Judgments

[1994] 2 F.C. 102

T-1504-92

Secretary of State for External Affairs and Minister of Employment and Immigration (Applicants)

v.

Jawahar Menghani and Canadian Human Rights Commission (Respondents)

Indexed as: Canada (Secretary of State for External Affairs) v. Menghani (T.D.)

Trial Division, MacKay J.—Edmonton, March 3; Ottawa, November 19, 1993.

Human rights — Application for judicial review of Human Rights Tribunal decision respondent discriminated against on ground of national origin contrary to Canadian Human Rights Act, s. 5 — Respondent supporting brother while student, offering employment in family business under immigration program — Immigration officer refusing brother’s application for permanent residence as no satisfactory proof of family relationship — Respondent “victim” of discrimination under Act — Tribunal correct in determining complaint within jurisdiction under Act — Judicial review not alternative to process under Act — Decision not based on erroneous finding of fact.

Citizenship and Immigration — Status in Canada — Permanent residents — Respondent’s brother seeking permanent residence under family business job offer program — Human Rights Tribunal exceeding jurisdiction in ordering permanent residency although finding respondent, sponsor, “victim” of discrimination under Canadian Human Rights Act.

This was an application for judicial review of a Human Rights Tribunal’s decision that the respondent had been discriminated against on the ground of his national origin contrary to section 5 of the Canadian Human Rights Act (CHRA). The respondent, a Canadian citizen, was operating a family business in which his brother, who came to Canada from India as a visitor in 1973, was involved on a part-time basis under an immigration program to permit landing as a permanent resident of a family member who would work in the family business. When the brother decided to apply for permanent residence, the visa officer who interviewed him at the Canadian Consulate General in New York refused his application because he was not satisfied that the documents sent to him were acceptable as proof of family relationship. By the time other documents provided to the immigration officer were accepted as satisfactory evidence of that relationship and the application for permanent residence was finally approved, the family business had declared bankruptcy so that there was no longer an opportunity for employment in that business. The Human Rights Tribunal appointed by the Canadian Human Rights Commission to deal with the complaint made by the respondent under the CHRA ruled that the respondent had been personally discriminated against by the immigration requirement found to have been imposed and that he could be classified as a direct victim. Four issues were raised upon the application for an order setting aside the Tribunal’s decision: 1) the jurisdiction of the Tribunal (and the Commission) in relation to the respondent’s complaint; 2) judicial review as an alternative to the process under the CHRA; 3) findings of fact by the Tribunal and 4) the Tribunal’s direction to permit permanent residency for the respondent’s brother.

Held, the application should be allowed in part.

1) The question whether a Canadian relative of an applicant for immigration may file a complaint alleging discrimination in respect of treatment of the intending immigrant outside Canada is answered by the provisions of the CHRA and by the decision of the Federal Court of Appeal in Singh (Re) which confirmed the Commission’s authority to investigate a complaint such as that herein. It is the jurisdiction of the Commission to deal with the complaint once investigation has revealed the facts, including the jurisdiction of the tribunal appointed to hear the complaint, which gave rise to this application. Although the respondent was not a “sponsor” of his brother for landed immigrant status in the sense provided under the Immigration Act and Regulations for sponsoring members of a family, his involvement was as sponsor, in the general dictionary sense of that word, of his brother’s application for an immigrant visa by reason of his offer of employment in a family business under the program established by the Minister of Employment and Immigration. The issue with which the Tribunal purported to deal was whether the complainant, Jawahar Menghani, was a victim of a discriminatory practice. If so, his complaint would be within the jurisdiction of the Tribunal, and the Commission, within the meaning of paragraph 40(5)(c) of the Act. The Tribunal did not purport to deal with a complaint on behalf of his brother, who had no status to complain for consideration by the Commission, by reason of that provision. The ultimate burden was on the applicants to establish that the Tribunal “acted without jurisdiction, acted beyond its jurisdiction” or that it acted in error in one of the other ways provided by subsection 18.1(4) of the Federal Court Act as a basis for the Court to grant relief. The ultimate burden was not on the respondents to establish that the Tribunal was, in the final analysis, “correct”. A “victim” of discriminatory practices under the CHRA, particularly one who may never have been within the contemplation of the author of the practice, must be one who suffers consequences sufficiently direct and immediate. The Tribunal had committed overriding error neither in its assessment of the consequences of the practice that it found to be discriminatory as those consequences were experienced by the respondent, nor in its conclusion that the latter was a “victim” of a discriminatory practice within the meaning of paragraph 40(5)(c) of the Act. The Tribunal was correct in its determination that the complaint was within its jurisdiction under the CHRA.

2) There was no merit in the applicants’ submissions that the Commission was without jurisdiction because this complaint could more appropriately be dealt with by judicial review under section 18.1 of the Federal Court Act. Once a complaint is filed, the Commission is obligated by section 41 of the Act to deal with it subject to certain exceptions. The decision as to whether another more appropriate procedure exists is a matter within the discretion of the Commission. The applicants’ submissions were based on the perception that the complaint was initiated by the respondent’s brother, or on his behalf, ignoring the fact that it was filed by the respondent on his own behalf.

3) The principles identified by the Supreme Court of Canada in relation to adverse effect discrimination, though elaborated in situations involving employment, apply equally by analogy to situations involving the provision of services. The Tribunal concluded that the immigration officer failed in his duty to accommodate the Menghanis in relation to the usual manner of providing services which adversely affected them on the basis of national origin, and thus they were found to be victims of adverse effect discrimination. The Tribunal’s finding was a finding of fact within its jurisdiction and was not patently unreasonable. Expressed in the terms of paragraph 18.1(4)(d) of the Federal Court Act, it was not an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.

4) The Tribunal exceeded its jurisdiction in respect of the order to permit permanent residency status for the respondent’s brother. While the Tribunal found that his brother was discriminated against by the adverse effect discrimination of the practice followed in New York by the visa officer, no complaint in relation to that discriminatory practice could be dealt with by the Commission, or by the Tribunal, by virtue of paragraph 40(5)(c) of the Act. That order ignored the process by which permanent residency is acquired by an immigrant coming to Canada. The status of a “permanent resident” under the Immigration Act is not accorded by decision of the visa officer serving abroad who can only issue a visa when he is satisfied that it would not be contrary to the Immigration Act or Regulations to grant landing; it is only following examination by an immigration officer after arrival in Canada that the holder of a visa is granted that status. Any violation of the right claimed by the respondent to “sponsor” his brother for permanent residency in Canada could be redressed through consultations between the respondent Commission and the applicant Minister of Employment and Immigration; that consultation can lead to a resolution satisfactory to all of the parties.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 2, 32.

