of External Affairs
The Commission resolved to refer the following question to the Federal Court of Canada:
"Can the Canadian Human Rights Commission authorize an investigator under subsection 35(2) of the Canadian Human Rights Act to carry out or continue an investigation in respect of a complaint made by Saeeda Mansoory, a person lawfully present in Canada, that the Department of External Affairs is engaging or has engaged in a discriminatory practice because of national or ethnic origin, by refusing to issue an immigrant visa to the Complainant's father, Yasin Mansoory, thus deny ing Saeeda Mansoory the right to sponsor her father?"
The factual background to the references is, of course, not in dispute and may be shortly stated. Each of the complaints referred to has been made to the Commission pursuant to section 32 of the Canadian Human Rights Act 2 and the complain ants are all either Canadian citizens or permanent residents of Canada. In the first five cases (Court files A-7-87 to A-11-87), the complainants claim to have suffered discrimination on prohibited grounds in the refusal by the Government of visi tors' visas to close family relatives. In the second group of five cases (Court files A-12-87 to A-16- 87), the complainants claim to have suffered dis crimination on prohibited grounds in the refusal by the Government to recognize their right to sponsor a close relative as a member of the family class and in the attendant refusal to issue an immigrant visa to such relative. The details of the alleged discriminatory practices in each case are not necessary for an understanding of the argument; it is enough to say that, in the visitors' cases, visas are said to have been refused because, for example, the proposed visitor, for reasons related to prohib ited grounds, is thought not to be a genuine visitor and, in the sponsorship cases, the right to sponsor has been refused because, for example, for reasons related to prohibited grounds, the Government has imposed unreasonable requirements as to proof of the required relationship.
2 S.C. 1976-77, c. 33.
requirements as to proof of the required relation ship.
In respect of all the complaints, the Commission has attempted to carry out an investigation, but has been unable to do so by reason of the refusal of the Government to recognize that it has the juris diction to investigate the matters complained of. That refusal, in its turn, is based on two grounds: first, that the government departments concerned are not engaged
5.... in the provision of ... services ... customarily avail able to the general public ...
within the meaning of section 5 of the Canadian Human Rights Act and, second, that, in any event, the victims of the alleged discriminatory practices were not Canadian citizens or permanent residents of Canada so as to bring the cases within the provisions of paragraph 32(5)(b) of the Canadian Human Rights Act.
A preliminary question arises with regard to the reach of the decision which this Court is called upon to render on the references. The latter, in their terms, refer to the jurisdiction or power of the Commission to investigate the various com plaints. It is the Commission's position that such investigation, at this stage, necessarily includes the right to investigate,a complaint which may, in due course, turn out to be beyond the Commission's jurisdiction. The Government, on the other hand, takes the position that the references having been made the question of the Commission's jurisdiction to deal with the complaints in limine is now before the Court and must be responded to.
An examination of the Canadian Human Rights Act makes it clear that the Commission is a body whose jurisdiction to inquire includes the jurisdic tion to inquire into the limits of its own jurisdic tion. The initial jurisdiction of the Commission is triggered by the filing of a complaint; once that happens, the Commission is required by the man datory words of section 33 to deal with it ("the Commission shall deal"). The question of jurisdic tion is specifically dealt with in subparagraph 33(b)(ii), in a manner that makes evident Parlia-
ment's intent that the Commission itself should in the first instance decide if a matter is within its jurisdiction.
The same is true after the Commission has concluded an investigation: subparagraph 36(3)(b)(ii) [as am. by S.C. 1985, c. 26, s. 69] clearly envisages that the Commission should decide as to whether or not a complaint is within its jurisdiction.
This Court's posture with regard to the Com mission's powers has been consistent with this reading of the statute. In Lodge v. Minister of Employment and Immigration, [1979] 1 F.C. 775 (C.A.), Le Dain J., speaking for the Court, said [at pages 785-786]:
Having concluded for these reasons that an injunction will not lie for a purpose such as that invoked in the present case, I do not find it necessary to express an opinion as to whether the application of the inquiry and deportation provisions of the Immigration Act is a service customarily available to the general public within the meaning of section 5 of the Canadian Human Rights Act. The question as to the extent, if any, to which the administration and application of federal statutes, whether regulatory in purpose or not, fall under the Canadian Human Rights Act is, of course, a serious one. There may be important distinctions to be drawn between different aspects of the public service, based on the facts established in each case. It is preferable, I think, that these questions should be determined in the first instance by the Commission, as section 33 would appear to intend, before a court is called upon to pronounce upon them .... [Emphasis added.]
