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. Canada (Attorney General) v. Ennis

In Canada (Attorney General) v. Ennis (Fed CA, 2021) the Federal Court of Appeal sketches human rights discrimination in the CHRC system:
[64] The case law also firmly recognizes that, to make out a case of discrimination, a complainant must establish a nexus between the disadvantage suffered and one of the prohibited grounds listed in the CHRA to establish a prima facie case of discrimination. In other words, the claimed disadvantageous treatment must be shown to arise because of one of the prohibited grounds. As has been noted by the Supreme Court of Canada and this Court, the relevant test requires complainants to demonstrate that (i) they have a characteristic protected from discrimination under the relevant human rights legislation, (ii) they experienced an adverse impact with respect to the service at issue, and (iii) the protected characteristic was a factor in the adverse impact: see Moore v. British Columbia (Ministry of Education), 2012 SCC 61, [2012] 3 S.C.R. 360 at para. 33; Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591 at para. 24; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795 at para. 86 (per Justice Abella); Attaran at paras. 19-24; Johnstone v. Canada (Border Services Agency), 2014 FCA 110, 459 N.R. 82 at paras. 75-76 and 81-84.

[65] In assessing the sufficiency of the evidence, the Commission is charged with determining whether there is enough evidence in respect of the requisite nexus, the claimed grounds of discrimination and the alleged prejudice suffered by a complainant to warrant a referral to the Tribunal for inquiry: see for example Love v. Canada (Privacy Commissioner), 2015 FCA 198, 475 N.R. 390 at paras. 23-26; Anani at paras. 48, 68-72; Stukanov v. Canada (Attorney General), 2021 FC 49, 2021 CarswellNat 345 at paras. 40-47; Hartjes v. Canada (Attorney General), 2008 FC 830, 334 F.T.R. 277 at paras. 23-30; see also, by analogy with British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210, Edgewater Casino v. Chubb-Kennedy, 2014 BCSC 416, 21 C.C.E.L. (4th) 314 at paras. 39-41, aff’d 2015 BCCA 9.
. Canada (Attorney General) v. Ennis

In Canada (Attorney General) v. Ennis (Fed CA, 2021) the Federal Court of Appeal considered law applicable to the CHRC screening process:
[37] The Federal Court commenced its analysis by correctly setting out the applicable principles from the case law. It noted, with reference to the decision of the Supreme Court of Canada in Halifax (Regional Municipality) v. Nova scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364 [Halifax] and of the Federal Court in Tutty v. Canada (Attorney General), 2011 FC 57, 382 F.T.R. 227, that the Commission is to be accorded deference in respect of its screening decisions under section 44 of the CHRA. The Federal Court also noted, as was held by the Supreme Court of Canada in Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879, 62 D.L.R. (4th) 385 and Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, 140 D.L.R. (4th) 193, that the role of the Commission, in making screening decisions under section 44 of the CHRA, is to assess the sufficiency of the evidence before it. The Federal Court further correctly held that deference was not required in respect of its review of the fairness of the process undertaken by the Commission.


[46] It is likewise well settled that the deferential reasonableness standard applies to the merits of Commission decisions to refer or to decline to refer human rights complaints to the Tribunal for further inquiry: Halifax at paras. 17-53; Attaran v. Canada (Attorney General), 2015 FCA 37, 380 D.L.R. (4th) 737 at paras. 9-14 [Attaran]; Hood v. Canada (Attorney General), 2019 FCA 302, 2020 C.L.L.C. 230-017 at paras. 24-27; Harvey v. Via Rail Canada Inc., 2020 FCA 95, 2020 CarswellNat 1671 at para. 10; Wong at para. 19; Ritchie at para. 16; Jean v. Canadian Broadcasting Corp., 2016 FCA 81, 2016 CarswellNat 12015 at para. 5. This conclusion is indeed mandated by the recent decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 [Vavilov], the current leading authority on judicial review, in which that Court confirmed that the reasonableness standard applies to administrative decisions that are not subject to appeal, save in exceptional circumstances, none of which would apply to screening decisions made by the Commission.


[57] The Federal Court has similarly stated that "“[t]he Commission has broad discretionary power and enjoys a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report”": Egueh-Robleh v. Canadian Institutes of Health Research, 2019 FC 1079, 2019 CarswellNat 12985 at para. 20; see also Anani v. Royal Bank of Canada, 2020 FC 870, 2020 CarswellNat 4322 at para. 50 [Anani]; Mulder v. Canada (Attorney General), 2020 FC 944, 2020 CarswellNat 4633 at paras. 69-70.


