INTRODUCTION
1. Parliamentary privilege does not apply to the management of parliamentary employees and in the alternative, this privilege does not apply to functions, such as chauffeur to the Speaker, that are far removed from the legislative functions of the House of Commons.
2. The scope of parliamentary privilege does not extend to protect distinctions based on discriminatory grounds, such as race or gender, as those grounds are unrelated to the needs of a legislative body.
3. The Parliamentary Employment and Staff Relations Act, R.S. 1985, chap. 33 (the “PESRA”) does not oust the applicability of the Canadian Human Rights Act, R.S. 1985, chap. H-6 (the “CHRA”).
PART I - FACTS
4. The Respondent Satnam Vaid (“Mr. Vaid”) is of East Indian Origin. He was employed as chauffeur to the former Speaker, the Honourable Gilbert Parent. On July 10, 1997, he filed two complaints with the respondent Canadian Human Rights Commission (the “Commission”), alleging that the Appellants House of Commons and the Honourable Gilbert Parent (the “Appellants”) had discriminated against him on the grounds of race, national or ethnic origin in the course of his employment as chauffeur.
Complaint forms dated July 10, 1997, Exhibit “A” to the Affidavit of Kimberley Lewis sworn 22 May 2001, Appellant’s Record, Tab 18A, pp. 247–250
5. On October 2, 2000, the Commission referred the complaints to a panel of the Canadian Human Rights Tribunal (the “Tribunal”).
6. The Appellants raised a preliminary objection to the effect that the CHRA did not apply to the House of Commons and its members, and that the Tribunal did not have jurisdiction over the Appellants because of parliamentary privilege.
Majority decision of the Canadian Human Rights Tribunal dated April 25, 2001 (“Tribunal majority decision”) at para 2, Appellants’ Record, Tab 3, p. 5
The Canadian Human Rights Tribunal finds that parliamentary privilege does not apply to Mr Vaid’s human rights complaints.
7. In a divided decision dated April 17, 2001, the Tribunal dismissed the objection and held that parliamentary privilege did not apply to the complaints in issue. In its reasons, the majority stated that race was not a proper ground for privilege and that the employment of the chauffeur to the Speaker was not sufficiently necessary to the core operations of the House of Commons to warrant parliamentary privilege:
Applying McLachlin J.’s test of necessity, and given her example of “race” as not a necessity, and given Campbell J.’s discussion of core functions, and given his specific example of chauffeuring, it is apparent that on both of these tests the employment relationship of the complainant is not sufficiently necessary or close enough to the core of the operation of the House to warrant parliamentary privilege.
Tribunal majority decision at para 29, Appellants’ Record, Tab 3, p. 11
The Federal Court of Canada finds that parliamentary privilege does not apply in this case.
8. In its decision dated December 4, 2001, the Federal Court - Trial Division, upheld the Tribunal’s decision and found that the application of the CHRA was not barred by parliamentary privilege.
Decision of the Federal Court - Trial Division dated December 4, 2001, per Tremblay-Lamer J. (“Trial Division decision”), Appellants’ Record, Tab 4, pp. 28-59
9. Applying the necessity test to the claim of parliamentary privilege, the Court held that parliamentary privilege does not extend to human rights violations as this matter does not fall within the necessary sphere of matters without which the dignity and efficiency of a legislative assembly cannot be upheld.
Trial Division decision at paras 69-82, Appellants’ Record, Tab 4, pp. 52-56
10. The Court agreed with the Tribunal majority’s finding that the CHRA applies to the House of Commons, as the employee relations of House of Commons employees fall under federal jurisdiction.
Trial Division decision at paras 83-85, Appellants’ Record, Tab 4, pp. 56-57
The Federal Court of Appeal confirms that parliamentary privilege does not apply in this case.
11. In a decision dated November 28, 2002 the Federal Court of Appeal upheld the Trial Division decision and found that parliamentary privilege does not apply to bar the application of the CHRA to the Appellants.
Decision of the Federal Court of Appeal dated November 28, 2002 (“Court of Appeal decision”), per Létourneau, Linden, Rothstein JJ.A., Appellants’ Record, Tab 6, pp. 61-119
12. Separate reasons were written by Justice Létourneau (Linden J.A. concurring) and Justice Rothstein, both finding that the Appellants’ claim of parliamentary privilege did not meet the test of necessity established by this Honourable Court in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 (“New Brunswick Broadcasting”):
With respect, I am of the view that the parliamentary privilege claimed in the present instance finds no application for the following reasons that I shall explain in greater detail. First, the powers claimed in this case are not necessary and, consequently, not within the scope of the privilege as delimited by the doctrine of necessity. (emphasis added)
Court of Appeal decision at para 20, per Létourneau J.A, Appellants’ Record, Tab 6, p. 70
[...] No evidence or argument has been put forward as to why a right to discriminate, contrary to the provisions of the CHRA, is a requirement of Members of Parliament necessary for the dignified and efficient functioning of Parliament.
Court of Appeal decision at para 81, per Rothstein J.A, Appellants’ Record, Tab 6, p. 101