[2002] 2 F.C. 583
T-732-01
2001 FCT 1332
House of Commons and the Honourable Gilbert Parent (Applicants)
v.
Satnam Vaid and the Canadian Human Rights Commission (Respondents)
Indexed as: Canada (House of Commons) v. Vaid (T.D.)
Trial Division, Tremblay-Lamer J.—Ottawa, October 10 and December 4, 2001.
Constitutional law — Fundamental principles — Parliamentary privilege — Discrimination complaints (race, colour, ethnic origin) filed by former chauffeur of former House of Commons Speaker — House of Commons and Speaker subject to Canadian Human Rights Act — Although management and appointment of staff protected by parliamentary privilege as necessary to proper functioning of House, privilege not extending to protect actions of House based on grounds not necessary to its functioning, such as race and gender — Limited waiver of parliamentary privilege in Parliamentary Employment and Staff Relations Act — Functional test to determine which duties subject to parliamentary privilege not appropriate approach — Scope of privilege not extending to human rights violations as such not matter requiring privilege to maintain dignity, efficiency of House.
Human Rights — Discrimination complaints (race, colour, ethnic origin) filed by former chauffeur of former House of Commons Speaker against House, Speaker — House, Speaker subject to CHRA — Although management and appointment of staff protected by parliamentary privilege as necessary to proper functioning of House, privilege not extending to protect actions of House based on grounds not necessary to its functioning, such as race and gender — Scope of privilege not extending to human rights violation as matter not within necessary sphere of matters without which dignity, efficiency of House cannot be upheld — Inquiry not to focus on merits of actions taken in relation to appointment, management of staff, but on whether certain actions taken against respondent inconsistent with CHRA — Tribunal did not err in deciding its statutory jurisdiction encompassed applicants.
The former chauffeur of the former Speaker of the House of Commons filed two complaints with the Canadian Human Rights Commission (CHRC) alleging discrimination on the basis of race, colour and ethnic origin in his employment. This was an application for judicial review of the Canadian Human Rights Tribunal’s decision that the House of Commons and its Speaker were subject to the Canadian Human Rights Act (CHRA). Before the Tribunal, the applicants claimed that they were not subject to the CHRA in light of the parliamentary privilege attaching to the internal functions of the House of Commons and the Speaker’s office. They also argued that they were not proper parties before the Tribunal and that parliamentary privilege protects any decisions made in the sphere of appointment and management of House of Commons staff. The Tribunal dismissed the objection. The issues were whether the Tribunal erred in assuming jurisdiction over the applicants; in deciding that the Tribunal’s statutory jurisdiction encompassed the applicants a nd in failing to rule that the applicants were not proper parties before the Tribunal.
Held, the application should be dismissed.
The jurisdiction of the CHRT over the Speaker of the House of Commons was a question of law for which the standard of review should be one of correctness.
The doctrine of parliamentary privilege is founded on the principle that in order to do their job, legislative bodies need to have independence from other branches of government. In House of Commons Procedure and Practice, the authors emphasize that privilege is not a blanket privilege and can only
be invoked where the ability of the House or the Members to function has been obstructed. The claim of privilege is not limitless but attaches to matters with respect to which it is required in order to uphold the dignity and efficiency of the House. It will not extend to matters that do not interfere with the parliamentary business of the legislature.
Given the case law and academic writing on this subject, the management and appointment of staff is protected by parliamentary privilege as necessary to the proper functioning of the House. However, the functional test (whether an employee enjoys an employment relationship that comes within the core of legislative and parliamentary privilege) is not the desired approach. It would require the courts to embark every time on an inquiry as to whether a particular job responsibility falls within the core of parliamentary privilege. It would also have the unfortunate result of creating two categories of employees. The respondent’s employment relationship is covered by parliamentary privilege unless it has been waived or unless the scope of parliamentary privilege does not extend to human rights violations.
Parliamentary privilege has not been waived by the enactment of the Parliamentary Employment and Staff Relations Act (PESRA). The CHRA applies to the PESRA as it falls within the legislative authority of Parliament (see CHRA, section 2). Parliament has maintained its privilege for matters not expressly described in Parts II and III of the Canada Labour Code and in the PESRA. It therefore remains the right of Parliament to appoint and manage its staff. However, a decision that is based on an invalid ground will not be protected by the privilege.
The inquiry in the present case is limited to questioning the legitimacy of the claimed privilege. The identification of the grounds is not a review of the exercise of existing privilege. It flows from the duty of the Court to preliminarily determine how wide-ranging the privilege is. The inquiry will not focus on the merits of actions taken in relation to the appointment and management of the staff, but rather on whether certain actions taken against the respondent were inconsistent with the CHRA. The dignity and efficiency of the House would not be adversely affected by such an inquiry. Race and gender discrimination are unrelated to the appointment and management of employees. In sum, the scope of the privilege does not extend to human rights violations, as this matter does not fall within the necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld. Therefore, the application of the CHRA to the applicants is not barred by parliamentary privilege.