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2, 3, 5, 40, 41(b), 49 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 66), 53(2)(b).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Human Rights Code, 1981, S.O. 1981, c. 53.

Immigration Act, R.S.C., 1985, c. I-2.

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Singh (Re), [1989] 1 F.C. 430; (1988), 55 D.L.R. (4th) 673; 10 C.H.R.R. D/5501; 86 N.R. 69 (C.A.); Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R. 1.

APPLIED:

Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; (1987), 40 D.L.R. (4th) 193; 27 Admin. L.R. 172; 8 C.H.R.R. D/4210; 87 CLLC 17,022; 76 N.R. 161; Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 86 CLLC 17,002; 64 N.R. 161; 12 O.A.C. 241; Board of Education of District No. 15 v. Human Rights Board of Inquiry (N.B.) (1989), 100 N.B.R. (2d) 181; 62 D.L.R. (4th) 512; 252 A.P.R. 181; 10 C.H.R.R. D/6426 (C.A.); Tabar (Bahjat), Chong Man Lee and Kyung S. Lee v. David Scott& West End Construction Ltd. (1985), 6 C.H.R.R. D/2471 (Ont. Bd. Inq.); Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; (1990), 111 A.R. 241; 72 D.L.R. (4th) 417; [1990] 6 W.W.R. 193; 76 Alta. L.R. (2d) 97; 12 C.H.R.R. D/417; 90 CLLC 17,025; 113 N.R. 161.

REFERRED TO:

Insurance Corporation of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145; (1982), 137 D.L.R. (3d) 219; [1983] 1 W.W.R. 137; 39 B.C.L.R. 145; 82 CLLC 17,014; [1982] I.L.R. 1-1555; 43 N.R. 168; Re Saskatchewan Human Rights Commission et al. and Canadian Odeon Theatres Ltd. (1985), 18 D.L.R. (4th) 93; [1985] 3 W.W.R. 717; 39 Sask. R. 81; 6 C.H.R.R. D/2682 (Sask. C.A.); Canadian Paraplegic Assn. v. Canada (Elections Canada) No. 2 (1992), 16 C.H.R.R. D/341 (Can. Trib.).

AUTHORS CITED

Shorter Oxford English Dictionary, 3rd ed. Oxford: Clarendon Press, 1973 “sponsor”.

APPLICATION for judicial review of a Human Rights Tribunal’s decision ((1992), 17 C.H.R.R. D/236) concerning a complaint filed by the respondent, Menghani, that he was discriminated against on the ground of his national origin contrary to section 5 of the Canadian Human Rights Act. Application allowed in part.

COUNSEL:

Bruce Logan for applicants.

William F. Pentney for respondent Canadian Human Rights Commission.

SOLICITORS:

Deputy Attorney General of Canada for applicants.

Canadian Human Rights Commission, Legal Services, Ottawa, for respondent Canadian Human Rights Commission.

The following are the reasons for order rendered in English by

MacKay J.: This is an application for judicial review filed by the Secretary of State for External Affairs and the Minister of Employment and Immigration (the applicants) in regard to a decision, Number T.D. 4/92, of a Human Rights Tribunal, dated May 22, 1992 [(1992), 17 C.H.R.R. D/236]. That decision was made following an inquiry by a three-person tribunal concerning a complaint filed by Jawahar Menghani that he was discriminated against on the ground of his national origin contrary to section 5 of the Canadian Human Rights Act,[1] (CHRA or the Act). The decision ordered the requisite authorities to permit permanent residency for Nandlal Menghani, awarded $2,500 to Jawahar Menghani for hurt feelings and directed an apology to Jawahar Menghani from the “Minister”. I assume it was intended that the apology be given by the Minister responsible for operations of the Canada Employment and Immigration Commission, though this was not clearly stated in the decision.

I note for the record that at the hearing of this matter the applicant Ministers were represented by counsel of the Office of the Deputy Attorney General and the respondent Commission was represented by counsel who participated fully in argument. The respondent Jawahar Menghani was present but not represented by counsel and when asked by the Court he affirmed that he would not be participating in the hearing.

Background

The respondent Jawahar Menghani is a Canadian citizen. In 1973 his brother, Nandlal Menghani, came to Canada from India as a visitor and thereafter, for at least most of the next twenty years lived with, or near, Jawahar Menghani, who was apparently prepared and able to support him. In 1977, Jawahar completed a sworn declaration of his willingness to support Nandlal during the course of his studies then underway in Montréal, a declaration accepted by immigration authorities in relation to Nandlal’s status as holder of a student visa.

In 1978, Jawahar Menghani and his family, including his brother Nandlal, moved to Ottawa where Jawahar was employed as an accountant. After settling there and then in Aylmer, Quebec, a company formed by Jawahar Menghani opened two shoe stores, in Hull and in Aylmer, operating with two or three employees and part-time involvement of Nandlal, who continued as a student, and of Jawahar, who continued his full-time job as an accountant. In 1981 that company offered employment to Nandlal Menghani as a business partner, an offer accepted by the Canada Employment Centre in Ottawa as an appropriate basis for a confirmation of employment offer, under an immigration program to permit landing as a permanent resident of a family member who, it was intended, would work in the family business.

Arrangements were then put in motion for consideration of Nandlal Menghani’s application for permanent residence by the Immigration Office at the Canadian Consulate General in New York. The confirmation of employment offer issued in Ottawa was sent to New York and from there an application for permanent residence form was sent to Nandlal Menghani in March 1981. That form was completed and returned to the New York office in August; in September arrangements for an interview in the following month in New York were set and Nandlal Menghani was advised.

On October 6, 1981, he was interviewed in New York by a visa officer, Jean Roberge, who was concerned that there be satisfactory proof of the family relationship of Jawahar and Nandlal Menghani since the immigration program under which the latter’s admission to Canada was to be the family business job offer program. Among the qualifications for that program was that the employment offer by a Canadian or landed immigrant be extended to a member of the family class as provided in the Immigration Act [R.S.C., 1985, c. I-2]. In Mr. Roberge’s view there was no satisfactory evidence of the fact that the two were brothers. At that meeting there was discussion about the sort of evidence the visa officer sought. One form of evidence suggested, or, as the respondents would have it, insisted upon, was a school leaving certificate, issued in India in relation to each of the brothers before 1981 when the process for consideration of Nandlal as a prospective immigrant was initiated. It was expected each certificate would include not only the name of the student, but also his date of birth and the name of his father. At the end of the interview, Mr. Roberge understood that Nandlal Menghani would be submitting school leaving certificates for himself and his brother.

