Law students across the country are speaking out against Trinity Western University’s application for a law school.

Law students across the country are speaking out against Trinity Western University’s application for a law school.

abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

“It’s very clear in this policy that LGBTQ individuals are not welcome at Trinity Western University,” says Douglas Judson, a second-year JD/MBA student and co-chairman of the Osgoode OUTlaws.

“The policy directly targets LGBTQ individuals and we think that the type of environment that creates for legal study is not necessarily suitable for inspiring young lawyers,” he tells Legal Feeds.

Student groups from various law schools — including Osgoode Hall Law School, University of Victoria, University of Saskatchewan, Dalhousie University, University of Alberta, University of British Columbia, University of Ottawa, and Université du Québec à Montréal — wrote letters to the Federation of Law Societies of Canada, asking the federation to consider their concerns when deciding TWU’s fate.

Judson says law schools should propagate the values of the Canadian Charter of Rights and Freedoms and Canadian legal values.

“There has to be an added duty on a law school to reflect the spirit of the law and give the law itself a fair hearing in the classroom. We don’t see how [TWU] could do that when their policies inherently discriminate at risk of expulsion,” he says.

“How do you have open discussions about contemporary issues? How does a student become fluent in dealing with clients from various walks of life with various personal legal problems?”

Students aren’t the only ones speaking out against TWU’s application. 

The Canadian Bar Association also weighed in on the issue earlier this week in a letter to the FLSC. "In our view, the federation and the committee charged with approving new Canadian law degree programs must strike a balance between freedom of religion and equality, and give full consideration to its public interest mandate and to the values embodied in Canadian human rights laws," wrote CBA president Robert Brun.

"Based on the delegations of power from its constituent law societies, the federation has a duty to go beyond a strict determination of a proposed law school’s compliance with the national standards. It must assess whether the institution and its program complies with Canadian law, including the protections afforded by the Canadian Charter of Rights and Freedoms and the human rights legislation in B.C., and in every province and territory where a proposed law degree may be recognized by the law societies for admission to bar."

At the bi-annual meeting of the Canadian Council of Law Deans on Nov. 9, there was also quite a buzz about this very issue. The CCLD expressed its concerns in a letter to the FLSC shortly after.

“As law schools we’re committed to non-discrimination and equal treatment of our students, and we certainly would not purport to discipline students who engage in extra-marital activities or same-sex activities,” Bill Flanagan, Queen’s University law dean and CCLD president, told 4Students.

In response, the FLSC wrote: “The national requirement, approved by law societies, does not contemplate or authorize an inquiry into the admission philosophy of a law school program, either existing or new, or an investigation into whether the admission policies of an educational institution are consistent with federal or provincial law.”

Trinity Western was previously challenged on this issue when it tried to establish its teachers’ college. The British Columbia College of Teachers refused to accredit the program because the school’s standards “embodied discrimination against homosexuals.” That dispute went all the way to the Supreme Court of Canada, which ruled the BCCT was required to approve the program.

Antibiotic Resistance Poses Major Threat to Public Health One of the most fundamental and life-saving tools in medicine is endangered. Ontario’s doctors are calling on government to address the growing crisis of antibiotic resistance while there is still time.

Toronto, March 20 2013 – One of the most fundamental and life-saving tools in medicine is endangered. Ontario’s doctors are calling on government to address the growing crisis of antibiotic resistance while there is still time.

According to a new report by the Ontario Medical Association, infections with antibiotic-resistant bacteria are becoming more frequent and difficult to treat, resulting in serious illness and even death. Ontario’s doctors warn that the over-use of these crucial medicines weakens their ability to save human lives; we call on federal and provincial governments to immediately enact regulatory changes that will help to reverse this threat by reducing the growth of antibiotic resistant bacteria.

The report, titled “When Antibiotics Stop Working,” finds antibiotics are not as effective as they once were because bacteria are adapting to them. These resistant bacteria are germs that can cause infections like pneumonia, urinary tract infections, or skin infections. For example, ten years ago one dose of antibiotics could have effectively treated a child suffering from strep throat, but it is now becoming more common for a child to have repeated strep throat infections, and for these to develop into more serious consequences, like scarlet fever. And if the first-choice antibiotic fails, physicians are forced to prescribe new ones with harsher side effects.

