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PUIL - Human Rights Treaties. Zoghibi v. Air Canada [International Convention on the Elimination of All Forms of Racial Discrimination]
In Zoghibi v. Air Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a JR challenging a CHRC decision, here stemming from a complaint by an airline passenger seeking 'financial relief' for alleged discrimination.
Here the court considers conflicts between an implemented international treaty, the Carriage by Air Act and the CHRC:(4) Should the Commission have taken into account article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination?
[58] The appellant submits that the Commission should have taken into account article 6 of the International Convention on the Elimination of all Forms of Racial Discrimination.
[59] This submission fails. It was reasonable for the Commission not to take into account this Convention.
[60] The appellant misunderstands how international law can be used when administrative decision-makers and courts decide domestic issues. This issue is now well-settled by a Supreme Court decision that binds administrative decision-makers and courts alike: Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, 471 D.L.R. (4th) 391 at paras. 43-48.
[61] In the present case, Canadian domestic law has adopted into Canadian law an international convention, the Montreal Convention, with all of its limitations on damages liability in article 29. In cases such as this, we are to interpret and implement article 29: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398.
[62] The Montreal Convention, with its limitations on damages liability in article 29, which is now a part of Canadian domestic law, is clear and unequivocal. It does not leave open exceptions for possible liability, such as international law norms and principles, human rights claims or avenues for liability under other international instruments such as the International Convention on the Elimination of all Forms of Racial Discrimination. Nor does the International Convention on the Elimination of all Forms of Racial Discrimination, when read and understood, reveal some sort of ambiguity in article 29 of the Montreal Convention. The Montreal Convention is neither vague nor ambiguous. Nor is there any extrinsic material behind it that helps the appellant. The Montreal Convention slams the door shut. It does not leave even a crack in the door.
[63] The appellant submits that article 6 of the International Convention on the Elimination of all Forms of Racial Discrimination requires Canada to provide a remedy of damages for racial discrimination in international aviation despite the Montreal Convention and its incorporation into Canadian domestic law by virtue of the Carriage by Air Act. But assuming the appellant is correct, this Court has no power to issue mandamus requiring Canada to legislate to fulfil that requirement. Nor can this Court use that supposed requirement—not part of domestic law—to somehow amend the clear language of the Carriage by Air Act and the Montreal Convention.
(5) Does the Canadian Human Rights Act prevail over the Carriage by Air Act?
[64] As mentioned above, this is a new issue — one that was not raised before the Commission. But it can be dealt with in short order. As a matter of statutory interpretation, the Carriage by Air Act and article 29 of the Montreal Convention are clear and unambiguous. They prohibit all damages claims however asserted. The appellant has offered nothing in terms of text, context or purpose to suggest that somehow the Carriage by Air Act and article 29 of the Montreal Convention, despite their clear language, allow for damages claims arising from domestic human rights statutes. As well, the Supreme Court’s decision in Thibodeau is dispositive. Just as the language rights legislation in that case did not prevail over the Montreal Convention, the same must be true here: see paragraphs 54-57, above. . Salim v. Singh
In Salim v. Singh (Div Court, 2024) the Divisional Court allowed an RTA s.210 appeal where the LTB "refused to apply the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”), to determine whether a landlord’s refusal to rent a townhome to a couple with three children was “arbitrary or unreasonable” under s. 95(5)" [Assignment, Subletting and Unauthorized Occupancy - Refusal or non-response].
Here the court reviews the role of several international treaties in HRC interpretation and foundation:[53] The Preamble to the Code refers to the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810 (“UDHR”), as the foundation for all human rights protections. Article 16(3) of the UDHR recognizes: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” The family is also recognized and protected in human rights treaties to which Canada is a party. The Preamble to the Convention on the Rights of the Child, 1577 U.N.T.S. 3, Can. T.S. 1992 No. 3, affirms that states parties are: “Convinced that the family, as the fundamental group of society and natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can assume its responsibilities within the community.”
[54] Articles 23(1) of the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Can T.S. 1976 No. 47, echoes the language in the UDHR, while Article 17 prohibits “arbitrary or unlawful interference” with one’s “family” and “home.” In General Comment No. 19: The Human Rights Committee, which monitors compliance with the ICCPR, noted that the concept of “family” will differ amongst states such that it is not possible to give the concept a “standard definition”: General Comment: The right to social security (Art. 9 of the Covenant), U.N. Doc. E/C.12/GC/19 (February 4, 2008), at para. 2. The question is “whether the group of persons is regarded as a family under the legislation and practice of the State”: para. 2. The Committee highlighted that it is possible that “diverse concepts of family” will exist within a single state, for example, capturing both “nuclear” and “extended” families. Implicit is the idea that family is both a legal and social status, and that the concept of family will necessarily evolve and change over time.
[55] Article 10(1) of the International Covenant on Economic, Social, and Cultural Rights, 1966, 993 U.N.T.S. 3, Can T.S. 1976 No. 46 (“ICESCR”), states that “the widest possible protection and assistance should be accorded to the family…particularly…while it is responsible for the care and education of dependent children.” Notably, Article 11(1) which recognizes the right to adequate housing extends this right not only to the individual but to “himself and his family.” In my view, there is a clear link between protecting families from discrimination in housing, and progressive realization of the right to housing for all members of our community: see National Housing Strategy Act, S.C. 2019, c. 29, s. 313.
[56] The UN Committee on Economic, Social and Cultural Rights (“UN CESCR”), which monitors compliance with the ICESCR, has noted that family forms have changed and will change, for example, expanding to include married and unmarried parents, stepparents, adoptive parents, and foster-parents: UN CESCR’s Concluding Observations at the Fourth Periodic Report of Germany, E/C.12/4/Add.3, 10 August 2000, para. 122. The UN CESCR states that, “One feature which all these long-term relationships have in common is the reliable relationship between children and their parents”: para. 122.
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