When nothing further had been heard from Nandlal, in February 1982 a letter was sent to him indicating that the file relating to his application would be closed in 90 days unless he contacted the Consulate in New York. This he did, and in March he submitted a number of documents including an affidavit by his mother in India attesting to the family relationship of the brothers Menghani, a certificate of his former school principal, together with a school certificate of his own record dated in 1982 but which was not completed by the registrar of the school since the school had been closed for some time. The last document did not include his father’s name and no similar record was submitted for Jawahar Menghani. The documents were not accepted by Mr. Roberge as providing proof of family relationship and by letter of May 26, 1982, he refused Nandlal Menghani’s application for permanent residence.

Thereafter, additional documentation and representations on behalf of Nandlal Menghani were sent to the New York office and numerous representations were also apparently made on his behalf by Jawahar Menghani to departmental and ministerial offices in Ottawa as well as to Mr. Roberge in New York. Mr. Roberge was still not satisfied that the documents sent to him were acceptable as proof of the familial relationship. He wrote on July 6 and again on October 13 to so advise Nandlal Menghani and to confirm the decision, originally provided by letter of May 26, to refuse his application for entry for permanent residence.

Again, additional documentation was sent to Mr. Roberge. In December 1982 documents sent by an investigator of the Canadian Human Rights Commission (the Commission) included passports that had been issued in India to Nandlal and to Jawahar some years before the former’s application for immigrant status. The passport of Nandlal had apparently been seen by Mr. Roberge earlier, in October 1981, but he had not seen that of Jawahar before. These documents did indicate the name of their father. On January 3, 1983, Roberge sent a package of documents to the Canadian High Commission in Delhi including the early passports, requesting advice as to the acceptability and validity of the documents. On the advice of the Delhi office, Mr. Roberge agreed that the documents provided satisfactory evidence that Jawahar and Nandlal Menghani were brothers. That advice was received and the resulting decision was made only after August 1983, by which time the business operated by Nectal Sales Ltd. had declared bankruptcy and thus there was no longer an opportunity for employment in the family business.

Earlier, on November 4, 1982 Jawahar Menghani filed a complaint with the Canadian Human Rights Commission. Representations on his behalf were made by a human rights officer to Mr. Roberge in November and December 1982, including submission of the two earlier passports of the two brothers, which subsequently were of significance in leading to the advice from Delhi that satisfied Mr. Roberge of the familial relationship. Mr. Roberge himself was apparently not advised of the formal complaint, made by Jawahar Menghani on November 4, 1982 until February 15, 1983.

In his complaint under the CHRA, Jawahar Menghani, after referring to his efforts to “sponsor” his brother and indicating that none of the documentation provided to the immigration officer was deemed sufficient to confirm the “brotherhood” of himself and his brother, stated his belief that he had been discriminated against on the ground of his national origin contrary to section 5 of the Act. The complaint sought no specific form of relief.

In testimony before the Human Rights Tribunal appointed to deal with the complaint of Jawahar Menghani he testified that the lack of supervision, managerial and general involvement of his brother contributed directly to the bankruptcy of the family business. After the decision not to accept his brother Nandlal’s application for permanent residence in 1982, subsequent offers of employment by Nectal Sales Ltd. for Nandlal’s employment were rejected. While reasons for that rejection were not in evidence, the respondents contend this was because those offers were not treated in accord with the family business program. Failure of the business led to personal bankruptcy of Jawahar Menghani, and as well, he testified, his health suffered and his marriage broke down, all said to be the results of stress from not having his brother’s application for permanent residence approved.

While he was not authorized to work in the family business from September 1982, Nandlal Menghani has continued to reside in Canada with or near his brother, since June of 1991 on a Minister’s permit.

Jawahar Menghani’s complaint, together with others, was the subject of a reference to the Federal Court of Appeal by the Canadian Human Rights Commission when the applicant Ministers’ departments refused to recognize the Commission’s jurisdiction to investigate the complaint. That refusal was based on the grounds that the government departments concerned were not engaged in the provision of services generally available to the public and that the victims of the alleged discriminatory practices were not Canadian citizens or permanent residents of Canada so as to bring the cases within then paragraph 32(5)(b) [S.C. 1976-77, c. 33], now paragraph 40(5)(b), of the CHRA. The Court of Appeal answered the reference by confirming the jurisdiction of the Commission to investigate this and the other complaints involved in the reference.[2] The facts of the several cases were not before it, and the Court did not at that stage determine whether any or all of the ten complaints included in the reference could ultimately be dealt with by the Commission. That matter was left to be determined in the first instance by the Commission itself following its investigations.

The decision of the Human Rights Tribunal and the grounds for judicial review

The complaint of Jawahar Menghani was investigated by the respondent Commission and ultimately submitted for consideration to a Human Rights Tribunal pursuant to the Canadian Human Rights Act. The tribunal heard the matter in December 1991 and January 1992. Its decision was released on May 22, 1992. That decision concludes [at pages D/254-D/255]:

Accordingly the Tribunal finds that Nandlal had imposed upon him restrictive conditions (documentation requirements) that had a disproportionate impact on him because of the special characteristic of national origin (unavailability of documentation) contrary to s. 5 of the CHRAWe would conclude that Jawahar was a victim of this discriminatory practice as well and consequently, that this Tribunal has the jurisdiction to make a determination on the complaint under the CHRA.[3]

The decision of the Tribunal then provides for remedies, as follows.

Given the assessment of the documentation that was made by Mr. Roberge in 1983 and his conclusion that in fact Nandlal and Jawahar were brothers, there is no doubt that had he made that assessment in 1982 when Nandlal’s application was current, Nandlal would have been admitted into this country as a permanent resident. The failure to do so arose from the adverse effect discrimination as described earlier in these reasons. Accordingly, counsel for the Canadian Human Rights Commission has sought by way of remedy an order that Nandlal be admitted to this country as he would have been had this discrimination not have occurred in 1982. In other words, he is seeking that we make an order directing the Immigration authorities to confer upon Nandlal permanent residency status on an immediate basis.

At the material time in 1982, Nandlal’s immigration was also subject to passing an appropriate medical test. He was not given one since he did not accumulate sufficient points to pass the first hurdle primarily because Mr. Roberge was not satisfied that Nandlal and Jawahar were brothers. Nandlal does now suffer from a medical condition known as Crohn’s disease. It was diagnosed in May 1983 well after his rejection for permanent residency in May 1982. It is possible, however, that Nandlal may have been suffering from the disease in 1982 which might have been diagnosed at that time had he been administered the appropriate medical test. Of importance now is the fact that Nandlal’s present status in this country is based on a Minister’s permit which is renewed each year for a period of five years. As it presently stands, he will be admitted to Canada as a permanent resident in 1996 unless for some unforeseen reason, his medical condition deteriorates to such an extreme that he would be considered inadmissible. Thus, the fact that he has Crohn’s disease of and by itself is not sufficient to prohibit his becoming a permanent resident. Therefore, there is no immigration impediment to preclude an order by this Tribunal directing the requisite authorities to permit permanent residency for Nandlal. In effect this order will be expediting the present immigration process. It is justified in the circumstances and we, therefore, make the order.