The Tribunal did not err in deciding that the Tribunal’s statutory jurisdiction encompasses the applicants. Section 2 of the CHRA states that the Act will apply to matters coming within the legislative authority of Parliament. Since Parliament has legislated on the issue of its own employee relations many times, and since within the “legislative authority” means that it must be something over which Parliament was able to legislate, the CHRA applies to the House of Commons.
As to whether the CHRT erred in failing to rule that the applicants were not proper parties before it, the Tribunal not having decided this point, there was nothing for the Court to judicially review. The Tribunal will decide this question after hearing evidence.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Labour Code, R.S.C., 1985, c. L-2, s. 122.1 (as enacted by R.S.C., 1985 (1st Supp.), c. 9, s. 1).
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 3, 32.
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2 (as am. by S.C. 1998, c. 9, s. 9), 7, 14, 66 (as am. by S.C. 1993, c. 28, s. 78, Sch. III, item 70).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91, 92(10).
Criminal Code, R.S.C., 1985, c. C-46.
Parliament of Canada Act, R.S.C., 1985, c. P-1, s. 4.
Parliamentary Employment and Staff Relations Act, R.S.C., 1985 (2nd Supp.), c. 33, ss. 2, 4(1),(2), 86, 87, 88.
CASES JUDICIALLY CONSIDERED
APPLIED:
Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; (1996), 137 D.L.R. (4th) 142; 201 N.R. 1; Thompson v. McLean (1998), 37 C.C.E.L. (2d) 170; 63 O.T.C. 321 (Ont. Gen. Div.); New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; (1993), 118 N.S.R. (2d) 181; 100 D.L.R. (4th) 212; 327 A.P.R. 181; 13 C.R.R. (2d) 1; 146 N.R. 161; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R.1; Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (1999), 180 D.L.R. (4th) 95; 176 F.T.R. 161 (T.D.); Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) 595; 201 D.L.R. (4th) 698; 33 Admin. L.R. (3d) 123; 146 O.A.C. 125 (C.A.); House of Commons v. Canada Labour Relations Board, [1986] 2 F.C. 372 (1986), 27 D.L.R. (4th) 481; 86 CLLC 14,034; 66 N.R. 46 (C.A.).
DISTINGUISHED:
Soth v. Ontario (Speaker of the Legislative Assembly) (1997), 32 O.R. (3d) 440; 97 O.A.C. 266 (Div. Ct.); Zündel v. Boudria (1999), 46 O.R. (3d) 410; 181 D.L.R. (4th) 463; 127 O.A.C. 251 (C.A.).
REFERRED TO:
Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73; 28 C.C.C. (2d) 338; 34 C.R.N.S. 234 (Que. S. Ct.).
AUTHORS CITED
Canada. Parliament. House of Commons. House of Commons Procedure and Practice, edited by Robert Marleau and Camille Montpetit. Ottawa: House of Commons, 2000.
Gibson, Dale. “Monitoring Arbitrary Government Authority: Charter Scrutiny of Legislative, Executive and Judicial Privilege” (1998), 61 Sask. L. Rev. 297.
Maingot, Joseph. Parliamentary Privilege in Canada, 2nd ed. House of Commons, 1997.
APPLICATION for judicial review of Canadian Human Rights Tribunal decision (Vaid v. Canada (House of Commons), [2001] C.H.R.D. No. 15 (QL)) that the House of Commons and its Speaker were subject to the Canadian Human Rights Act. Application dismissed.
APPEARANCES:
Jacques A. Emond and Lynne J. Poirier for applicants.
Philippe Dufresne for respondent (CHRC).
Peter C. Engelmann and Jula Hughes for interveners (CEP & SSEA).
James L. Shields and Alison M. Dewar for intervener (PIPSC).
Andrew J. Raven for intervener (PSAC).
SOLICITORS OF RECORD:
Emond Harnden LLP, Ottawa, for applicants.
Canadian Human Rights Commission for respondent (CHRC)
Caroline Engelmann Gottheil, Ottawa, for interveners (CEP & SSEA).
Shields & Hunt, Ottawa, for intervener (PIPSC).
Raven, Allen, Cameron & Ballantyne, Ottawa, for intervener (PSAC).
The following are the reasons for order and order rendered in English by
[1] Tremblay-Lamer: This is an application for judicial review of an April 25, 2001 decision from the Canadian Human Rights Tribunal (CHRT) [Vaid v. Canada (House of Commons), [2001] C.H.R.D. No. 15 (QL)]. The CHRT decided 2-1 that the House of Commons and its Speaker were subject to the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (CHRA).
FACTS
[2] Satnam Vaid (respondent) is the former chauffeur of the Honourable Gilbert Parent, former Speaker of the House of Commons (applicants). Mr. Vaid has filed two complaints with the Canadian Human Rights Commission (CHRC, respondent) alleging discrimination on the basis of race, colour and ethnic origin in his employment contrary to sections 7 and 14 of the CHRA.
