PART II - STATEMENT OF ISSUES

13. The issues raised by this appeal are:

a. Whether the Appellants have established the existence and necessity of a parliamentary privilege over the management of all parliamentary employees, including those whose functions are far removed from the legislative functions of the House of Commons;

b. Whether the Appellants have established that such a parliamentary privilege over the management of staff would provide a right to discriminate contrary to the quasi-constitutional provisions of the Canadian Human Rights Act;

c. Whether the Parliamentary Employment and Staff Relations Act ousts the applicability of the Canadian Human Rights Act despite the absence of a  clear notwithstanding clause to that effect.

PART III - STATEMENT OF ARGUMENT

1. The Appellants have not established the existence of a Parliamentary Privilege over the Management of Mr. Vaid’s Employment.

1.1 Introduction: the importance and quasi-constitutional nature of human rights.

14. The purpose of the Canadian Human Rights Act is to give effect 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 accommodations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on prohibited grounds.

Canadian Human Rights Act, R.S. 1985, ch. H-6, (“CHRA”), s. 2 [Respondent’s Factum, Appendix A - Tab A].

15. This legislation, described as the last protection of the most vulnerable members of society, has been recognized by this Honourable Court as enjoying quasi-constitutional status and embodying fundamental Canadian values.

Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145 at 157-158 [Book of Authorities of the Respondent (“Respondent’s Authorities”), Tab 1].
Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 at 339 [Respondent’s Authorities, Tab 2].

16. As noted by the majority of the Federal Court of Appeal in this case, human rights protection for employees is indeed a vital part of what it means to live in a democratic state like Canada.

Court of Appeal decision at para 11, Appellants’ Record, Tab 6, p. 66

17. As a corollary to its quasi-constitutional status, the CHRA is to be given a large and liberal interpretation in a manner that best ensures that its objects are attained.

C.N. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 114 at 1134 [Respondent’s Authorities, Tab 3].
Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 at 89 [Respondent’s Authorities, Tab 4].

18. The issue in this appeal is whether Mr. Vaid is to be denied these quasi-constitutional rights as a result of parliamentary privilege. This raises the delicate issue of the interplay between parliamentary democracy and the rule of law.

19. For the reasons set out below, it is submitted that parliamentary democracy will not suffer if Mr Vaid is allowed recourse under the CHRA. By contrast, denying him his human rights to be free from discrimination may well offend the rule of law and should only be allowed in the clearest case of necessity.

1.2 The onus is on the Appellants to establish the existence of any parliamentary privilege.

20. The Commission acknowledges that Parliamentary privilege is of fundamental importance to our system of parliamentary democracy.
  
21. However, its impact is to shield activities from any legal or judicial scrutiny and as a  result, it has long been recognized that the existence of parliamentary privilege must be carefully scrutinized by courts in order to ensure that the rights of citizens are not denied save in the clearest case of necessity:

To prevent abuses cloaked in the guise of privilege from trumping legitimate Charter interests, the court must inquire into the legitimacy of a claim of parliamentary privilege. As this Court made clear in New Brunswick Broadcasting, the courts may properly question whether a claimed privilege exists.

Harvey v. New Brunswick (A.G.), [1996] 2 S.C.R. 876 at 918, para 71 per McLachlin J. (minority) (“Harvey”) [Book of Authorities of the Appellants (“Appellants’ Authorities”), Tab 11].

Absolute privilege is a drastic denial of the right of every citizen who believes himself wronged to have access to the Courts for redress and should not be lightly or easily extended.

Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) at 87 (Qc. Sup. Ct.), affirmed 72 D.L.R. (3d) 95 [Respondent’s Authorities, Tab 5].

22. Parliamentary privilege is not presumed to exist and the party who seeks to rely on the immunity provided by parliamentary privilege has the clear onus of establishing its existence. 

[...] The onus of shewing that it is so lies upon the defendants; for it is certainly prima facie contrary to the common law. (at p. 1189)

The burden of proof is on those who assert it, and, for the purposes of this cause, the proof must go to the whole of the proposition. (at 1201)

Stockdale v. Hansard (1839), 112 E.R. 1112 (Q.B.) at 1189, 1201 [Appellants’ Authorities, Tab 20].