Canadian Human Rights Commission Appellant v. Attorney General of Canada, 2018 SCC 31

SUPREME COURT OF CANADA Citation: Canada (Canadian Human Rights Commission) v.

Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230 Appeal Heard: November 28, 2017 Judgment Rendered: June 14, 2018 Docket: 37208 Between: Canadian Human Rights Commission Appellant and Attorney General of Canada Respondent - and - Attorney General of Quebec, Tania Zulkoskey, Income Security Advocacy Centre, Sudbury Community Legal Clinic, Chinese and Southeast Asian Legal Clinic, Community Legal Assistance Society, HIV & AIDS Legal Clinic Ontario, Canadian Muslim Lawyers Association, Council of Canadians with Disabilities, Women’s Legal Education and Action Fund, Native Women’s Association of Canada, Amnesty International, First Nations Child and Family Caring Society of Canada, Jeremy E.

Matson, African Canadian Legal Clinic, Aboriginal Legal Services and Public Service Alliance of Canada Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. Reasons for Judgment: (paras. 1 to 68) Gascon J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis and Wagner JJ. concurring) Joint Concurring Reasons: (paras. 69 to 107) Côté and Rowe JJ. Concurring Reasons: (paras. 108 to 115) Brown J.

Canada ( Canadian Human Rights Commission) v. Canada ( Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230 Canadian Human Rights Commission Appellant v.

Attorney General of Canada Respondent and Attorney General of Quebec, Tania Zulkoskey, Income Security Advocacy Centre, Sudbury Community Legal Clinic, Chinese and Southeast Asian Legal Clinic, Community Legal Assistance Society, HIV & AIDS Legal Clinic Ontario, Canadian Muslim Lawyers Association, Council of Canadians with Disabilities, Women’s Legal Education and Action Fund, Native Women’s Association of Canada, Amnesty International, First Nations Child and Family Caring Society of Canada, Jeremy E.

Matson, African Canadian Legal Clinic, Aboriginal Legal Services and Public Service Alliance of Canada Interveners Indexed as: Canada ( Canadian Human Rights Commission) v. Canada ( Attorney General) 2018 SCC 31 File No.: 37208. 2017: November 28; 2018: June 14.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. on appeal from the federal court of appeal Administrative law — Judicial review — Standard of review — Canadian Human Rights Tribunal dismissing complaints alleging that provisions of Indian Act precluding registration of complainants’ children as “Indians” constituted discriminatory provision of services — Tribunal finding that complaints involved direct challenge to s. 6 of Indian Act and that legislation not included in the meaning of “services” under s. 5 of Canadian Human Rights Act — Whether Tribunal’s decisions reviewable on standard of reasonableness or correctness.

Human rights — Discriminatory practices — Provision of services — Indians — Status eligibility — Registration — Human rights complaints alleging that provisions of Indian Act precluding registration of complainants’ children as “Indians” discriminated in provision of services customarily available to general public on grounds of race, national or ethnic origin, sex or family status — Whether complaints constituted direct attack on legislation or whether they concerned discrimination in provision of service — Meaning of “services” under s. 5 of Canadian Human Rights Act, R.S.C. 1985, c. H-6 .

This appeal concerns several complaints alleging that Indian and Northern Affairs Canada engaged in a discriminatory practice in the provision of services contrary to s. 5 of the Canadian Human Rights Act (“ CHRA ”) when it denied a form of registration under the Indian Act that the complainants would have been entitled to if past discriminatory policies, now repealed, had not been enacted. In two separate decisions, the Canadian Human Rights Tribunal determined that the complaints were a direct attack on the Indian Act . As legislation was not a service under the CHRA , it dismissed the complaints.

On judicial review, both the Federal Court and the Federal Court of Appeal found that the Tribunal decisions were reasonable and should be upheld.

Held : The appeal should be dismissed. Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.: Where an administrative body interprets its home statute, there is a well-established presumption that the reasonableness standard applies. The presumption may be rebutted and the correctness standard applied where one of the categories identified in Dunsmuir can be established or, exceptionally, where a contextual inquiry shows a clear legislative intent that the correctness standard be applied.

In applying the standard of review analysis, there is no principled difference between a human rights tribunal and any other decision maker interpreting its home statute. In both of its decisions, the Tribunal was called upon to characterize the complaints before it and ascertain whether a discriminatory practice had been made out under the CHRA . This falls squarely within the presumption of deference.

The Tribunal clearly had the authority to hear a complaint about a discriminatory practice, and the question of what falls within the meaning of “services” is no more exceptional than questions previously found by the Court not to be true questions of jurisdiction. To find that the Tribunal was faced with a true question of vires here would only risk disinterring the jurisdiction/preliminary question doctrine that was clearly put to rest in Dunsmuir . Plainly, the definition of a service under the CHRA is not a true question of vires .

The category of true questions of vires is confined to instances where the decision maker must determine whether it has the authority to enter into the inquiry before it. Since its inclusion as a category of correctness review in Dunsmuir , the concept of true questions of vires has been as elusive as it has been controversial. In applying Dunsmuir , the Court has been unable to identify a single instance where this category was found to be applicable. Since Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, the Court has reasserted the narrow and exceptional nature of this category. The difficult distinction between simple questions of jurisdiction (i.e., questions that determine the scope of one’s authority) and true questions of vires (i.e., questions that determine whether one has authority to enter into the inquiry) has, however, tempted litigants and judges alike to return to a broad understanding of jurisdiction as justification for correctness review.

The elusive search for true questions of vires may thus both threaten certainty for litigants and undermine legislative supremacy. While some have advocated for the conceptual necessity of correctness review for jurisdiction, reasonableness review is often more than sufficient to fulfil the courts’ supervisory role with regard to the jurisdiction of the executive. Absent full submissions by the parties on this issue it will be for future litigants to establish whether or not this category remains necessary.

The category of questions of law that are both of central importance to the legal system as a whole and outside the decision maker’s specialized area of expertise does not apply here. The Court has rejected a liberal application of this category. Regardless of the importance of the questions before the Tribunal, they were clearly within the Tribunal’s expertise. The ability of other federal tribunals to apply the CHRA does not rob the Tribunal of its expertise in its home statute. Finally, a contextual analysis would not rebut the presumption in this case either.

Where the presumption of reasonableness applies, the contextual approach should be applied sparingly in order to avoid uncertainty and endless litigation concerning the standard of review analysis. Indeed, the presumption of reasonableness was intended to prevent litigants from undertaking a full standard of review analysis in every case. As such, the presumption of reasonableness review and the identified categories will generally be sufficient to determine the applicable standard. Where a contextual analysis may be justified to rebut the presumption it need not be a long and detailed one.

Changes to “foundational legal tests” are not clear indicators of legislative intent, and do not warrant the application of the contextual approach or, by extension, correctness review. Nor do the absence of a privative clause, the fact that other administrative tribunals may consider the CHRA , the potential for conflicting lines of authority, or the nature of the question at issue and the purpose of the Tribunal. The presumption of deference is not rebutted and the reasonableness standard applies to the review of the Tribunal’s decisions.

In its application, reasonableness review recognizes the legitimacy of multiple possible outcomes, even where they are not the court’s preferred solution. In reasonableness review, the reviewing court is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process and with determining whether the outcome falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. When applied to a statutory

interpretation exercise, reasonableness review recognizes that the delegated decision maker is better situated to understand the policy concerns and context needed to resolve any ambiguities in the statute. Reviewing courts must also refrain from reweighing and reassessing the evidence considered by the decision maker. Both of the Tribunal’s decisions were reasonable and should be upheld. The Tribunal provided careful and well-considered reasons explaining why the complaints had not established a discriminatory practice under the CHRA .

In coming to their conclusion, the adjudicators considered the complainants’ evidence and submissions, the governing jurisprudence, the purpose, nature and scheme of the CHRA , and relevant policy considerations. The decisions meet the Dunsmuir standard of intelligibility, transparency and justifiability, and fall within the range of reasonable outcomes. Specifically, the adjudicators reasonably concluded that the complaints before them were properly characterized as direct attacks on legislation, and that legislation in general did not fall within the meaning of “services”.

