[2001] 1 F.C. 124
A-2-98
Gordon Band Council (Appellant)
v.
Canadian Human Rights Commission and Sarah Laslo (Respondents)
Indexed as: Canada (Human Rights Commission) v. Gordon Band Council (C.A.)
Court of Appeal, Strayer, Isaac and Sharlow JJ.A.— Saskatoon, Saskatchewan, May 23; Ottawa, July 20, 2000.
Native peoples — Registration — Band Council denying housing on reserve to female Bill C-31 Band member married to non-Indian — Although prima facie case of discrimination, CHRT cannot grant remedy in view of CHRA, s. 67, as decisions made under Indian Act.
Human Rights — Indian Band Council denying housing on reserve to female Band member married to non-Indian — Prima facie case of discrimination on prohibited grounds (sex, marital status, race) — However, Band Council housing decisions made under Indian Act immunized from remedy being granted by CHRT by CHRA, s. 67.
The respondent, Sarah Laslo, was born a member of the Gordon Band with status as an Indian under the Indian Act. She lost that status and Band membership in 1978 when she married a non-Indian, but recovered both in 1985 pursuant to amendments (Bill C-31) to the Indian Act. Since then, the respondent has tried several times, in vain, to have a new house allotted to her on the Gordon Band Reserve. She was told that the housing policy developed by the Gordon Band, to be applied by a housing committee, provided that Bill C-31 members and persons living with a “non-treaty person” would not be given priority consideration for new housing. It was not clear what the role of the housing committee really was.
Her complaint to the Canadian Human Rights Commission of discrimination on the basis of sex, marital status and race, was dismissed. The Tribunal decided that although there was a prima facie case of discrimination, section 67 of the Canadian Human Rights Act (CHRA) precluded any remedy that the Tribunal might otherwise have granted to her.
The Motions Judge attributed the respondent’s lack of success in obtaining housing to decisions or inaction of the housing committee. He noted that those decisions were guided or influenced by the Gordon Band housing policy, but the source of that policy was not clear. He concluded that because the evidence did not establish that the respondent’s complaint was caused by a decision emanating from the Band Council, there was no decision that could come within the scope of section 67 of the CHRA. Therefore, there was nothing to preclude the Tribunal from granting a remedy to the respondent.
The appellant argues that if the decision was not made by the Gordon Band Council, then the complaint against it should be dismissed. Alternatively, if the Band Council did make or authorize the decision, then it was a decision made under or pursuant to the Indian Act and not subject to review under the CHRA.
Held, the appeal should be allowed.
The Tribunal correctly inferred from the evidence that the respondent’s exclusion from consideration for new housing was based on a decision or series of decisions made, authorized or adopted by the Gordon Band Council.
The Tribunal also correctly found that the decision in Desjarlais (Re), [1989] 3 F.C. 605(C.A.) correctly established that section 67 of the CHRA applies to decisions that, by virtue of their subject-matter, are within the authority expressly granted by a provision of the Indian Act. The Tribunal also correctly found that the challenged decision was made by the Band Council in the exercise of its authority under section 20 of the Indian Act to make housing allocation decisions. Section 67 of the CHRA therefore precluded the Tribunal from granting any remedy to the respondent. Furthermore, assuming, without deciding, that there were procedural flaws in the decision making process adopted by the Band Council with respect to the allotment of housing, those flaws did not detract from the conclusion that the housing allotment decision itself was one that Parliament had, under section 20 of the Indian Act, expressly entrusted to the Gordon Band Council.
This does not mean that Indians can never have recourse to the CHRA. Challenges under that statute have succeeded where the Indian Act was not the authority source of the impugned decision. In addition, it is possible, despite section 67 of the CHRA, to challenge Band Council decisions on the basis of an Charter infringement.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
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].
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 6, 67.
Canadian Human Rights Act, S.C. 1976-77, c. 33.
Indian Band Council Procedure Regulations, C.R.C., c. 950.
Indian Act, R.S.C. 1970, c. I-6, ss. 14, 20.
Indian Act, R.S.C., 1985, c. I-5, ss. 14 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4), 20, 80, 81 (as am. idem, s. 15).