No compensation has been sought by Jawahar for any financial loss attributable to the discriminatory practice. As for compensation under s. 53(3)(b) of the CHRA, we award $2,500 for hurt feelings as there has been evidence that the discriminatory practice has resulted in detriment to Jawahar’s health, family and business interests.

The complainant has also requested an apology from the Minister. In view of the fact that the passage of ten years has not abated the strong feelings that the complainant and his brother have over this matter, we feel that an apology is appropriate and it will be part of the remedial order herein.[4]

By originating motion filed on June 22, 1992 the applicants, the Secretary of State for External Affairs and the then Minister of Employment and Immigration applied for an order of certiorari or an order setting aside the decision of the Tribunal. That application was varied by an amended originating motion filed on December 7, 1992, which varied the grounds for review. As there set out those grounds are:

1. Whether a Canadian relative of a potential immigrant to Canada may file a complaint alleging that the Canadian has been the victim of discrimination in respect of treatment of the potential immigrant by a visa officer outside Canada.

2. Whether the complaint of the Respondent Menghani could more appropriately have been dealt with according to the procedure provided for in Section 18.1 of the Federal Court Act.

3. Whether the Human Rights Tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

4. Whether the Human Rights Tribunal acted beyond its jurisdiction when it purported to direct the requisite authorities to permit permanent residency for Nandlal Menghani.

5. Whether the Human Rights Tribunal erred in law in making the order, whether or not the error appears on the face of the record.

Only the first four of these grounds were argued when this application was heard. Those four grounds I now deal with in turn.

Jurisdiction of the Tribunal (and the Commission) in relation to the complaint of Jawahar Menghani

The first ground argued by the applicants is expressed in terms of whether a Canadian relative of an applicant for immigration may file a complaint alleging discrimination in respect of treatment of the intending immigrant outside Canada.

It seems to me the question so expressed, literally interpreted, is answered by provisions of the CHRA and by the decision of the Court of Appeal in Singh (Re).[5] By subsection 40(1) of the Act an individual having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file a complaint with the Commission. Aside from the exceptions set out by subsections 40(5) and (7) and by determinations of the Commission under section 41, the Commission shall deal with the complaint. The decision of the Court of Appeal implicitly accepts the capacity of the Canadian relative in the position of Jawahar Menghani to file a complaint and, absent a clear basis for the Commission finding at that stage that the complaint is beyond its statutory jurisdiction, or for other reasons of exclusion under the Act, Singh (Re) upholds the Commission’s authority to investigate the complaint.

As I understand the submissions of the parties they concern primarily the jurisdiction of the Commission, and of the Tribunal, to deal with the complaint as filed after investigation by the Commission reveals the facts underlying the complaint. In form, the applicants’ first ground as expressed does question the capacity of a Canadian in the position of Jawahar Menghani to file a complaint in a case such as this, and in argument that was raised again in regard to the second ground of the applicants. However, in view of subsection 40(1) of the Act and Singh I consider that issue is already determined. It is the jurisdiction of the Commission to deal with the complaint once investigation has revealed the facts, including the jurisdiction of the Tribunal appointed to hear the complaint, which gives rise to this application for judicial review. That is the stage of the Commission’s processes left unresolved by the decision in Singh (Re).

In this case, investigation by the Commission was apparently completed in June 1986. The matter was then subject to the reference to the Court of Appeal in Singh (Re). Following decision in that reference the Commission decided in November 1989 to refer this case to conciliation. That process was not successful in resolving the complaint and in June 1991 the Commission determined, pursuant to section 49 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 66] of the Act, to refer this matter to a tribunal. Subsection 49(1) authorizes the Commission to request appointment of a Human Rights Tribunal to inquire into a complaint “if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted.” By so deciding, the Commission implicitly, if not here explicitly, concluded that, on the facts of this case as revealed by its investigation of the complaint, it had jurisdiction under the Act to deal with the matter.

When the matter was heard by the Tribunal, the applicants’ representatives brought a preliminary motion challenging jurisdiction of the Tribunal on the ground that the victim of the practice alleged to be discriminatory was Nandlal Menghani, not Jawahar, and the practice said to be discriminatory occurred outside Canada. Thus it was urged that the Commission and the Tribunal were without jurisdiction, pursuant to paragraph 40(5)(c) of the Act, which provides:

40.…

(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

…

(c) occurred outside Canada and the victim of the practice was at the time of the act or omission a Canadian citizen or an individual lawfully admitted to Canada for permanent residence.

That motion was adjourned for argument until completion of the process of hearing evidence by the Tribunal.

In its decision the Tribunal referred to Singh (Re)[6] and noted that counsel for the applicant Ministers acknowledged, in light of the decision of the Court of Appeal, that “the Tribunal does have jurisdiction to consider this matter so long as Jawahar was in fact a `victim’ of a discriminatory practice which occurred outside Canada.”[7] The Tribunal referred to the words of Mr. Justice Hugessen, speaking for the Court of Appeal in Singh (Re):[8]

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 practice 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.

In its decision the Tribunal also noted the classification of the cases, under the one reference, by the Court of Appeal in Singh (Re), those involving visitors’ visas and those dealing with “sponsorship”, in which latter group Hugessen J.A. had classed the complaint of Jawahar Menghani. While acknowledging that this case did not involve sponsorship status under the Immigration Act, the Tribunal concluded that Singh (Re) should not be read to limit potential victims to those who formally qualify as sponsors under that Act; rather it should be read to include a Canadian citizen or permanent resident who suffers consequences of the discriminatory practice that are sufficiently direct and immediate. It set forth criteria for measuring those consequences, and in light of these, on the evidence before it, the Tribunal concluded that Jawahar Menghani was personally discriminated against by the immigration requirement here found to have been imposed and that he can be classified as a direct victim.

The Tribunal’s conclusion,[9] as earlier noted, is that Nandlal Menghani had been discriminated against contrary to section 5 of the CHRA and that Jawahar Menghani was a victim of the discriminatory practice as well, and consequently the Tribunal had jurisdiction to make a determination on the latter’s complaint.

