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Human Rights (Fed) - General. 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:Commission to deal with complaint
41 (1) Subject to section 40, 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;
(b) the complaint 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;
(c) the complaint is beyond the jurisdiction of the Commission;
(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
(e) 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 appropriate in the circumstances, before receipt of the complaint. [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:Report
44 (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
Action on receipt of report
(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied
(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act,
it shall refer the complainant to the appropriate authority.
Idem
(3) On receipt of a report referred to in subsection (1), the Commission
(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and
(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e). [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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