Tranchemontagne v. Ontario

T and W applied for support pursuant to the Ontario Disability Support Program Act, 1997 (‘the Act’). Their applications were denied by the Director of the Program and an internal review confirmed the Director’s decision. The Social Benefits Tribunal (‘the Tribunal’) dismissed the appeals pursuant to s 5(2) of the Act based on its finding that they both suffered from alcoholism. The Tribunal concluded by stating that it did not have jurisdiction to consider whether s 5(2) was inapplicable by virtue of the Ontario Human Rights Code (‘the Code’). The decision was upheld by the Divisional Court. T and W appealed unsuccessfully to the Court of Appeal which found that the Tribunal had the power to declare a provision of the Act inapplicable on the basis that the provision was discriminatory, but that it should have declined to exercise that jurisdiction in favour of a more appropriate forum. On appeal to the Supreme Court to determine whether (a) the Tribunal had the jurisdiction to consider the Code in rendering its decisions and (b) if ‘yes’ should the Tribunal decline to exercise its jurisdiction in the present case? The Ontario Human Rights Commission (‘the Commission’) intervened.

[Adapted from INTERIGHTS summary, with permission]

In allowing the appeal and remitting to the Tribunal for a ruling on the applicability of s 5(2) of the Act, the Court held that:

(1) The most important characteristic of the Code for the purposes of this appeal is that it is fundamental, quasi-constitutional law (Battlefords and District Co-operative Ltd v Gibbs [1996] 3 SCR 566 and Insurance Corp of British Columbia v Heerspink [1982] 2 SCR 145 applied). Accordingly, it is to be interpreted in a liberal and purposive manner, with a view towards broadly protecting the human rights of those to whom it applies (B v Ontario (Human Rights Commission) [2002] 3 SCR 403 applied).

(2) In addition, not only must the content of the Code be understood in the context of its purpose, but like the Charter of Rights and Freedoms, it must be recognised as being the law of the people (Cooper v Canada (Human Rights Commission) [1996] 3 SCR 854 and Quebec (Attorney General) v Quebec (Human Rights Tribunal) [2004] 2 SCR 223 applied). Accordingly, it must not only be given expansive meaning, but also offered accessible application.

(3) The Tribunal has jurisdiction to consider the Code in determining whether T and W were eligible for support pursuant to the Act. Statutory tribunals empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the whole law to a matter properly before them. Here, the Act, together with the Ontario Works Act 1997 (‘the OWA’), confirms that the Tribunal can decide questions of law. As a result, when the Tribunal decides whether an applicant is eligible for income support, it is presumed to be able to consider any legal source that might influence its decision on eligibility, including the Code (Nova Scotia (Workers’ Compensation Board) v Martin [2003] 2 SCR 504 applied; Cuddy Chicks Ltd v Ontario (Labour Relations Board) [1991] 2 SCR 5 and Douglas/Kwantlen Faculty Assn v Douglas College [1990] 3 SCR 570 considered).

(4) There is no indication that the legislature has sought to rebut this presumption. While s 67(2) of the OWA clearly prohibits the Tribunal from considering the constitutional validity of laws and regulations, it is equally clear that the legislature chose not to adopt the same prohibition where the Code is concerned. It is one thing to preclude a statutory tribunal from invalidating legislation, but it is another to preclude that body from applying legislation enacted by the provincial legislature in order to resolve apparent conflicts between statutes.

(5) Two elements of the Code’s scheme confirm this legislative intention to differentiate the Code from the Constitution and to confer on the Tribunal the jurisdiction to apply it. Firstly, under s 47(2) of the Act, the Code has primacy over other legislative enactments, and the legislature has given itself clear directions as to how this primacy can be eliminated in particular circumstances. Since, in the cases of the Act and the OWA, the legislature did not follow the procedure it declared mandatory for overruling the primacy of the Code, it would be contrary to the legislature’s intention to demand that the Tribunal ignore it. Secondly, in light of recent amendments that have removed exclusive jurisdiction over the interpretation and application of the Code from the Commission and as a result of which the latter may decline jurisdiction where an issue would best be adjudicated pursuant to another Act, it would not be appropriate to seek to restore the Commission’s exclusive jurisdiction.

(6) Since the Tribunal has not been granted the authority to decline jurisdiction, it cannot avoid considering the issues relating to the Code in these cases. Moreover, although this is not determinative, the Tribunal is the most appropriate forum to decide those issues. The applicability of s 5(2) of the Act is best decided by the Tribunal because the latter is practically unavoidable for vulnerable applicants who have been denied financial assistance under the Act. Such applicants merit prompt, final and binding resolutions for their disputes. Where an issue is properly before a tribunal pursuant to a statutory appeal, and especially where a vulnerable applicant is advancing arguments in defence of his/her human rights, it would be rare for this tribunal not to be the one most appropriate to hear the entire dispute.

(7) Encouraging administrative tribunals to exercise their jurisdiction to decide human rights issues fulfils the laudable goal of bringing justice closer to the people.

Per LeBel, Deschamps and Abella JJ dissenting:

(1) While the Commission no longer has exclusive jurisdiction to decide complaints under the Code, and while it has primacy over other provincial enactments, not all provincial tribunals have free-standing jurisdiction, concurrent with that of the Commission, to enforce the Code in a way that nullifies a provision.

(2) Here, although the Tribunal is not precluded from applying the human rights values and principles found in the Code, it does not have jurisdiction to apply the Code in a way that renders a provision inoperable. By enacting s 67(2) of the OWA, which prohibits the Tribunal from considering the constitutional validity of any enactment or the legislative authority for a regulation, the legislature unequivocally expressed its intent that the Tribunal should not hear and decide legal issues that may result in the inoperability of a provision. Even though s 67(2) refers to constitutional validity, but not to compliance with the Code, their remedial and conceptual similarities are such that the legislature has, by clear implication, withdrawn the authority to grant the remedy of inoperability under either mandate.

(3) Practical considerations also indicate the legislature’s intention that the Tribunal should not consider legal questions that go to the validity of its enabling statute. In light of their institutional characteristics, it was deemed inappropriate for either the Director or the Tribunal to decide such complex, time-consuming legal issues as the operability of a provision. The Director does not hold hearings or receive evidence beyond that filed by an applicant, and the Tribunal’s hearings are informal, private, and brief. The Tribunal is meant to be an efficient, effective, and quick process, and imposing such Code compliance hearings on it will inevitably have an impact on its ability to assist the disabled community in a timely way (Nova Scotia (Workers’ Compensation Board) v Martin [2003] 2 SCR 504 considered).

[Adapted from INTERIGHTS summary, with permission]