It is important that everyone who has access to antibiotics shift perspectives and begin to use them as responsibly and prudently as possible. Using antibiotics more carefully, for example, means closing the loophole that allows farmers to feed these medications to their livestock without prescriptions simply to promote growth. And it means keeping better track of patients’ antibiotic histories so that physicians can prescribe the medication most likely to work.

Among the recommendations:

• Develop a system for farm industry surveillance to keep track of the identities and quantities of antibiotics being purchased, and those being moved into or out of Ontario. Currently, surveillance of antibiotic movement does not exist in the province;
• stablish an independent institution to develop and maintain optimal antibiotic use guidelines that Ontario physicians can use to guide their practice, particularly when dealing with resistant bacteria and less familiar antibiotics.
• A veterinary prescription-only standard of access to antibiotics for animals must be instituted;
• Amend the Food and Drugs Act and its Regulations to close the loophole allowing farmers to import antibiotics for their own use.

Quote:

Ontario’s doctors are concerned about the growing rate of antibiotic resistant bacteria. Patients are at risk of becoming sicker, taking longer to recover and it some cases dying from previously treatable diseases. Data shows that we can reduce antibiotic resistant bacteria when the use of antibiotics is modified. Adopting the recommendations in the report will help us achieve this.

- Dr. Doug Weir President Ontario Medical Association

For a copy of the report, click here:

Key Recommendations:

• The Government of Ontario must develop a system for farm industry surveillance to keep track of the identities and quantities of antibiotics being purchased, and those being moved into or out of Ontario. Currently, surveillance of antibiotic movement does not exist in the province.
• Surveillance should be established in areas where it does not exist (agriculture) and strengthened in areas where it does exist (medicine) in order to collect data and gain a firmer understanding about antibiotic resistance in both humans and animals.
• Electronic health records should be utilized to allow physicians to compare patients’ past prescriptions and diagnoses. This would reduce variability and allow physicians in the community, hospital, emergency department, or long-term care facility to make optimal decisions about which antibiotics to prescribe to patients.
• An independent institution should be established in conjunction with one of Ontario’s medical schools to use currently available data to develop and maintain optimal antibiotic use guidelines that physicians in Ontario can use to guide their practice, particularly when dealing with resistant bacteria and unfamiliar antibiotics.
• Ontario should ban the prophylactic or growth-promoting use of antibiotics, whether extra-label or indicated, in animal husbandry. This step is fundamental to preserving the effectiveness of antibiotics.
• A veterinary prescription-only standard of access to antibiotics for animals must be instituted. The province should require a veterinary prescription and/or supervision of the use of all antibiotics on farms. The current practice allows for unsupervised, unscientific, and ultimately dangerous application of important medications.
• Amendments to Ontario’s Livestock Medicines Act must be made to close the “own use” loophole created by the Food and Drugs Act and its Regulations, to ensure that large volumes of antibiotics cannot be freely imported into the province and be applied to animals en masse without surveillance or regulation.
• The federal government must engage in antibiotic conservation and amend the Food and Drugs Act and its Regulations to close the “own use” loophole. People importing antibiotics for any reason should all be held to the same standards, and surveillance should be established to allow the collection of data about which drugs are entering our country and what their intended use is.
• The federal government should provide funding for research, strengthened surveillance, and educational campaigns focused on antibiotic resistance. There is a dearth of community-based surveillance of organisms and resistance patterns, and this must be rectified.
• Everyone who has access to antibiotics must act responsibly and prudently with them. Patients must work alongside physicians to modify the expectations of receiving antibiotics for certain infections, even if patients have received antibiotics in the past for similar complaints. Physicians, patients, allied health-care professionals, and dispensing parties (pharmacists), need to be aware of the importance of this issue and incorporate that knowledge into their own practice and use.