That conclusion gives rise to the applicant Ministers’ first ground for judicial review, essentially arguing that the Commission has no jurisdiction to refer the complaint to a Human Rights Tribunal and by implication that the Tribunal erred by finding it had jurisdiction under the CHRA. Two general principles are relied upon. The first is that an alien has no right to enter the country except subject to such terms and conditions as the law provides, here by the Immigration Act and Regulations. The second is that statutes, including the CHRA, have no extraterritorial application except as may be provided by Parliament. Here the extraterritorial application of the Act is defined by paragraph 40(5)(c) and is limited to discriminatory practice occurring outside Canada where the victim of the practice is a Canadian citizen or permanent resident. In this case the discrimination found by the Tribunal was said to be the practice of insisting upon evidence in a certain form to establish family relationship, and this had the effect of not allowing Jawahar Menghani to sponsor his brother for landed immigrant status. In fact it is urged that the alleged discriminatory practice was in respect of treatment outside Canada, in New York, of a potential immigrant who was not a citizen or permanent resident of Canada and who could not himself file a complaint under the CHRA. Permitting the brother Jawahar to file a complaint was said to be authorizing indirectly what the statute precluded doing directly. Moreover, Jawahar Menghani did not apply to sponsor his brother in the terms of sponsorship provided under the Immigration Act and Regulations for family members; rather, he put forth a family business employment offer, approved by departmental officials to provide employment for Nandlal if he were admitted to Canada as an immigrant, an offer which had expired before Nandlal applied for a visa. Finally, the applicants urge that Jawahar Menghani is not a victim within paragraph 40(5)(c) for he was not discriminated against on the basis of his personal characteristics and the conclusion of the Tribunal that he was dealt with in an improper manner is not sufficient to constitute discrimination under the CHRA. The comments of Hugessen J.A. in Singh (Re) in relation to possible victims of discriminatory practices, it is urged, were obiter dicta and are not determinative of the issue in this case now that the facts have been investigated and determined.

For all these reasons it is urged the Commission had no jurisdiction to investigate the complaint or to refer it to the Tribunal. By inference the Tribunal then was without jurisdiction to deal with the matter.

I have already noted that I consider the Commission’s authority to investigate the complaint was clearly settled in the affirmative by the Court of Appeal’s decision in Singh (Re). The Commission’s decision that the complaint was within its jurisdiction is drawn by implication from the decision to refer the complaint to a tribunal. Since that body confirmed the Commission’s decision about jurisdiction, affirming its jurisdiction to deal with the matter when that was directly questioned by the applicant Ministers, and articulating the reasons for its conclusion on that issue, its decision was the basis of argument concerning the jurisdiction of the Commission, and of the Tribunal, under paragraph 40(5)(c) of the CHRA.

Before turning to the jurisdictional argument in terms of the approach I understand is to be taken by a court that is asked to consider the decisions of administrative or quasi-judicial bodies by judicial review pursuant to section 18.1 of the Federal Court Act,[10] some of the arguments raised by the applicants, in my view subordinate to the main issue, warrant brief consideration.

The parties are agreed that Jawahar Menghani was not a “sponsor” of his brother for landed immigrant status in the sense provided under the Immigration Act and Regulations for sponsoring members of a family. Nevertheless, I accept the respondents’ submission that the principles underlying the Court of Appeal’s decision in Singh (Re) relating to all those cases referred to it which it classed as cases of “sponsorship”, including this case, should here apply. Jawahar Menghani’s involvement was as sponsor, in the general dictionary sense of that word,[11] of his brother’s application for an immigrant visa by reason of his offer of employment in a family business under the program established by authority of the applicant Minister of Employment and Immigration.

The applicants’ argument about the lack of status as a “sponsor” under the Immigration Act of the complainant Jawahar Menghani is based on his complaint which refers to his efforts to sponsor his brother for landed immigrant status. It would not be appropriate, in light of the purposes of the CHRA, to restrict the possibility for investigation and resolution of a complaint under that Act by interpreting the words used in the complaint, by a member of the public, in accord with the special meaning of the same words as those may be used in a particular statute. The substance of the complaint, however it is framed by the complainant, is the matter the Commission must consider.

The expiry date of the offer of employment at the time the application of Nandlal Menghani was considered in New York, was not an issue between the parties, and is of no significance for the resolution of this matter. It is acknowledged that Mr. Roberge, the immigration officer in New York, assumed at the time that the offer could be validated again at any time, so long as the department’s program, and the employment opportunity, continued. That assumption was not questioned.

The suggestion that by considering Jawahar Menghani’s complaint the Commission permits doing indirectly what Parliament precluded, in my view, is not well founded, even though at first glance there may be some confusion about this in light of that aspect of relief ordered by the Tribunal in relation to permitting permanent residency to Nandlal. The issue with which the Tribunal purported to deal was whether the complainant, Jawahar Menghani, was a victim of a discriminatory practice. If he were so, as the Tribunal found, it is urged by the respondent that his complaint was within the jurisdiction of the Tribunal, and the Commission, within the meaning of paragraph 40(5)(c). The Tribunal did not purport to deal with a complaint on behalf of Nandlal Menghani, who had no status to complain for consideration by the Commission, by reason of that provision of the CHRA.

I turn to the question of the appropriate standard for review of the Tribunal’s decision. In Canada (Attorney General) v. Mossop the Supreme Court of Canada held that where the question raised in proceedings under the Canadian Human Rights Act is one of general statutory interpretation the determination of the Tribunal is subject to judicial review on the basis of correctness, not on a standard of reasonability.[12] Just as defining the term “family status” in section 3 of the Canadian Human Rights Act, not otherwise defined in the Act, was found to be a matter of statutory interpretation in Mossop, so in my view is the matter here raised of defining “victim” as used in paragraph 40(5)(c) of the Act, and the meaning ascribed to that word by the Tribunal is subject to review on the basis of correctness.

In my approach to assessing “correctness” of the Tribunal’s conclusion about jurisdiction, my initial consideration, in light of subsection 18.1(4) of the Federal Court Act, is that the ultimate burden is on the applicants to establish that the Tribunal “acted without jurisdiction, acted beyond its jurisdiction” or that it acted in error in one of the other ways provided by that subsection as a basis for the Court to grant relief. The ultimate burden is not on the respondents to establish that the Tribunal was, in the final analysis, “correct”. That, in my view, is to be assumed if the applicants fail to satisfy the Court that the Tribunal has erred, unless the Court for other reasons, even of its own, is persuaded that the Tribunal has erred.

The respondent Commission urges, supported by the comments of Hugessen J.A. in Singh (Re)[13] that determination as to who is the “victim” within the meaning of the Act is almost wholly one of fact, that the determination of the Tribunal that Jawahar Menghani was here a victim is a determination of fact which this Court should be loathe to set aside. While deference is appropriately given to “fact- finding and adjudication in a human rights context” of tribunals appointed under the CHRA, as Mr. Justice La Forest expressed it in Mossop, that deference does not extend to general questions of law involving statutory interpretation and general legal reasoning.[14] That distinction may leave open some questions in analysis of the functions of the Tribunal and the role of the reviewing Court, but Mossop does settle that if the facts found by the Tribunal are what may sometimes be described as jurisdictional facts, perhaps conclusions or inferences drawn from actual facts established, upon which interpretation of the tribunal’s statutory jurisdiction is based, then the Tribunal’s interpretation of its own statutory authority is necessarily subject to review by the Court when judicial review is requested and jurisdiction of the Tribunal is at issue.