Although human rights tribunals have taken various approaches to making a distinction between administrative services and legislation, this is a question of mixed fact and law squarely within their expertise, and they are best situated to develop an approach to making such distinctions. Per Côté and Rowe JJ.: Reasonableness is the presumptive standard for the review of questions that involve the tribunal’s

interpretation and application of its home statute. There are, however, two situations where the presumption will not apply. First, the jurisprudence recognizes four categories of questions that will necessarily attract review on a standard of correctness: constitutional questions, questions of law that are both of central importance to the legal system and that are outside of the tribunal’s specialized area of expertise, questions that involve the drawing of jurisdictional lines between two or more competing specialized tribunals and true questions of jurisdiction.

Second, the presumption of reasonableness will be rebutted if the contextual factors listed in Dunsmuir point towards correctness as the appropriate standard. This contextual approach does not play merely a subordinate role in the standard of review analysis. Resort to this approach is not exceptional and the framework set out in Dunsmuir is manifestly contextual in nature.

While any uncertainty surrounding the jurisdictional question category ought to be resolved another day, the Court has recognized that the concept of jurisdiction continues to play a crucial role in administrative law and has made clear that administrative

decision makers must be correct in their determinations as to the scope of their delegated authority. This is because jurisdictionalquestions are fundamentally tied to both the maintenance of legislative supremacy, which requires that a given statutory body operatewithin the sphere in which the legislature intended that it operate, as well as the rule of law, which requires that all exercises of delegatedauthority find their source in law. Since the

interpretation of s. 5 of the Canadian Human Rights Act is at issue in this case, it is agreed that reasonablenesspresumptively applies. However, and without deciding on whether the nature of the question at issue falls within a category ofcorrectness, the relevant contextual factors listed in Dunsmuir lead to the conclusion that the presumption of reasonableness has beenrebutted in this case, such that the appropriate standard of review is correctness. Firstly, Parliament opted not to shield the Tribunal’sdecisions from exacting review behind a privative clause.

Secondly, provisions within a given human rights statute must be interpretedconsistently across courts and tribunals tasked with its application. Applying a non-deferential correctness standard allows the courts toprovide meaningful guidance as to the scope of these fundamentally important human rights protections, and ensure respect for the ruleof law in such cases. Finally, the Tribunal’s decision responds to a question of law with a constitutional dimension: Who gets to decidewhat types of challenges can be brought against legislative action?

Because this question necessarily implicates the rule of law and theconstitutional duty of superior courts to uphold this fundamental principle, no deference is owed to the Tribunal’s decision in thesecircumstances. There is no dispute that the presumption of deference is not rebutted, solely by either the omission of a privative clause or bythe potential for conflicting lines of authority. But while neither factor may independently call for correctness, they are each indicia thatpoint toward correctness as the appropriate standard.

The wording of s. 5 of the Canadian Human Rights Act focuses on the provision of services and the language suggests that itis geared towards discrimination perpetrated by service providers. The complainants sought to challenge the registration provisions ofthe Indian Act as making discriminatory distinctions on the basis of race, national or ethnic origin, sex and family status. They did notchallenge the actions of the Registrar in processing their applications. Therefore, at their core, these complaints are about Parliament’sdecision not to extend “Indian” status to persons in similar circumstances.

This was properly characterized by the Tribunal as a barechallenge to legislation. Parliament is not a service provider and was not providing a service when it enacted the registration provisionsof the Indian Act. Parliament can be distinguished from the administrative decision makers that operate under legislative authority. Theseindividuals and statutory bodies, which include the Registrar, may be service providers, and if they use their statutory discretion in amanner that effectively denies access to a service or makes an adverse differentiation on the basis of a prohibited ground, s. 5 will beengaged.

But, when they are engaged simply in applying valid legislation, the challenge is not to the provision of services, but to thelegislation itself. The Tribunal was correct in dismissing the complaints for want of an underlying discriminatory practice. Per Brown J.: It is agreed that the Tribunal’s answers to the questions before it were both reasonable and correct.

However,the majority’s discussion regarding true questions of jurisdiction omits a central point that, while not determinative, is an importantconsideration which militates against its suggestion that this category of correctness review might be “euthanized”. In Dunsmuir, thisCourt wrote that “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’sauthority”. This presupposes not only that the treatment of such questions is a matter of first importance, but that such questions continueto exist.

Deciding whether and how any “euthanizing” the category of true questions of jurisdiction is to proceed will require a measureof circumspection. Abolition of that category will necessitate a concomitant shift towards a more flexible, rather than a strictly binarystandard of review framework. There is also concern with the extremely narrow scope for contextual analysis that the majority states,and which would significantly impede that necessary flexibility.

Statements suggesting that contextual review should be appliedsparingly or that it plays a subordinate role are not easily reconciled with the majority’s acknowledgement that reviewing courts ought toexamine factors that show a clear legislative intent justifying the rebuttal of the presumption. If one is considering factors which showlegislative intent, one is undertaking a contextual analysis. Cases Cited By Gascon J. Applied: Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; considered: Public Service Alliance of Canada v.Canada Revenue Agency, 2012 FCA 7, 428 N.R. 240; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’Association, 2011 SCC 61, [2011] 3 S.C.R. 654; referred to: Canada (Attorney General) v. Larkman, 2012 FCA 204, [2012] 4C.N.L.R. 87; Matson v. Canada (Indian and Northern Affairs), 2013 CHRT 13; Andrews v. Canada (Indian and Northern Affairs), 2013CHRT 21; Canada (Attorney General) v. Watkin, 2008 FCA 170, 378 N.R. 268; P.S.A.C. v.

Canada (Revenue Agency), 2010 CHRT 9,[2011] 1 C.T.C. 215; Canada (Attorney General) v. Druken, (FCA), [1989] 2 F.C. 24; Insurance Corp. of BritishColumbia v. Heerspink, (SCC), [1982] 2 S.C.R. 145; Winnipeg School Division No. 1 v. Craton, (SCC),[1985] 2 S.C.R. 150; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), (SCC),[1987] 1 S.C.R. 1114; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143; Quebec (Commissiondes droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789;Tranchemontagne v.

Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; Alberta v. Hutterian Brethrenof Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Wilson v. Atomic Energyof Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47,[2016] 2 S.C.R. 293; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3; Delta Air Lines Inc. v. Lukács, 2018 SCC 2,[2018] 1 S.C.R. 6; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Tervita Corp. v.

Canada(Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161; McLean v. British Columbia (Securities Commission), 2013 SCC 67,[2013] 3 S.C.R. 895; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35,[2012] 2 S.C.R. 283; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471;Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Stewart v. Elk Valley Coal Corp., 2017 SCC30, [2017] 1 S.C.R. 591; Canadian Union of Public Employees, Local 963 v.

New Brunswick Liquor Corp., (SCC),[1979] 2 S.C.R. 227; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364;Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615; Nolan v. Kerry (Canada) Inc., 2009 SCC 39,[2009] 2 S.C.R. 678; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; City of Arlington, Texas v. Federal

Communications Commission, 133 S. Ct. 1863 (2013); ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45,[2015] 3 S.C.R. 219; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Crevier v.Attorney General of Quebec, (SCC), [1981] 2 S.C.R. 220; Alberta (Information and Privacy Commissioner) v.University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555; Nor-Man Regional Health Authority Inc. v. Manitoba Association of HealthCare Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Kanthasamy v.

Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3S.C.R. 909; Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29;Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488; Canada (Citizenship and Immigration) v. Khosa,2009 SCC 12, [2009] 1 S.C.R. 339; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), (SCC), [1993] 2 S.C.R. 756; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011SCC 62, [2011] 3 S.C.R. 708; Beattie v.