CASES JUDICIALLY CONSIDERED
APPLIED:
Desjarlais (Re), [1989] 3 F.C. 605 (1989), 12 C.H.R.R. D/466; [1990] 1 C.N.L.R. 39; 102 N.R. 71 (C.A.).
CONSIDERED:
Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; (1992), 9 O.R. (3d) 224; 93 D.L.R. (4th) 346; 138 N.R. 1; 55 O.A.C. 81.
Referred to:
Shubenacadie Indian Band v. Canada (Human Rights Commission), [1998] 2 F.C. 198 (1997), 154 D.L.R. (4th) 344; 138 F.T.R. 275; [1998] 2 C.N.L.R. 212 (T.D.); affd Shubenacadie Indian Band v. Canada (Human Rights Commission), [2000] F.C.J. No. 702 (C.A.) (QL); Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; (1999), 173 D.L.R. (4th) 1; [1999] 3 C.N.L.R. 19; 239 N.R. 1.
APPEAL from a Trial Division decision (Laslo v. Gordon Band Council (1997), 140 F.T.R. 230) allowing an application for judicial review of a Canadian Human Rights Tribunal decision (Laslo v. Gordon Band Council, [1996] C.H.R.D. No. 12 (QL)) dismissing a complaint by an Indian woman married to a non-Indian against a decision to deny her housing on the Gordon Band Reserve. Appeal allowed.
APPEARANCES:
Merrilee D. Rasmussen, Q.C. for appellant.
René Duval and R. Daniel Pagowski for respondents.
SOLICITORS OF RECORD:
Wilson, Rasmussen, Regina, Saskatchewan, for appellant.
Legal Counsel, CHRC for respondent.
The following are the reasons for judgment rendered in English by
[1] Sharlow J.A.: The issue in this appeal is whether the Canadian Human Rights Act, R.S.C., 1985, c. H-6, as amended, permits the Canadian Human Rights Tribunal to grant a remedy to Sarah Laslo for her complaint against a decision to deny her housing on the Gordon Band Reserve. Her complaint was filed on August 10, 1989. The Tribunal conducted a hearing on July 24, 1995 and July 9 to 11, 1996. In a decision dated December 4, 1996 [[1996] C.H.R.D. No. 12 (QL)], the Tribunal concluded that it was obliged by section 67 of the Canadian Human Rights Act to dismiss the complaint despite having found a prima facie case of discrimination on a prohibited ground. Section 67 reads as follows:
67. Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.
[2] The Canadian Human Rights Commission applied for judicial review of the Tribunal’s decision. On December 30, 1997 [(1997), 140 F.T.R. 230 (F.C.T.D.)], the Motions Judge allowed the application and ordered the complaint to be remitted for rehearing and redetermination by a differently constituted Tribunal. The Gordon Band Council now appeals the decision of the Motions Judge.
[3] Most of the facts are not in dispute. Sarah Laslo was born with status as an Indian under the Indian Act, R.S.C., 1985, c. I-5. She was then a member of the Gordon Band. She remained so until 1978 when she married a non-Indian. Upon her marriage, section 14 of the Indian Act, as it read at that time [R.S.C. 1970, c. I-6], deprived her of her Indian status and her membership in the Gordon Band.
[4] The Indian Act was amended by R.S.C., 1985 (1st Supp.), c. 32, s. 4 (Bill C-31) to repeal section 14 and to provide for the reinstatement of the status and band membership of women previously excluded by reason of their marriage to non-Indian men. Ms. Laslo’s registration as an Indian and her membership in the Gordon Band were reinstated in 1985 pursuant to those amendments.
[5] The Bill C-31 amendments also permitted a band to take control of its own membership list, subject to compliance with the Indian Act and departmental approval of the band’s membership code. The Gordon Band has not yet taken control of its membership list. Material submitted to the Tribunal suggests that is because of unanswered demands of the Gordon Band Council for additional federal funding to provide for the increased membership due to Bill C-31.
