A-779-86
In re a complaint filed by Walter Rosen against
CFCF Inc. alleging discrimination in employment
on account of age contrary to section 7 of the
Canadian Human Rights Act;
In view of section 14(c) of the Canadian Human
Rights Act
INDEXED AS: ROSEN (RE)
Court of Appeal, Pratte, Marceau and Hugessen
JJ.—Montréal, March 5 and 16; Ottawa, April 9,
1987.
Federal Court jurisdiction — Appeal Division — Applica
tion to quash reference proceedings for lack of jurisdiction —
Canadian Human Rights Commission referring question of
constitutionality of Canadian Human Rights Act, s. 14(c) to
Court of Appeal pursuant to Federal Court Act, s. 28(4) —
Application allowed — Reference premature as answer to
reference not disposing of issue before Commission — Mar-
ceau J., concurring in result, holding Commission not required
to decide constitutionality question — Question presented by
tribunal under s. 28(4) must be one which tribunal itself
required to decide — Lower court unlikely to 'form opinion"
on constitutional question, unless relating directly to own
jurisdiction — Question as put to Court not whether Commis
sion having jurisdiction to act, but whether should have been
given wider jurisdiction — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, ss. 28(1),(4), 52(a) — Canadian Human
Rights Act, S.C. 1976-77, c. 33, ss. 7, 14(c), 36 (as am. by S.C.
1985, c. 26, s. 69) — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 15.
Human Rights — Complainant placed on retirement at age
66 against will — Complaining employment terminated solely
on account of age — Employer relying on Canadian Human
Rights Act, s. 14(c), providing termination of employment
because employee reaching normal age of retirement for
employees in similar positions not discriminatory practice —
Commission referring question of constitutionality of s. 14(c)
to Federal Court of Appeal — Reference proceeding quashed
for lack of jurisdiction — Majority judgment based on
prematurity of application as Court's answer to reference
question not disposing of matter before Commission — Com
mission's function discussed — Marceau J., concurring in
result, holding reference question not one required to be
answered by Commission itself — Canadian Human Rights
Act, S.C. 1976-77, c. 33, ss. 7, 14(c), 36 (as am. by S.C. 1985,
c. 26, s. 69) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, ss. 28(1),(4), 52(a) — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 15.
Practice — References — Canadian Human Rights Com
mission purporting to refer question of constitutionality of
Canadian Human Rights Act, s. 14(c) to Federal Court of
Appeal under Federal Court Act, s. 28(4) — Reference defec
tive as to form — Reference inconsistent with accompanying
decision which purports to refer "complaint" to Court —
Reference raising purely academic question of law — No
conclusion of fact on which Court could base decision —
Commission exceeding jurisdiction in asking Court for ruling
on constitutionality of enabling statute — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, ss. 28(4), 52(a) — Canadian
Human Rights Act, S.C. 1976-77, c. 33, s. 14(c).
A Mr. Rosen was placed on retirement at age 66, but wished
to continue working. He filed a complaint with the Canadian
Human Rights Commission, alleging that his employment had
been terminated solely on account of age. His employer relied
on paragraph 14(c) of the Canadian Human Rights Act which
provides that it is not a discriminatory practice if an individu
al's employment js terminated because he has reached the
normal retirement age for employees in similar positions. The
Commission, wishing to determine the constitutional validity of
paragraph 14(c) before undertaking the long and costly investi
gation required to determine whether paragraph 14(c) actually
applied, referred the question to the Federal Court of Appeal
pursuant to subsection 28(4) of the Federal Court Act. Upon
the employer's application, under paragraph 52(a) of the Fed
eral Court Act, to quash the reference proceedings, it was
argued that the reference was premature in that as the Com
mission did not have to dispose of the complaint, it did not
require an answer to the constitutional question.
Held, the application should be allowed and the reference
proceedings quashed.
Per Hugessen J. (Pratte J. concurring): Although the refer
ence is defective as to form on its face, the matter should not be
decided on a technical ground. This reference is not, however,
authorized by section 28 of the Federal Court Act.
