T-3578-79
Attorney General of Canada (Applicant)
v.
Peter Cumming as a member of the Human Rights
Tribunal constituted under the Canadian Human
Rights Act and Canadian Human Rights Commis
sion and Roberta Bailey, William Carson, Réal
Pellerin and Michael McCaffrey (Respondents)
Trial Division, Thurlow A.C.J.—Ottawa, July 27
and 31, 1979.
Prerogative writs — Prohibition — Human rights —
Income tax — Tribunal named to investigate complaints of
discrimination, as prohibited under Canadian Human Rights
Act, occurring as result of application and enforcement of the
Income Tax Act — Complaints dealt with sexual discrimina
tion in provisions relating to child care, and with discrimina
tion as to marital status in provision providing for deductions
for spouse — Application to prevent respondent Tribunal from
inquiring into complaints — Canadian Human Rights Act,
S.C. 1976-77, c. 33, ss. 3, 4, 5, 31, 32(1), 33, 35(1), 36(3),
39(1), 40(1),(2),(6), 41(1),(2) — Income Tax Act, S.C. 1970-
71-72, c. 63, ss. 63(1), 109(1).
This is an application for a writ of prohibition to prevent
respondent, Peter Cumming, acting in his capacity as a Human
Rights Tribunal, under the Canadian Human Rights Act, from
inquiring into complaints made to the Human Rights Commis
sion by respondents Bailey, Carson, Pellerin and McCaffrey. In
the cases of Bailey and Carson, the complaint is that the
Canadian Government through Revenue Canada Taxation
engaged in a discriminatory practice by not allowing Roberta
Bailey to claim her common law husband, William Carson, as a
dependant on her income tax because of her marital status.
Respondents Pellerin and McCaffrey allege that Revenue
Canada Taxation discriminated against males in administering
and enforcing section 63 of the Income Tax Act dealing with
child care expenses. The Commission, after a preliminary
investigation, came to the conclusion that what is alleged in the
complaints is fit subject-matter for an inquiry before a Human
Rights Tribunal under the Act.
Held, the application is dismissed. The Commission did not
act beyond its authority under subsection 39(1) in appointing
the Tribunal. Sections 40 and 41 confer on the Tribunal the
authority to hold an inquiry and at its conclusion to determine
the whole question whether or not any of the discriminatory
practices alleged in the complaints had been established,
including any question that might be involved therein as to
whether or not the conduct complained of and established was
capable in law of being discrimination prohibited by the Act. In
assessing taxes under the Income Tax Act the Department of
National Revenue is engaged in the provision of services within
the meaning of section 5 of the Canadian Human Rights Act.
The Canadian Human Rights Act is cast in wide terms and
both its subject-matter and its stated purpose suggest that it not
be interpreted narrowly or restrictively. The present situation
involves the question whether or not in providing a service to
the public the carrying out by the Department of a law which
differentiates on prohibited bases is in itself unlawful discrimi
nation within the meaning of the Canadian Human Rights Act.
If it happens that that question or some narrower version of it is
the only question that is required to be decided in order to
reach a conclusion, it is a question that does not go to the
Tribunal's jurisdiction to deal with the complaints but is one for
the Tribunal to decide, to the extent that it may be necessary to
do so, to reach its conclusions as to whether unlawful discrimi
nation has been established on the facts elicited at the inquiry.
Lodge v. Minister of Employment and Immigration
[1979] 1 F.C. 775, referred to. Bell v. The Ontario Human
Rights Commission [1971] S.C.R. 756, referred to. Re
CIP Paper Products Ltd. and Saskatchewan Human
Rights Commission (1978) 87 D.L.R. (3d) 609, referred
to.
APPLICATION.
COUNSEL:
T. B. Smith, Q.C. and M. L. Jewett for
applicant.
Robert Nelson and George Addy for respond
ent Peter Cumming.
R. Juriansz for respondent Canadian Human
Rights Commission.
No one appearing for respondents Roberta
Bailey, Réal Pellerin, William Carson.
R. MacKay for respondent Michael McCaf-
frey.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Gowling & Henderson, Ottawa, for respond
ent Peter Cumming.
Canadian Human Rights Commission Gener
al Counsel, Ottawa, for respondent on its own
behalf.
Robin D. MacKay, Ottawa, for respondent
Michael McCaffrey.
The following are the reasons for judgment
delivered orally in English by
THURLOW A.C.J.: This is an application for a
writ of prohibition to prevent the respondent, Peter
Cumming, acting in his capacity as a Human
Rights Tribunal, under the Canadian Human
Rights Act' from inquiring into complaints made
to the Canadian Human Rights Commission by
the respondents, Roberta Bailey, William Carson,
Réal J. Pellerin and Michael McCaffrey. The
application was opposed by counsel for the
Canadian Human Rights Commission, for Peter
Cumming and for Michael McCaffrey. The other
respondents did not appear and were not
represented.