David Letterman - Keith Olbermann vs Current TV

10-03-06 Keith Olbermann on the Late Show with David Letterman

My concerns over changes to blood product collection in Canada and my correspondence with politicians about same

Recently, Health Canada and the provinces have introduced changes in blood and plasma collection are going to be conducted.  I had some concerns so I emailed my federal MP who then told me it was strictly a provincial matter.  Then I find out in a CBC story that Ontario Health Minister Deb Matthews had concerns about the for-profit plasma clinics that were supposed to open in Toronto and Hamilton and now wants it reviewed.  The following is a copy of email correspondence with names and locations redacted for privacy reasons, except for the use of the Ontario Health Ministers name and Federal Health Ministers name as they are high profile and well known nationally.
My initial message:

Feb. 26/13

Hello

I am writing to you today to voice my concerns about the recent changes that Canadian Blood Services have implemented regarding both blood collection and plasma processing.

Let me start with blood collection. Recently the media has reported that fewer nurses or physicians will be used to screen potential donors and collect blood. This responsibility will be transferred to technicians that do not necessarily have the full medical background to do the job. I am OK with technicians collecting blood however nurses and doctors are specifically trained in how to take a medical history and how to ask questions related to a prospective donors medical history that could not or would not be on the form. I know this was pointed out in media reports as well however, even if they hadn't I would have come to the same conclusions especially after the tainted blood scandal of the 1980's through 1990's. I know these changes will save Canadian Blood Services money, in fact they said as much but trying to do things on the cheap can sometimes lead to unintended consequences as the Canadian Red Cross found out. I certainly hope the Health Minister will reconsider her current position on this matter.

I'll now move on to plasma processing. It is my understanding that two private plasma clinics will begin operations in the near future. For the first time they will monetarily compensate a donor. I am aware it is not illegal to pay for blood in Canada but until recently, it has NOT been the practice to do so. In the tainted blood scandal inquiry, it was strongly recommended that Health Canada actually write a regulation preventing monetary compensation to blood/plasma donors. That recommendation was not implemented but I think it should have been and suggest to you that it should be done as soon as possible before there are any safety or ethical incidents. Avoiding a scandal is better than falling into one.

Thank you for your time.

--------------------------------------------------------------------------------------------------

Response from my MP:

March 5, 2013

Dear 

Thank you for your email regarding recent changes implemented by Canadian Blood Services. I appreciate hearing your views on this issue.

This matter is one that is looked after by the provincial government. Therefore, I have taken the liberty of copying Mr. , MPP for (my area), and Minister Deb Matthews, the Minister of Health and Long-Term Care in Ontario on this email. Their offices will be able to help address the concerns raised in your email below.

Thank you once again for taking the time to write about this important issue.

Sincerely

--------------------------------------------------------------------------------------------------

Response from MPP:

Dear

This is to acknowledge receipt of your email forwarded to us by MP office. As you already copied the Ministry of Health and Long-Term Care, they will respond to your concerns directly.

Thank you for giving us the chance to hear of your concerns.

Sincerely,

--------------------------------------------------------------------------------------------------

My response to everyone involved:

Hello

First, I would like to thank all of the parties involved in this email communication.

I understand MP's offices position on viewing this as a strictly provincial issue. Coincidently, there is a CBC news story (a link and full copy of this news story is included in this email) about Health Minister Matthews office requesting Health Canada to conduct additional consultations on new private plasma collection clinics. With her office making such a request, obviously the federal Health Minister has been engaged in the matter. As the article states, Health Minister Leona Aglukkaq is open to feedback from interested parties of which I am one.