Only questions of law that must be determined for the
purpose of dealing with the matter before the tribunal can be
referred by it to the Court. In order that a question of law be
the proper subject for a reference under subsection 28(4), it is
not necessary that the answer be decisive of the litigation
before the tribunal making the reference; it is sufficient that
the question be such that a possible answer to it be decisive of
the matter: Martin. Service Station Ltd. v. Minister of National
Revenue, [1974] 1 F.C. 398 (C.A.).
The Commission is empowered to dispose of a complaint only
when it concludes that it is groundless. In all other cases, the
Commission has to refer the matter to another body. The
Commission considers that the complaint at bar is a valid one.
Subsection 28(4) empowers the Commission to refer a question
to the Court for "determination". "Determination" necessarily
means that the Court must be in a position to render judgment
on the actual substance of the issue giving rise to the reference.
At this stage of the proceedings an answer to the reference,
whatever it might be, could never dispose of the issue brought
before the Commission. If the Court decides that paragraph
14(c) is valid, the Commission will then have to proceed with
its investigation. If the Court finds paragraph 14(c) to be of no
force or effect, the Commission will still have to ask a Human
Rights Tribunal, the only body empowered to dispose of the
matter, to inquire into the complaint.
Per Marceau J. (concurring in the result): The employer
argued that as the question involves section 1 of the Charter, it
can only be decided on the basis of factual evidence and that
the reference was therefore not concerned with a question of
law as required by subsection 28(4). This raises an ambiguity.
The constitutionality of legislation cannot be anything but a
question of law, but because of section 1 of the Charter the
submission of factual evidence may often be required. However,
subsection 28(4) does not allow this particular situation to be
taken into account. Evidence can be established without an oral
hearing and the hearing of witnesses by a court of appeal does
not involve a question of powers, but one of convenience and
procedure.
The reference is not premature. A question under subsection
28(4) must be such that one of the possible answers to it can
dispose of the case before the tribunal. That is the case here.
The Commission's function is to decide whether an inquiry into
the complaint is warranted. To so decide, it must form an
opinion as to whether the practice complained of can be the
subject of a complaint because it is discriminatory within the
Act. Once it makes its position known, its function as a
decision-making body ends. That is "the matter before it". A
negative response on the constitutionality of paragraph 14(c)
will solve its dilemma and indicate what its decision should be.
The application is, however, valid. The question cannot be
the subject of a reference under subsection 28(4) as it is not a
question which the Commission has to answer. The question
must be one which the tribunal itself is required to decide:
Reference re Public Service Staff Relations Act, [1973] F.C.
604 (C.A.).
It is doubtful that a lower court will have to "form an
opinion" on a constitutional question unless it relates directly to
the scope of its own jurisdiction. But "forming an opinion" is
not determining, deciding, judging a matter. This Court does
not give opinions, it determines matters, and it is unlikely that
in aiding a tribunal to form an opinion it would have to decide
or to resolve the matter.
It is also doubtful that the question relates to jurisdiction.
The Canadian Human Rights Act gives the Commission the
specific mandate to receive complaints in cases of discrimina
tion as defined in section 14. The Commission is not asking
whether it has the jurisdiction to act, but whether it should
have been given a wider jurisdiction that would allow it to
receive complaints and act on them in cases other than those
defined; and even if the Court had jurisdiction to determine the
question in response to a subsection 28(1) application brought
against the Commission's final decision, once the Commission
is functus officio, it does not follow that the Court can now
have jurisdiction under subsection 28(4).
The Commission's application to the Court under subsection
28(4) has the same scope and meaning as if it had brought a
declaratory action. The Commission is exceeding the limits of
its mandate when it asks the Court for a judicial ruling on the
constitutionality of the provisions of its enabling Act.
CASES JUDICIALLY CONSIDERED
APPLIED:
Reference re Public Service Staff Relations Act, [1973]
F.C. 604 (C.A.); Martin Service Station Ltd. v. Minister
of National Revenue, [ 1974] 1 F.C. 398 (C.A.).
REFERRED TO:
Re: Anti-Inflation Act, [1976] 2 S.C.R. 373; Séminaire
de Chicoutimi v. The City of Chicoutimi, [1973] S.C.R.
681.
COUNSEL:
Paul M. Demers for Walter Rosen.
Louis-Paul Cullen and Brian C. Elkin for
CFCF Inc.
Russell G. Juriansz and Anne Trotier for the
Canadian Human Rights Commission.
