Canada ( Attorney General ) v. Martin
A-573-93
Hugessen J.A.
16/11/93
5 pp.
Appeal from Trial Division judgment restricting issues on application for judicial review -- Respondents complaining to Canadian Human Rights Commission concerning Canadian Armed Forces' retirement policy contained in Queen's Regulations and Orders (QRO) -- Forces arguing QRO "regulations" within Canadian Human Rights Act, s. 15(b) -- S. 15(b) providing not discriminatory practice if employment refused or terminated because individual not reaching minimum age or has reached maximum age applied to that employment by regulations -- Before Human Rights Tribunal, Commission arguing QRO not type of regulation contemplated in s. 15(b), or both QRO and s. 15(b) discriminating based on age and contravening Charter, s. 15 -- Tribunal holding QRO not within ambit of s. 15(b) and therfore not required to deal with Charter argument -- Ordering Forces to compensate individual respondents -- On application for judicial review to Trial Division, Trial Judge holding Court lacking competence to entertain argument on constitutionality of s. 15(b) or QRO, given Tribunal's decision s. 15(b) not applicable -- Appeal allowed -- Application for judicial review putting in issue whole of Tribunal's decision Forces discriminated against respondents -- If Court finding Tribunal erred in law in dismissing defence based on s. 15(b), must consider whether s. 15(b) and QRO discriminatory and invalid because of Charter, s. 15 -- Even if appellant right on s. 15(b) issue, Court may still dismiss application for judicial review if finding against appellant on constitutional point -- Issue as to constitutionality of s. 15(b) and of QRO within Trial Division's jurisdiction to decide -- Should Trial Division decide Tribunal's decision should be set aside, and if record sufficient Trial Division may decide such issue in order to formulate directions upon which matter to be referred back to Tribunal -- Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 15(b) -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985 Appendix II. No. 44], s. 15.