Also, in my original email, I raised concerns about the qualifications of the technicians engaging in blood collection specifically switching from nurses to people who have just had basic training on how to draw blood and take family medical histories. Depending on where you live in Canada, this is covered either under federal or provincial jurisdiction. The Health Minister of Ontario's office, at least according to the tone of the article from CBC, seems to be concerned about the arbitrary impact that the Federal Health Minister's decisions may cause on the current blood supply system. In additional media reporting, it has also been pointed out that although it is not illegal for a for-profit blood/plasma collection clinic to operate in Canada, the royal commission that looked into the tainted blood scandal urged the provinces and federal government to actually make it illegal. At the federal level, that was never done and at the provincial level, I am currently not aware of any province or territory that has made it illegal. Since Minister Matthews is concerned about the impact these clinics have on the voluntary blood donor system, she could theoretically ban the opening of the clinics until consultations have been completed. A coherent direction from all parties involved would be nice. At the moment, it doesn't look like anyone knows what they are doing. I have a federal MP who tells me it is strictly a provincial issue. In the national press, we have Minister Matthews office requesting that Minister Aglukkaq's office/Health Canada, hold off on approving the plasma clinics operational permit. There are some provinces like Alberta who are not interested in private clinics of this type at all.

Mixed messages are not good and thats how very bad mistakes can be made.

Thank you all for your time. I will be expecting and look forward to a response from whichever level of government wants to reply however a position from everyone would be nice. Please read the CBC article in its entirety.

Following is the link and a copy of the full CBC news story.

http://www.cbc.ca/news/health/story/2013/03/11/blood-plasma-sale.html

I am looking forward to a reply from any or all involved.  In the actual email I included a copy of the CBC article for the parties and their staff to read.

FEDERAL COURT OF APPEAL Canada Date: 20130311 Docket: A-145-12 Citation: 2013 FCA 75

Source: http://decisions.fca-caf.gc.ca/en/2013/2013fca75/2013fca75.html

Date: 20130311

Docket: A-145-12

Citation: 2013 FCA 75

 

CORAM:      PELLETIER J.A.

                        STRATAS J.A.                    

                        WEBB J.A.

 

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Appellant

and

CANADIAN HUMAN RIGHTS COMMISSION,

FIRST NATIONS CHILD AND FAMILY CARING SOCIETY,

ASSEMBLY OF FIRST NATIONS, CHIEFS OF ONTARIO,

AMNESTY INTERNATIONAL

 

Respondents

 

and

 

CANADIAN CIVIL LIBERTIES ASSOCIATION

 

Intervener

 

 

 

Heard at Ottawa, Ontario, on March 6, 2013.

Judgment delivered at Ottawa, Ontario, on March 11, 2013.

 

REASONS FOR JUDGMENT BY:                                                                        STRATAS J.A.

CONCURRED IN BY:                                                                                         PELLETIER J.A.

                                                                                                                                         WEBB J.A.

 

Date: 20130311

Docket: A-145-12

Citation: 2013 FCA 75

 

CORAM:      PELLETIER J.A.

                        STRATAS J.A.                    

                        WEBB J.A.

 

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

 

Appellant

and

 

CANADIAN HUMAN RIGHTS COMMISSION,

FIRST NATIONS CHILD AND FAMILY CARING SOCIETY,

ASSEMBLY OF FIRST NATIONS, CHIEFS OF ONTARIO,

AMNESTY INTERNATIONAL

 

Respondents

 

and

 

CANADIAN CIVIL LIBERTIES ASSOCIATION

 

Intervener

 

 

REASONS FOR JUDGMENT

 

STRATAS J.A.

[1]               The Attorney General appeals from the judgment dated April 18, 2012 of the Federal Court (per Mactavish J.): 2012 FC 445. For the following reasons, I would dismiss the appeal without costs.

 

A.        Introduction

 

[2]               This matter arises from a complaint under the Canadian Human Rights Act, R.S.C. 1985, c. H-6, brought by the respondents, the First Nations Child and Family Caring Society and the Assembly of First Nations (the “complainants”). The complainants allege that the Government of Canada has engaged in prohibited discrimination by under-funding child welfare services for on‑reserve First Nations children, and denying them services available to other Canadian children.

 

[3]               The Canadian Human Rights Commission referred the complaint to the Canadian Human Rights Tribunal for hearing.

 

B.        Proceedings before the Tribunal

 

[4]               Before the Tribunal, the Attorney General brought a preliminary motion alleging that the complaint could not succeed. The Tribunal granted the motion and quashed the complaint: 2011 CHRT 4.