SOLICITORS:
Colby, Rioux & Demers, Montréal, for
Walter Rosen.
Ogilvy, Renault, Montréal, for CFCF Inc.
Canadian Human Rights Commission on its
own behalf.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J. (concurring in the result): Citing
the provision of subsection 28(4) of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10], by
which "A federal board, commission or other tri
bunal ... may at any stage of its proceedings refer
any question or issue of law, of jurisdiction or of
practice and procedure to the Court of Appeal for
hearing and determination", the Canadian Human
Rights Commission ("the Commission") on
November 20, 1986 referred to this Court for
hearing and determination a question which it
formulated as follows:
[TRANSLATION] Should the Canadian Human Rights Commis
sion regard paragraph 14(c) of the Canadian Human Rights
Act as of no force or effect in deciding the complaint by Walter
Rosen against CFCF Inc., in view of the provisions of the
Canadian Charter of Rights and Freedoms?
In order to understand the question one has to
bear in mind the structure of the Canadian
Human Rights Act, S.C. 1976-77, c. 33 ("the
Act"), especially Part I headed PROSCRIBED DIS
CRIMINATION. Part I opens with two general
provisions, one listing the proscribed grounds of
discrimination, including age of course, and the
other providing that the discriminatory practices
described in the following sections may be the
subject of a complaint to the Commission and may
result in the making of orders by the latter. Then,
under the subheading Discriminatory Practices,
sections 5 to 13.1 define the cases in which dis
crimination exists for the purposes of the Act
(each of the provisions begins with the words "It is
a discriminatory practice ... to"), and in sections
14 et seq. a number of cases in which no discrimi
nation exists (the introductory words there are "It
is not a discriminatory practice if"). Accordingly,
where section 7 states that it is a discriminatory
practice inter alia to "refuse to ... continue to
employ any individual ... on a prohibited ground
of discrimination", section 14, which contains
seven paragraphs, provides in paragraph (c),
referred to in the question submitted by the
Commission:
14. It is not a discriminatory practice if
(c) an individual's employment is terminated because that
individual has reached the normal age of retirement for
employees working in positions similar to the position of that
individual;
In its referral notice the Commission stated that
the respondent Walter Rosen had filed a complaint
alleging that his employer CFCF Inc. had ter
minated his employment solely on account of his
age, and CFCF Inc. maintained that its practice
was not discriminatory, arguing that the respon
dent at the time had reached "the age of retire
ment for employees working in [his] type of
employment", and the Commission explained that
before undertaking the long and costly investiga
tion required to determine whether paragraph
14(c) did actually apply, it wanted to ensure that
the provision was in fact constitutional and had to
be taken into account.
The proceeding now before the Court was ini
tiated by CFCF Inc. It is an application which
seeks, according to the actual wording used in the
notice of motion:
[TRANSLATION] an order:
1. quashing the proceedings in the reference at bar on the
ground that this Honourable Court lacks jurisdiction under
paragraph 52(a) of the Federal Court Act and Rule 1100 of
the Federal Court Rules,
or alternatively:
2. quashing the proceedings in the reference at bar on the
ground that the latter is irregular, under Rules 5 and
474(1)(a) of the Federal Court Rules,
or alternatively:
3. staying the proceedings in the reference at bar on the
ground that it is being proceeded with in another Court
under paragraph 50(1)(a) of the Federal Court Act.
In their oral submissions and accompanying
affidavits, counsel for the applicant sought to clari
fy their position beyond the somewhat obscure
language of their written pleadings. They first
made reference to three facts: first, that the Com
mission had not yet conducted any investigation of
"the retirement age applicable to [the] type of
employment" held by the complainant, the
respondent Rosen; second, that the latter had some
time ago brought proceedings in the Superior
Court of the Province of Quebec asking it to
declare paragraph 14(c) of the Act to be unconsti
tutional and seeking damages against CFCF Inc.,
proceedings in which the Commission was actively
involved; finally, that their client intended to chal
lenge in court any suggestion that paragraph 14(c)
of the Act is unconstitutional by introducing the
necessary evidence to show that the rule stated
therein met the special conditions for validity in
section 1 of the Charter [Canadian Charter of
Rights and Freedoms, being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)]. Then, having established
these facts without dispute, they submitted in sup
port of their application a series of arguments
which, if I understood correctly, centered essen
tially on two primary points: the principal one was
that the reference was superfluous or at least
premature; and the alternative one that the refer
ence was not concerned with a question of law as
required by subsection 28(4).
