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3 Hum. Rts. Dig. 1 (2002)

handle is hein.journals/hurtsdg3 and id is 1 raw text is: VOLUME 3 NUMBER 1 Human Rights Digmest January 2002 Decisions Noted Parliamentary Privilege Does Not Bar Human Rights Complaint........ 1 Reinstatement Order Set Aside ...... 3 School Phys Ed Program Must Not Be Barrier for Disabled Child ........ 4 CSIS Discriminates Based on Mental Illness .................... ..6 Discrimination on the Tugs ......... 7 CAF Must Accommodate Soldiers w ith D isabilities ............... 9 Dismissal W as Retaliation ......... 10 Disclosure Order Varied .......... 10 Inside Page ...................2 Briefly Noted ................11 Ordering .....................12 JURISDICTION - CONSTITUTIONAL LAW - jurisdiction under s. 91 of the Constitution Act, 1867 - jurisdiction to hear complaint concerning the House of Commons - parliamentary privilege ADMINISTRATIVE TRIBUNALS - COURTS - standard of review of court over administrative tribunals - HUMAN RIGHTS - nature and purpose of human rights legislation - APPEALS AND JUDI- CIAL REVIEW - error of law in interpret- ing case law The Federal Court Trial Division dismissed an appeal by the House of Commons and the Honourable Gilbert Parent, former Speaker of the House, from a decision of the Canadian Human Rights Tribunal (40 C.H.R.R. D/229), which found that parlia- mentary privilege did not oust its jurisdic- tion to deal with an allegation that Mr. Par- ent had discriminated against an employee. Mr. Satnam Vaid was employed by Mr. Parent as his chauffeur. He complained that Mr. Parent harassed and discriminated against him because of his race. The Tribunal handed down a split deci- sion. The majority found that the Tribunal had jurisdiction to hear and decide the complaint. Parliamentary privilege did not deprive the Tribunal of jurisdiction because the work performed by Mr. Vaid was not close enough to the core of the operation of the House of Commons to warrant pro- tection by parliamentary privilege. Also, race was not a proper ground for privilege. In dissent, the Chair of the Tribunal, Anne MacTavish, reasoned that the Tri- bunal did not have jurisdiction because the appointment and management of staff falls within the parliamentary privilege of the House of Commons and the Speaker. To engage in an inquiry into whether race played a part in any decision-making re- garding Mr. Vaid would intrude into the in- ternal workings of the House of Commons and render the privilege nugatory. The Court found that there are two cat- egories of parliamentary privilege: the priv- ilege that extends to members individually and the privilege that extends to the House collectively. The privileges that extend to members individually are: freedom of speech; freedom from arrest in civil actions; exemption from jury duty and exemption from attendance as a witness. The privi- leges extending to the House collectively include: the power to discipline and expel members; the regulation of its own internal affairs; the authority to maintain the atten- dance and service of its members; the right to institute inquiries and call witnesses. Clearly, the right to manage its internal affairs includes the right to direct and man- age staff. However, the Court questioned whether it was enough to determine that a matter falls within the right to manage staff, or whether it was necessary to go fur- ther, as Campbell J. did in Thompson v. MacLean, and apply a functional approach, that is, to examine in any particular case whether the work and all aspects of the employment relationship at issue falls within the core of parliamentary privilege. The Court rejected this approach, agreeing with the dissenting Tribunal member that such an approach would ren- der any parliamentary privilege nugatory. It would require courts to embark on an in- quiry every time to determine whether a particular job responsibility falls within the core of parliamentary privilege. This would have the unfortunate result of creating two categories of employees. Some employees could find redress because they perform continued on page 3

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