For the respondent Commission, argument in support of the Tribunal’s finding of jurisdiction parallels that of the Tribunal itself. It is urged that paragraph 40(5)(c) be interpreted in light of the purpose of the Canadian Human Rights Act as it is now set out in section 2 which, in so far as it relates to discriminatory practices based on national origin, provides:

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that 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, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on … national … origin ….

In furtherance of that purpose, I note that section 3 provides that “For all purposes of this Act … national … origin [and other factors referred to in section 2] are prohibited grounds of discrimination.”

The purpose of the Act has been clearly recognized by then Chief Justice Dickson speaking for the Supreme Court of Canada in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission),[15] though he was then considering an earlier version of section 2 [S.C. 1976-77, c. 33] expressing the purpose of the Canadian Human Rights Act. He said, in part:

I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact.

…

The purpose of the Act is not to punish wrongdoing but to prevent discrimination.[16]

The Supreme Court has recognized that human rights legislation “is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law.”[17] The approach to interpreting human rights statutes was further elaborated by McIntyre J. speaking for the Supreme Court in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al.,[18] when he said:

It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment … and give to it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary—and it is for the courts to seek out its purpose and give it effect. The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.

Counsel for the respondent Commission referred to the comments of Hugessen J.A. in Singh (Re),[19] as the Tribunal decision does, that in given circumstances there may be more than one victim. Moreover, as the learned justice there points out, paragraph 5(b) of the Canadian Human Rights Act, makes it a discriminatory practice, in the provision of services customarily available to the general public, to differentiate adversely in relation to an individual on a prohibited ground of discrimination, so that as he expressed it, “it is a discriminatory practice for A, in providing services to B, to differentiate on prohibited grounds in relation to C.”[20]

That principle, that discriminatory treatment of one may give rise to a valid complaint of another who is adversely affected by the discriminatory act or practice has been recognized by the Court of Appeal of New Brunswick in Board of Education of District No. 15 v. Human Rights Board of Inquiry (N.B.),[21] where the father of a child enrolled in a school district was held to be a proper complainant in circumstances where it was alleged that the School Board violated provincial human rights law prohibiting discrimination in the delivery of services to the public by retaining as an active classroom teacher one who published statements said to be discriminatory and anti-Jewish. That case concerned an appeal from an order quashing a ministerial order referring the complaint for a hearing, which appeal was allowed, thus permitting a board of inquiry to proceed with a hearing of the complaint. In Tabar (Bahjat), Chong Man Lee and Kyung S. Lee v. David Scott & West End Construction Ltd.,[22] a board of inquiry acting under the Ontario Human Rights Code, 1981, [S.O. 1981, c. 53] awarded relief to a complainant who had suffered loss when his landlord refused to permit assignment of his lease because of discriminatory practice in relation to the race or other prescribed grounds concerning personal characteristics of the intended assignees of the lease. In my view these cases, referred to by the Tribunal as well as counsel for the respondent Commission, are illustrative of the principle recognized by Hugessen J.A. in Singh (Re).

In that same comment Mr. Justice Hugessen suggests that a “victim” of discriminatory practices under the CHRA, particularly one who may never have been within the contemplation of the author of the practice, must be one who suffers consequences sufficiently direct and immediate. In assessing the consequences in this case, the Tribunal considered the evidence in light of factors it considered relevant in the circumstances, as follows:[23]

1. Degree of consanguinity of the Canadian relative to the prospective immigrant;

2. The dependency (financial, emotional) of the Canadian relative on the prospective immigrant;

3. Deprivation of significant commercial or cultural opportunities to the Canadian relative by the absence of the prospective immigrant;

4. The historical closeness of the relationship between the two persons;

5. The degree of involvement of the Canadian relative in supporting the application for immigration under the Immigration Act and Regulations.

I do not propose to review the evidence considered by the Tribunal in relation to these factors. Its process was not the subject of attack for perceived error by the applicants, rather they were content to submit simply that Jawahar Menghani was not the victim of discriminatory practice directed to him in relation to his personal characteristics. I am not persuaded that the Tribunal committed overriding error in its assessment of the consequences of the practice that it found to be discriminatory as those consequences were experienced by the respondent Jawahar Menghani. Nor am I persuaded that the Tribunal erred in its conclusion that he was a “victim” within the meaning of paragraph 40(5)(c) of a discriminatory practice prohibited by paragraph 5(b) of the Act by differentiating adversely on a prohibited ground, national origin, in relation to the services provided in considering the application for permanent residence submitted by Nandlal Menghani, assuming for the moment the Tribunal’s conclusion that there was discriminatory practice should be upheld, an assumption questioned by the applicants’ third ground for judicial review.

Thus, in my view, the Court may assume that the Tribunal’s finding that it had jurisdiction was correct, for there is no other basis that suggests itself to me for finding otherwise. Indeed, I would go further. In my opinion, that finding of the Tribunal was correct on the basis of the evidence adduced. I reach that opinion primarily because of the active role, the involvement, of Jawahar as the assisting relative within the program, of the respondent Minister of Employment and Immigration, for Family Businesses—Job Offers to Relatives. That program complemented others serving family reunification goals, then a primary purpose under the Immigration Act, and it was designed to serve not merely the intended immigrant but the assisting relative as well, in circumstances where the employment offered depended substantially on trust, close relationship and a working environment which involved unusual aspects such as long hours. Counsel for the respondent Commission described the program as one creating a triangular relationship between the assisting relative, the department and the prospective immigrant. I prefer to think of the program as one, created by the department, which gave rise to obligations of the department to both the assisting relative and to the prospective immigrant.

In this case, aside from the relationship created when the respondent Jawahar Menghani put forth his offer of employment for his brother in the family business, there was no lack of evidence of the continued involvement of Jawahar in the process, by meeting with officials in Ottawa, by representations to Ministers and others and by sending documentation and inquiries and information to New York. Included was information on the dire consequences Jawahar expected for his business venture if his brother were not available to work in the business, as he had been in part while in Canada on a student visa prior to his application for an immigrant visa to the New York office. As earlier noted, after the business failed Jawahar ascribed its failure in substantial part to his brother’s inability to work in the business.

