A-735-87
In the Matter of the Canadian Human Rights Act;
And in the Matter of a complaint filed by Rose
Desjarlais against Piapot Band No. 75; And in the
Matter of Section 63(2) of the Canadian Human
Rights Act; And in the Matter of an application by
the Canadian Human Rights Commission pursu
ant to Subsection 28(4) of the Federal Court Act.
INDEXED AS: DESJARLAIS (RE) (CA.)
Court of Appeal, Urie, Hugessen and Desjardins
JJ.A.—Regina, April 27; Ottawa, May 5, 1989.
Human rights — Band firing administrator pursuant to
formal resolution of Band Council — Administrator filing
complaint with Canadian Human Rights Commission alleging
discrimination on basis of age — Canadian Human Rights
Act, s. 63(2) providing nothing in Act affecting any provision of
Indian Act or any provision made under or pursuant to that
Act — S. 63(2) not precluding jurisdiction of Commission to
deal with complaint — Meaning of "affects" — Reference to
"effet" in French version — Meaning of "provision" — No
by-laws dealing with hiring and firing of staff — Band
Council motion, described as vote of non-confidence, neither
expressly nor impliedly provided for by Indian Act — Not
"provision made under or pursuant to Act" and not within
exempting provisions of s. 63(2).
Native peoples — Band Council firing administrator pursu
ant to formal resolution — Complaint alleging discrimination
based on age filed with Canadian Human Rights Commission
— Canadian Human Rights Act, s. 63(2) providing nothing in
Act affecting any provision of Indian Act or any provision
made under or pursuant to that Act — Meaning of "affects",
"provision" — S. 63(2) not precluding Commission's jurisdic
tion to deal with complaint — No by-laws dealing with hiring
and firing of staff — Motion, described as "vote of non-confi
dence", neither expressly nor impliedly provided for in Indian
Act.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 7,
37, 63(2).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
28(4).
Indian Act, R.S.C. 1970, c. I-6, ss. 2, 18(2), 20(1), 28(2),
31, 34, 39(1)(b)(i), 58, 59, 64, 82, 83(1)(c) (as am. by
S.C. 1988, c. 23, s. 10), 98(5) (rep. by S.C. 1985, c. 27,
s. 17).
Indian Band Council Procedure Regulations, C.R.C., c.
950.
Revised Statutes of Canada, 1985 Act, S.C. 1987, c. 48.
AUTHORS CITED
Black's Law Dictionary, 5th ed. St. Paul, Minn.: West
Publishing Co., 1979, "affect". ;
Britannica World Language Dictionary, vol. 1, Int. Ed.
New York: Funk & Wagnalls Co., 1959, "affect".
Grand Larousse de la langue française, vol. 2. Paris:
Librairie Larousse, 1972, "effet".
Oxford English Dictionary, vol. 1 Oxford: Clarendon
Press, 1933, "affect".
Robert, P. Dictionnaire alphabétique et analogique de la
langue française t. 2 Paris: Société du nouveau Littré,
1981, "disposition", "effet".
COUNSEL:
James Hendry for Canadian Human Rights
Commission.
SOLICITORS:
Legal Services, Canadian Human Rights
Commission, Ottawa, for Canadian Human
Rights Commission.
The following are the reasons for judgment
rendered in English by
DESJARDINS J.A.: The Canadian Human
Rights Commission is before this Court on an
application' pursuant to subsection 28(4) of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10].
The question of law referred to us by resolution
of the Commission dated August 26, 1987 reads
thus:
Does section 63(2) of the Canadian Human Rights Act pre
clude the jurisdiction of the Canadian Human Rights Commis
sion to deal with the complaint made by Rose Desjarlais
against Piapot Band No. 75, alleging that her employment was
terminated because of her age, in that the termination was
made pursuant to a formal resolution passed at a meeting of the
Band Council? (Case book, at page 1)
' The date of the application is August 26, 1987. References
to the statutes will therefore be those prior to the coming into
force of-the Revised Statutes of Canada, 1985 Act, S.C. 1987,
c. 48.
The facts giving rise to the resolution are as
follows. Rose Desjarlais, an administrator for four
teen years with the Piapot Band, was fired on June
11, 1984. She claims she was fired without notice
or just cause. She states in her complaint:
Johnny Rock Thunder, a Band Councillor, advised me that the
Band Council had passed a motion to dismiss me. When I
asked why I was being fired, Johnny Rock Thunder told me it
was because I was too old. (Case book, at page 4)
She filed a complaint on July 27, 1984 and an
amended complaint on October 2, 1985 with the
Canadian Human Rights Commission against
Piapot Band No. 75 alleging discrimination on the
basis of age contrary to section 7 of the Canadian
Human Rights Act, S.C. 1976-77, c. 33.
Indeed the minutes of the meeting of June 11,
1984 of the Piapot Band Council indicate that the
following motion was carried:
THAT Councillor Johnny Rockthunder is requesting a vote of
non-confidence for ... Rose Desjarlais .... Some complaints
are about Rose's age ....
"MOTION CARRIED" (Case book, at page 15)
She was later replaced.
The Commission, pursuant to section 37 of the
Canadian Human Rights Act, appointed a con
ciliator who attempted to bring about a settlement.