In the cases of Roberta Bailey and William
Carson the complaint is that the Canadian Gov
ernment through Revenue Canada Taxation on or
about May 30, 1978 is engaging or has engaged in
a discriminatory practice in the matter of not
allowing Roberta Bailey to claim William Carson
as a dependant on her income tax because of
marital status. As details, it was stated that the
complainants felt that Revenue Canada was dis
criminating against Roberta Bailey because they
are not married and "that Revenue Canada is also
putting us through undue financial hardship."
With respect to the subject-matter of these com
plaints it may be noted that section 109 of the
Income Tax Act [R.S.C. 1952, c. 148 as amended
by S.C. 1970-71-72, c. 63] provides:
109. (1) For the purpose of computing the taxable income
of an individual for a taxation year, there may be deducted
from his income for the year such of the following amounts as
are applicable:
(a) in the case of an individual who, during the year, was a
married person who supported his spouse, an amount equal
to the aggregate of
(i) $1,600, and
(ii) $1,400 less the amount, if any, by which the spouse's
income for the year while married exceeds $300;
Pellerin's complaint is that:
... the Government of Canada through Revenue Canada on or
about 1976 & 1977 & 1978, is engaging or has engaged in a
discriminatory practice in the matter of allowing child care
expenses to fathers because of refusing to allow me to deduct
such expenses from my 1976 Income Tax Return. The details
of this complaint are as follows:
My wife and I seperated [sic] without a formal agreement; I
retained custody of our child. The Revenue Canada authorities
refused my claim for child care expenses because there was no
seperation [sic] agreement at that time They would not take
this position towards a woman.
' S.C. 1976-77, c. 33.
McCaffrey's complaint is similar in substance.
It alleges that Revenue Canada is engaging or has
engaged in a discriminatory practice on or about
March 19, 1978 because of sex, the particulars of
which are:
Disallowing child care expense because I have no written
separation agreement and because I am a male mother.
With respect to the subject-matter of these com
plaints, subsection 63(1) of the Income Tax Act
provides:
63. (1) There may be deducted in computing the income for
a taxation year of a taxpayer who is
(a) a woman, or
(8) a man
(i) who at any time in the year was not married,
(ii) who at any time in the year was separated from his
wife pursuant to a decree, order or judgment of a com
petent tribunal or pursuant to a written agreement,
amounts paid by the taxpayer in the year as or on account of
child care expenses in respect of the taxpayer's children, to the
extent that
The material before the Court on which the
matter is to be decided consists of:
(1) An affidavit of an assistant deputy minister
of the Department of National Revenue (Taxa-
tion) exhibiting copies of correspondence be
tween the Canadian Human Rights Commission
and the Department relating to the complaints
including copies of the complaints, notice of the
decision of the Commission on the complaint of
Roberta Bailey and William Carson and notices
of dates when the Tribunal would inquire into
the four complaints.
(2) An affidavit of the Chief Commissioner of
the Canadian Human Rights Commission
exhibiting a copy of the notice of the decision of
the Commission on the Pellerin and McCaffrey
complaints.
(3) An affidavit of the respondent McCaffrey
which verifies the disallowance by the Depart
ment of National Revenue of his claim for a
deduction in respect of child care expenses, that
he lives separate and apart from his wife and
that there is no written separation agreement
between them. The deponent expresses the view
that in his identical circumstances a woman
would be able to deduct the child care expenses.
He also exhibits a copy of a publication of the
Department of National Revenue which refers
to the tax assessment process as a service and
confirms his belief that the Department is pro
viding services.
In the case of the Bailey and Carson complaints
the body of the notice of the Commission's deci
sion reads as follows:
The Complainants have alleged that the Respondent has
engaged in a discriminatory practice under section 5 of the
Canadian Human Rights Act in that he has adversely differen
tiated against Roberta Bailey in the allowance of deductions
from income for the purposes of income tax assessment.
Investigation disclosed that Roberta Bailey is a single tax
payer who lives in a stable common law relationship with
William Carson. William Carson has no income and is fully
supported by Roberta Bailey.
In March of 1978 Roberta Bailey filed an income tax return
for her income of 1977 claiming William Carson as a depend
ent and therefore a deduction of $1,400.00. On June 1, 1978
Roberta Bailey received a letter from Revenue Canada disal
lowing her claim as section 109(1) of the Income Tax Act
provides that the deduction of $1,400.00 is available only to a
"married person who supported his spouse".
