CIVE 463 Lecture Notes - Lecture 13: Human Rights Commission, Statutory Interpretation, Originalism
25 May 2018
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Class 13: Review on a standard of correctness
The application of the correctness standard for purposes of substantive review.
Mossop
• Today’s class will show us how troubling administrative law can be = brought out by the
very different positions that we get in Mossop for example
• the SCC judges are coming up with very diff positions on what the standard of review of
correctness should be Mossop
• early sexual orientation case
• brought by a federal public servant – dad of his same sex partner dies, goes to funeral and
wants time off approved − common law spouse at the time was defined as a conjugal
cohabitation of members of the opposite sex
• Mossop complained to the Human rights commission that this constituted discrimination
under the human rights act
o This act had a list of prohibited grounds of discrimination = including “family
status” Ex. married, divorced, etc.
• Within the Act itself, sexual orientation was not an enumerated ground of discrimination.
Mossop had to be shoe horned into one of the pre-existing ground of discrimination Here
chose family status. So there were 2 stages: determining appropriate SR and then merits
of the case on the base of that SR.
• Family status → sexual orientation. Majority - Lamer & LaForest: Correctness/ NO. It
became a famous case because some of the SCC judges have referred to family status as
orthodox family excluding same-sex marriage - understanding that Parliament meant that.
So Mossop’s cause should fail. Also, came to the conclusion that SR was correctness
whereas they adopted deferential standard in work case. Is the tribunal similar enough to
a labour board or not? NOT. Because:
o Expertise: Court view themselves as the best arbitrators of the content, scope and
application of HRs → court has most of the expertise
o Nature of the question at stake: question of statutory interpretation = question of
law. Courts interpretation of this term have precedent on the future - so no
deference
o Composition of the HR commission: while it has expertise but it is one thing to
talk about expertise, but it is not the commission that makes Mossop decision.
Complaints come into the Commission, practices its gatekeeping function to
check if there is discrimination and then there is an ad hoc tribunal that is put in
place.
• Conclusion: correctness is the appropriate standard
• Merits of the case:
o Conventional idea of family is the meaning the court though had to be attributed
to Parliament when it was talking about family status because same-sex couples
were unusual. Based on community standard argument saying that if same-sex
discrimination was a ground, would be attributed, but on an admin law ground,
we cannot help the complainant here (although it could have through the Charter
it implies)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Class 13: review on a standard of correctness. The application of the correctness standard for purposes of substantive review. Mossop had to be shoe horned into one of the pre-existing ground of discrimination here chose family status. So there were 2 stages: determining appropriate sr and then merits of the case on the base of that sr: family status sexual orientation. It became a famous case because some of the scc judges have referred to family status as orthodox family excluding same-sex marriage - understanding that parliament meant that. Also, came to the conclusion that sr was correctness whereas they adopted deferential standard in work case. Because: expertise: court view themselves as the best arbitrators of the content, scope and application of hrs court has most of the expertise, nature of the question at stake: question of statutory interpretation = question of law.