[3] These complaints were referred to the CHRT, which decided that the applicants were subject to its jurisdiction, and ordered them to disclose materials relevant to the complaints before it.
[4] In response to the CHRT’s finding on jurisdiction, the applicants argued a preliminary motion before the CHRT on March 26, 2001. They claimed that the Tribunal’s jurisdiction did not apply to them on the grounds that the Speaker of the House of Commons and the House of Commons are not subject to the CHRA in light of the parliamentary privilege which attaches to the internal functions of the House of Commons and the Speaker’s office. The applicants further argued that they were not proper parties before the Tribunal and that parliamentary privilege protects any decisions made in the sphere of appointment and management of House of Commons staff, and, therefore, the CHRA does not apply to the applicants.
[5] In a divided decision (2-1), the Tribunal dismissed the motion. On May 1, 2001, the applicants filed an application for judicial review of the Tribunal’s decision. An interim injunction order staying the Tribunal’s proceedings in this matter, pending the hearing of the application, was obtained on May 30, 2001.
DECISION OF THE CANADIAN HUMAN RIGHTS TRIBUNAL
Majority Opinion
[6] The majority dismissed the objection and held that parliamentary privilege did not apply to the complaints in issue.
[7] According to the majority, McLachlin J. (as she then was) determined this issue in Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876 (Harvey) when she found that race and gender are outside the rules by which Parliament and the legislatures conduct their business.
[8] The Tribunal found support in Thompson v. McLean (1998), 37 C.C.E.L. (2d) 170 (Ont. Gen. Div.) (Thompson) where Campbell J. determined the limit of parliamentary privilege in terms of the scope of the employment relationship.
[9] In light of McLachlin J.’s test of necessity and Campbell J.’s discussion of core functions, the Tribunal concluded that the employment relationship of the respondent (Mr. Vaid) is not sufficiently necessary or close enough to the core of the operation of the House of Commons to warrant parliamentary privilege, and that race was not a proper ground for privilege.
[10] On the issue of the application of the CHRA to the applicants, the majority found that sections 2 [as am. by S.C. 1998, c. 9, s. 9] and 66 [as am. by S.C. 1993, c. 28, s. 78] of the CHRA and the purposive interpretation given to quasi-constitutional human rights legislation generally, means that the applicants are subject to the Act. The Tribunal opted for the definition of “legislative authority” given by Sopinka J. in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 (New Brunswick Broadcasting). Sopinka J. found that “within the `legislative authority’” meant that it must be something over which Parliament was able to legislate.
Dissenting Opinion
[11] Chairperson Anne Mactavish was of the view that the Canadian Human Rights Tribunal is without jurisdiction to hear Mr. Vaid’s complaint.
[12] Ms. Mactavish notes that the necessity test is a jurisdictional one. The adjudicators’ powers are limited to the determination of whether the privilege that is being asserted is one of the privileges necessary to the legislative body’s ability to function. Adjudicators have no power to review particular exercises of necessary privileges, for that would render the privilege nugatory.
[13] Ms. Mactavish did not agree with the approach taken by Campbell J. in Thompson, supra. She was of the opinion that the test articulated by the majority decision in New Brunswick Broadcasting, supra, framed the question slightly differently. According to the Supreme Court of Canada, we must ask whether the matter in issue — that is, the power to appoint and manage its staff — falls within the necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld. Thus, the weight of judicial and arbitral jurisprudence favours the view that the appointment and management of staff falls indeed within the parliamentary privilege of the Speaker and the House of Commons.
[14] The Thompson approach is problematic because it requires the Tribunal to embark on an examination of Mr. Vaid’s specific job responsibilities and conditions as they evolved over the period governed by his complaints, and the proximity of these responsibilities to the core legislative function of the House of Commons. This would inevitably subject the actions of the Speaker and the House of Commons to Tribunal scrutiny, thus rendering any parliamentary privilege nugatory.
[15] Ms. Mactavish noted that she was bound by the majority decision of the Supreme Court of Canada in New Brunswick Broadcasting, supra, which said that Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning, and that such inherent privileges enjoy constitutional status.
[16] For the CHRA to abrogate a privilege of Parliament or its members, express language to that effect is required. In New Brunswick Broadcasting, supra, McLachlin J. (as she then was) concluded that the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter) did not apply to the actions of the Nova Scotia Legislature. Section 32 of the Charter contains language comparable to that contained in section 2 of the CHRA and consequently, Ms. Mactavish concluded that if the Charter does not extend to regulate the exercise of the inherent privileges of the House of Commons and the Speaker, then quasi-constitutional legislation such as the CHRA surely cannot do so.