Canada (Aboriginal Affairs and Northern Development), 2014 CHRT 1; Canada (AttorneyGeneral) v. Davis, 2013 FC 40, 425 F.T.R. 200; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2012 FC445, [2013] 4 F.C.R. 545; Gould v. Yukon Order of Pioneers, (SCC), [1996] 1 S.C.R. 571; Descheneaux v. Canada(Attorney General), 2015 QCCS 3555, [2016] 2 C.N.L.R. 175; McIvor v. Canada (Indian and Northern Affairs, Registrar), 2009 BCCA153, 306 D.L.R. (4th) 193. By Côté and Rowe JJ. Applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; referred to: Andrews v.

Canada (Indian andNorthern Affairs), 2013 CHRT 21; Matson v. Canada (Indian and Northern Affairs), 2013 CHRT 13; Alberta (Information and PrivacyCommissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Canada (Canadian Human Rights Commission) v.Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Crevier v. Attorney General of Quebec, (SCC), [1981]2 S.C.R. 220; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485; Canada(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Nolan v.

Kerry (Canada) Inc., 2009 SCC 39, [2009] 2S.C.R. 678; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3S.C.R. 616; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2S.C.R. 283; Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488; Canada (Attorney General) v.Watkin, 2008 FCA 170, 378 N.R. 268; Canada (Attorney General) v. Johnstone, 2014 FCA 110, [2015] 2 F.C.R. 595; CanadianNational Railway v.

Seeley, 2014 FCA 111, 458 N.R. 349; University of British Columbia v. Berg, (SCC), [1993] 2S.C.R. 353; Gould v. Yukon Order of Pioneers, (SCC), [1996] 1 S.C.R. 571; New Brunswick (Human RightsCommission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604; Tranchemontagne v. Ontario (Director,Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; Canada Employment Insurance Commission v. M. W., 2014 SSTAD371; Garneau Community League v. Edmonton (City), 2017 ABCA 374, 60 Alta. L.R. (6th) 1; Druken v. Canada (Employment andImmigration Commission), ; Canada (Attorney General) v.

Druken, (FCA), [1989] 2 F.C. 24;Gonzalez v. Canada (Employment and Immigration Commission), (FC), [1997] 3 F.C. 646; McAllister-Windsor v.Canada (Human Resources Development), ; Public Service Alliance of Canada v. Canada Revenue Agency, 2012FCA 7, 428 N.R. 240; Forward v. Canada (Citizenship and Immigration), 2008 CHRT 5; Canada (Human Rights Commission) v.M.N.R., 2003 FC 1280, [2004] 1 F.C.R. 679; Canada (Attorney General) v. McKenna, (FCA), [1999] 1 F.C. 401; Dr.Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226. By Brown J. Referred to: Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; West Fraser Mills Ltd. v. British Columbia(Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635; Canadian Copyright Licensing Agency (AccessCopyright) v. Canada, 2018 FCA 58. Statutes and Regulations Cited Act to amend the Indian Act, R.S.C. 1985, c. 32 (1st Supp.). Act to amend the Indian Act (death rules), R.S.C. 1985, c. 43 (4th Supp.). Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général), S.C.2017, c. 25.

Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians, S. Prov. C.1857, 20 Vict., c. 26,

preamble. Canadian Charter of Rights and Freedoms, s. 15. Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss. 2, 4, 5, 5 to 14.1, 39, 40, 49, 50(2), 62(1), 67 [rep. 2008, c. 30, s. 1]. Constitution Act, 1867, s. 96. Gender Equity in Indian Registration Act, S.C. 2010, c. 18. Human Rights Code, R.S.O. 1990, c. H.19, s. 1. Indian Act, R.S.C. 1985, c. I-5, s. 6. Authors Cited Bastarache, Michel. Dunsmuir 10 Years Later, March 9, 2018 (online:http://www.administrativelawmatters.com/blog/2018/03/09/dunsmuir-10-years-later-hon-michel-bastarache-cc-qc/; archived version:https://www.scc-csc.ca/cso-dce/2018SCC-CSC31_1_eng.pdf).

Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples , vol. 4, Perspectives and Realities . Ottawa, 1996. Daly, Paul. The hopeless search for “true” questions of jurisdiction , August 15, 2013 (online: http://www.administrativelawmatters.com/blog/2013/08/15/the-hopeless-search-for-true-questions-of-jurisdiction/; archived version: https://www.scc-csc.ca/cso-dce/2018SCC-CSC31_2_eng.pdf). Mummé, Claire. “At the Crossroads in Discrimination Law: How the Human Rights Codes Overtook the Charter in Canadian Government Services Cases” (2012), 9 J.L. & Equality 103.

APPEAL from a judgment of the Federal Court of Appeal (Pelletier, de Montigny and Gleason JJ.A.), 2016 FCA 200 , [2017] 2 F.C.R. 211, 487 N.R. 137, [2016] 4 C.N.L.R. 1, 363 C.R.R. (2d) 130, 8 Admin. L.R. (6th) 1, 402 D.L.R. (4th) 160, [2016] F.C.J. No. 818 (QL), 2016 CarswellNat 3213 (WL Can.), affirming a decision of McVeigh J., 2015 FC 398 , [2015] 3 C.N.L.R. 1, 7 Admin. L.R. (6th) 75, 477 F.T.R. 229, [2015] F.C.J. No. 400 (QL), 2015 CarswellNat 893 (WL Can.). Appeal dismissed. Brian Smith and Fiona Keith , for the appellant. Christine Mohr and Catherine A. Lawrence , for the respondent.

Amélie Pelletier-Desrosiers , for the intervener the Attorney General of Quebec. Stephen J. Moreau and Nadia Lambek , for the intervener Tania Zulkoskey. Marie Chen and Niiti Simmonds , for the interveners the Income Security Advocacy Centre, the Sudbury Community Legal Clinic, the Chinese and Southeast Asian Legal Clinic, the Community Legal Assistance Society and the HIV & AIDS Legal Clinic Ontario. Kumail Karimjee and Nabila F. Qureshi , for the intervener the Canadian Muslim Lawyers Association. Kerri Joffe and Dianne Wintermute , for the intervener the Council of Canadians with Disabilities.

Mary Eberts , Kim Stanton and K. R. Virginia Lomax , for the interveners the Women’s Legal Education and Action Fund and the Native Women’s Association of Canada. Stephen Aylward , for the intervener Amnesty International. David P. Taylor and Anne Levesque , for the intervener the First Nations Child and Family Caring Society of Canada. Jeremy E. Matson , on his own behalf. Faisal Mirza and Tamara Thomas , for the intervener the African Canadian Legal Clinic. Emily Hill and Emilie Lahaie , for the intervener the Aboriginal Legal Services.

Andrew Astritis , Andrew Raven and Morgan Rowe , for the intervener the Public Service Alliance of Canada. The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ. was delivered by Gascon J. — I. Overview [ 1 ] This appeal concerns several complaints under the Canadian Human Rights Act , R.S.C. 1985, c. H-6 (“ CHRA ”), that were dismissed by the Canadian Human Rights Tribunal (“Tribunal”) in two decisions. The complaints alleged that the legislative entitlements to registration under the Indian Act , R.S.C. 1985, c. I-5, were discriminatory practices prohibited by the CHRA .

At issue before this Court is, first, whether deference is owed to a human rights tribunal interpreting its home statute and, second, whether the Tribunal’s decisions dismissing the complaints as direct attacks on legislation were reasonable. [ 2 ] All of the complaints arise from the lingering effects of “enfranchisement”, a discriminatory and damaging policy previously enshrined in the Indian Act . Enfranchisement stripped individuals of their Indian Act status and prevented their children from registering as status “Indians”.

Parliament has put an end to enfranchisement and enacted remedial registration provisions. The complainants challenge the sufficiency of these remedial measures, claiming that they and their children continue to suffer discrimination as a legacy of enfranchisement. [ 3 ] The complaints were heard by the Tribunal separately. In both decisions, the Tribunal determined that the complaints were a direct attack on the Indian Act .

In order to establish a discriminatory practice to which the Tribunal could respond, the complainants needed to demonstrate that the legislative provisions fell within the statutory meaning of a service. After a thorough and thoughtful review of their enabling statute, the jurisprudence and policy considerations, the adjudicators in both decisions concluded that legislation was not a service under the CHRA and dismissed the complaints. On judicial review, both the Federal Court and the Federal Court of Appeal found that the Tribunal decisions were reasonable and should be upheld.

