The CMLA Granted Leave to Intervene in Two Supreme Court of Canada Cases

September 12, 2017
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We are proud to announce that the CMLA has been granted Intervenor status in 2 cases at the Supreme Court of Canada.

1) Canadian Human Rights Commission v. Attorney General of Canada.  

Hearing date: November 28, 2017

The CMLA will be represented by counsel: 

Kumail Karimjee
Nabila F. Qureshi

Case Summary:

Canadian Charter of Rights and Freedoms – Equality rights –Administrative law – Standard of review – Human Rights – Discrimination – Meaning of “service customarily available to the general public,” under s. 5 of the Canadian Human Rights Act – Aboriginal law – “Indian” status – Eligibility for registration under Indian Act – Whether Federal Courts erred (i) in applying reasonableness standard of review, or misapplied standard, when assessing impugned decisions of Canadian Human Rights Tribunal, and (ii) by upholding unduly narrow interpretation of protection against discrimination in provision of services – Whether s. 5 can be used to challenge denials of government benefits based on discriminatory eligibility criteria found in federal legislation or whether a challenge must be brought under s. 15 of the Charter – Canadian Charter of Rights and Freedoms, s. 15 – Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 5 – Indian Act, R.S.C. 1985, c. 1-5, s. 6.

Several members of two First Nations filed complaints under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”) with the Canadian Human Rights Commission. The complainants alleged that the eligibility criteria in s. 6 of the Indian Act, R.S.C. 1985, c. I-5, that precludes the registration of their children as “Indians” in their particular circumstances, violates their human rights because the impugned restrictions constitute prohibited discrimination in the provision of a service “customarily available to the public” under s. 5 of the CHRA. In two decisions which relied on Public Service Alliance of Canada v. Canada (Revenue Agency), 2012 FCA 7, 428 N.R. 240, the Canadian Human Rights Tribunal dismissed the complaints for lack of jurisdiction. In doing so, the Tribunal found the complaints were direct challenges to provisions in the Indian Act and the adoption of legislation is not a service customarily available to the general public within the meaning of s. 5 of the CHRA. The Tribunal concluded such a challenge may only be brought under s. 15 of the Canadian Charter of Rights and Freedoms and therefore must be made to a court of law. Applying a reasonableness standard of review, the Federal Court held the Tribunal’s decisions were reasonable and dismissed the Commission’s applications for judicial review. The Federal Court of Appeal dismissed the Commission’s appeal.

For more information about this case visit the Supreme Court of Canada website.

2) Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses (Vaughn Lee – Chairman and Elders James Scott Lang and Joe Gurney) and Highwood Congregation of Jehovah’s Witnesses v. Randy Wall

Hearing date: November 2, 2017

The CMLA will be represented by counsel:  Shahzad F. Siddiqui

Case Summary:

Charter of Rights and Freedoms – Religious freedom – Freedom of Association – Courts – Jurisdiction – Judicial review – How do the fundamental freedoms of religion and association protect membership decisions of religious communities and other voluntary associations from state and judicial interference – What are the boundaries between what is and is not justiciable with regard to membership and other disputes between members of voluntary associations – Whether the public law remedy of judicial review applies to membership decisions made by voluntary associations such as religious communities?

Mr. Wall was a member of the Highwood Congregation of Jehovah’s Witnesses, an unincorporated religious association. He was disfellowshipped by a Judicial Committee of elders because he was not sufficiently repentant for two incidents of drunkenness, one of which included verbal abuse of his wife. This required Jehovah’s Witnesses, including his wife and children, to shun him. He is a real estate agent and lost congregation members and other Jehovah’s Witnesses as clients. He appealed to an Appeal Committee which upheld the disfellowship decision. The Watch Tower and Bible Tract Society of Canada decided not to overturn the decision. Mr. Wall applied for judicial review. Wilson J. conducted a hearing to determine whether the Court of Queen’s Bench of Alberta had jurisdiction to hear the application.

For more information about this case visit the Supreme Court of Canada website