[17] Ms. Mactavish refers to Harvey, supra, in which MacLachlin J. stated that the democratic guarantees contained in section 3 of the Charter must be interpreted in a purposive way, one consistent with parliamentary privilege. She noted that while a legislature’s decision to expel a member may be beyond the purview of the Charter to the extent that it falls within the scope of parliamentary privilege, the Charter still operates to prevent citizens from being disqualified from holding office on grounds that fall outside of the rules by which legislative bodies conduct themselves.
[18] Ms. Mactavish distinguishes the Harvey case, supra, from the present situation. She points out that in Harvey, McLachlin J. was contemplating situations where legislative action was clearly taken on the basis of illicit considerations such as race or gender. In the case at bar, Ms. Mactavish says that it is by no means clear that any actions that may have been taken by either the House of Commons or the Speaker were taken in consideration of Mr. Vaid’s race, colour or national or ethnic origin. To make that determination would require an examination of the internal workings of the House of Commons and the Office of the Speaker in relation to the management of their employees. These issues fall within the privileges of the applicants.
[19] Ms. Mactavish further points out that contrary to Harvey, the issue here is not a conflict between two constitutional norms, but rather a conflict between the constitutional norm of parliamentary privilege and the quasi-constitutional norms established by the CHRA. According to Ms. Mactavish, the constitutional status of the parliamentary privilege to appoint and manage staff trumps quasi-constitutional human rights legislation.
[20] Ms. Mactavish concludes that if Parliament wishes to have the CHRA apply to the House of Commons and the Speaker, then it is up to Parliament to ensure that the Act reflects that intent.
POINTS IN ISSUE
1. Did the Canadian Human Rights Tribunal err in assuming jurisdiction over the applicants, the House of Commons and its former Speaker?
2. Did the Tribunal err in deciding that the Tribunal’s statutory jurisdiction encompasses the applicants?
3. Did the Tribunal err in failing to rule that the applicants are not proper parties before the Tribunal?
ANALYSIS
1. Standard of Review
[21] The Supreme Court of Canada has established that the standard of review of human rights decisions is one of correctness.
[22] In Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, the Supreme Court found that the superior expertise of a human rights tribunal relates to fact-finding. While the courts have shown curial deference towards certain specialized tribunals when interpreting their enabling Act, such deference does not extend to findings of law in which the tribunal has no particular expertise. La Forest J. states at page 585:
This is entirely different from the situation of a human rights tribunal, whose decision is imposed on the parties and has direct influence on society at large in relation to basic social values. The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal’s decisions on questions of this kind on the basis of correctness, not on a standard of reasonability.
[23] The standard of review favoured in Mossop was recently followed by the Federal Court (Trial Division) in Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (T.D.), at paragraph 73 and by the Ontario Court of Appeal in Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) 595 (C.A.) where Finlayson J. found that [at paragraph 51] “on an issue as fundamental as the decision of the Commission to assert jurisdiction over the activities of the Speaker, there can be no deference whatsoever”.
[24] In the case at bar, the jurisdiction of the CHRT over the Speaker of the House of Commons is at issue. It is a question of law and in view of the jurisprudence I have just referred to, the standard of review should be one of correctness.
2. The Doctrine of Parliamentary Privilege
[25] In Parliamentary Privilege in Canada, 2nd ed. (House of Commons, 1997): J. Maingot defines parliamentary privilege as follows [at page 12]:
… the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work. It is also the necessary immunity that the law provides for anyone while taking part in a proceeding in Parliament or in a legislature. In addition, it is the right, power, and authority of each House of Parliament and of each legislative assembly to perform their constitutional functions. Finally, it is the authority and power of each House of Parliament and of each legislative assembly to enforce that immunity and to protect its integrity.
[26] It is founded on the principle that in order to do their job, legislative bodies, such as courts, need to have independence from other branches of government.
[27] McLachlin J. in New Brunswick Broadcasting, supra, at paragraphs 116-117, elaborated on the historical perspective of parliamentary privilege:
The Parliament of Canada and the legislative assemblies of its provinces are modelled on the system of Parliamentary democracy that prevailed in the United Kingdom. The preamble to the Constitution Act, 1867expressly states the intention of the framers of our Constitution that it should be “similar in Principle to that of the United Kingdom”. It follows that in ascertaining what constitutional powers our legislative assemblies have we should begin by looking at the powers which historically have been ascribed to the Parliament of the United Kingdom.
[28] She further added:
“Privilege” in this context denotes the legal exemption from some duty, burden, attendance or liability to which others are subject. It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.
[29] In House of Commons Procedure and Practice (Ottawa: House of Commons, 2000), at page 51, Robert Marleau and Camille Montpetit emphasize that privilege is not a blanket privilege and can only be invoked where the ability of the House or the Members to function has been obstructed:
The House has the authority to invoke privilege where its ability has been obstructed in the execution of its functions or where Members have been obstructed in the performance of their duties. It is only within this context that privilege can be considered an exemption from the general law. Members are not outside or above the law which governs all citizens of Canada. The privileges of the Commons are designed to safeguard the rights of each and every elector.