The alternative argument, which does not call
for lengthy commentary, may be disposed of forth
with. It rests on the observation that as the ques
tion presented involves section 1 of the Charter it
can only be answered on the basis of factual
evidence. However, there is an obvious ambiguity
here. The constitutionality of legislation cannot be
anything but a question of law. Undoubtedly since
the introduction of the Charter with its section 1,
it may often be the case that the question of law
which is raised by the constitutionality of a statute
will require factual evidence to be submitted and
considered, but first it was not impossible that this
might already have been done previously (see Re:
Anti-Inflation Act, [1976] 2 S.C.R. 373), and in
any case subsection 28(4) does not allow this
particular situation to be taken into account.
Undoubtedly also, it is difficult to imagine the
holding of a trial before a court of appeal, but to
begin with evidence can be established without an
oral hearing, without a trial, and secondly the
hearing of witnesses by a court of appeal does not
involve a question of powers but simply one of
convenience and procedure.
While the alternative argument of counsel for
the applicant did not really require lengthy con
sideration, that is not true of their principal argu
ment. My brother Hugessen J., whose reasons I
have had the advantage of reading, even adopted
this argument in substance. My brother Judge
considered that the reference was not admissible
because the question raised is not capable of dis
posing of the issue before the Commission "at this
stage of the proceedings". He also considered that
it is clear the answer to the question presented
could not dispose of the issue because, and I take
the liberty of reproducing his words here, "If the
Court decides that paragraph 14(c) is valid, the
Commission will then have to proceed with its
investigation. If on the other hand we find para
graph 14(c) to be of no force or effect, the Com
mission will still have to ask a Human Rights
Tribunal, the only body empowered to dispose of
the matter, to inquire into the complaint." Counsel
for the applicant also suggested that the reference
was superfluous, but in the same way, pointing out
that as the Commission did not have to dispose of
the complaint it did not need to know the answer
to the question. They argued that the answer was
important only in reference to the decision, and
therefore only the tribunal could be concerned
with it.
With respect, I must differ from this analysis. It
is clear, as this Court pointed out in Reference re
Public Service Staff Relations Act, [1973] F.C.
604 and Martin Service Station Ltd. v. Minister of
National Revenue, [1974] 1 F.C. 398, that if a
question under subsection 28(4) is not to be merely
academic and so inadmissible, it must be such that
one of the possible answers to it can dispose of the
case before the tribunal submitting the reference;
but surely that is exactly the case here, if one looks
closely at the "matter before" the Commission.
What is the Commission's function? Section 36 of
the Act leaves us in no doubt: it is to satisfy itself
that an inquiry into the complaint is or is not
warranted, which first requires it to come to a view
as to whether or not the practice complained of by
the complainant can be the subject of a complaint
because it is or is not discriminatory within the
meaning of the Act. When it is satisfied that one
or other of these two possibilities exists, the Com
mission will have to make its position known and
its function as a decision-making body will be at
an end. That is "the matter before it".' Once we
accept the arguments and viewpoint of the Com
mission, we are bound to admit that the reference
is neither futile, premature nor academic, for it is
correct in saying that a negative response on the
constitutionality of paragraph 14(c) will solve its
dilemma and indicate what its decision should be.
' Section 36 [as am. by S.C. 1985, c. 26, s. 69] of the Act
reads as follows:
36. (1) An investigator shall, as soon as possible after the
conclusion of an investigation, submit to the Commission a
report of the findings of the investigation.
(2) If, on receipt of a report mentioned in subsection (1), the
Commission is satisfied
(Continued on next page)
Though I disagree with the applicant's argu
ments and the reasoning adopted by my brother
Judge, I too have concluded nevertheless that the
application is valid. In my view the Court should
refuse to act because the question presented
cannot, either now or later, be the subject of a
reference by the Commission under subsection
28(4) and the Court therefore has no jurisdiction
to consider it. Why does the question presented not
fall under subsection 28(4) in the circumstances of
the case at bar?—because it is not a question
which the Commission has to answer.