 

[5]               The Tribunal considered the complaint to raise paragraph 5(b) of the Act, not paragraph 5(a) of the Act. Section 5 of the Act 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.

5. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, pour le fournisseur de biens, de services, d’installations ou de moyens d’hébergement destinés au public :   a) d’en priver un individu;   b) de le défavoriser à l’occasion de leur fourniture.

 

[6]               The Tribunal considered whether the complainants could establish that the Government of Canada “differentiate[d] adversely” under paragraph 5(b) of the Act concerning its funding for assistance programs for Aboriginal children. On its view of paragraph 5(b), the Tribunal concluded that in order to succeed, the complainants would have to point to some other similarly situated group, such as another group receiving the same assistance programs from the Government of Canada.

 

[7]               The Tribunal’s conclusion is best seen in the following passages in the Tribunal’s reasons (at paragraphs 10-12):

[10]      In order to find that adverse differentiation exists, one has to compare the experience of the alleged victims with that of someone else receiving those same services from the same provider. How else can one experience adverse differentiation? These words of the [Act] must be accorded their clear meaning as intended by Parliament. These words are unique to the CHRA.... These words... requir[e] a comparative analysis.... Further the complaint itself seeks a comparison. The heart of the complaint involves comparing [Indian and Northern Affairs Canada’s] funding to provincial funding.

 

[11]      Regarding the issue of choice of comparator, the parties agree that [Indian and Northern Affairs Canada] does not fund or regulate child welfare for off-reserve children. The provision of child welfare to off reserve children is entirely a provincial matter.... Can federal government funding be compared to provincial government funding to find adverse differentiation as set out in section 5(b) [sic] of the Act? The answer is no.

 

[12]      The Act does not allow a comparison to be made between two different service providers with two different service recipients. Federal funding goes to on-reserve First Nations children for child welfare. Provincial funding goes to all children who live off-reserve. These constitute separate and distinct service providers with separate service recipients. The two cannot be compared. [emphasis in original]

 

Accordingly, the Tribunal held that the complainants could not succeed under paragraph 5(b) of the Act and quashed the complaint: there is no relevant comparator group because the Government of Canada does not provide welfare funding for any other children.

 

C.        Proceedings before the Federal Court

 

[8]               The Federal Court set aside the Tribunal’s decision for two reasons:

 

(1)        The decision was substantively unreasonable. The Federal Court identified three matters that took the Tribunal’s decision outside of the range of the acceptable and defensible and made it unreasonable:

 

●         The Tribunal improperly characterized the complaint as raising only paragraph 5(b). The complaint also raised paragraph 5(a). The Tribunal did not deal with paragraph 5(a) of the Act, as it should have. (See Reasons, at paragraphs 207-221.)

 

●         By making the existence of a comparator group a mandatory requirement in paragraph 5(b), the Tribunal adopted a “rigid and formulaic interpretation” of paragraph 5(b), an interpretation that was “inconsistent with the search for substantive equality mandated by the [Act] and Canada’s equality jurisprudence” (Reasons, at paragraph 9). A comparator group might be evidence that is helpful on the issue of discrimination, but is not a prerequisite to a finding of discrimination. In the Federal Court’s words (at paragraph 290): “A comparator group is not part of the definition of discrimination” but is “an evidentiary tool that may assist in identifying whether there has been discrimination in some cases” [emphasis in original]. (See also Reasons, at paragraphs 280-315.)

 

●         In the alternative, even if the complainants had to point to a comparator group, the Tribunal unreasonably found that one did not exist – in its funding policies, the Government of Canada has adopted provincial child welfare standards. (See Reasons, at paragraphs 367-390.)

 

(2)        The decision was procedurally unfair. The Tribunal improperly considered a large volume of extrinsic material in arriving at its decision. (See Reasons, at paragraphs 167-204.)

 

[9]               The Attorney General appeals to this Court.