The Canadian Human Rights Commission is satisfied that
the complaint has been substantiated in that the Income Tax
Act differentiates adversely and the Respondent, by applying
section 109(1) of the Income Tax Act has differentiated
adversely in relation to Roberta Bailey on the ground of marital
status. The Commission hereby adopts the Investigator's
Report and will appoint a Human Rights Tribunal to inquire
into this complaint.
With respect to the Pellerin and McCaffrey
complaints the notice of decision said:
Real J. Pellerin filed a complaint with the Canadian Human
Rights Commission against the Respondent on February 5,
1979. Michael McCaffrey filed a complaint with the Canadian
Human Rights Commission against the Respondent on March
27, 1979. The Canadian Human Rights Commission initiated a
complaint against the Respondent on May 28, 1979. 2 The
Commission is satisfied that these complaints involve substan
tially the same issues of fact and law and will deal with these
complaints together. The complaints allege that Her Majesty
the Queen, as represented by the Minister of National Reve
nue, adversely differentiates against males by administering
and enforcing section 63 of the Income Tax Act.
2 The complaint initiated by the Commission is not included
in the material before the Court and is not referred to in the
originating notice of this application.
Investigation disclosed that section 63(1) of the Income Tax
Act prescribes conditions that a man must satisfy before he is
allowed to deduct child care expenses in computing his income
for a taxation year. Section 63(1) does not require a woman to
satisfy these conditions before she is allowed to deduct child
care expenses in computing her income for a taxation year. The
Respondent disallowed the Complainants Pellerin's and
McCaffrey's claims for deductions for child care expenses for
the taxation year 1977. The Complainant's claims would have
been allowed had they been women.
The Commission hereby adopts the Investigators' Reports
and decides that a Human Rights Tribunal will be appointed to
determine whether the administration and enforcement of sec
tion 63 of the Income Tax Act constitutes a discriminatory
practice under section 5 of the Canadian Human Rights Act.
What these decisions amount to, as I understand
the Act, is that the Commission, after a prelim
inary investigation, has' come to the conclusion
that what is alleged in the complaints is fit subject-
matter for an inquiry before a Human Rights
Tribunal under the Act and has decided to appoint
such a tribunal in the one instance "to inquire into
the complaint" and in the other "to determine
whether the administration and enforcement of
section 63 of the Income Tax Act constitutes a
discriminatory practice under section 5 of the
Canadian Human Rights Act."
The applicant's position is that in making
income tax assessments, the Department of Na
tional Revenue is not providing a service within the
meaning of section 5, but that even if that is a
service of the kind referred to, it is not the Depart
ment which differentiates on the basis of marital
status or sex but the law as set out in the Income
Tax Act, which it is the Department's duty to
follow, that any relief of a kind which it is open to
a Human Rights Tribunal to afford, under section
41, would involve conflict with the provisions of
the Income Tax Act and an abrogation or altera
tion of the law therein set out, which was not
intended by the Canadian Human Rights Act and
which, if it were intended, would be ultra vires.
Counsel, therefore, asked the Court to prohibit the
proposed proceedings before the Human Rights
Tribunal.
The provisions and scheme of the Canadian
Human Rights Act were recently summarized in
the reasons for judgment of the Court of Appeal in
Lodge v. Minister of Employment and Immigra
tion,' and I need not repeat what is there set out.
The Act is entitled "An Act to extend the present
laws in Canada that proscribe discrimination and
that protect the privacy of individuals". Its pur
pose to the same effect is set out in section 2. By
section 3, both marital status and sex are declared
to be prohibited grounds of discrimination. By
section 4, a discriminatory practice, as described in
sections 5-13, may be the subject of a complaint
under Part III and anyone found to be engaging in
or to have engaged in a discriminatory practice
may be made subject to an order as provided in
sections 41 and 42.
Under section 5, which is the only one of the
group of nine sections defining discriminatory
practices which appears to have any possible
application to the complaints in question, it is
provided that:
5. It is a discriminatory practice in the provision of goods,
services, facilities or accommodation customarily available to
the general public
(a) to deny, or to deny access to, any such good, service,
facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
With respect to procedure and jurisdiction in
respect of complaints Part III provides:
31. For the purposes of this Part, a "discriminatory prac
tice" means any practice that is a discriminatory practice
within the meaning of sections 5 to 13.
32. (1) Subject to subsections (5) and (6), any individual or
group of individuals having reasonable grounds for believing
that a person is engaging or has engaged in a discriminatory
practice may file with the Commission a complaint in a form
acceptable to the Commission.
