The House of Commons should not act as a sanctuary from the operation of human rights law, according to the Federal Court Trial Division.
In Canada (House of Commons) v. Vaid, the Court dismissed an application for judicial review of a Canadian Human Rights Tribunal decision brought by the House of Commons and the Honourable Gilbert Parent, former Speaker of the House. The Human Rights Tribunal had determined that parliamentary privilege did not oust its jurisdiction to deal with an allegation that Mr. Parent had discriminated against one of his employees, Mr. Satnam Vaid.
The human rights complaint underlying these court proceedings has a long history. The complaint was filed with the Canadian Human Rights Commission in July 1997 by Mr. Vaid, a Canadian citizen of East Indian origin. Mr. Vaid was employed for more than a decade as a chauffeur to three successive Speakers of the House of Commons, and ostensibly received excellent commendations from each of them. However, according to the complaint filed with the Commission, soon after Mr. Parent's election to the position of House Speaker, Mr. Vaid began for the first time to experience difficulties in his employment.
Specifically, it is alleged that Mr. Parent questioned Mr. Vaid and his wife regarding Mr. Vaid's education, property holdings, and other means of financial support. Mr. Parent also allegedly made inappropriate conversation about the caste system in India, wanting to know the caste into which Mr. Vaid had been born and surmising about his relative position of prominence within the caste system, given his powerful office as House Speaker. It is also alleged that when Mr. Vaid did not respond favourably to the former Speaker’s suggestion that he "seek a transfer", he suffered adverse repercussions in his employment such as the assignment of dishwashing duties and split shifts. According to the complaint, Mr. Parent had Mr. Vaid's driving duties removed, and his employment terminated.
Mr. Vaid grieved the termination of his employment and in July 1995 the Public Service Staff Relations Board ordered Mr. Vaid reinstated into the chauffer position in Mr. Paren's office. However, it is alleged in the complaint to the Commission that when Mr. Vaid reported to work following the PSSRB's reinstatement order, he was not permitted to resume his driving duties. Instead, according to Mr. Vaid, he was sent for French language training because during his forced absence from the workplace a new “bilingual imperative” designation had been ascribed to his chauffeur position. Finally, according to the complaint, a subsequent reorganization within the Speaker's office ensured the elimination of Mr. Vaid's position, thereby permanently depriving him of the ability to resume his duties as chauffeur for the House Speaker.
The complaint was investigated by the Canadian Human Rights Commission and referred to a Tribunal hearing. On a preliminary motion, the Tribunal determined that it had jurisdiction to hear and decide Mr. Vaid's complaint because the work performed by Mr. Vaid was not close enough to the core of the operation of the House of Commons to warrant protection by parliamentary privilege. The Tribunal also held that race was not a proper ground for privilege. Mr. Parent and the House of Commons applied for judicial review. They argued before the Federal Court that if the Tribunal were to enter into an evidentiary hearing and found that there were no grounds for claiming discrimination, the privilege asserted by them would be rendered nugatory by the nature of the Tribunal inquiry.
The Federal Court agreed with the Tribunal that parliamentary privilege did not deprive it of the jurisdiction to hear the complaint. However, in reaching this conclusion the Court rejected the functional approach of examining whether the type of work performed by Mr. Vaid fell within the core of parliamentary privilege. The Court reasoned that such an approach would divide the House of Commons employees into two groups – those who could seek the protection of human rights legislation and those who could not, based on the jobs or the duties they performed.
Instead, the Court determined that Mr. Vaid's employment relationship was indeed covered by parliamentary privilege, because the relationship fell within the privilege of the House of Commons to appoint and manage its staff, free from interference. However, relying on the Supreme Court of Canada's decision in Harvey v. New Brunswick (Attorney General), the Federal Court ruled that the claim of privilege is not limitless and will not extend to matters that are not necessary to the proper functioning of the House.
The Court observed that the Applicants had not provided any convincing answers on how the dignity or the efficiency of the House would be adversely affected by a Tribunal hearing into Mr. Vaid's allegations of discrimination. According to the Court, just as the House should not act as a sanctuary from the operation of criminal law, so too should the Canadian Human Rights Act apply to its employment relations. To hold otherwise would, in the Court's view, promote a view of parliamentary privilege that is contrary to an individual's guarantee of equality under the Charter.
In the result, the Court dismissed the judicial review application, concluding that the scope of parliamentary privilege does not extend to protect actions of the House based on grounds that are not necessary to its functioning, such as race, gender, or other proscribed grounds of discrimination.
Human rights advocates have responded enthusiastically to the decision, taking particular comfort from the finding that those who manage key democratic institutions on behalf of Canadians are subject to human rights legislation like other employers. However, those in favour of a broad application of human rights protections will have to wait for the final word on this issue.
The House of Commons and Mr. Parent are appealing the decision to the Federal Court of Appeal. The appeal was scheduled to be heard on June 19, 2002.
Denise Workun is a partner with Nelligan O'Brien Payne LLP in Ottawa, practising Human Rights and Employment Law.
[This article is reprinted with permission and first appeared in the May 2002 issue of The Lawyers Weekly.]