 

D.        The substantive reasonableness of the decision

 

[10]           The Federal Court reviewed the Tribunal’s decision on the basis of the deferential standard of reasonableness: Reasons, at paragraphs 234-240. This was the proper standard of review. Reasonableness is the presumptive standard of review of a tribunal’s interpretation of its own statute: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at paragraph 34. Further, the Supreme Court has recently confirmed reasonableness to be the presumptive standard of review when the Tribunal is interpreting the Act: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 at paragraphs 15-27 (also known as the Mowat decision).

 

[11]           The Attorney General submits that the Federal Court misapplied the reasonableness standard by adopting an insufficiently deferential posture. In particular, the Attorney General says the Federal Court developed its own interpretation of paragraph 5(b) and used it as a yardstick to judge the Tribunal’s interpretation.

 

[12]           I disagree. A review of the Federal Court’s reasons as a whole shows that it appreciated the test for reasonableness – whether the Tribunal’s decision falls within a range of acceptability and defensibility on the facts and the law – and applied it deferentially: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47.

 

[13]           As the Attorney General accepted in argument before us, one must remember that the range of acceptability and defensibility “takes its colour from the context,” widening or narrowing depending on the nature of the question and other circumstances: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 at paragraphs 17-18 and 23; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 59; and see also Canada (Attorney General) v. Abraham, 2012 FCA 266 at paragraphs 37-50.

 

[14]           In this case, the range is relatively narrow. The Tribunal’s decision primarily involves statutory interpretation – a matter constrained by the text, context and purpose of the statute. It also involves equality law – a matter constrained by judicial pronouncements. In this case, the Tribunal had less room to manoeuvre than in a case turning upon one or more of factual appreciation, fact-based discretions, administrative policies, or specialized experience and expertise not shared by the reviewing court on the particular point in issue.

 

[15]           The Supreme Court’s decision in Mowat, supra – also involving a review of the Tribunal’s interpretation of the Act – illustrates this well. There, the Supreme Court reviewed the Tribunal on the basis of the deferential standard of reasonableness. However, acting under that standard, the Supreme Court engaged in an exacting review of the Tribunal’s decision, a review more exacting than that of the Federal Court in this case. Some might describe what the Supreme Court did in Mowat as disguised correctness review. I disagree. Mowat is reasonableness review, still deferential, conducted in recognition that, as far as the Supreme Court was concerned, the Tribunal had only a narrow range of acceptability and defensibility open to it, given the constrained nature of the matter before it. Within that range, the Tribunal was entitled to deference. For similar examples, see British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 and Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 S.C.R. 345.

 

[16]           In this case, the Federal Court concluded that the Tribunal’s interpretation of paragraph 5(b) – an interpretation requiring the complainants to point to a similarly situated comparator group in order to succeed – was outside the range of acceptability and defensibility and, thus, was unreasonable. In reaching this conclusion, the Federal Court relied upon the following matters, each of which it found to be inconsistent with the Tribunal’s interpretation:

 

●         the text of paragraph 5(b) (Reasons, at paragraphs 251-275);

 

●         the surrounding wording in the Act and the wider context, including the repeal of section 67 of the Act (Reasons, at paragraphs 276-279 and 341-347);

 

●         the purposes underlying the Act (Reasons, at paragraphs 243-250);

 

●         this Court’s jurisprudence concerning similar provisions of the Act (Reasons, at paragraph 299; and see, e.g., Morris v. Canada (Canadian Armed Forces), 2005 FCA 154);

 

●         Canada’s international obligations, with which Canada’s domestic legislation is presumed to accord unless ousted by clear, contrary legislative intent (Reasons, at paragraphs 348-356; and see R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at paragraph 53); and

 

●         Canada’s equality jurisprudence, including the recent diminution of the role of comparator groups in the equality analysis ((Reasons, at paragraphs 280-340). The Federal Court’s analysis reflects the position articulated by the Supreme Court in Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 at paragraph 59: in some cases “finding a mirror [comparator] group may be impossible, as the essence of an individual's or group's equality claim may be that, in light of their distinct needs and circumstances, no one is like them for the purposes of comparison.” See also Withler at paragraphs 2, 3, 45-48, 55 and 80-81.