These circumstances, and others reviewed by the Tribunal in assessing whether consequences of the practice found to be discriminatory were sufficiently direct and immediate for Jawahar Menghani to be considered a victim under paragraph 40(5)(c), lead me to conclude that the tribunal was correct in its determination that the complaint in this case was within its jurisdiction under the Canadian Human Rights Act.

Judicial review as an alternative to the process under the CHRA

The applicants’ second ground refers to paragraph 41(b) of the Canadian Human Rights Act which provides:

41. 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

…

(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;

The applicants argue that “the allegation that Nandlal Menghani was treated unfairly could more appropriately have been dealt with under section 18.1 of the Federal Court Act. That is the common procedure for challenges to the decision of visa officers. That is also a more timely procedure; a decision in the judicial review application could have been made as early as in 1982.” This submission challenges the decision of the Commission to refer the complaint for consideration by a tribunal. Indeed, in argument counsel for the applicants urged that this challenge was again related to the Commission’s dealing with the complaint at all. It is submitted that the Commission was without jurisdiction because this complaint could more appropriately be dealt with by judicial review under the Federal Court Act.

I note that counsel for the respondents urges, inter alia, that no such submission was made to the Commission at earlier stages in its process either before efforts at conciliation were undertaken or before the matter was referred to a tribunal, on both of which occasions the applicant Ministers had opportunity to make representations to the Commission. He suggests it is now too late to question the decision of the Commission to refer the matter to a tribunal. Moreover, he submits that judicial review would not have encompassed considerations of the allegation of the respondent Jawahar Menghani that there was discrimination under the Canadian Human Rights Act.

In my opinion there is no merit in the applicants’ submissions on this issue. Under subsection 40(1):

40. (1) … any individual … having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint …

That is what the respondent Jawahar Menghani did. Once a complaint is filed the Commission is obligated by section 41 of the Act to deal with it “unless in respect of that complaint it appears to the Commission” certain circumstances exist, including that now pointed to by the applicants concerning an alternate more appropriate procedure under another Act of Parliament. The decision concerning whether another more appropriate procedure exists is a matter within the discretion of the Commission. It is clear, by implication from its decision to refer the complaint to a tribunal pursuant to the CHRA, that the respondent Commission did not consider the matter “could more appropriately be dealt with … according to a procedure provided for under an Act of Parliament other than this Act”, in the words of paragraph 41(b). No ground is here suggested by the applicants for finding that the discretion of the Commission was improperly exercised except that, in the opinion of the applicants, judicial review under the Federal Court Act would have been more appropriate. Even if this Court shared that opinion, that would not be a basis for questioning the exercise of discretion vested in the Commission.

Moreover, the submissions of the applicants on this ground are based on the perception that the complaint in this case was initiated by Nandlal Menghani, or on his behalf. They ignore the reality that the complaint was in fact filed by Jawahar Menghani on his own behalf. Finally, while it is clear that Nandlal Menghani might have sought judicial review of the decision made by Mr. Roberge in New York, it is not clear that Jawahar Menghani, the complainant in this case, was in any position to seek judicial review. That issue I need not determine.

There is simply no basis raised by the submissions of the applicants concerning an alternative more appropriate process for dealing with the complaint of Jawahar Menghani which would warrant intervention by this Court in relation to the Tribunal’s decision.

Findings of fact by the Tribunal

The third ground urged by the applicants is that the Human Rights Tribunal based its decision on an erroneous finding of fact, that there was discrimination on the basis of national origin, which finding was perverse or capricious or without regard to the material before it.

The finding of the Tribunal, said to be perverse or not supported by the evidence, is set out as follows:[24]

The practice being impugned in this case was an insistence by Mr. Roberge on a particular kind of school leaving certificate (i.e. one which is predated and clearly identifies the name of the pupil’s father) when he had before him other ample evidence to prove the fraternal relationship. He conceded in his evidence that the production of the two Indian passports which predated Nandlal’s interest in immigration to Canada was sufficient to prove that fact and it is clear from the evidence that Mr. Roberge had one of these documents in his possession since at least October 1981 and could have simply made a request for the other. He didn’t because passports were unacceptable to him for the purpose of proving familial relationship. Instead, Mr. Roberge demanded production of the requisite school leaving certificate and nothing else would do.

This practice of requiring only certain documentation, i.e. birth certificates or school leaving certificates from applicants of Indian origin constitutes in the submission of CHRC counsel, differentiation in the provision of services on the prohibited ground of national origin and has an adverse impact on Nandlal and Jawahar in contravention of s. 5 of the CHRA. Although they were capable of providing other kinds of evidence, they could not provide this one particular document because of the nature in which school leaving certificates are issued in India and because their school had not issued such certificates to them contemporaneously with their departure from the school.

…

Accordingly, this Tribunal finds that the policy of requiring school leaving certificates was discriminatory in that it had an adverse effect on Nandlal’s attempt to gain lawful status in Canada. The adverse effect of the practice discriminated on the prohibited ground of national origin.

It is the applicants’ submission that the evidence supports only a finding that Nandlal Menghani’s application for a visa was refused on the basis of insufficient documentation to establish the fraternal relationship with his brother. Moreover, it is said that the doctrine of adverse effect discrimination, relied upon by the Tribunal in its decision, requires, for a finding of discrimination, evidence to establish that Nandlal was treated differently as a result of particular characteristics having been attributed to him because of his national origin. For this proposition the applicants point to the comments of then Chief Justice Dickson in Canadian National Railway case,[25] in particular his words,

 … systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces, for example, that women “just can’t do the job” …

In my view, the words of Dickson C.J. do not support the submission of the applicants. In any event, he was in that passage discussing “systemic discrimination” as a form of unintentional discrimination, a form which he distinguished as different from “adverse effect discrimination”.

Adverse effect discrimination has been recognized by the Supreme Court of Canada in O’Malley v. Simpsons-Sears[26] among other cases. That form of discrimination “may be described as the imposition of obligations, penalties or restrictive conditions that result from a policy or practice which is on its face neutral but which has a disproportionately negative effect on an individual or group because of a special characteristic of that individual or group”.[27] Where a rule has an adverse discriminatory effect, the rule may be upheld in its general application, but the Court must consider whether the person affected by the rule could have been accommodated by the rulemaker without undue hardship.[28] If there is not such accommodation then adverse discriminatory effect may be found.