In the two decisions just referred to, the only
ones so far as I know in which this Court has had
to deal with the meaning and scope of subsection
28(4) of its enabling Act, this was precisely the
chief point considered in each case, namely that in
order to be the subject of a reference, the question
presented by the tribunal must be one which the
tribunal itself was required to decide. In the first
(Continued from previous page)
(a) that the complainant ought to exhaust grievance or
review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt
with, initially or completely, by a procedure provided for
under an Act of Parliament other than this Act,
it shall refer the complainant to the appropriate authority.
(3) On receipt of a report mentioned in subsection (1), the
Commission
(a) may request the President of the Human Rights Tri
bunal Panel to appoint a Human Rights Tribunal in accord
ance with section 39 to inquire into the complaint to which
the report relates if the Commission is satisfied
(i) that, having regard to all the circumstances of the
complaint, an inquiry thereinto is warranted, and
(ii) that the complaint to which the report relates should
not be referred pursuant to subsection (2) or dismissed on
any ground mentioned in subparagraphs 33(b)(ii) to (iv);
or
(b) shall dismiss the complaint to which the report relates if
it is satisfied
(i) that, having regard to all the circumstances of the
complaint, an inquiry thereinto is not warranted, or
(ii) that the complaint should be dismissed on any ground
mentioned in subparagraphs 33(b)(ii) to (iv).
(4) After receipt of a report mentioned in subsection (1), the
Commission
(a) shall notify in writing the complainant and the person
against whom the complaint was made of its action under
subsection (2) or (3); and
(b) may, in such manner as it sees fit, notify any other
person whom it considers necessary to notify of its action
under subsection (2) or (3).
decision, Reference re Public Service Staff Rela
tions Act, the former Chief Justice of this Court
wrote (at page 615):
It is important to note that this provision is not authority to
give an advisory opinion such as is contained in section 55 of
the Supreme Court Act, under which a question is referred to
the Supreme Court of Canada for "hearing and consideration"
and the Court is required to express "its opinion" upon a
question so referred. Section 28(4) contemplates a "question or
issue of law" arising at some "stage" of a tribunal's "proceed-
ings" being referred to this Court by the tribunal for "hearing
and determination" (the underlining is mine). In my view, such
a reference can only be made by an order of the tribunal in
question that puts before this Court such findings of fact, or
other material, as that tribunal would base itself on if it were
determining the question or issue of law itself. Furthermore, in
my view, section 28(4) in so far as questions of law are
concerned, contemplates only the determination of a question
of law that must be determined for the purpose of dealing with
the matter that is before the tribunal making the reference and
does not contemplate determination of a question of law
expressed in academic terms.
In Martin Service Station Ltd. v. Minister of
National Revenue, Jackett C.J., affirming on this
point the observations of Pratte J., with whom he
concurred, again relied on this idea when he wrote
[at page 400]:
Nevertheless, that question may, in my view, be a question
that falls under section 28(4) if it is a question that was ready
for determination by the Umpire himself, if he had not referred
it to the Court. 2 [My underlining.]
It was argued that though a lower court obviously
does not have jurisdiction to decide a constitution
al question,' there are still cases in which it will
have to form an opinion on such a matter. I take
leave to doubt this, unless the question is one
relating directly to the scope of its own jurisdiction
as in Séminaire de Chicoutimi v. The City of
Chicoutimi, [1973] S.C.R. 681. But, in any case,
"forming an opinion" is not determining, deciding,
judging a matter. This Court does not give opin
ions, it determines matters, and it is highly un
likely that in aiding a tribunal to form an opinion
it would have to decide or to resolve the matter.
2 The French version of the paragraph reads:
Néanmoins, cette question peut à mon avis, relever de l'article
28(4) s'il s'agit d'une question qui aurait été en état d'être
jugée par le juge-arbitre lui-même, s'il ne l'avait pas renvoyée
à la Cour.
3 Another very recent case on this point is Mills v. The
Queen, [1986] 1 S.C.R. 863.