 

[17]           Despite the able submissions of the Attorney General, I am not persuaded that the Federal Court erred in its conclusion that the Tribunal’s decision was unreasonable. To the contrary, the careful, reflective and scholarly reasoning of the Federal Court amply demonstrates that the Tribunal’s decision fell outside the range of the acceptable and defensible and, thus, was unreasonable.

 

[18]           On the inconsistency between the Tribunal’s decision requiring the complainants to show a comparator group under paragraph 5(b) and Canada’s equality jurisprudence, cases postdating the Federal Court’s decision have confirmed the reduced role of comparator groups in the equality analysis:

 

●         In Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court reiterated that the existence of a comparator group does not determine or define the presence of discrimination, but rather, at best, is just useful evidence. It added that insistence on a mirror comparator group would return us to formalism, rather than substantive equality, and “risks perpetuating the very disadvantage and exclusion from mainstream society the [Human Rights] Code is intended to remedy” (at paragraphs 30-31). The focus of the inquiry is not on comparator groups but “whether there is discrimination, period” (at paragraph 60).

 

●         In Quebec (Attorney General) v. A., 2013 SCC 5 at paragraph 346 (per Abella J. for the majority), the Supreme Court has reaffirmed that “a mirror comparator group analysis may fail to capture substantive equality, may become a search for sameness, may shortcut the second stage of the substantive equality analysis, and may be difficult to apply”: Withler, supra at paragraph 60. The Supreme Court went so far as to cast doubt on the authority of Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325, an earlier case in which an unduly influential or determinative role was given to the existence of a comparator group – similar to what the Tribunal did here.

 

In light of these recent cases, the Tribunal’s decision lies even further outside of the range of reasonableness.

 

[19]           In oral submissions, the Attorney General questioned the Federal Court’s examination of cases under section 15 of the Charter instead of restricting its analysis to cases specific to the Act. In my view, the Federal Court had to have regard to the Charter cases – and the same can be said for the Tribunal. The equality jurisprudence under the Charter informs the content of the equality jurisprudence under human rights legislation and vice versa: see e.g.,Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at pages 172-176; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at paragraph 27; Moore, supra at paragraph 30; A.,supra at paragraphs 319 and 328.

 

[20]           As mentioned previously, the Federal Court based its conclusion of unreasonableness upon a second ground: the Tribunal’s failure to consider the complaint under paragraph 5(a) of the Act. Here, in my view, the Federal Court’s analysis is unimpeachable. The complaint refers globally to “section 5” (i.e., both paragraphs 5(a) and 5(b)), certain of the allegations in the complaint do raise matters that potentially fall under paragraph 5(a), and earlier proceedings show that paragraph 5(a) was part of the complaint: Reasons, at paragraphs 216-220.

 

[21]           The Federal Court relied upon an alternative ground for its finding of unreasonableness, namely that comparison with the provinces might be appropriate in light of the Government of Canada’s adoption of provincial child welfare standards in its funding policies. I prefer not to comment upon this. The legal significance and factual relevance of the Government of Canada’s adoption of provincial child welfare standards in its funding policies – and, for that matter, larger issues such as whether comparison can be made to provincial child welfare funding and whether provincial funding constitutes relevant evidence deserving of weight in the analysis of discrimination – is best left for the Tribunal to consider alongside all of the evidence it will receive.

 

[22]           In this regard, it bears recalling that discrimination is a broad, fact-based inquiry. Among other things, it requires “going behind the facade of similarities and differences”, and taking “full account of social, political, economic and historical factors concerning the group”: Withler, supra at paragraph 39. Consequently, the relevance and significance of particular facts, such as the existence or non-existence of a comparator, will vary in the circumstances. As the Supreme Court wrote in Withler, “the probative value of comparative evidence…will depend on the circumstances” (at paragraph 65).