I agree, and I would dismiss the appeal. II. Background A. Indian Act Registration

[ 4 ] Since its enactment in 1876, the Indian Act has governed the recognition of an individual’s status as an “Indian”. In its current form, the Indian Act creates a registration system under which individuals qualify for status on the basis of an exhaustive list of eligibility criteria. The Indian Act ’s registration entitlements do not necessarily correspond to the customs of Indigenous communities for determining their own membership or reflect an individual’s Aboriginal identity or heritage.

However, it is incontrovertible that status confers both tangible and intangible benefits. [ 5 ] The complaints underlying this appeal are rooted in a history of deeply harmful and discriminatory aspects of the Indian Act that were largely removed in 1985 and 2011 reforms (

An Act to amend the Indian Act , R.S.C. 1985, c. 32 (1st Supp.),

An Act to amend the Indian Act (death rules) , R.S.C. 1985, c. 43 (4th Supp.), and Gender Equity in Indian Registration Act , S.C. 2010, c. 18). Prior to these reforms, individuals could be “enfranchised”, a euphemism for various legislative processes that would strip them of their Indian Act status. In one form of enfranchisement, the government incentivized individuals to renounce their status by offering such basic rights as citizenship, the right to vote, and the right to hold land in fee simple ( Canada (Attorney General) v. Larkman , 2012 FCA 204 , [2012] 4 C.N.L.R. 87, at para. 12 ).

In another form, a status woman who married a non-status man would be involuntarily “enfranchised” along with any of her children ( Report of the Royal Commission on Aboriginal Peoples , vol. 4, Perspectives and Realities (1996), at p. 25). This policy reflected a discriminatory view of women as subservient to their husbands and entrenched a system of patrilineal descent unfamiliar to many Indigenous communities ( Report , at p. 25). Parliament’s stated intention for enfranchisement was to gradually reduce the number of status “Indians” (see, e.g.,

An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians , S. Prov. C. 1857, 20 Vict., c. 26,

preamble). At its root, enfranchisement was a discriminatory policy aimed at eradicating Aboriginal culture and assimilating Aboriginal peoples ( Larkman , at para. 11 ). [ 6 ] In 1985, Parliament enacted new legislation that eliminated enfranchisement as a practice and created registration provisions entitling those who had lost their status to register (

An Act to amend the Indian Act ) . In 2011, further reforms granted registration eligibility to the children of women who had lost status for marrying a non-status man ( Gender Equity in Indian Registration Act ). During the course of these proceedings, new amendments to the Indian Act have come into force that may impact the Matson siblings’ status eligibility ( An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) , S.C. 2017, c. 25).

The issue of mootness was not, however, fully argued by the parties and it is not necessary to consider it for the disposition of this appeal. I will therefore not comment further on the impact, if any, of the new entitlement provisions. [ 7 ] Underlying all of the complaints are the Indian Act ’s rules for the transmission of status eligibility. Under the current Indian Act , individuals may qualify for one of two forms of status. Section 6(1) status is conferred on individuals who qualify under an exhaustive list of eligibility criteria.

Section 6(2) status is conferred on individuals who are ineligible under s. 6(1) but who have a single parent entitled to s. 6(1) registration. The two forms of status differ mainly in the ability to transmit eligibility to one’s children: a child who has only one parent with s. 6(1) status will be eligible for s. 6(2) status, while a child who has only one parent with s. 6(2) status will not be eligible for status. B. The Complaints in Matson v.

Canada (Indian and Northern Affairs), 2013 CHRT 13 [ 8 ] The complaints in Matson involve three siblings who allege that sex-based discrimination led to their ineligibility for s. 6(1) status, and their children’s ineligibility for s. 6(2) status. Their grandmother lost her status under the Indian Act when she married a non-status man. Following the 1985 amendments, their grandmother was able to regain her status under s. 6(1)(c). The 2011 amendments then allowed their father to obtain status under s. 6(1)(c.1) and the siblings to obtain status under s. 6(2). Their children are, however, ineligible for status.

If the siblings’ status grandparent had been male, they would have been eligible for s. 6(1)(

a) registration and their children would have been entitled to s. 6(2) registration. C. The Complaints in Andrews v. Canada (Indian and Northern Affairs), 2013 CHRT 21 [ 9 ] The Andrews’ complaints concern the impact of the enfranchisement provisions and the scope of subsequent remedial legislation. Mr. Andrews’ father lost his status through an enfranchisement order. Consequently, his first wife and their daughter also lost their status. Mr. Andrews was born after the enfranchisement order was issued and his mother was a non-status woman unaffected by the order. Following the 1985 legislation, Mr. Andrews’ father and his half-sister became eligible for s. 6(1)(

d) status. However, as Mr. Andrews’ mother was never eligible for status, Mr. Andrews is eligible only for s. 6(2) status and his daughter is ineligible for status. If Mr. Andrews had been born before the enfranchisement order, or if no order had been made, he would qualify for s. 6(1) status and his daughter would be eligible for s. 6(2) status. Mr. Andrews’ complaints allege that this result constitutes prohibited discrimination on the grounds of race, national or ethnic origin and family status. D.

Canadian Human Rights Act [ 10 ] Under the CHRA , individuals can file a complaint regarding an enumerated discriminatory practice, and anyone found to have engaged in such a practice may be made subject to an order by the Tribunal ( CHRA , s. 4). The complaints allege that Indian and Northern Affairs Canada (“INAC”) engaged in a discriminatory practice in the provision of services contrary to s. 5 of the CHRA when it denied a form of registration that would permit the complainants to pass on entitlements to their children.

Section 5 reads as follows: 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. III. Decisions Below A. Canadian Human Rights Tribunal Decisions

(1) The Matson Decision [11] In response to the request of the Canadian Human Rights Commission (“Commission”), the Tribunal launched aninquiry into the Matson siblings’ complaints pursuant to s. 49 of the CHRA. In its decision, the Tribunal addressed three issues: (1)whether the complaints involved a direct challenge to the Indian Act; (2) whether the Tribunal was bound by the Federal Court ofAppeal’s decision in Public Service Alliance of Canada v.

Canada Revenue Agency, 2012 FCA 7, 428 N.R. 240 (“Murphy”); and (3)whether the complaints, properly characterized, concerned a discriminatory practice. [12] In the Tribunal decision, the adjudicator, Member Lustig, began the task of characterizing the complaints byreferring, first, to the test for determining what constituted a service stated in Canada (Attorney General) v. Watkin, 2008 FCA 170, 378N.R. 268, and, second, to the holding in Murphy that the CHRA did not permit complaints that directly targeted legislation.

Theadjudicator reviewed the Matson siblings’ submissions and concluded that their complaints, in substance, challenged the eligibilitycriteria under s. 6 of the Indian Act. It was noted that INAC did not have any involvement in determining the eligibility criteria under s. 6of the Indian Act, nor did it have any discretion in applying the criteria. While the act of processing applications and registeringindividuals could be characterized as a service customarily held out to the public, the underlying statutory entitlement to registration wasnot a service held out by INAC to the public.

Rather, it was a benefit offered by

an Act of Parliament. [13] The adjudicator considered whether he was bound by the Federal Court of Appeal decision in Murphy, which heldthat the Tribunal was unable to consider direct challenges to legislation. In Murphy, the complainant had received a settlement paymentfor wage discrimination that had occurred over a number of years. Under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), thesettlement was deemed to be employment income accrued in the year the payment was made.

The Canada Revenue Agency did notapply the qualifying retroactive lump-sum payment analysis, which would have spread the income over previous tax years. This wasbecause the compound interest on the notional tax the complainant would have owed outweighed the benefits of being taxed at a lowerrate. The complainant challenged the assessment as a discriminatory practice under the CHRA. The Tribunal dismissed the complaint onthe basis that it targeted the statutory provisions establishing the impugned assessment calculations (2010 CHRT 9, [2011] 1 C.T.C.215).