[6] Ms. Laslo tried several times since 1985 to have a new house allotted to her on the Gordon Band Reserve. She has never succeeded. Her request for housing was first noted in the minutes of the December 5, 1985 meeting of the Gordon Band Council. New housing allocations were made on several occasions after that, but none to Ms. Laslo.
[7] Over the years Ms. Laslo received a number of letters explaining why no new housing was allotted to her. A letter to Ms. Laslo from the Gordon Band administrator dated April 23, 1986 says that the Gordon Band Council had appointed a five person housing committee which had developed criteria for setting priorities. In that letter, Ms. Laslo was also told that the Gordon Band Council did not intend to apply for new housing for Bill C-31 members until a new membership and residency code was adopted. A letter to Ms. Laslo from the Chief of the Gordon Band dated September 24, 1986 contained a similar message and appended what was represented as the Gordon Band housing policy as it then existed. It stated among other things that Bill C-31 members and persons living with a “non-treaty person” would “not likely get priority”. Ms. Laslo would have fallen into both categories.
[8] In a letter dated July 26, 1988 from the Chief, Ms. Laslo was told that her status as a Bill C-31 member made hers a “third-place priority”. A letter to Ms. Laslo from the Chief dated July 14, 1989 reads as follows:
As you requested, here are the reasons why we cannot accede to your request for new housing immediately:
1) During this fiscal year at least, no Bill C-31 housing funding was allocated to the Touchwood File Hills Qu’Appelle District, of which Gordon Reserve is part.
2) At the present time, the Gordon Reserve has not yet finalized a membership code, which would allow former members the rights that other members enjoy, but would stop short of opening the reserve to homesteading, settlement and eventual ownership by non-Indians.
I trust you appreciate the seriousness of the issue.
[9] A statement of agreed facts presented to the Tribunal states that the Gordon Band developed housing guidelines to be applied by the housing committee. An excerpt from the 1986 version referring to housing priorities is described above. Another version is appended to the statement of agreed facts and is headed “Housing Guidelines D-9-89”. It does not speak of priorities as the 1986 version does. It says instead that Bill C-31 members and persons living with a “non-treaty person” would not be considered for new housing.
[10] The minutes of the February 7, 1986 meeting of the Gordon Band Council mention a discussion of the establishment of a housing committee to review the list of housing applications and make recommendations to the Gordon Band Council with respect to priorities. The minutes of the March 21, 1986 meeting indicate that a housing policy designated “draft 4” was adopted, as was an initial housing priority list. The minutes of the October 23, 1986 and the October 5, 1987 meetings indicated approval of changes to the housing policy.
[11] It is not clear from the documents before the Tribunal whether the Gordon Band Council adopted the 1986 version of the housing policy that was sent to Ms. Laslo, or the “Housing Guidelines D-9-89” appended to the statement of agreed facts. Nor is the role of the housing committee well explained.
[12] On August 10, 1989, Ms. Laslo filed a complaint with the Canadian Human Rights Commission, alleging that the Gordon Band Council had denied her residential accommodation on the basis of sex, marital status and race, thus discriminating against her on a ground prohibited by section 6 of the Canadian Human Rights Act.
[13] At the hearing of the complaint before the Tribunal, the Gordon Band Council took the position that the Tribunal did not have the jurisdiction to deal with Ms. Laslo’s complaint. Although the Gordon Band Council participated in the preparation of the statement of agreed facts for the hearing, and was represented and attended the hearing, no evidence was adduced on its behalf, and its counsel did not cross-examine Ms. Laslo.
[14] After considering the agreed facts and hearing the evidence of Ms. Laslo, the Tribunal found a prima facie case that the Gordon Band Council had discriminated against Ms. Laslo by denying her residential accommodation on grounds prohibited by section 6 of the Canadian Human Rights Act, that is, because of her sex, her marital status and the race of her husband. The Tribunal noted that housing on the reserve had been allotted to male members of the Gordon Band whose wives were not Indians but lived with their husbands on the Reserve. However, as indicated above, the Tribunal dismissed the complaint on the basis of section 67 of the Canadian Human Rights Act.