Counsel sought to argue that the question does
relate to jurisdiction and that in any case it may
eventually have to be decided by the Court in
response to an application under subsection 28 (1)
of the Act, which defines its jurisdiction. Here
again I have serious doubts, as one has to look
carefully at the situation in light of the Act which
the Commission exists to apply. The Commission
was given a specific mandate: to receive com
plaints regarding well-defined cases of discrimina
tion, and as I observed above, it is accepted that
section 14 of the Act enacts provisions which lay
down these definitions. Would a finding that one
of the provisions of section 14 is unconstitutional
have the effect of giving the Commission the
power to consider complaints regarding cases not
included in the mandate conferred on it by Parlia
ment? For it to do this the Act would have to be
seen as giving the Commission a general jurisdic
tion that would cover all cases of discrimination
not validly excepted, which certainly is not gener
ally taken to be its effect. The tribunal here, the
Commission, is not raising the question of whether
it has jurisdiction to act, as in Séminaire de
Chicoutimi v. The City of Chicoutimi, cited above;
it is asking whether Parliament should not have
given it a wider jurisdiction that would allow it to
receive complaints and act on them in cases other
than those defined; and even if the Court had
jurisdiction to determine the question in response
to an application brought against the Commis
sion's final decision under subsection 28(1), once
the Commission is functus officio, it does not
follow that it can now have jurisdiction under
subsection 28(4).
This leads me to a final argument. It is the
Commission which has applied to the Court under
subsection 28(4) and its doing so has the same
scope and meaning as if it had brought a declara-
tory action. It appears to me that the Commission
is exceeding the limits of its mandate and acting
without authority or legal capacity when it asks
the Court for a judicial ruling on the constitution
ality of the provisions of its enabling Act.
Those are the reasons why I also regard the
application to dismiss as valid and would accord-
ingly propose that the proceedings brought by the
Commission reference be quashed.
* * *
The following is the English version of the
reasons for judgment rendered by
HUGESSEN J.: The Court has before it an
application to quash proceedings, brought under
paragraph 52(a) of the Federal Court Act 4 against
a reference made to the Court by the Canadian
Human Rights Commission under subsection
28(4).
The reference itself reads as follows:
[TRANSLATION] REFERENCE
(Subsection 28(4) of the Federal Court Act)
The complainant Walter Rosen filed a complaint dated Decem-
ber 16, 1985 alleging that a discriminatory practice had been
engaged in by the mis -en-cause CFCF Inc. The complainant
alleged that he was put on retirement on account of his age,
contrary to the provisions of section 7 of the Canadian Human
Rights Act.
The mis -en-cause CFCF Inc. challenged the allegations of the
complaint and argued that no discriminatory practice was
engaged in, by reason of the provisions of paragraph 14(c) of
the Canadian Human Rights Act. That paragraph provides
that the termination of an individual's employment because he
has reached retirement age for the type of work in question
does not constitute a discriminatory practice.
On November 20, 1986 the Canadian Human Rights Commis
sion decided to refer the following question of law and jurisdic
tion to the Federal Court of Appeal for hearing and determina
tion pursuant to subsection 28(4) of the Federal Court Act:
Should the Canadian Human Rights Commission regard
paragraph 14(c) of the Canadian Human Rights Act as of no
force or effect in deciding the complaint by Walter Rosen
against CFCF Inc., in view of the provisions of the Canadian
Charter of Rights and Freedoms?
It is accompanied by a certified copy of the Com
mission's "decision" dated November 20, 1986,
and reading as follows:
[TRANSLATION] The Commission resolved:
pursuant to subsection 28(4) of the Federal Court Act, to refer
the complaint (Q11191) of Walter Rosen of Montréal, Quebec
against CFCF Inc., dated December 16, 1985, alleging dis
crimination in employment on the ground of age to the Federal
Court of Appeal, to establish the constitutionality of paragraph
14(c) of the Canadian Human Rights Act.
The Commission has considered the work done by the Research
and Policy Branch in coming to the decision.
