Application of CHRA to House of Commons
   
The jurisdiction of the Human Rights Tribunal to hear a complaint alleging discrimination in employment against the Speaker of the House of Commons was contested before the Federal Court as being incompatible with the principle of parliamentary privilege. ²⁵⁰The issue was brought to the Court on appeal from the majority decision of the Tribunal concluding that the employment of a chauffeur by the Speaker did not fall within the core functions of the legislature, nor engage its dignity, integrity and efficient operations. This being so, the Tribunal had found that the Canadian Human Rights Act properly applied to the complaint, involving allegations of discrimination based on race, colour and national or ethnic origin. (The decision issued by the Tribunal is summarized below under the heading Tribunal Interim Orders.)

The Federal Court recognized that the House of Commons enjoys a certain number of privileges that attach to it collectively, as opposed to privileges that apply to its individual members. Such collective privileges include: Athe 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.²⁵¹@ The question of whether any particular activity of the legislature gives rise to parliamentary privilege is subject to a test of necessity as set out by the Supreme Court in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly).²⁵² This test is met where the matter under scrutiny engages the dignity or efficient operations of a legislature. In light of relevant jurisprudence and learned writings, the Federal Court concluded that the management and appointment of staff falls within the scope of parliamentary privilege. In short, such management authority is considered necessary for the proper functioning of the House of Commons.

In applying the test of necessity, the Federal Court underscored the importance of not engaging in a qualitative assessment of the proximity of a given employment relationship to the core functions of the legislative body. It felt that any such assessment would render the parliamentary privilege nugatory, by requiring the A...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.²⁵³@ In the case at bar, the remoteness of a chauffeur's job to the legislative functions of the House of Commons was therefore not considered determinative of the question of privilege. It was the employment relationship to the Speaker of the House that effectively placed the position of chauffeur within the scope of the privilege.

Even though the power to appoint and manage staff was protected by parliamentary privilege, the Federal Court went on to consider whether any statutory enactment constituted a waiver of the privilege regarding certain categories of employees. More specifically, it reviewed the provisions of the Parliamentary Employment and Staff Relations Act.²⁵⁴ It concluded that the Act intended to adopt specific provisions only in the Canada Labour Code ²⁵⁵as they related to accidents and injury to health, as well as standards for hours, wages, vacations and holidays. In all other matters, the very terms of the Act made it clear that the privileges of the House of Commons and the Senate were preserved. The Court therefore rejected the argument that statutory enactment had effectively waived the privilege with respect to employees such as the complainant in the case at bar.

Despite its initial findings adverse to the complainant, the Court completed its analysis of the claimed privilege by examining an important principle established by the Supreme Court to the effect that grounds for disqualification of members of a legislative body based on race and gender can not be said to fall within the rules by which such bodies properly conduct their business.²⁵⁶ Decisions made on illegitimate grounds cannot therefore be considered protected by the principle of parliamentary privilege. The Federal Court extended this reasoning to the case at bar, concluding that A...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.²⁵⁷@ In so doing, the Court also emphasized that it was not scrutinizing the manner in which authority protected by the privilege was exercised in a particular case. It took the view that a court could legitimately assess the legitimacy of the claimed privilege by examining the grounds upon which it was based. It concluded that the AHouse 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, 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.²⁵⁸" It therefore found that the Human Rights Tribunal had the necessary jurisdiction to conduct a hearing into the allegations of discrimination made by a chauffeur employed by the Speaker of the House of Commons.

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End Notes