[30] There are two categories of parliamentary privilege; those that extend to members individually, and those that extend to the House collectively.
[31] The privileges that extend to members are freedom of speech, freedom from arrest in civil actions, exemption from jury duty and exemption from attendance as a witness. These are privileges that allow members to participate in Parliamentary proceedings without interference. Individual members of the House can only claim privilege for matters related to their functions in the House.
[32] The privileges extending to the House collectively are those which permit the House to conduct its proceedings free from interference. These include: the power to discipline and expel members; the regulation of its own internal affairs; the authority to maintain the attendance and service of its members; the right to institute inquiries and call witnesses and demand papers; the right to administer oaths to witnesses; and the right to publish papers containing defamatory material. (R. Marleau and C. Montpetit, supra, at page 51).
[33] The right to regulate its internal affairs is one of the collective actions of the House to which parliamentary privilege is attached. One attribute of this parliamentary right is to direct and manage its staff. The privilege claimed by the applicants relates to the appointment and management of parliamentary staff.
3. The Scope of the Privilege Claimed
(a) The test of necessity
[34] In New Brunswick Broadcasting, supra, McLachlin J. established the necessity test to determine the existence of parliamentary privilege. She stated for the majority at paragraph 123:
The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute “parliamentary” or “legislative” jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body. [My emphasis.]
[35] Thus, the test applies to categories of matters without which the dignity and efficiency of the House cannot be upheld and courts will not scrutinize the rightness and wrongness of each particular exercise (Zündel v. Boudria (1999), 46 O.R. (3d) 410 (C.A.)).
[36] The applicants submit that the only opportunity for court review is at the initial jurisdictional level — by asking the question: is the privilege claimed necessary to the capacity of the House to function?
[37] Pursuant to Standing Order 151, the Speaker has the ultimate authority over the employment matters of the House, which, according to the Ontario Court of Appeal in Ontario (Speaker of the Legislative Assembly), supra, at paragraph 23, is protected by parliamentary privilege.
[38] For the applicants, the proper category of privilege for the complaints in the present case is that of management and appointment of staff, which is recognized, by the weight of judicial and arbitral jurisprudence, as a matter of privilege. Mr. Vaid’s complaints fall into that category and consequently, the Tribunal erred in assuming jurisdiction over the complaints. It incorrectly applied the necessity test and misdirected itself on the question before it by asking whether ignoring human rights falls within parliamentary privilege.
[39] The applicants argue that the Tribunal erroneously applied the test used in Thompson v. McLean, supra, which seeks to determine whether the privilege was exercised properly. It thereby misapplied the Supreme Court of Canada’s established test for privilege, failing to consider the necessity of the privilege itself.
[40] The Tribunal’s approach in applying the necessity test is based on functionality — that is, whether allowing the complaints to proceed would interfere with the essential functions of the House of Commons. This is an error of law, the test for privilege being jurisdictional in nature and founded on necessity. It requires the Tribunal to conduct an examination of Mr. Vaid’s specific job responsibilities and conditions over the period governed by his complaints as well as the proximity of these responsibilities to the core legislative function of the House of Commons. This would subject the Speaker and the House to the Tribunal’s scrutiny, thus rendering any parliamentary privilege nugatory.
[41] The respondents submit, on the contrary, that in order to sustain its claim of parliamentary privilege, the applicants must clearly establish that the privilege sought is necessary to the capacity of the House of Commons to function as a legislative body. It is not of the “highest importance” to the legislative functions of the House of Commons to have the exclusive right to control the employment conditions and human rights of the Speaker’s chauffeur.
[42] In order to prevent an undue extension of this privilege, courts must identify the scope of the privilege and the grounds upon which the privilege can be exercised. In New Brunswick Broadcasting, supra, by refusing to rule on whether the privilege protected expulsions or exclusions on other grounds, the Court recognized that the scope of parliamentary privilege was not unlimited. Also, in Harvey, supra, McLachlin J. stated that privilege would not extend to protect actions of the legislature based on grounds that are not necessary to its functioning, such as race or gender.
[43] The respondents further argue that the refusal to recognize a parliamentary privilege to act in matters unrelated to the needs of the legislatures does not constitute a review of the exercise of the privilege, but rather the determination of the scope of the privilege. Parliamentary privilege does not apply to employment matters that are removed from the internal affairs of the House of Commons.
[44] Alternatively, should the Court find that the privilege extends to the employment of the Speaker’s chauffeur, the respondents submit that it does not extend so far as to include decisions based on grounds, such as race or gender, which are unrelated to the needs and functions of the House of Commons as a legislative assembly. As McLachlin J. confirmed in Harvey, supra, parliamentary privilege does not operate to allow citizens being disqualified from holding office on grounds which fall outside the rules by which Parliament and the legislatures conduct their business.