4 R.S.C. 1970 (2nd Supp.), c. 10.
I should say at once that the reference is defec
tive as to form on its face. To begin with, it is not
consistent with the wording of the decision that
authorizes it: the latter purports to be referring
"the complaint" to the Court (which clearly is not
possible), while the former raises a question of law
but in purely academic terms. What is more, the
reference states no conclusion of fact on the basis
of which the Court could determine whether the
question presented actually is
... a question of law that must be determined for the purpose
of dealing with the matter that is before the tribunal making
the reference. ... 5
However, I do not think we should allow the
application and quash the proceedings on these
purely technical grounds. There is in fact sufficient
in the record to indicate that, though it has not
said so clearly, the Commission did actually decide
that:
(a) the complainant, Mr. Rosen, was placed on
retirement at age sixty-six by his employer, CFCF
Inc.;
(b) Mr. Rosen wanted to go on working full-
time for his employer;
(c) CFCF Inc. claims that it acted because Mr.
Rosen had reached the normal age of retirement
for employees working in positions similar to his:
the employer thus relied on the exception con
tained in paragraph 14(c) of the Canadian Human
Rights Act; 6
(d) no settlement of the complaint is possible at
its present stage;
(e) as it considered that the said paragraph
14(c) became of no force or effect when section 15
of the Canadian Charter of Rights and Freedoms
came into effect, it would conduct no investigation
into the arguments by CFCF Inc. regarding the
Reference re Public Service Staff Relations Act, [1973]
F.C. 604 (C.A.), at p. 615.
6 S.C. 1976-77, c. 33.
14. It is not a discriminatory practice if
(c) an individual's employment is terminated because that
individual has reached the normal age of retirement for
employees working in positions similar to the position of that
individual;
retirement age applicable to the type of employ
ment held by Mr. Rosen;
(f) it was satisfied, regardless of the possible
application of paragraph 14(c), that Mr. Rosen's
case was covered by paragraph 36(3)(a) of the
Canadian Human Rights Act, and that therefore
an inquiry into the complaint by a Human Rights
Tribunal was warranted.
However, even if we assume that the reference
contained all the foregoing, I still consider that it
cannot be submitted to the Court of Appeal "for
hearing and determination" under the terms of
subsection 28(4) of the Federal Court Act.
I have already quoted the opinion of Jackett
C.J. in Reference re Public Service Staff Rela
tions Act, that only questions of law that must be
determined for the purpose of dealing with the
matter before the tribunal can be referred by it to
the Court. In Martin Service Station Ltd. v. Min
ister of National Revenue, [ 1974] 1 F.C. 398
(C.A.), my brother Pratte J. expressed the same
idea as follows, at pages 405-406:
However, in my view, in order that a question of law be the
proper subject for a reference under section 28(4) of the
Federal Court Act, it is not necessary that the answer to be
given to that question by this Court, whatever it may be, be
decisive of the litigation before the tribunal making the refer
ence; it is sufficient that the question be such that a possible
answer to it be decisive of the matter.
In order to judge whether one of the possible
answers to the question raised by the reference
could finally dispose of the matter, it is essential to
understand the part played by the Commission in
considering complaints. Its function is not to
decide whether a complaint is valid but to act as a
filter, to exclude obviously groundless complaints.
When it considers that a complaint deserves fur
ther examination the Commission may try to pro
mote an. amicable settlement, or it may ask that
the matter be examined by a Human Rights Tri
bunal, before which it appears as prosecutor. It is
thus empowered to dispose of a complaint only in
the cases in which it concludes that the complaint
should be dismissed. In all other cases, it has to
refer the matter to another body. It is also quite
clear that in the case at bar the Commission, far
from concluding that the matter should be dis
missed, considers that the complaint is a valid one.
Subsection 28(4) of the Federal Court Act
empowers the Commission to refer a question to
the Court for "determination". In the context of
section 28, the word "determination" necessarily
means that the Court must be in a position to
render judgment, in whole or in part, on the actual
substance of the issue giving rise to the reference.
At this stage of the proceedings an answer to the
reference, whatever it might be, could never dis
pose of the issue brought before the Commission.
If the Court decides that paragraph 14(c) is valid,
the Commission will then have to proceed with its
investigation. If on the other hand we find para
graph 14(c) to be of no force or effect, the Com
mission will still have to ask a Human Rights
Tribunal, the only body empowered to dispose of
the matter, to inquire into the complaint.
From this I conclude that the alleged reference
is not authorized by section 28 of the Federal
Court Act. I would therefore allow the application
and direct that the reference proceedings in the
case at bar be quashed.
PRATTE J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.