[15] The Tribunal started its analysis by noting that section 67 of the Canadian Human Rights Act must be interpreted narrowly because it limits the scope of human rights legislation (Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, at page 339, per Sopinka J.). However, the Tribunal also noted that in Desjarlais (Re), [1989] 3 F.C. 605 (C.A.), the Court said that the phrase “any provision made under or pursuant to” the Indian Act (“les dispositions prises en vertu de cette loi”) refers not only to regulations or by-laws made under the authority of the Indian Act, but also to decisions that are an exercise of authority conferred by the Indian Act.
[16] The Tribunal then said that, by virtue of section 20 of the Indian Act, the Gordon Band Council has the authority, subject to ministerial approval, to allot land on the Reserve. Section 20 reads as follows:
20. (1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.
[17] The Tribunal reasoned that by necessary implication, the Gordon Band Council has the authority to decide whether and when to make a decision under section 20, and thus to decide who will and who will not be allotted housing on the Reserve. In Ms. Laslo’s case the Gordon Band Council had exercised its section 20 authority when it decided to refuse housing to Ms. Laslo. Even though that decision prima facie discriminated against Ms. Laslo on a prohibited ground, section 67 of the Canadian Human Rights Act precludes any remedy that the Tribunal might otherwise have granted to Ms. Laslo.
[18] The Motions Judge found no fault with the legal principles applied by the Tribunal. However, he viewed the facts differently. He attributed Ms. Laslo’s lack of success in obtaining housing to decisions of the housing committee, combined with a course of conduct that included ignoring her requests or failing to deal with them or respond to her. He noted that the decisions of the housing committee were guided or influenced by the Gordon Band housing policy, but the source of that policy was not clear. He concluded that because the evidence did not establish that Ms. Laslo’s complaint was caused by a decision or decisions emanating from the Gordon Band Council, there was no “provision” (that is, no decision) that could come within the scope of section 67 of the Canadian Human Rights Act. Therefore, there was nothing to preclude the Tribunal from granting a remedy to Ms. Laslo.
[19] The Gordon Band Council argues that if the Motions Judge was correct in concluding that the decision to deny housing to Ms. Laslo was not made by the Gordon Band Council, then her complaint against the Gordon Band Council should be dismissed. Alternatively, if the Gordon Band Council made or properly authorized that decision, it was a decision made under or pursuant to the Indian Act that cannot be the subject of a review under the Canadian Human Rights Act.
[20] I respectfully disagree with the Motions Judge’s conclusion as to the source of the decision that led to Ms. Laslo’s complaint. In my view, the Tribunal correctly inferred from the evidence, particularly the statement of agreed facts and the various letters to Ms. Laslo from the Chief, that Ms. Laslo’s exclusion from consideration for new housing was based on a decision or series of decisions made, authorized or adopted by the Gordon Band Council.
[21] That is not enough, however, to dispose of this appeal. It is also necessary to consider the Tribunal’s interpretation of section 67 of the Canadian Human Rights Act. If the Tribunal erred in that respect, the decision of the Motions Judge should stand.
[22] The authority of the Zurich Insurance case establishes the requirement to give a narrow interpretation to exceptions to human rights legislation. At the same time, Parliament’s enactment of the exception in section 67 of the Canadian Human Rights Act must be respected. Section 67 must be allowed to operate within its proper sphere.
[23] Section 67 was part of the Canadian Human Rights Act when it was enacted by S.C. 1976-77, c. 33. At that time, the Indian Act still contained provisions such as section 14 that were recognized as discriminating against women. The original objective of section 67 was to immunize the Indian Act and its regime from scrutiny under the Canadian Human Rights Act.
[24] In 1985, the discriminatory effect of section 14 of the Indian Act was abolished by Bill C-31. However, section 67 of the Canadian Human Rights Act was not amended or repealed. There is no basis for concluding, as the Commission contends, that the objective or intended scope of section 67 changed in 1985 when Bill C-31 was enacted.
[25] It follows that the problem presented by this case is to determine whether the challenged decision is a “provision made under or pursuant to” the Indian Act.