DISCUSSION
[45] As stated above, following the test of necessity set out by McLachlin J. in New Brunswick Broadcasting, supra, the role of the Court is to enquire into the legitimacy of a claim of parliamentary privilege so as to ensure that it will not extend unduly to matters which are not essential to the functions of the House.
[46] The claim of privilege is not limitless and will attach to matters without which the dignity and efficiency of the House cannot be upheld. It will not extend to matters that do not interfere with parliamentary business of the legislature, Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73 (Que. S. Ct.).
[47] In a recent case, Soth v. Ontario (Speaker of the Legislative Assembly) (1997), 32 O.R. (3d) 440, the Ontario Divisional Court confirmed that employee/employer relations in the House would be deemed as internal affairs where it could be demonstrated that the House was in effect acting collectively in a matter which fell within the area of its internal affairs.
[48] The Federal Court of Appeal in House of Commons v. Canada Labour Relations Board, [1986] 2 F.C. 372 had also expressed this view. In his concurring reasons Hugessen J. states [at page 391]:
… it seems to me that one of those privileges is precisely that the House shall have the direction and control of its staff just as it does of its officers, the Clerk and the Sergeant-at-Arms….
[49] In Parliamentary Privilege in Canada, supra, J. Maingot indicates that the privilege of the House of Commons to control its own affairs free from interference includes the right to appoint and manage its staff.
[50] Given the jurisprudence and the doctrine on the subject-matter, I am satisfied that the management and appointment of staff is protected by parliamentary privilege as necessary to the proper functioning of the House.
[51] Before focussing on the question of the validity of the grounds, is it sufficient to conclude there exists a parliamentary privilege in the appointment and management of staff, or is it necessary to go further? More specifically, should this Court adopt the functional approach taken by Campbell J. in Thompson, supra?
[52] The issue raised in Thompson was whether parliamentary privilege protected the Office of the Legislative Assembly from a claim of wrongful dismissal and sexual harassment by a former special assistant to the Speaker, Allen McLean. The Court was reluctant to extend the parliamentary privilege to all employment relationships of the Legislative Assembly, stating [at paragraph 44] that “[i]t jars a little to apply, to a modern public service employer, the concepts of absolute privilege and absolute immunity”.
[53] Campbell J. refers to Lamer C.J. who indicated in New Brunswick Broadcasting, supra, at page 350, that courts will look more closely at cases in which claims of privilege have an impact on persons outside the Assembly:
Another general proposition which can be derived from the case law is that courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the Assembly than at those which involve matters entirely internal to the Assembly. The lines are not altogether clear here either though. For example, in the case before us the issue clearly revolves around the internal proceedings of the Assembly. At the same time, it is persons not connected to the Assembly who allege their rights are infringed. Does this qualify as an “inside case” or as an “outside case”?
[54] Campbell J. found that while some employees such as the first clerk assistant or the Sergeant-at-Arms enjoyed an employment relationship that came within the core of legislative and parliamentary privilege, some other employees, such as a bartender or a gardener appear to have an employment relationship far removed from the core parliamentary work (at paragraphs 39-41):
… the Speaker is the chief administrative officer of a large branch of the public service with many employees, some of whom perform no political or legislative or parliamentary duties. It is not consistent with modern ideas of employment to say that they are all automatically stripped of the normal protection enjoyed by employees, including access to the courts, without examining the claim of parliamentary privilege carefully in those cases where it may not clearly apply….
It may be clear that the First Clerk Assistant or the Sergeant at Arms or the legislative assistant of a house leader performs duties and enjoys an employment relationship completely within the core of legislative and parliamentary privilege. It may be that such cases can be determined on the bare pleadings without any evidence. It may not be so clear that a bartender hired to serve drinks or a gardener or a social convener or a caterer works completely within the core of parliamentary privilege essential for the fulfilment of legislative and political functions. To understand that legislative bodies employ a wide range of people whose work appears far from the core of legislative and parliamentary privilege, one need only look at the bargaining unit description certifying the Public Service Alliance as bargaining agent for a unit of House of Commons employees comprising:
all general service employees of the House of Commons of Canada providing valet, elevator operation, dispatching, messenger, driving, cleaning and maintenance, warehousing, food preparation and serving services, excluding supervisors …
…
In the case of employees whose duties appear on their face to be far removed from actual legislative and parliamentary work, and in cases like Thompson’s where the duties may be arguably closer to the line, it may be necessary for a court to examine the facts to determine whether the work and all aspects of the employment relationship are immune from judgment by the court. In this case it is not possible to make that determination of mixed fact and law without a trial.
[55] Although I was tempted at first to follow Campbell J.’s approach and to apply a functional test, upon reflection, I do not believe this is the desired approach. I agree with the minority decision of the Tribunal that such an examination would render any parliamentary privilege nugatory. It would require courts to embark every time on an inquiry as to whether a particular job responsibility falls within the core of parliamentary privilege. There is no doubt that, practically, in many instances it would be difficult to find the dividing-line.