Writing for the Federal Court of Appeal, Noël J.A. (as he then was) upheld the Tribunal’s decision. Despite applying areasonableness standard, Noël J.A. endorsed as “correct” the view that the CHRA did not permit direct challenges to legislation (para. 6).He distinguished the prior Federal Court of Appeal decision in Canada (Attorney General) v.

Druken, (FCA), [1989]2 F.C. 24, which had endorsed a direct attack on legislation, on the basis that the Attorney General in that case had conceded that s. 5 ofthe CHRA applied to the impugned provisions of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48 (Murphy, at para. 7). [14] The adjudicator rejected arguments that Murphy was superseded by binding authority from this Court in InsuranceCorp. of British Columbia v. Heerspink, (SCC), [1982] 2 S.C.R. 145, Winnipeg School Division No. 1 v. Craton, (SCC), [1985] 2 S.C.R. 150, Canadian National Railway Co. v.

Canada (Canadian Human Rights Commission), (SCC), [1987] 1 S.C.R. 1114 (“Action Travail des Femmes”), Andrews v. Law Society of British Columbia, (SCC),[1989] 1 S.C.R. 143, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal,2004 SCC 30, [2004] 1 S.C.R. 789 (“Larocque”), and Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC14, [2006] 1 S.C.R. 513.

After careful consideration of this authority, the adjudicator concluded that, while this Court had recognized theprimacy of human rights legislation and the power of human rights tribunals to render conflicting legislation inoperative, none of thesedecisions stood for the premise that an order could be issued without first impugning a discriminatory practice. [15] The adjudicator also considered whether there was conflicting Federal Court jurisprudence or analogous provincialhuman rights jurisprudence that supported the proposition that the Tribunal could consider direct challenges to legislation, and he cameto the same result.

He recognized that in some circumstances a human rights complaint could challenge the conduct of an administratorcarrying out mandatory aspects of a statutory provision, but he held that the complaint still needed to identify a discriminatory practicethat engaged the Tribunal’s remedial authority. [16] The adjudicator rejected arguments that ss. 2, 49(5) and 62(1) of the CHRA supported an expansive

interpretation ofthe term “services” to encompass legislative provisions. Instead, in keeping with the jurisprudence, these provisions pointed to theTribunal’s remedial power to render conflicting legislation inoperative, but they did not indicate that legislation itself constituted aservice under the CHRA.

He similarly rejected the argument that s. 67 of the CHRA had been enacted primarily to shield the Indian Actregistration provisions, and he held that s. 67 had the broader purpose of insulating actions and decisions made pursuant to the IndianAct. [17] The adjudicator thus concluded that, absent a discriminatory practice enumerated under the CHRA, the complainantscould not challenge the provisions of the Indian Act. The adjudicator stated that an application under s. 15 of the Canadian Charter ofRights and Freedoms would be more appropriate, citing Alberta v.

Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R.567, in support of the position that the Charter framework was a better analytical fit for challenges to legislation than the bona fidejustification analysis under the CHRA. He then dismissed the complaints.

(2) The Andrews Decision [18] The Tribunal also commenced an inquiry into the Andrews’ complaints at the request of the Commission. Theadjudicator, Member Marchildon, started her analysis from the proposition that the historical enfranchisement provisions were contrary

to human rights values. However, the adjudicator then identified the determinative issues in Andrews as being whether the complaintsinvolved the discriminatory provision of services and, if not, whether the CHRA allowed for complaints that were solely a challenge tolegislation. [19] As in Matson, the adjudicator considered the jurisprudence on what constituted a service along with thecomplainant’s submissions and concluded that she was faced with a direct attack on s. 6 of the Indian Act.

The adjudicator recognizedthat, while status registration may be a service, the underlying entitlement provisions were the product of Parliament’s sui generislegislative power, which could not be construed as a service under s. 5 of the CHRA. The adjudicator adopted the Matson finding thatMurphy had not been superseded by decisions of this Court and rejected the submission that other authority submitted to her by theCommission amounted to a conflicting line of authority. She further stated that the justification framework set out in R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103, was the more appropriate approach for determining whether rules of general application shouldbe upheld. B. Federal Court (2015 FC 398, 477 F.T.R. 229) [20] The Federal Court dismissed the Commission’s application for judicial review of the Matson and Andrews decisions. [21] McVeigh J. held that the Tribunal had reasonably relied on Murphy to exclude legislation from the definition of aservice. She rejected the Commission’s argument that Murphy was not binding and had been wrongly decided. The Tribunal was, in herview, obliged to follow the vertical convention of precedent.

Regardless, she did not view Murphy as wrongly decided and thus there wasno reason for the Tribunal to depart from it. Further, McVeigh J. found that the Tribunal had reasonably concluded that, while it had thepower to render conflicting legislation inoperable, it did not have the power to grant a remedy unless a discriminatory practice wasestablished under the CHRA. Lastly, after reviewing the legislative history behind s. 67 of the CHRA, McVeigh J. concluded that theTribunal had reasonably held that this was insufficient to ground an expansive

interpretation of the registration provisions as constitutinga service. C. Federal Court of Appeal (2016 FCA 200, [2017] 2 F.C.R. 211) [22] A unanimous Federal Court of Appeal dismissed the Commission’s appeal from the Federal Court’s decision. [23] Writing for the Federal Court of Appeal, Gleason J.A. first considered the application of the standard of review tohuman rights tribunal decisions following Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. She held that thereasonableness standard presumptively applied to a tribunal’s

interpretation of its home statute except where a recognized exceptionapplied or where certain contextual factors indicated that correctness should apply. [24] While recognizing that the correctness standard had on occasion been applied to the review of human rights tribunaldecisions, Gleason J.A. found that the applicable standard of review could be determined by applying general principles ofadministrative law. The

interpretation of human rights legislation did not rise to the standard of a constitutional question warrantingcorrectness review. While the questions determined by human rights tribunals could be of such broad import as to be of centralimportance to the legal system as a whole, they generally did not fall outside the Tribunal’s expertise. Gleason J.A. considered thepossibility that the correctness standard could be applied where other tribunals had jurisdiction to interpret the same provisions of theCHRA, but no such overlap existed in the present case. Therefore, the reasonableness standard applied to the Tribunal’s

interpretation ofs. 5, as well as its

interpretation of the facts of the Matson and Andrews decisions. [25] Gleason J.A. went on to find that the results reached by the Tribunal, and the reasons given, were reasonable. Sheaccepted the Tribunal’s characterization of the complaints as challenges to the act of legislating, agreed that legislatures do not provide“services” when passing laws, and confirmed that the principle of the primacy of human rights law applied only where conflicts betweenthe CHRA and other legislation arose in cases addressing a discriminatory practice.

Gleason J.A. also held that the Tribunal’s inability togrant an effective remedy supported the conclusion that s. 5 was not engaged. She considered the Tribunal’s approach to have anunassailable policy rationale, finding that there was no reason why the Tribunal should be an alternate forum for adjudicating issuesregarding the alleged discriminatory nature of legislation when a Charter application was a more appropriate vehicle.

Finally, on theissue of access to justice, Gleason J.A. disagreed with the Commission’s view that the Tribunal was a more accessible forum than thecourts. [26] For all of the foregoing reasons, Gleason J.A. concluded that there was no basis upon which to declare that Murphywas no longer good law or that the Tribunal’s decisions were otherwise unreasonable. IV. Analysis A.

Applicable Standard of Review [27] This Court has for years attempted to simplify the standard of review analysis in order to “get the parties away fromarguing about the tests and back to arguing about the substantive merits of their case” (Alberta (Information and Privacy Commissioner)v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 36, citing Dunsmuir, at para. 145, per Binnie J.).

To thisend, there is a well-established presumption that, where an administrative body interprets its home statute, the reasonableness standardapplies (Dunsmuir, at para. 54; Alberta Teachers, at para. 39; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R.770, at para. 15; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 22;Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3, at paras. 33-34; Delta Air Lines Inc. v.