Both O’Malley v. Simpsons-Sears and Central Alberta Dairy Pool[29] were cases dealing with employment situations. The same principles, in circumstances relating to the provision of services, underlie decisions of the Saskatchewan Court of Appeal in Re Saskatchewan Human Rights Commission et al. and Canadian Odeon Theatres Ltd.,[30] and of another Human Rights Tribunal, established under the CHRA, in Canadian Paraplegic Assn. v. Canada (Elections Canada) No. 2[31] I agree with the Tribunal in this case in its statement that the principles identified by the Supreme Court in relation to adverse effect discrimination, though elaborated in situations involving employment, apply equally by analogy to situations involving the provision of services. Having found that there was adverse effect discrimination in this case the Tribunal considered whether, on the evidence, Mr. Roberge met the requirements of the duty upon him to accommodate, without undue hardship, the circumstances of Nandlal Menghani’s application for a visa, in relation to the general practice of seeking birth certificates, by examining alternative documentation which he submitted to establish the familial relationship with his brother. The Tribunal concluded that Mr. Roberge failed in his duty to accommodate the Menghanis in relation to the usual manner of providing services which adversely affected them on the basis of national origin, and thus they were found to be victims of adverse effect discrimination.

The Tribunal’s finding is one to which this Court defers. It is a finding of fact, clearly within the jurisdiction of the Tribunal, which I am not persuaded was patently unreasonable. Expressed in the terms of paragraph 18.1(4)(d) of the Federal Court Act I am not persuaded that facts relied on by the Tribunal were erroneous and found in a perverse or capricious manner or without regard for the material before it.

The Tribunal’s direction to permit permanent residency for Nandlal Menghani

The final ground for review of the Tribunal’s decision concerns its direction to requisite authorities to permit permanent residency for Nandlal Menghani. The applicants submit that aspect of the Tribunal’s order is beyond its jurisdiction.

In its decision the Tribunal notes that counsel for the respondent Commission sought an order that Nandlal Menghani be admitted to this country as he would have been had discrimination not occurred in 1982, and that permanent residency status be conferred upon him on an immediate basis. He has been in Canada since 1991 on a Minister’s permit, apparently expected to be renewed each year for a period up to five years after which he may then be admitted to permanent resident status, as things now stand.

At the hearing before me counsel for the respondent Commission urged that this order was within the jurisdiction of the Tribunal to make the complainant whole in light of the consequences flowing from the discrimination here found. Counsel was not able to refer me to another situation where the Court had upheld an order for specific relief to one who was not a complainant under the CHRA, or where the Court had upheld an order of a tribunal directed to those who exercised a statutory authority to act in a directed manner in circumstances where it has not been established that the prerequisites to exercise of a public duty or discretionary authority have been fully met.

While I have some understanding of the significance of remedies available to the Commission and to tribunals under the CHRA in order to meet the broad social and educational purposes of that Act, I am persuaded that the Tribunal exceeded its jurisdiction in respect of the order to permit permanent residency status for Nandlal Menghani. Paragraph 53(2)(b) of the Act provides:

53.…

(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:

…

(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, such rights, opportunities or privileges as, in the opinion of the Tribunal, are being or were denied the victim as a result of the practice.

In my view, “the victim of the discriminatory practice”, as those words appear in paragraph (b) of subsection 53(2) must be read in relation to the introductory words of subsection 53(2) linking any order made under paragraph (b) to the complaint to which the inquiry relates. The complaint in this case was that Jawahar Menghani was discriminated against in the provision of public services. While the Tribunal found that his brother was discriminated against by the adverse effect discrimination of the practice followed in New York by the visa officer, no complaint in relation to that discriminatory practice could be dealt with by the Commission, or by the Tribunal, by virtue of paragraph 40(5)(c). Thus, in my view, there is a statutory bar to an order of the sort here issued. In my view there is also a general objection to an award of specific relief to one who is not a complainant under the Act.

Moreover, in my view, the Tribunal erred in its decision when it stated “[g]iven the assessment of the documentation that was made by Mr. Roberge in 1983 and his conclusion that in fact Nandlal and Jawahar were brothers, there is no doubt that had he made that assessment in 1982 when Nandlal’s application was current, Nandlal would have been admitted into this country as a permanent resident.”[32] That statement ignores the fact, though it is otherwise acknowledged in the decision, that Nandlal’s immigration was also subject to passing an appropriate medical examination. It also ignores the process by which permanent residency is acquired by an immigrant coming to Canada. It is not accorded by decision of the visa officer serving abroad who can only issue a visa when he is satisfied that it would not be contrary to the Immigration Act or Regulations to grant landing. Only following examination by an immigration officer after arrival in Canada is the holder of a visa granted landing, upon which the immigrant then has the status of a “permanent resident” under the Immigration Act.

The right claimed by Jawahar Menghani in relation to which he claimed there was discriminatory practice by which he suffered, was to “sponsor” his brother for permanent residency in Canada. If that right, found by the Tribunal to have been violated, is to be redressed it seems to me that can be most effectively accommodated by consultations between the respondent Commission and the applicant Minister of Employment and Immigration or his successor in title. That consultation, undertaken now in mutual recognition of the finding of the Tribunal that the complainant Jawahar Menghani suffered direct consequences of a discriminatory practice which frustrated his right to have his brother considered for admission to Canada as a permanent resident, and taking into account means by which that consideration might now be accorded after so many years, can surely lead to a resolution satisfactory to all of the parties.

In these circumstances, and for the reasons outlined, I order that the Tribunal’s order directing the requisite authorities to permit permanent residency for Nandlal Menghani be set aside and that the matter be remitted to the Tribunal for reconsideration of an appropriate order pursuant to paragraph 53(2)(b) to make available to Jawahar Menghani the right or opportunity which was found to be denied to him as a result of the discriminatory practice. That reconsideration should be made on the basis of submissions on behalf of the respondent Commission and the applicant Minister of Employment and Immigration or his successor in title, which hopefully will be joint submissions given that the parties concerned will, I am sure, be acting in good faith in seeking a resolution.

Conclusion

For the reasons outlined, I find that the Tribunal was correct in its finding that it had jurisdiction to deal with the complaint filed by Jawahar Menghani.

I am not persuaded that the finding of the Tribunal that adverse effect discrimination without reasonable accommodation resulted in discrimination contrary to section 5 of the Act, to Jawahar Menghani as well as to his brother Nandlal, was patently unreasonable, or perverse or capricious or made without reference to evidence before the Tribunal.

I find that the Tribunal exceeded its jurisdiction in that aspect of its order which directed the requisite authorities to permit permanent residency for Nandlal Menghani. In that respect only, the order of the Tribunal is set aside and that matter is referred to the Tribunal for reconsideration of appropriate relief to Jawahar Menghani under paragraph 53(2)(b) of the CHRA. That reconsideration should be on the basis of submissions, hopefully to be made jointly, by the respondent Commission and by the Minister responsible for Minister of Employment and Immigration. If a resolution on consent of those parties, a settlement of the issue, is not achieved the Tribunal retains its jurisdiction to render an order it considers appropriate, consistent with these reasons.

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