Why Would Jurisdiction Be Concurrent? Another Thought on Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16

David Mullan’s comment on yesterday’s post prompts me to give (virtual) voice to a thought about the Supreme Court of Canada decision in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16. Gascon J. reviewed the question of the scope of the state’s duty of religious neutrality on a standard of correctness — allowing him to answer it de novo — on the basis that the Quebec Human Rights Tribunal’s jurisdiction is concurrent with that of the ordinary courts. That is, the complainant had a choice. He could have made his arguments before the courts or before the Tribunal.

A majority of the Court had previously held, in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, [2012] 2 SCR 283, that concurrent jurisdiction can rebut the presumption of deferential review when a decision-maker is interpreting its home statute. Otherwise, “inconsistent” results could arise depending on whether a question of interpretation was raised at first instance (subject to de novo appellate review) or in an administrative setting (subject to deferential review). Most of us had thought that the Rogers exception had been limited to its special facts: in Evans J.A.’s last set of reasons for the Federal Court of Appeal, he certainly took that view. Indeed, in Rogers itself, Rothstein J. said: “Concurrent jurisdiction at first instance seems to appear only under intellectual property statutes where Parliament has preserved dual jurisdiction between the tribunals and the courts” (at para. 19). Evidently not!

If one reflects on why a human rights tribunal might have concurrent jurisdiction with a court, the conclusion in Saguenay that correctness review is appropriate is all the more dubious. My understanding has always been that human rights tribunals exist to provide a quick and effective means of remedying rights violations committed by private parties or public bodies. This is to be contrasted with the expensive and time-consuming step of going to the ordinary courts, a step which will often require an individual to issue a notice of constitutional question, potentially triggering the intervention of provincial Attorneys General and other parties. (This can happen in an administrative setting too, but generally at the election of the individual concerned.)

Applying a correctness standard to questions of law determined by a human rights tribunal undermines their role. The tribunal simply becomes a first step in a litigation process that will continue before the ordinary courts. Those individuals seeking quick and effective redress had better come well-prepared, because the message of the Saguenay decision is that a tribunal decision serves as an information-gathering exercise to permit the ordinary courts to do the work of interpreting general questions of law. You can bet that public bodies pursued before a human rights tribunal will make sure their representatives are extremely well armed.

Perversely, the Saguenay decision may also undermine the role of the ordinary courts inasmuch as important questions of law may emerge without warning in the judicial review of the decision of a human rights tribunal. Interested parties, such as Attorneys General and public-interest groups will not be able to participate at first instance as they would before the ordinary courts; and they may not even appreciate the potential significance of a subsequent judicial review hearing before it is too late to intervene. There were many interveners before the Court in Saguenay, but that will not always be the case, and they were denied any opportunity to shape the factual record on which the Court decided a case with national implications.

There may be counter-arguments to some of the points raised here, but my main point is that courts should not glibly employ the idea of concurrent jurisdiction without exploring and explaining the potential consequences.

This content has been updated on April 17, 2015 at 09:06.