Lukács, 2018 SCC 2,[2018] 1 S.C.R. 6, at para. 8). [28] The presumption may be rebutted and the correctness standard applied where one of the following categories can beestablished: (1) issues relating to the constitutional division of powers; (2) true questions of vires; (3) issues of competing jurisdictionbetween tribunals; and (4) questions that are of central importance to the legal system and outside the expertise of the decision maker(Capilano, at para. 24; Dunsmuir, at paras. 58-61). Exceptionally, the presumption may also be rebutted where a contextual inquiry

shows a clear legislative intent that the correctness standard be applied (Capilano, at para. 34; Mouvement laïque québécois v. Saguenay(City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46; Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1S.C.R. 161, at paras. 35-36 and 38-39; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para.22; Rogers Communications Inc. v.

Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283,at para. 15). [29] In applying the standard of review analysis, there is no principled difference between a human rights tribunal andany other decision maker interpreting its home statute (Canada (Canadian Human Rights Commission) v. Canada (Attorney General),2011 SCC 53, [2011] 3 S.C.R. 471 (“Mowat”), at paras. 22-24; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11,[2013] 1 S.C.R. 467, at paras. 167-168; Saguenay, at para. 50; Stewart v.

Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591, atpara. 22). Human rights tribunals are equally entitled to deference where they apply their home statute. [30] In both of its decisions, the Tribunal was called upon to characterize the complaints before it and ascertain whether adiscriminatory practice had been made out under the CHRA. This falls squarely within the presumption of deference.

Still, theCommission has submitted that the presumption can be rebutted on the basis that the Tribunal’s decisions raise a question of centralimportance outside its expertise or on the basis that a contextual analysis shows deference is unwarranted. While not urged by theCommission, continued uncertainty as to the applicability of the category of true questions of vires necessitates also addressing it briefly.

(1) True Questions of Jurisdiction [31] True questions of vires have been described as a narrow and exceptional category of correctness review (AlbertaTeachers, at para. 39), confined to instances where the decision maker must determine whether it has the authority to enter into theinquiry before it (Dunsmuir, at para. 59; Guérin, at para. 32). In this sense, “true” questions of jurisdiction involve a far narrowermeaning of “jurisdiction” than the one ordinarily employed. This narrow sense of jurisdiction was emphasized by Dickson J. (as he thenwas) in Canadian Union of Public Employees, Local 963 v.

New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227(“CUPE”), where he warned that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, thatwhich may be doubtfully so” (p. 233). This Court reaffirmed the narrow approach to jurisdiction in Dunsmuir when it explicitly rejecteda return to the jurisdiction/preliminary question doctrine that had “plagued the jurisprudence” (para. 59; see also Halifax (RegionalMunicipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at para. 34).

A departure from thisconstrained understanding of jurisdiction would only risk resurrecting long-buried debates. [32] Neither the Commission nor any lower court has suggested that this case involves the enigmatic category of truequestions of vires. But the issue on appeal has, at times, been characterized by the parties and the courts below as being whether theTribunal has the “jurisdiction” to consider direct attacks to legislation or whether the courts are the better forum to ascertain the validityof legislation.

However, distilled to its essentials, the question before the Tribunal was whether legislative entitlements under the IndianAct fell within the definition of a service under the CHRA. As such, the Tribunal was determining whether the complaints concerned adiscriminatory practice as defined by the CHRA. [33] There is no question that the Tribunal had the authority to hear a complaint about a discriminatory practice.

To thatend, the question of what falls within the meaning of “services” is no more exceptional than those found in other cases where a majorityof this Court has repeatedly declined to recognize a true question of jurisdiction (Guérin, at paras. 33-36; Capilano, at para. 26; AlbertaTeachers, at para. 33; CUPE, at pp. 233-34; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615, atpara. 39; Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, at para. 35; Smith v. Alliance Pipeline Ltd., 2011 SCC 7,[2011] 1 S.C.R. 160, at para. 36; Mowat, at paras. 24-25).

To find that the Tribunal was faced with a true question of vires would onlyrisk disinterring the jurisdiction/preliminary question doctrine that was clearly put to rest in Dunsmuir. Plainly, the definition of a serviceunder the CHRA is not a true question of vires. [34] That being said, the persistent uncertainty over this category’s scope requires further comments. Since its inclusionas a category of correctness review in Dunsmuir, the concept of true questions of vires has been as elusive as it has been controversial.

InAlberta Teachers, a majority of this Court considered eliminating vires review, remarking that it served little purpose but “has causedconfusion to counsel and judges alike” (para. 38; see also paras. 34-42). The majority stressed that it was “unable to provide a definitionof . . . a true question of jurisdiction” (para. 42). [35] I pause here to note that it is indeed a challenge to identify a true question of jurisdiction in a coherent mannerwithout returning to the jurisdiction/preliminary question doctrine that this Court clearly rejected in both CUPE (p. 233) and Dunsmuir(para. 35).

In the view of some, most questions that might be identified as “jurisdictional” involve nothing more than an

interpretation ofa decision maker’s home statute or a closely related statute (P. Daly, The hopeless search for “true” questions of jurisdiction (August 15,2013) (online)). In McLean, Moldaver J. observed that the U.S. Supreme Court has rejected the distinction between jurisdictional andnon-jurisdictional

interpretations of a home statute as a “mirage” (fn. 3, citing City of Arlington, Texas v. Federal CommunicationsCommission, 133 S. Ct. 1863 (2013), at p. 1868). [36] Nonetheless, in Alberta Teachers, the majority stayed its hand and instead emphasized that, if they exist, “[t]ruequestions of jurisdiction are narrow and will be exceptional” (para. 39). It was left to future litigants to overcome the heavy burden ofestablishing that they have indeed discovered a true question of vires (para. 42).

Yet, to date, no litigant has met this challenge before us. [37] Since Alberta Teachers, the search for true questions of vires has, in fact, been fruitless. When the existence of sucha question has been argued by litigants, this Court has reasserted the narrow and exceptional nature of this category (Guérin, at para. 32;Capilano, at para. 26; SODRAC, at para. 39; ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45, [2015] 3S.C.R. 219, at para. 27; Canadian National Railway Co. v.

Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 61).In 2013, an academic commentator characterized the search for a true question of jurisdiction as “hopeless”, noting that this Court hadyet to identify one five years after Dunsmuir (Daly). It is now 10 years from Dunsmuir and the search remains just as hopeless. Inapplying Dunsmuir, this Court has been unable to identify a single instance where this category was found to be applicable.

[38] No more would need to be said on this matter if true questions of vires had simply faded into obscurity. However,that has not happened. The difficulty with true questions of vires is that jurisdiction is a slippery concept.

Where decision makersinterpret and apply their home statutes, they inevitably determine the scope of their statutory power (Alberta Teachers, at para. 34).There are no clear markers to distinguish between simple questions of jurisdiction (i.e., questions that determine the scope of one’sauthority) and true questions of vires (i.e., questions that determine whether one has authority to enter into the inquiry). Such imprecisiontempts litigants and judges alike to return to a broad understanding of jurisdiction as justification for correctness review contrary to thisCourt’s jurisprudence.

As a result, the elusive search for true questions of vires may both threaten certainty for litigants and underminelegislative supremacy. [39] For some, the continued existence of the category of true questions of vires may seem to provide conceptual value, atmost. In his concurrence in Alberta Teachers, Cromwell J. wrote a spirited defence of the conceptual necessity of correctness review forjurisdiction given the courts’ supervisory power over the bounds of jurisdiction, but even he conceded that the category of true questionsof vires has little analytical value in the standard of review analysis (para. 94).

It remains an open question whether conceptual necessitycan justify the resources that courts and parties devote to the attempt to define an inherently nebulous concept. [40] Our jurisprudence has held that the constitutional guarantee of judicial review is premised on the courts’ duty toensure that public authorities do not overreach their lawful powers (Dunsmuir, at para. 29; Crevier v. Attorney General of Quebec, (SCC), [1981] 2 S.C.R. 220, at pp. 234-38).