[56] It would also have the unfortunate result of creating two categories of employees. Some employees would be able to find redress because they perform duties found not to be within the core of the privilege, while others could not enjoy the same protection because their job description is not as “close to the line”. For example, a female page in the House claiming discrimination could not find any protection while a female working as a gardener could.
[57] For these reasons, I am of the opinion that Mr. Vaid’s employment relationship is covered by parliamentary privilege unless it has been waived or unless the scope of parliamentary privilege does not extend to human rights violations.
1. Has parliamentary privilege been waived by the enactment of the PESRA?
[58] Section 2 of the CHRA reads as follows:
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 all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. [My emphasis.]
[59] Accordingly, the CHRA applies to the Parliamentary Employment and Staff Relations Act, R.S.C., 1985 (2nd Supp.), c. 33 (PESRA) as it falls within the legislative authority of Parliament. The respondents argue that by enacting PESRA, which grants employment rights to certain employees, Parliament has waived its parliamentary privilege for those employees. Subsection 4(2) of the PESRA, lists those that are excluded from the application of the PESRA. The position of chauffeur to the Speaker does not appear in that list. It therefore follows that the PESRA applies to him.
[60] On the question of waiver, I do agree with the applicants that Parliament has expressly limited the labour relations rights provided in the PESRA and reserved the balance of its parliamentary privileges.
[61] PESRA does not cover all types of activities. It covers mostly labour relations rights. Parliament has ensured its jurisdiction over the balance of its internal affairs. Section 2 of PESRA contains the following limitation:
2… . except as provided in this Act, nothing in any other Act of Parliament that provides for matters similar to those provided for under this Act and nothing done thereunder, whether before or after the coming into force of this section, shall apply to or in respect of or have any force or effect in relation to the institutions and persons described in this section.
[62] Further, I note that subsection 4(1) states that “[n]othing in this Part abrogates or derogates from any of the privileges, immunities and powers referred to in section 4 of the Parliament of Canada Act [R.S.C., 1985, c. P-1]”. Section 4 of this Act reads as follows:
4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise
(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and
(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.
[63] The limited waiver of parliamentary privilege has been expressly set out in sections 86-88 of the PESRA, which provide that Parts II and III of the Canada Labour Code [R.S.C., 1985, c. L-2] now apply to Parliament and its staff.
[64] Section 122.1 [as enacted by R.S.C., 1985 (1st Supp.), c. 9, s. 1] of the Canada Labour Code states the purpose of Part II is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies. Part III of the Canada Labour Code deals with standard hours, wages, vacations and holidays.
[65] In light of subsection 4(2) of the PESRA and the limitation found in section 2 of the same Act (see above), I am satisfied that Parliament has maintained its privilege for matters not expressly described in Parts II and III of the Canada Labour Code and in the PESRA. It therefore remains the right of Parliament to appoint and manage its staff.
[66] Although I have come to the conclusion that parliamentary privilege has not been waived, I have yet to determine if it extends to the actions of the Speaker in the case at bar.
[67] On one hand, the applicants argue that the only question this Court should consider is whether the privilege being claimed is necessary to the proper functioning of the House. They urge that, beyond that exercise, the courts have no power to review the rightness or wrongness of a particular decision made pursuant to a privilege.
[68] On the other hand, the respondents submit that the privilege should not extend to protect actions of the House based on grounds that are not necessary to its functioning, such as race and gender.
[69] I agree with the respondents that a decision which is based on an invalid ground will not be protected by the privilege. In Harvey, supra, McLachlin J. clearly addressed the legitimacy of the grounds. She stated at pages 917-918:
Expulsion and disqualification from office may, if found to fall within the scope of parliamentary privilege, be beyond the purview of s. 3 [of the Charter]. But s. 3 still operates to prevent citizens from being disqualified from holding office on grounds which fall outside the rules by which Parliament and the legislatures conduct their business; race and gender would be examples of grounds falling into this category. Viewed from this perspective, s. 3 may be seen as reflecting, in the democratic context, the values enshrined in the equality guarantee of s. 15 of the Charter. [My emphasis.]
[70] I am unable to accept the proposition that Harvey can be distinguished in the present case. While it is true that the Court was trying to reconcile competing constitutional norms, it also made it clear that the privilege will not apply to grounds that fall outside the rules by which Parliament conducts its business.
[71] Previously, in New Brunswick Broadcasting, supra, the Court had circumscribed the privilege to the legislature’s right to exclude strangers from its chamber, to circumstances where their presence is disruptive of the Assembly’s business. However, I believe that if the House decided to exclude people from the Assembly on grounds of race or gender (for instance, all women), such action would exceed the scope of the privilege.