 

[23]           Accordingly, nothing in these reasons should be taken to express any view concerning what relevance and significance, if any, the Tribunal should assign to any of the evidence placed before us in this appeal. These matters will be for the Tribunal to decide in accordance with proper legal principles.

 

E.        Procedural fairness

 

[24]           The Tribunal considered material outside of the formal record on the motion. Accepting, for the sake of argument, this material is “extrinsic,” I agree with the Federal Court that the Tribunal committed procedural unfairness in the circumstances of this important and hard-fought motion to dismiss the complaint. In these circumstances, the parties were entitled to know exactly what the Tribunal was considering and to have the opportunity to address it.

 

[25]           The Attorney General submits that the respondents have not shown any prejudice arising from the Tribunal’s consideration of extrinsic evidence and so the Federal Court should not have set aside the Tribunal’s decision.

 

[26]           The Attorney General is correct that in an appropriate case a court may find a lack of prejudice and, in its discretion, decide to leave the procedurally-flawed decision in place: Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. However, on the facts before it, the Federal Court exercised its discretion to the contrary: Reasons, at paragraph 204. This Court can reverse the Federal Court’s fact-based discretion only upon demonstration of palpable and overriding error or failure to give weight to all relevant considerations: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 at paragraph 43; Community Panel of the Adams Lake Indian Band v. Adams Lake Band, 2011 FCA 37 at paragraph 31. No such error has been shown here.

 

F.         Disposition

 

[27]           The parties have agreed that there should be no costs. Accordingly, I would dismiss the appeal without costs.

 

 

"David Stratas"

J.A.

 

 

 

 

“I agree

     J.D. Denis Pelletier J.A.”

 

“I agree

     Wyman W. Webb J.A.”

FEDERAL COURT OF APPEAL

                                                        

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                             A-145-12

 

APPEAL FROM A JUDGMENT OF THE HONOURABLE MADAM JUSTICE MACTAVISH DATED APRIL 17, 2012, DOCKET NOS. T-578-11, T-630-11 AND T‑638‑11

 

STYLE OF CAUSE:                                                            The Attorney General of Canada v. Canadian Human Rights Commission et al.

 

PLACE OF HEARING:                                                      Ottawa, Ontario

 

DATE OF HEARING:                                                        March 6, 2013

 

REASONS FOR JUDGMENT BY:                                   Stratas J.A.

 

CONCURRED IN BY:                                                        Pelletier and Webb JJ.A.        

 

DATED:                                                                                March 11, 2013

 

 

APPEARANCES:

 

Jonathan D.N. Tarlton Melissa Chan	FOR THE APPELLANT, Attorney General of Canada
Philippe Dufresne Daniel Poulin Samar Musallam	FOR THE RESPONDENT, Canadian Human Rights Commission
Nicholas McHaffie Sarah Clarke	FOR THE RESPONDENT, First Nations Child and Family Caring Society
David C. Nahwegahbow Stuart Wuttke	FOR THE RESPONDENT, Assembly of First Nations
Michael W. Sherry	FOR THE RESPONDENT, Chiefs of Ontario
Justin Safayeni	FOR THE RESPONDENT, Amnesty International
Christopher A. Wayland Steven Tanner	FOR THE INTERVENER, Canadian Civil Liberties Association

 

SOLICITORS OF RECORD:

 

William F. Pentney Deputy Attorney General of Canada	FOR THE APPELLANT, Attorney General of Canada
Canadian Human Rights Commission Ottawa, Ontario	FOR THE RESPONDENT, Canadian Human Rights Commission
Stikeman Elliott LLP Ottawa, Ontario	FOR THE RESPONDENT, First Nations Child and Family Caring Society
Nahwegahbow, Corbiere Rama, Ontario	FOR THE RESPONDENT, Assembly of First Nations
Michael W. Sherry Mississauga, Ontario	FOR THE RESPONDENT, Chiefs of Ontario
Stockwoods LLP Toronto, Ontario	FOR THE RESPONDENT, Amnesty International
McCarthy Tétrault LLP Toronto, Ontario	FOR THE INTERVENER, Canadian Civil Liberties Association