As it turned out however, no conciliation was
possible since the Band Council doubted that the
Commission had any jurisdiction in the matter.
Hence the present application by the Commis
sion. Rose Desjarlais and the Piapot Band Council
were properly served. Both chose however not to
be represented.
Subsection 63(2) of the Canadian Human
Rights Act reads:
63....
(2) Nothing in this Act affects any provision of the Indian Act
or any provision made under or pursuant to that Act.
This being an exception to the Canadian
Human Rights Act, the intention of Parliament
must be assessed.
The word "affects" is indeed very wide in scope.
I take it to have the meaning of "To act upon or
have an effect upon. 2 The opening words of sub
section 63(2) of the Canadian Human Rights Act
read therefore that nothing in that Act shall have
an effect upon .... The word "effet" in the French
version is also general and is equivalent to such
words as "conséquence", 3 "influence"." Hence:
"La présente loi est sans conséquence, sans influ
ence sur".
The word "provision" in the expression "any
provision of the Indian Act" has a legislative con
notation and refers both to the Indian Act and the
Regulations 5 adopted thereunder. This interpreta
tion is confirmed by the French version.
The word "provision" in the expression "or any
provision made under or pursuant to [the Indian
Act]" cannot have the same meaning as the first
word "provision" and cannot refer exclusively to a
legislative enactment of general application as
counsel for the Commission submits. Such inter
pretation is made impossible by the French ver
sion. The word "dispositions" in that version
might have the meaning of "mesures législatives"
but it encompasses as well the very wide connota
tion of "décisions", "mesures". 6 So that the words
"or any provision made under or pursuant to that
Act" mean more than a mere stipulation of a legal
character. I interpret such words as covering any
2 Britannica World Language Dictionary, vol. 1 (New York:
Funk & Wagnalls Co., Int. Edition, 1959), at p. 24. See also
Oxford English Dictionary, vol. 1 (Oxford: Clarendon Press,
1933), at p. 151; Black's Law Dictionary, 5th ed. (St. Paul,
Minn.: West Publishing Co., 1979), at p. 53.
3 Grand Larousse de la langue française, vol. 2 (Paris:
Librairie Larousse, 1972), at p. 1494.
° P. Robert, Dictionnaire alphabétique et analogique de la
langue française, t. 2 (Paris: Société du nouveau Littré, Le
Robert, 1981), at p. 391.
5 Such as the Indian Band Council Procedure Regulations,
C.R.C., c. 950.
6 P. Robert, Dictionnaire alphabétique et analogique de la
langue française, idem, at p. 253.
decision made under or pursuant to the Indian
Act.
The Band Council of Piapot is a "council of the
band" within the meaning of section 2 of the
Indian Act, R.S.C. 1970, c. I-6. Although it is not
clear from the case whether the Band Council of
Piapot is one to which paragraph 2(1)(a) or (b) of
the Indian Act applies, both types of "council of
the band" have the same powers under the Indian
Act.
With regard to hiring and firing of staff, there
are no by-laws properly registered under the
Indian Act which would have been adopted by the
Piapot Band Council as required by section 82 of
the Indian Act. Moreover, the Governor in Coun
cil, at the relevant time,' had not declared that the
Piapot Band No. 75 had reached an advanced
state of development so that it could make by-laws
for the purposes set out in paragraph 83(1)(c) of
the Act (case book, appendix 1, at page 225).
The adoption of by-laws is however not the only
way a band council can make decisions under the
Indian Act. The former subsection 98(5) of the
Act dealing with intoxicant had in possession by a
person on a reserve, stated specifically that its
provisions could only enter into force after a reso
lution to that effect has been transmitted to the
Minister by the band council on that reserve. That
subsection was however abrogated in 1985 (S.C.
1985, c. 27, s. 17 (assented to June 28, 1985)).
Other provisions of the Act indicate that the band
council has the authority to take decisions but they
do not specify the way in which these decisions are
to be expressed. For example, subsection 18(2)
dealing with the use of reserve land, subsections
20(1) and 28 (2) dealing with allotment of land on
the reserve, section 31 dealing with trespass on a
reserve, section 34 dealing with the maintenance of
roads and bridges, subparagraph 39(1)(b)(i) deal
ing with the calling of a general meeting of the
' The opening words of section 83 have now been amended
by S.C. 1988, c. 23, s. 10, (assented to June 28, 1988).
band by the council of the band, section 58 dealing
with uncultivated or unused land, section 59 deal
ing with adjustment of contracts, and section 64
dealing with expenditures of capital moneys. Pre
sumably, the procedure laid out in the Indian
Band Council Procedure Regulations apply.
Undoubtedly, in my view, any decision taken by a
band council under those sections would be made
under or pursuant to the Indian Act.
In the case at bar, the motion of the Band
Council of Piapot dated June 11, 1984 and
described as "a vote of non-confidence for ...
Rose Desjarlais", is nowhere, expressly or by
implication, provided for by the Indian Act;
accordingly it is not a "provision made under or
pursuant to that Act" so as to bring it within the
exempting provisions of subsection 63(2) of the
Canadian Human Rights Act.
The question of law referred to by resolution of
the Commission dated August 26, 1987 should
therefore be answered in the negative.
URIE J.A.: I agree.
HUGESSEN J.A.: I agree.
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.