However, the jurisprudence has also affirmed that judicial review is based onrespect for the choices of the legislature’s delegated decision makers and recognizes the legitimacy of multiple reasonable

interpretationsof a statute (Dunsmuir, at para. 35; McLean, at para. 33). In matters of statutory

interpretation where there is only one reasonable answer,this Court has shown that the reasonableness standard still allows the reviewing court to properly deal with the principles of the rule oflaw and legislative supremacy that remain at the core of the judicial review analysis (McLean, at para. 38; Mowat, at para. 34; Dunsmuir,at para. 75). In this regard, reasonableness review is often more than sufficient to fulfil the courts’ supervisory role with regard to thejurisdiction of the executive. [41] The reality is that true questions of jurisdiction have been on life support since Alberta Teachers.

No majority of thisCourt has recognized a single example of a true question of vires, and the existence of this category has long been doubted. Absent fullsubmissions by the parties on this issue and on the potential impact, if any, on the current standard of review framework, I will onlyreiterate this Court’s prior statement that it will be for future litigants to establish either that the category remains necessary or that thetime has come, in the words of Binnie J., to “euthanize the issue” once and for all (Alberta Teachers, at para. 88).

(2) Questions of Central Importance [42] The Commission argues that the Tribunal’s decisions raise a question of central importance in which it lacksexpertise because other federal tribunals with the power to determine general questions of law have concurrent jurisdiction to interpretthe scope of s. 5 of the CHRA. Dunsmuir recognized that the correctness standard of review can apply to questions of law that are both ofcentral importance to the legal system as a whole and outside the decision maker’s specialized area of expertise (paras. 55 and 60).

SinceDunsmuir, this category of correctness review has been applied only twice by this Court — first in Saguenay, at paras. 49-51, and then inAlberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at paras. 21-22 and 26.Indeed, this Court has repeatedly rejected a liberal application of this category (see, e.g., Nor-Man Regional Health Authority Inc. v.Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at para. 38; Whatcott, at para. 168; Kanthasamyv.

Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at para. 44; Commission scolaire de Laval v. Syndicat del’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29, at para. 34; Alberta Teachers, at para. 32; Barreau du Québec v.Quebec (Attorney General), 2017 SCC 56, [2017] 2. S.C.R. 488, at para. 18; Canadian National Railway, at paras. 60 and 62; McLean,at para. 28). [43] Here, the Tribunal has extensive expertise in determining what is meant by a discriminatory practice.

The ability ofother federal tribunals to apply the CHRA does not rob the Tribunal of its expertise in its home statute. Regardless of whether thequestions before the Tribunal rose to the requisite level of importance, they were clearly within the Tribunal’s expertise. This categorydoes not apply.

(3) Contextual Approach [44] The Commission also urged that a contextual analysis rebuts the presumption of reasonableness review. It arguedthat this shows clear legislative intent that the correctness standard applies, largely on the ground that the Tribunal changed the“foundational legal test” for what constitutes a service under the CHRA. On the basis of their contextual analysis, my colleagues Côtéand Rowe JJ. would also apply a correctness standard of review.

Respectfully, I disagree with both positions. [45] The presumption of reasonableness was intended to prevent litigants from undertaking a full standard of reviewanalysis in every case. Where the presumption applies, such simplicity requires that the contextual approach play a subordinate role inthe standard of review analysis. Certainly, this Court has indicated that, occasionally, such a contextual inquiry can rebut thepresumption of deference (Saguenay, at para. 46; Capilano, at para. 32; Tervita, at para. 35; McLean, at para. 22; Barreau du Québec, atpara. 23).

However, the Court has also noted that this will occur in the “exceptional other case” (Rogers, at para. 16 (emphasis inoriginal)). [46] This contextual approach should be applied sparingly. As held by the majority of this Court in Alberta Teachers, it isinappropriate to “retreat to the application of a full standard of review analysis where it can be determined summarily” (para. 44).

Afterall, the “contextual approach can generate uncertainty and endless litigation concerning the standard of review” (Capilano, at para. 35).The presumption of reasonableness review and the identified categories will generally be sufficient to determine the applicable standard.In the exceptional cases where such a contextual analysis may be justified to rebut the presumption, it need not be a long and detailedone (Capilano, at para. 34).

Where it has been done or referred to in the past, the analysis has been limited to determinative factors thatshowed a clear legislative intent justifying the rebuttal of the presumption (see, e.g., Rogers, at para. 15; Tervita, at paras. 35-36; seealso, Saguenay, at paras. 50-51).

[47] In this regard, I cannot agree with my colleagues Côté and Rowe JJ.’s characterization of the current standard ofreview framework as requiring correctness review wherever the “contextual factors listed in Dunsmuir point towards correctness as theappropriate standard” (para. 73). Where the presumption of reasonableness review applies, as it does here, this suggestion is contrary tothe contextual approach’s ancillary role in our current jurisprudence and would undermine the certainty this Court has sought to establishin the past decade.

While this Court may eventually find it necessary to revisit the standard of review framework, dissatisfaction with thecurrent state of the law is no reason to ignore our precedents following Dunsmuir. To do so only adds confusion to an already challengingarea of law. [48] Turning to the specifics of this case with this guidance in mind, there are no factors present in this appeal that wouldnecessitate a long and detailed contextual analysis to rebut the presumption. The Commission’s submission that changes to “foundationallegal tests” require the application of a correctness standard must be rejected.

It has no basis in the jurisprudence, is not a clear indicatorof legislative intent, and would risk adding only more uncertainty to the standard of review analysis. Moreover, I would be cautious notto expand the appropriate factors beyond those enumerated in Dunsmuir without a principled basis for doing so, as this would inviteunprincipled interference with the legislature’s delegates. [49] I also consider it necessary to address my colleagues Côté and Rowe JJ.’s own application of the contextual analysisin this case.

None of the factors they raise, in my opinion, warrants the application of the contextual approach or, by extension,correctness review. With respect, I am of the view that their treatment of the contextual analysis is unsupported by, and at points contraryto, this Court’s jurisprudence. [50] With regard to the absence of a privative clause, this Court has long since established that such an omission does notrebut the presumption of deference (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 25;Mowat, at para. 17).

To the contrary, the fact that the legislature has allocated authority to a decision maker other than the courts is itselfan indication that the legislature intended deferential review (Khosa, at para. 25). [51] This Court’s jurisprudence also does not support correctness review on the basis that other administrative tribunalsmay consider the CHRA.

Certainly, this Court has recognized that correctness review may be applied where a tribunal is not part of a“discrete and special administrative regime” because it shares jurisdiction with the courts or because there is clear language indicatingthat it is to be treated as if it were a court (Rogers, at para. 15 (emphasis deleted), citing Dunsmuir, at para. 55; see also Tervita, at para.38). This is distinguishable, however, from the situation where a tribunal applies its home statute, the courts have no concurrentjurisdiction and there is no explicit appeal clause.

Indeed, in my view, the approach taken by Côté and Rowe JJ. would create a newcategory of correctness review for alleged questions of central importance regardless of the tribunal’s expertise. [52] The potential for conflicting lines of authority does not warrant correctness review either. This Court has recognizedthat conflicting lines of authority do not, on their own, justify judicial review and it has applied a deferential standard where they havebeen raised (Wilson, at para. 17; Barreau du Québec, at para. 19; Smith, at para. 38; Domtar Inc. v.

Quebec (Commission d’appel enmatière de lésions professionnelles), (SCC), [1993] 2 S.C.R. 756, at pp. 800-801). I also doubt that there is aconflicting line of authority in this case. The approach to s. 5 of the CHRA taken in Druken in 1998 was set aside in Murphy in 2012, andthis guidance has since been followed. Tellingly, the most recent conflicting authority Côté and Rowe JJ. have identified dates back 17years. [53] Lastly, I take issue with the treatment Côté and Rowe JJ. give to the nature of the question at issue and the purposeof the Tribunal.