Likewise, in Attorney General of Canada v. Cumming, [1980] 2 F.C. 122 (T.D.), Thurlow A.C.J., as he then was, said [at pages 131-133]:
With respect to the first of these questions, which appears to me to be one that goes to the jurisdiction of the Tribunal, I am not prepared to accept the broad proposition that in assessing taxes under the Income Tax Act the Department of National Revenue is not engaged in the provision of services within the meaning of section 5 of the Canadian Human Rights Act. The statute is cast in wide terms and both its subject-matter and its stated purpose suggest that it is not to be interpreted narrowly or restrictively. Nor do I think that discrimination on any of the bases prohibited by the Act cannot conceivably occur in the provision of such services to the public.
The preferable course for the Court is to leave the Tribunal free to carry out its inquiries and not to prohibit it save in a case where it is clear and beyond doubt that the Tribunal is without jurisdiction to deal with the matter before it. In my opinion, the present is not such a case. [Emphasis added.]
While those cases were concerned with proceed ings launched in the Trial Division putting in issue the Commission's jurisdiction, I do not think that the fact that the present matter comes to us as a reference under subsection 28(4) of the Federal Court Act should make any difference. The Com mission has received complaints. The statute requires that it investigate them. The Government has taken the position that the complaints are clearly outside the Commission's jurisdiction and has refused to allow it to pursue its investigation. By doing so, it has itself put in issue the Commis sion's right to investigate for the purposes of deter mining whether or not a matter is within its jurisdiction.
Some question was raised at the hearing as to the proper standard to be applied. Counsel for the Government urged that the test of "clear and beyond doubt" used by Thurlow A.C.J. in the passage quoted in Cumming, supra, was too high. I confess that the point escapes me. Counsel con cedes that the Court should only interfere at this stage where it is clear that the tribunal is without jurisdiction. Once that is granted, it seems to me that whether one also requires that the point be beyond doubt is nothing more than an exercise in semantics. What is important is that the Court should not intervene to prevent a body such as the Commission from carrying out its statutorily man dated duty to enquire into matters which may arguably be within its jurisdiction unless the Court can say with confidence that those matters are not within the Commission's jurisdiction.
Looked at in that light, the questions raised on the present references become very simply whether the complaints cannot possibly relate to -dis criminatory practices in the provision of services customarily available to the general public and whether the complainants could not possibly be described as victims of the alleged discriminatory practices. For the reasons which follow, I am unable to say that either question must be answered in such a way as to deny jurisdiction to the Commission at this stage.
Section 5 of the Canadian Human Rights Act reads as follows:
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 Lo any individual, or
(b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.
This provision differs markedly from the terms of section 29 of the Sex Discrimination Act 1975 (U.K.) [1975, c. 65] which provides as follows:
29.—(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a woman who seeks to obtain or use those goods, facilities or services—
(a) by refusing or deliberately omitting to provide her with any of them, or
(b) by refusing or deliberately omitting to provide her with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in his case in relation to male members of the public or (where she belongs to a section of the public) to male members of that section.
(2) The following are examples of the facilities and services mentioned in subsection (I )—
(a) access to and use of any place which members of the public or a section of the public are permitted to enter;
(b) accommodation in a hotel, boarding house or other similar establishment;
(e) facilities by way of banking or insurance or for grants, loans, credit or finance;
(d) facilities for education;
(e) facilities for entertainment, recreation or refreshment;
(f) facilities for transport or travel;
(g) the services of any profession or trade, or any local or other public authority.
Both the Court of Appeal and the House of Lords in England have interpreted this provision restrictively so as to limit it to "marketplace" activities and to exclude the services rendered by a public officer carrying out his duties in controlling the inflow of immigrants into the country.'
Without in any way putting in doubt the cor rectness of those decisions, I note that they rely very heavily on the enumeration of examples in subsection 29(2) of the U.K. statute, a feature
3 See Amin v. Entry Clearance Officer, Bombay, [1983] 2 All E.R. 864 (H.L.); Kassam v. Immigration Appeal Tribunal, [1980] 2 All ER. 330 (C.A.).
notably absent in our Act. The U.K. courts also do not appear to be working under the rule of con struction now well established in this country, that human rights legislation is to receive a large, liberal and purposive interpretation.'
The wording of our section 5 is also instructive. While paragraph (a) makes it a discriminatory practice to deny services, etc. to an individual on prohibited grounds, paragraph (b) seems to approach matters from the opposite direction, as it were, and without regard to the person to whom the services are or might be rendered. Thus it is a discriminatory practice
5.... in the provision of ... services ... customarily avail able to the general public
(b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.