[59] Insofar as concerns the relevant authorities, the case law establishes that the Commission is not bound by the recommendations made by an investigator. As noted by the Federal Court in Wang v. Canada (Minister of Public Safety and Emergency Preparedness), 2005 FC 654, 272 F.T.R. 208 at para. 30:
[...] Not only is the Commission under no obligation to follow the Investigator’s recommendation, it has to evaluate the complaint having regard to all circumstances. Faced with conflicting evidence, it was in the Commission’s discretion to decide as it did in dismissing the applicant’s complaint.
[60] Likewise, in Bradley v. Canada (Attorney General), 135 F.T.R. 105, 1997 CarswellNat 1327 at para. 53, the Trial Division of the Federal Court stated:
It is true that the CHRC did not accept the investigator’s recommendation, that is, that a conciliator be appointed, but the Commission is not bound by any such recommendation. The applicant was clearly advised of this when the investigation report was sent to him for comment. The Commission's decision is not in error because it chose not to follow the investigator’s recommendation.
[61] The same principle was applied in MacLean v. Canada (Human Rights Commission), 2003 FC 1459, 243 F.T.R. 219 at para. 50, where the Court held that the Commission was not bound to adopt the initial investigator’s report which favoured further inquiry into the complaints. Similarly, in Bastide v. Canada (Attorney General), 2005 FC 1410, [2006] 2 F.C.R. 637 at paras. 2, 19-22, and 51 aff’d 2006 FCA 318, 365 N.R. 136 at paras. 4-9, leave to appeal to SCC refused, 31732 (8 March 2007), the courts refused to interfere with the Commission’s decision to dismiss the complaints "“on the ground that the respondent had established a bona fide occupational requirement under section 15 of the Act”", despite the investigator’s report recommending the appointment of a tribunal to hear the complaints. In particular, this Court observed at paragraph 9 of its decision that "“[i]f the Commission enjoys a wide latitude to allow a complaint and to request that an inquiry be instituted to examine its merits, it has the same latitude to refuse to do so and to dismiss the complaint”".

[62] In addition, so long as the investigation is sufficiently thorough and has examined the critical evidence, the Commission is not required to return a file for further investigation if the Commission concludes that the factual basis put forward by the parties and the investigator provides insufficient grounds to justify further inquiry, even where additional evidence might be uncovered if a further inquiry were undertaken. Indeed, were it otherwise, the Commission’s screening role would be substantially undermined. On this point, the British Columbia Court of Appeal has stated that a "“mere possibility”" of discrimination is not enough to require a hearing: as gate keeper, the Commission must make a preliminary assessment of the case and determine whether the evidence takes the case "“out of the realm of conjecture”", such that the matter warrants the time and expense of a full hearing: Lee v. British Columbia (Attorney General), 2004 BCCA 457, 2004 C.L.L.C. 230-036 at para. 26.

[63] In a somewhat similar vein, contrary to what counsel for Mr. Ennis asserted before us, the Commission is not bound to refer a complaint to the Tribunal in cases where it has declined an earlier request by the respondent to dismiss the complaint under subsection 41(1) of the CHRA. The inquiries under that subsection and section 44 of the CHRA are separate and distinct.
. Canada (Attorney General) v. Ennis

In Canada (Attorney General) v. Ennis (Fed CA, 2021) the Federal Court of Appeal set out some basics of the Canadian human rights system:
[5] The CHRA applies to Her Majesty in Right of Canada (except in matters respecting the Yukon Government or the Governments of the Northwest Territories or Nunavut, where territorial legislation governs human rights) and to persons, organizations and undertakings that are subject to federal jurisdiction in respect of activities that are likewise amenable to federal jurisdiction. Since June 2011, the CHRA has applied to band councils, established under the Indian Act, R.S.C. 1985, c. I-5.

[6] The CHRA prohibits a number of discriminatory practices, including, in sections 5 and 6, discrimination in the provision of residential accommodation on one of the grounds prohibited under the Act. Prohibited grounds of discrimination are listed in section 3 of the CHRA and include race, national or ethnic origin and disability.

[7] By virtue of subsections 40(1) and (2) of the CHRA, those to whom the Act extends protection and who believe they have been subjected to discriminatory treatment may file complaints with the Commission. The Commission is also empowered under subsection 40(3) to initiate a complaint itself if it has reasonable grounds for believing that a person has engaged in a prohibited discriminatory practice.

[8] Upon receipt of a complaint, the Commission may decline to deal with it under subsection 41(1) of the CHRA, which provides in relevant part as follows:

[quote deleted]

[9] If the Commission does not dismiss the complaint under these or other provisions of the Act (that are not pertinent to this appeal), the Commission may opt to refer it to an investigator (whom it appears the Commission now calls an "“assessor”") for investigation. Section 44 of the CHRA, which is of central relevance to this appeal, deals with investigation reports and sets out in part the Commission’s authority following receipt of a report. It provides in subsections 44(1) to (3) as follows:

[quote deleted]

[10] Where the Commission determines that an inquiry into a complaint is warranted, the complaint is referred to the Canadian Human Rights Tribunal, which typically will hold a hearing into the complaint, during which the Commission may (but is not required to) participate as a party. Before the Tribunal, the burden lies on a complainant to establish a prima facie case of discrimination, following which the burden shifts to the respondent to make out a defence to the complaint.

[11] No appeal lies from a decision of the Commission to dismiss a complaint; such decisions are instead amendable to judicial review before the Federal Court.


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