Human Rights Tribunals and Reviewing Courts in Canada
Canada’s Human Rights Tribunals have extensive powers to investigate and redress alleged breaches of fundamental rights by public and private parties. These statutory rights overlap but do not mirror the rights protected constitutionally; the human rights codes they are found in are usually described as “quasi-constitutional”.
But Canadian courts have typically been cautious in allowing the tribunals to define the scope of their own mandates — especially the scope of protected rights — a caution that can be traced back to Canada (Attorney General) v. Mossop,  1 SCR 554. Post-Dunsmuir, the situation has remained the same, either because the scope of fundamental rights is considered a question of general law of central importance to the legal system, or because the presumption of deferential review can be rebutted.
The first strategy is found in an early post-Dunsmuir decision from Alberta: Walsh v. Mobil Oil Canada, 2008 ABCA 268:
 In our view, in light of Alberta’s human rights legislation, the existing case law answers the question of standard of review, at least in a general sense. It indicates that human rights tribunals, such as the panel in this case, may be afforded some deference with respect to findings of fact and credibility, given their role in hearing viva voce evidence. However, reviewing courts will be unconstrained in their assessment of the evidence as it relates to the applicable law, particularly where an error is found in respect of the tribunal’s articulation of the law.
The second strategy, particularly popular as a general matter with the Federal Court of Appeal, can be seen in Canadian National Railway Company v. Seeley, 2014 FCA 111. Mainville J.A. found the presumption of reasonableness review had been rebutted, for several reasons.
“First, the Supreme Court of Canada has consistently held that fundamental rights set out in human rights legislation, such as the Canadian Human Rights Act, are “quasi-constitutional” rights” and thus they should be subject to the correctness standard of review as with constitutional issues (at paras. 45-46).
Second, a multiplicity of bodies, “labour arbitration boards, labour relations boards and superior courts throughout Canada are regularly called upon to adjudicate with respect to the fundamental human rights described in the Canadian Human Rights Act and other human rights legislation”, a “concurrent jurisdiction of a multiplicity of decisions makers” which calls for correctness review (at paras. 47-48).
Third, the scope of discrimination on family status is a matter of concern across provincial boundaries. So, “for the sake of consistency between the various human rights statutes in force across the country, the meaning and scope of family status and the legal test to find prima facie discrimination on that prohibited ground are issues of central importance to the legal system, and beyond the Tribunal’s expertise, which attracts a standard of correctness on judicial review” (at para. 51).
 Fourth, Dunsmuir also stands for the proposition that when the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular question, the matter should be deemed settled. As noted above, the Supreme Court of Canada has determined in the past that a correctness standard of review applies to the meaning and scope of family status under the Canadian Human Rights Act: Mossop at pp. 576-578. Whether the jurisprudence of the Supreme Court of Canada post-Dunsmuir has implicitly overruled this prior approach with respect to fundamental human rights is a matter best left for the Supreme Court itself to decide. Until the Supreme Court of Canada decides otherwise, our Court is bound by Mossop: Canada v. Craig, 2012 SCC 43 (CanLII),  2 S.C.R. 489 at para. 21.
One might be puzzled about why these factors rebut the presumption of reasonableness rather than indicate that the questions at issue fell into the category of questions of general law of central importance to the legal system. But this confusion is present in the Dunsmuir framework and has yet to be resolved.
The Supreme Court has an important discrimination case on reserve, an appeal from Bombardier inc. (Bombardier Aerospace Training Center) c. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 1650, where it may take the opportunity to address this issue. In their written submissions, the appellants criticize the Quebec Court of Appeal’s failure to mention the standard of review, so it will be interesting to see if and to what extent the Court decides to do so.
This content has been updated on February 11, 2015 at 10:40.