Restated in algebraic terms, it is a discriminato ry practice for A, in providing services to B, to differentiate on prohibited grounds in relation to C. Or, in concrete terms, it would b.e a discrimina tory practice for a policeman who, in providing traffic control services to the general public, treat ed one violator more harshly than another because of his national or racial origins. 5
It is indeed arguable that the qualifying words of section 5
5. ... provision of ... services ... customarily available to the general public ....
can only serve a limiting role in the context of services rendered by private persons or bodies; that, by definition, services rendered by public servants at public expense are services to the public and therefore fall within the ambit of sec tion 5. It is not, however, necessary to make any final determination on the point at this stage and it is enough to state that it is not by any means clear to me that the services rendered, both in Canada and abroad, by the officers charged with the
4 See, for example, Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114.
5 See Gomez v. City of Edmonton (1982), 3 C.H.R.R. 882.
administration of the Immigration Act, 1976' are not services customarily available to the general public.
Turning next to the Government's second objec tion to the Commission's jurisdiction, it is ground ed in the fact that, since all the applicants, both for visitors' visas and for sponsored applications for landing, were necessarily outside Canada at the time of their application, the Commission is pro hibited from dealing with the matter by the terms of paragraph 32(5)(b):
32....
(5) No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission that constitutes the practice
(b) occurred outside Canada and the victim of the practice was at the time of such act or omission a Canadian citizen or an individual admitted to Canada for permanent resi dence....
In my view, this argument is wholly untenable with regard to the complaints arising out of the refusal to accept sponsored applications for land ing. Whatever may be the nature of a sponsor's interest, it is one which is expressly recognized in section 79 of the Immigration Act, 1976 and sec tions 4, 5 and 6 of the Immigration Regulations, 1978.' It is furthermore an interest consistent with the objective stated in paragraph 3(c) of the Act:
3....
(c) to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad;
The complaints allege a denial, on prohibited grounds, of the right of Canadian citizens and permanent residents of Canada to sponsor their relatives from abroad. The express principle underlying the Canadian Human Rights Act is stated in section 2 to be
2....
(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 ....
6 S.C. 1976-77, c. 52. SOR/78-1 72.
In my view, a person who, on prohibited grounds, is denied the opportunity to sponsor an application for landing is a "victim" within the meaning of the Act whether or not others may also be such victims.
I would, however, go a great deal further. The question as to who is the "victim" of an alleged discriminatory practice is almost wholly one of fact. Human rights legislation does not look so much to the intent of discriminatory practices as to their effect.' That effect is by no means limited to the alleged "target" of the discrimination and it is entirely conceivable that a discriminatory prac tice may have consequences which are sufficiently direct and immediate to justify qualifying as a "victim" thereof persons who were never within the contemplation or intent of its author. Thus, even in the case of the denial of visitors' visas, it is by no means impossible that the complainants in Canada who were seeking to be visited by relatives from abroad should not themselves be victims of discriminatory practices directed against such rela tives. A simple example will illustrate the point: could it seriously be argued that a Canadian citi zen who required a visit from a sibling for the purposes of obtaining a lifesaving organ transplant was not victimized by the refusal, on prohibited grounds, of a visitors' visa to that sibling?
It is not, of course, necessary to go so far as to postulate life-threatening situations. I have already referred to paragraph 3(c) of the Immigration Act, 1976. 1 do not see the purpose there stated as being limited to the facilitating of applications for permanent residence and thereby excluding an application for a simple visit. But family reunifica tion is not the only purpose of the Immigration Act, 1976: paragraph 3(e) is expressly directed to visitors and states, as one of the Act's objectives:
3....
(e) to facilitate the entry of visitors into Canada for the purpose of fostering trade and commerce, tourism, cultural and scientific activities and international understanding;
"See Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Limited et al., [1985] 2 S.C.R. 536.
If a visitors' visa were denied on prohibited grounds in such a way as to deprive a Canadian citizen or permanent resident of Canada of signifi cant commercial or cultural opportunities, it would certainly be arguable that he or she was one of the victims of the discriminatory practice.
That being so, it is impossible for me at this stage to affirm that in any of the subject refer ences the victim was not a Canadian citizen or a permanent resident within the meaning of para graph 32(5)(b) of the Canadian Human Rights Act.
For all the foregoing reasons, I would answer the questions posed in the various references in the affirmative.
MAHONEY J.: I agree. DESJARDINS J.: I agree.
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