Application of CHRA to First Nations
   
A constitutional challenge to the jurisdiction of the Human Rights Tribunal to hear a complaint against a company wholly owned by the Ermineskin Cree Nation (the AErmineskin@) was recently made by Originating Notice of Motion before the Court of Queen's Bench of Alberta.¹⁷³  The jurisdictional issue was first raised when the Commission asked the Ermineskin to respond to a complaint it had received involving termination of employment because of disability. The Ermineskin maintained that its right to self-government under section 35 of the Constitution Act, 1982¹⁷⁴  rendered the CHRA inapplicable to its activities. The Commission took the view that it did indeed have jurisdiction to investigate the complaint and ultimately referred the matter to the Human Rights Tribunal for adjudication.

The Ermineskin sought a stay of proceedings from the Court on the basis that the Tribunal did not have the jurisdiction to decide the underlying constitutional issue or, if it did, that the Court of Queen's Bench should exercise its concurrent jurisdiction as being the more appropriate forum to hear the matter and to issue an effective remedy. In considering the Ermineskin motion, the Court looked first to a line of Supreme Court judgments that recognize the power of an administrative tribunal to determine the impact of the Charter of Rights and Freedoms on its enabling statute, provided that the tribunal is otherwise authorized to decide questions of law. It emphasized, however, that this power of an administrative tribunal does not extend to a declaration of invalidity and Ais limited to refusing to apply a provision which it has determined to be unconstitutional.@¹⁷⁶ Moreover, the decision-making authority of administrative tribunals in this regard is subject to judicial review where no crucial deference is given to its decision. With respect to the Human Rights Tribunal, its enabling statute clearly gives it the authority to decide all questions of law or fact necessary to determining the matter before it. The Court therefore concluded, basing itself on the Supreme Court Charter decisions, that the Tribunal was fully competent to determine questions involving the constitutional validity of its enabling statute.

While the Court acknowledged efforts of the Ermineskin to distinguish issues canvassed in the Supreme Court Charter decisions from the issues raised under section 35 of the Constitution Act, 1982, it felt obliged to follow case law that clearly established that tribunals are fully competent to examine the boundaries of their own jurisdiction.¹⁷⁷  In its view, there was no reason in principle to distinguish A...Charter questions from section 35 questions in the context of the Tribunal's jurisdiction to consider constitutional questions. In either case, the decision-maker is simply applying the tests set out in the case law to determine if the particular right claimed is protected by the Constitution.@¹⁷⁸ 

Even though bound by the higher court decisions, the Court of Queen's Bench expressed its concerns that A[t]he issues that will be determined in this case, the law that will be argued, and the evidence given on the jurisdictional question go far beyond the nature of inquiries usually before the Tribunal or those contemplated by the CHRA.@¹⁷⁹  It found that these factors are relevant to determining if a section 96 court (which the Court of Queen's Bench clearly was) should exercise its undoubted concurrent jurisdiction to decide a constitutional issue. In the case at hand, the Court underscored that a A...section 35 hearing would take the Tribunal far out of its area of expertise and require it to make difficult evidentiary findings and to deal with complex historical evidence.@¹⁸⁰  Furthermore, it seemed inevitable that one party or another would seek judicial review of any decision of the Tribunal, thus causing increased delays in getting to the merits of the underlying claim of discrimination. Even the inherent complexity of the issues involved would, reasoned the Court, run the risk of draining resources from the proper adjudication of other complaints within the jurisdiction of the Commission and cause even further delays in the processing of claims. Finally, the Court pointed out that, while the Tribunal may be competent to decide a constitutional issue, it cannot issue a declaration of invalidity and its decisions lack the force of res judicata. For all these reasons the Court determined that it was best suited to hear the constitutional arguments. It therefore granted a stay of proceedings but subject to a number of conditions, most importantly the condition that the Ermineskin commence formal proceedings before the Court within 30 days relevant to the underlying constitutional issue. Should the Ermineskin fail to meet this 30 day limit, the Court indicated that the stay of proceedings would be lifted and the Tribunal would be authorized to continue with its hearing.

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End Notes