[26] I agree with the Tribunal that the decision of this Court in Desjarlais, supra, correctly establishes that section 67 of the Canadian Human Rights Act applies to decisions that, by virtue of their subject- matter, are within the authority expressly granted by a provision of the Indian Act. I do not accept the argument of the Commission that this aspect of Desjarlais should be reversed because it is obiter and because the facts of the case did not raise any issues relating to the Bill C-31 changes to the Indian Act.
[27] I also agree with the Tribunal that the challenged decision was made by the Gordon Band Council in the exercise of its authority under section 20 of the Indian Act to make housing allocation decisions. Its section 20 authority includes by necessary implication a decision not to allot housing to Ms. Laslo. It would follow, subject to the additional arguments raised by the Commission discussed below, that section 67 of the Canadian Human Rights Act precludes the Tribunal from granting any remedy to Ms. Laslo.
[28] The Commission argued that section 67 should not immunize the decision of the Gordon Band Council to deny housing to Ms. Laslo because the decision was not made under the procedure authorized by the Indian Band Council Procedure Regulations [C.R.C., c. 950] enacted by the Governor in Council pursuant to section 80 of the Indian Act. In its oral argument, the Commission also submitted that the Gordon Band Council should be denied the protection of section 67 in the case of the particular decision affecting Ms. Laslo. The Commission argues that because the Gordon Band Council has not enacted any bylaws in relation to housing or housing allotments as it could and should have done under section 81. Section 80 and the relevant parts of section 81 read as follows:
80. The Governor in Council may make regulations with respect to band meetings and council meetings and, without restricting the generality of the foregoing, may make regulations with respect to
(a) presiding officers at such meetings;
(b) notice of such meetings;
(c) the duties of any representative of the Minister at such meetings; and
(d) the number of persons required at such meetings to constitute a quorum.
81. The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely,
…
(h) the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band;
(i) the survey and allotment of reserve lands among the members of the band …
…
(p.1) the residence of band members and other persons on the reserve;
(p.2) to provide for the rights of spouses and children who reside with members of the band on the reserve with respect to any matter in relation to which the council may make by-laws in respect of members of the band;
[29] The Indian Band Council Procedure Regulations are purely procedural, dealing with the items listed in section 80, as well as the proper procedure for delegation of matters to committees. As indicated above, it is not clear from the minutes of the meetings of the Gordon Band Council presented to the Tribunal exactly what version of the housing policy was adopted, or what the role of the housing committee was. There is nothing in any of the minutes stating that Ms. Laslo or similarly situated women were to be denied housing. There is no indication that the Gordon Band Council has enacted any by-laws under section 81 relating to housing.
[30] However, there can be no doubt that Ms. Laslo was denied housing and, as indicated above, the evidence supports the conclusion that the denial ultimately was a decision of the Gordon Band Council. In my view, the immunity that section 67 gives the Gordon Band Council does not depend upon whether its decision to deny housing to Ms. Laslo is recorded formally in the minutes of the meetings, or whether some aspect of the decision-making process was based on a housing policy or delegated to a committee, or whether it was based on a by-law enacted under section 81. Assuming, without deciding, that there were procedural flaws in the decision making process adopted by the Gordon Band Council with respect to the allotment of housing, those flaws do not detract from the conclusion that the housing allotment decision itself is one that Parliament has, under section 20 of the Indian Act, expressly entrusted to the Gordon Band Council.
[31] That is not to say that Indians can never have recourse to the Canadian Human Rights Act. Challenges under that statute were successful in Desjarlais and in Shubenacadie Indian Band v. Canada (Human Rights Commission), [1998] 2 F.C. 198 (T.D.); affirmed by the Federal Court of Appeal on May 24, 2000 [2000 F.C.J. No. 702 (QL)]. In neither case was the Indian Act the source of the authority to make the challenged decision.
[32] In addition it is possible, despite section 67 of the Canadian Human Rights Act, to challenge Gordon Band Council decisions on the basis of an infringement of 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]], as was successfully done in Corbiere v. Canada (Minister of Indian & Northern Affairs), [1999] 2 S.C.R. 203.
Conclusion
[33] For these reasons, I would allow this appeal without costs (as none were sought), and restore the decision of the Tribunal.
Strayer J.A.: I agree.
Isaac J.A.: I agree.