[72] Similarly in Harvey, supra, the privilege was circumscribed to the “power to disqualify members for corruption” (my emphasis). McLachlin J. emphasized the importance of identifying the grounds in determining the scope when she stated at page 924:
… it is difficult to argue that rules by which candidates are disqualified for corruption do not fall within the domain of parliamentary privilege. The test of acceptance must, of course, comport with grounds on which expulsion can legitimately be compelled.
[73] In my opinion, it is only within this limited scope of privilege, which excludes improper grounds, that the legislature has absolute jurisdiction.
[74] Dale Gibson offers some insightful comments in the interpretation of McLachlin J.’s reasons in Harvey (D. Gibson, “Monitoring Arbitrary Government Authority: Charter Scrutiny of Legislative, Executive and Judicial Privilege” (1998), 61 Sask. L. Rev. 297, at pages 314-315):
The interpretation of this passage that I prefer is one that is consistent with the general principle I proposed above: although the judiciary cannot deny the existence of particular legislative privileges, they have the responsibility to ensure that the exercise of those privileges in particular cases is in accordance with Charter requirements. Such an interpretation accords with the “tree/fruit” distinction Justices McLachlin and Cory agreed on in the Speaker’s Case, and it draws support from the foregoing passage from the McLachlin reasons in Harvey. It is also consistent with the outcome of her ruling in Harvey, since that case was clearly about the constitutionality of the general enactment in question, rather than its exercise in a particular case. If, however, a privilege were exercised in a way that discriminated on the basis of criteria such as “race and gender”, the two “invalid grounds” identified by McLachlin J., judicial review would be called for. [Underlining added.]
[75] I note that the cases of Zündel, supra, and (Ontario) Speaker of the Legislative Assembly, supra, relied upon by the applicants, dealt with the judicial scrutiny of the exercise of the privilege rather than with its existence. The inquiry in the present case is limited to questioning the legitimacy of the claimed privilege.
[76] Contrary to the applicants’ contention, the identification of the grounds are not, in my opinion, a review of the exercise of an existing privilege. It flows from the duty of the Court to preliminarily determine how wide-ranging the privilege is.
[77] The applicants argue that if the Tribunal were to enter into an evidentiary hearing and found that there were no grounds for claiming discrimination, the privilege asserted by the applicants would be rendered nugatory by the nature of the Tribunal inquiry. I disagree.
[78] The inquiry will not focus on the merits of actions taken in relation to the appointment and management of the staff, but rather on whether some actions taken against Mr. Vaid were inconsistent with the CHRA.
[79] The applicants did not provide any convincing answers to the Court on how the dignity or the efficiency of the House would be adversely affected by such an inquiry. Race and gender discrimination are unrelated to the appointment and management of employees.
[80] In the same vein, if Mr. Vaid had alleged that he were a victim of an assault by a Member of Parliament, I do not believe that the jurisdiction of the criminal courts would have been ousted merely because he is an employee. The House should not act as a sanctuary from the operation of the law unless there is a clear conflict with a matter that is privileged. As pointed out by one of the interveners, if the Criminal Code [R.S.C., 1985, c. C-46], which has no constitutional status, applies to employment relations in the House, then so does the CHRA. To hold otherwise would promote a view of parliamentary privilege that is contrary to the individual’s guarantees of equality under the Charter which is also reflected in the provisions of the CHRA.
[81] In summary, I am of the opinion that the scope of the privilege does not extend to human rights violations as this matter does not fall within the necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld. As a result, the application of the CHRA to the applicants is not barred by parliamentary privilege.
[82] The Tribunal was correct to determine that it had jurisdiction to hear Mr. Vaid’s complaints.
2. Did the Tribunal err in deciding that the Tribunal’s statutory jurisdiction encompasses the applicants?
[83] Section 2 of the CHRA states that the Act will apply to “matters coming within the legislative authority of Parliament”. The applicants submit that in an employment context, the Act applies to employees of the federal Crown, of Crown corporations and those who are employed upon or in connection with the operation of any federal work, undertakings or business pursuant to section 91 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]], as determined under the Peace Order and Good Government clause, or under the exceptions to provincial powers in clause 10 of section 92 which further defines federal “Works and Undertakings”.
[84] The Tribunal found that Parliament has legislated on the issue of its own employee relations many times and agreed with Sopinka J. in New Brunswick Broadcasting, supra, that within the “legislative authority” meant that it must be something over which Parliament was able to legislate. Thus, the CHRA applied to the House of Commons.
[85] I am satisfied that this is correct in law.
3. Did the Tribunal err in failing to rule that the applicants are not proper parties before the Tribunal?
[86] The applicants submit that the Tribunal erred in failing to rule on whether the House of Commons and its former Speaker were proper parties before the Tribunal.
[87] The respondents and interveners argue that because the Tribunal has not decided on this point, there is nothing for the Court to judicially review. I agree. The Tribunal will decide this question after hearing evidence.
[88] For these reasons, the application for judicial review is dismissed.