33. Subject to section 32, the Commission shall deal with
any complaint filed with it unless in respect of that complaint it
appears to the Commission that
(a) the alleged victim of the discriminatory practice to which
the complaint relates ought to exhaust grievance or review
procedures otherwise reasonably available; or
(b) the complaint
(i) is one that could more appropriately be dealt with,
initially or completely, according to a procedure provided
for under an Act of Parliament other than this Act,
(ii) is beyond the jurisdiction of the Commission,
(iii) is trivial, frivolous, vexatious or made in bad faith, or
3 [1979] 1 F.C. 775.
(iv) is based on acts or omissions the last of which
occurred more than one year, or such longer period of time
as the Commission considers appropriate in the circum
stances, before receipt of the complaint.
35. (1) The Commission may designate a person (herein-
after referred to as an "investigator") to investigate a
complaint.
36....
(3) On receipt of a report mentioned in subsection (1), the
Commission
(a) may adopt the report if it is satisfied that the complaint
to which the report relates has been substantiated and should
not be referred pursuant to subsection (2) or dismissed on
any ground mentioned in subparagraphs 33(b)(ii) to (iv); or
(b) shall dismiss the complaint to which the report relates if
it is satisfied that the complaint has not been substantiated or
should be dismissed on any ground mentioned in subpara-
graphs 33(b)(ii) to (iv).
It will be observed that section 33 is mandatory
in requiring the Commission to deal with a com
plaint unless it appears to the Commission, inter
alia, that the complaint is beyond its jurisdiction.
Paragraph 36(3)(b) is also mandatory and again
by reference requires the Commission to dismiss
the complaint if it appears to the Commission that
the complaint is beyond its jurisdiction. By infer
ence, if the complaint is not dismissed on any of
the grounds mentioned, the Commission must con
tinue to deal with it under other provisions of the
Act. From the material on file, it is apparent that
in the present instances the Commission did deal
with the complaints by appointing investigators
and, subsequently, approving their reports and
then under section 39 appointing Mr. Cumming as
a tribunal. It is also to be inferred from the fact
that the Commission did not dismiss the com
plaints under paragraph 36(3)(b) that it did not
appear to the Commission that the complaints
were beyond its jurisdiction and that the Commis
sion considered that further steps should be taken
with regard to them.
With respect to tribunals the following sections
are relevant:
39. (1) The Commission may, at any stage after the filing of
a complaint, appoint a Human Rights Tribunal (hereinafter in
this Part referred to as a "Tribunal") to inquire into the
complaint.
40. (1) A Tribunal shall, after due notice to the Commis
sion, the complainant, the person against whom the complaint
was made and, at the discretion of the Tribunal, any other
interested party, inquire into the complaint in respect of which
it was appointed and shall give all parties to whom notice has
been given a full and ample opportunity, in person or through
counsel, of appearing before the Tribunal, presenting evidence
and making representations to it.
(2) The Commission, in -appearing before a Tribunal, pre
senting evidence and making representations to it, shall adopt
such position as, in its opinion, is in the public interest having
regard to the nature of the complaint being inquired into.
(6) A hearing of a Tribunal shall be public, but a Tribunal
may exclude members of the public during the whole or any
part of a hearing if it considers such exclusion to be in the
public interest.
41. (1) If, at the conclusion of its inquiry, a Tribunal finds
that the complaint to which the inquiry relates is not substan
tiated, it shall dismiss the complaint.
(2) If, at the conclusion of its inquiry, a Tribunal finds that
the complaint to which the inquiry relates is substantiated,
subject to subsection (4) and section 42, it may make an order
against the person found to be engaging or to have engaged in
the discriminatory practice and include in such order any of the
following terms that it considers appropriate:
In my opinion the Commission did not act beyond
its authority under subsection 39(1) in appointing
the Tribunal. It might have done so at any stage
after the filing of the complaints. In these cases, it
did so at the stage where an investigation had been
held and the investigator's report had been
approved. If, as I think, the constitution of the
Tribunal was within the authority of the Commis
sion, the effect of sections 40 and 41 was to confer
on the Tribunal the authority to hold an inquiry
and at its conclusion to determine the whole ques
tion whether or not any of the discriminatory
practices alleged in the complaints had been estab
lished, including any question that might be
involved therein as to whether or not the conduct
complained of and established was capable in law
of being discrimination prohibited by the Act.
