1 October 2009

Warman v. Lemire: We Told You It Likely Wasn't Over

Do we sound smug when we say we told you so?

Now let's all listen to the in unison crying and gnashing of teeth from the speechies:

Judicial Review Application in the Warman v. Lemire case

Judicial Review Application
Warman v. Lemire

On Thursday, October 1, 2009, the Canadian Human Rights Commission applied for Judicial Review of the Canadian Human Rights Tribunal's decision in the Warman v. Lemire case before the Federal Court.

The Commission applied for Judicial Review so that technical but important legal issues raised by the decision can be clarified. These issues go beyond this particular case and could have an impact on other administrative tribunals. As a result, the uncertainty created by the decision is not in the public interest and merits a binding decision by a higher court.

The application is based on two grounds. It is the Commission’s view that:

The Tribunal erred in law when it found that the manner by which the applicant exercises its statutory mandate could render section 13 of the Canadian Human Rights Act unconstitutional; and

The Tribunal’s findings of unconstitutionality also resulted from the adoption of subsections 54(1)(c) and (1.1) of the Canadian Human Rights Act, subsequent to the Supreme Court of Canada’ s decision in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. The Tribunal erred in law when it refused to apply section 13 of the Act because a refusal to apply subsections 54(1)(c) and (1.1) would have provided a sufficient remedy in respect of this ground.

The Commission endorses the Tribunal's narrow interpretation of section 13, which is consistent with the Supreme Court and Tribunal's jurisprudence as well as with the Commission's 2009 Special Report to Parliament. The Commission accepts the Tribunal's finding that the penalty clause is unconstitutional. In fact, the Commission itself has recommended that this provision be repealed in its Special Report to Parliament.

The Commission is a servant of Parliament and considers that Parliament's statutes must be applied unless they are found to be unconstitutional. In this case, it is the Commission’s view that the Tribunal went too far in refusing to apply section 13 in its entirety when the constitutional concern could be remedied by refusing to apply the penalty clause in 54(1)(c).

Given that the original decision was a bad decision based on a poor understanding and application of the law, we couldn't imagine that the decision wouldn't be appealed. On way or another, at least we'll be closer to some clarification.

Update: New links, now with kng-fu grip!

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