Interpreting the scope of the term “services” does not have a constitutional dimension. No

interpretation of s. 5 of theCHRA could prevent superior courts from hearing challenges under s. 15 of the Charter or give the Tribunal the power to hear Charterapplications. Indeed, framing these factors as a question of whether certain questions are better suited for courts effectively applies thejurisdiction/preliminary question doctrine. As discussed, this doctrine was long ago put to rest (CUPE, at p. 233; Dunsmuir, at para. 59;Halifax, at para. 34). [54] As the presumption that reasonableness review applies is not rebutted, the Tribunal’s decisions will be reviewed ona reasonableness standard, as it was at the Federal Court and the Federal Court of Appeal. B. Review of the Decisions

(1) The Reasonableness Standard [55] In reasonableness review, the reviewing court is concerned mostly with “the existence of justification, transparencyand intelligibility within the decision-making process” and with determining “whether the decision falls within a range of possible,acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, at para. 47; Newfoundland and Labrador Nurses’Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 14).

When applied to a statutoryinterpretation exercise, reasonableness review recognizes that the delegated decision maker is better situated to understand the policyconcerns and context needed to resolve any ambiguities in the statute (McLean, at para. 33). Reviewing courts must also refrain fromreweighing and reassessing the evidence considered by the decision maker (Khosa, at para. 64). At its core, reasonableness reviewrecognizes the legitimacy of multiple possible outcomes, even where they are not the court’s preferred solution.

(2) Application [56] In both decisions, the Tribunal provided careful and well-considered reasons explaining why the complaints had notestablished a discriminatory practice under the CHRA. The adjudicators first characterized the complaints as direct attacks on legislation.They then found that, while the CHRA conferred remedial authority to render conflicting legislation inoperable, the Tribunal could notgrant a remedy unless a discriminatory practice had first been established.

They then concluded that legislation per se was not a serviceunder the s. 5 prohibition of discriminatory practices in the provision of services. In coming to this conclusion, the adjudicatorsconsidered the complainants’ evidence and submissions, the governing jurisprudence, the purpose, nature and scheme of the CHRA, andrelevant policy considerations. The decisions meet the Dunsmuir standard of intelligibility, transparency and justifiability, and fall withinthe range of reasonable outcomes (para. 47).

[57] The critical issue for the adjudicators to decide was whether the complaints constituted a direct attack on legislationor whether they concerned discrimination in the provision of a service. It is uncontroversial that actions of the executive in providingservices primarily available to the public are reviewable under human rights legislation (see, e.g., Tranchemontagne; Beattie v. Canada(Aboriginal Affairs and Northern Development), 2014 CHRT 1; Canada (Attorney General) v. Davis, 2013 FC 40, 425 F.T.R. 200;Canada (Canadian Human Rights Commission) v.

Canada (Attorney General), 2012 FC 445, [2013] 4 F.C.R. 545). What iscontroversial is consideration of complaints that, in substance, solely target legislation. In reviewing such complaints, human rightstribunals are faced with the challenging task of distinguishing between administrative services and legislation. Human rights tribunals infederal and provincial jurisdictions have taken various approaches to making such a distinction (C.

Mummé, “At the Crossroads inDiscrimination Law: How the Human Rights Codes Overtook the Charter in Canadian Government Services Cases” (2012), 9 J.L. &Equality 103, at pp. 116-17). Since this raises a question of mixed fact and law squarely within their expertise, human rights tribunals arebest situated to develop an approach to making such distinctions. Under reasonableness review, the reviewing court’s task is to supervisethe tribunal’s approach in the context of the decision as a whole.

Its role is not to impose an approach of its own choosing. [58] The adjudicators approached the characterization of the complaints by looking at the jurisprudence for determiningwhat constitutes a service under s. 5 of the CHRA and by considering the nature of the allegations, the wording of the complainants’submissions and the relationship between the Registrar and the s. 6 entitlement provisions of the Indian Act. Both adjudicators placedweight on the complainants’ submissions that framed their complaints as targeting the Indian Act entitlement provisions.

Theadjudicators found that the complaints did not impugn the means by which the Registrar had processed their applications, butsubstantively targeted the eligibility criteria that the Registrar was required to apply. On this basis, the adjudicators reasonably concludedthat the complaints before them were properly characterized as direct attacks on legislation. [59] After concluding that the complaints impugned legislative criteria rather than the process of registration, theadjudicators turned to consider whether the complainants were capable of making out a discriminatory practice under the CHRA.

All ofthe complaints alleged that INAC had engaged in a discriminatory practice by denying a service, or by subjecting the complainants toadverse differentiation with respect to a service, on prohibited grounds. The adjudicators therefore sought to determine whetherlegislation fell within the statutory definition of a service. [60] The Tribunal reasonably considered the guidance provided by the Federal Court of Appeal in Murphy and theunderlying Tribunal decision that the Federal Court of Appeal had endorsed in that judgment.

It is unnecessary for the disposition of thisappeal to determine the degree to which Murphy constituted binding authority or how such a decision could be overturned by this Courton reasonableness review. While the adjudicators considered themselves bound by Murphy, they still conducted a thorough analysis todetermine whether or not Murphy had been superseded either by binding authority or by the CHRA.

Both decisions can stand on theirown merits. [61] In considering the authorities from both this Court and provincial jurisdictions, the adjudicators distinguished theprimacy of human rights legislation and the statutory prohibition against discriminatory practices. They recognized that decisions such asHeerspink, Craton, Action Travail des Femmes, Andrews v. Law Society of British Columbia, Larocque, and Tranchemontagneconsidered that human rights legislation could render conflicting legislation inoperable.

Hence, where a discriminatory practice withoutbona fide justification is established, the Tribunal has the power to order administrators to stop applying conflicting provisions.However, as the Tribunal indicated, in all such cases the human rights tribunals were responding to an established discriminatorypractice. None of these cases stood for the proposition that legislation in general fell within the meaning of “services”. The Tribunalreasonably did not take the jurisprudence on its remedial authority as overturning Murphy or as necessitating an expansive

interpretationof the meaning of “services”. [62] The adjudicators also reasonably considered whether legislation could fall under the definition of a service based onGould v. Yukon Order of Pioneers, (SCC), [1996] 1 S.C.R. 571, and Watkin. The adjudicator in Andrews noted that thesui generis nature of Parliament’s power to legislate is inconsistent with the characterization of law-making as a public service and thatlaw-making does not have the transitive connotation necessary to identify a service customarily offered to the public. [63] There is also no issue with the Tribunal’s review of the scheme of the CHRA.

Both adjudicators found that theprovisions raised by the Commission were entirely consistent with the distinction made between the primacy of human rights legislationand the scope of the CHRA’s prohibition of discriminatory practices. Section 49(5), which requires that the adjudicator assigned to caseswhere legislation may be rendered inoperable be a lawyer, and s. 62(1), which immunizes pension legislation from review, are consistentwith the distinction between the primacy of the CHRA and the scope of its prohibition of discriminatory practices. Neither provisionsupports the

interpretation that all legislation could be subject to review by the Tribunal. The now repealed s. 67 of the CHRA, whichimmunized the Indian Act from human rights complaints, was consistent with Parliament’s intent to shield services rendered pursuant tothe Indian Act from challenge. In any event, on its own, s. 67 was insufficient to infer that Parliament intended to allow direct challengesto all other legislation. [64] The Commission and interveners have raised numerous policy grounds upon which direct challenges to legislationshould be considered by the Tribunal.

However, it is not for a reviewing court to reweigh policy considerations. The adjudicators clearlyconsidered the practical difficulties and challenges to democratic legitimacy involved in evaluating challenges to legislation under thebona fide justification requirement. There is nothing unreasonable about this determination. [65] I would conclude by noting that the analysis of s. 5 of the CHRA in Côté and Rowe JJ.’s reasons does not differsignificantly from that of the Tribunal. Indeed, I fail to see where their analysis adds to the Tribunal’s

interpretation of its own statute,which engaged substantially with the human rights jurisprudence and addressed the difficult question of when a complaint is properlycharacterized as an attack on legislation. Given this, I would question whether this Court, or any reviewing court, is necessarily bettersituated to interpret this decision maker’s home statute. V. Conclusion [66] The Tribunal reviewed all of the complaints in carefully co

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