It appears to me that in substance what the
Court is being asked to do on this application is to
pre-empt the Tribunal and to decide a question
that the statute gives the Tribunal the authority to
decide. To accede to the application involves a
decision that what is complained of cannot be
unlawful discrimination, that the Tribunal can
only dismiss the complaints and that, therefore,
the Tribunal has no jurisdiction to hold its inquiry
or even to decide that unlawful discrimination has
not been established and that the complaint should
be dismissed.
The Court is undoubtedly entitled, when the
jurisdiction of an inferior tribunal turns on a clear
and severable question of law arising on undisput
ed facts, to decide that point of law and, if the
conclusion from it is that the Tribunal does not
have jurisdiction, to prohibit the Tribunal from
proceeding. See Bell v. The Ontario Human
Rights Commission 4 . But, as pointed out in Re
CIP Paper Products Ltd. and Saskatchewan
Human Rights Commission` per Culliton C.J.S.
at page 612:
Care must be taken not to give to the decision in Bell v.
Ontario Human Rights Com'n, supra, too wide an application.
That case simply decided that, where there is a clear point of
law not depending upon particular facts upon the determination
of which the jurisdiction of the tribunal depends, that determi
nation may be made in an application for prohibition. That
judgment did not decide that prohibition lies on the contention
that the complaint is one which cannot be sustained within the
provisions of the Act in respect to which the complaint is made.
The decision as to whether the complaint is one which is
contemplated by the pertinent legislation, and, if so, whether
discrimination is, or is not, established, are matters for the
Human Rights Commission. Such statutory rights and duties of
the Commission cannot be usurped by the Court under the
guise of prohibition proceedings in which is sought, in effect, a
determination of the complaint on its merits.
Here there may well be questions of law that
may arise on the complaints. There is the issue as
to whether the Department of National Revenue,
in assessing taxes, is engaged in the provision of
services within the meaning of section 5 of the
Canadian Human Rights Act. There is the ques
tion whether, if the Department is engaged in the
provision of services within the meaning of section
5, the Department's action in applying discrimina
tory provisions of the Income Tax Act is in itself
an unlawful discriminatory practice. If so, there is
the question whether any of the kinds of relief
specified in section 41 would be appropriate or
ought to be afforded. This may involve the ques
tion whether provisions of the Income Tax Act
which discriminate on bases prohibited by the
Canadian Human Rights Act have been pro tanto
repealed. And there may be others.
With respect to the first of these questions,
which appears to me to be one that goes to the
[1971] S.C.R. 756.
s (1978) 87 D.L.R. (3d) 609.
jurisdiction of the Tribunal, I am not prepared to
accept the broad proposition that in assessing taxes
under the Income Tax Act the Department of
National Revenue is not engaged in the provision
of services within the meaning of section 5 of the
Canadian Human Rights Act. The statute is cast
in wide terms and both its subject-matter and its
stated purpose suggest that it is not to be interpret
ed narrowly or restrictively. Nor do I think that
discrimination on any of the bases prohibited by
the Act cannot conceivably occur in the provision
of such services to the public.
Apart from that broad question, what appears to
me to be involved in the present situation is wheth
er in providing a service to the public the carrying
out by the Department of a law which differenti
ates on prohibited bases is in itself unlawful dis
crimination within the meaning of the Canadian
Human Rights Act. It may be that these com
plaints will involve little or nothing but that ques
tion of law. But even if it turns out that that
question or some narrower variation of it is the
only question that requires to be decided in order
to reach a conclusion, it appears to me to be a
question which does not go to the Tribunal's juris
diction to deal with the complaints but is one for
the Tribunal to decide, to whatever extent it may
be necessary to do so, to reach its conclusion as to
whether on the facts elicited at the inquiry unlaw
ful discrimination has been established. Nor do
any of the other questions I have mentioned go to
the jurisdiction of the Tribunal. If they arise, they
will be for the Tribunal to decide.
In the Lodge case, supra, Le Dain J. at pages
785-786 of his reasons expressed the view that:
The question as to the extent, if any, to which the administra
tion and application of federal statutes, whether regulatory in
purpose or not, fall under the Canadian Human Rights Act is,
of course, a serious one. There may be important distinctions to
be drawn between different aspects of the public service, based
on the facts established in each case. It is preferable, I think,
that these questions should be determined in the first instance
by the Commission, as section 33 would appear to intend,
before a court is called upon to pronounce upon them.
That passage refers to the exercise of the func
tions of the Commission rather than those of a
tribunal but it seems to me that the same principle
applies. The preferable course for the Court is to
leave the Tribunal free to carry out its inquiries
and not to prohibit it save in a case where it is
clear and beyond doubt that the Tribunal is with
out jurisdiction to deal with the matter before it.
In my opinion, the present is not such a case.
The application, therefore, fails and it will be
dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.