Application of CHRA to House of Commons
  
A complaint of discrimination against the Speaker of the House of Commons gave rise to the issue of whether the principle of parliamentary privilege is broad enough to preclude an employee from pursuing a complaint under the CHRA.¹⁵⁸ It was argued by the Speaker that all matters relevant to the employment of persons by a legislative assembly like the House of Commons were beyond the jurisdiction of the Tribunal. Other court decisions tended towards a more refined test to be applied whenever a claim of parliamentary privilege is invoked. As the Tribunal pointed out, the privilege existed in order to protect the core functions and the dignity, integrity and efficient operations of legislative bodies. A claim of privilege must therefore be assessed by reference to these underlying purposes. With respect to employee relations, the Tribunal approved of reasoning in a recent Ontario decision¹⁵⁹ that one must look to whether an employment claim against the legislature concerned matters that were central to its work and essential functions. If so, the privilege would apply to preclude the intervention of the courts. Assessing a claim of privilege against this standard would help prevent potential abuses from being inappropriately concealed. The Tribunal summed up its approach by adopting the following advice: "The courts, while vigilant to ensure that they do not interfere with the business of the legislature, must also be vigilant to ensure that parliamentary privilege is not carried so far that it interferes unnecessarily with the rights of citizens to have access to the courts in relation to matters that do not interfere with the parliamentary business of the legislature."¹⁶⁰

With respect to the case at bar, the Tribunal concluded that it was not necessary to protect the dignity, integrity and efficient functioning of the House of Commons to exclude in principle the normal operation of human rights laws. More specifically, employment of the complainant as chauffeur to the Speaker did not constitute a matter that fell within the core operations of the legislature. Accordingly, the Tribunal was found to have the necessary jurisdiction to conduct a hearing into the complaint of discrimination.

A dissenting opinion from one member of the Tribunal took issue with the conclusions reached by the majority. While she agreed with the basic test to apply (i.e. whether the matter in issue falls within the necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld) she found that "...the weight of judicial and arbitral jurisprudence favours the view that the appointment and management of staff falls indeed within the parliamentary privilege of the Speaker and the House of Commons."¹⁶¹ Furthermore, this privilege exists as a matter of constitutional law and cannot be altered or varied by the general terms of the CHRA. It is Parliament itself that retains the constitutional authority to legislate the scope of its privilege, which presumably would be done in a clear and unambiguous fashion. While the CHRA is quasi-constitutional in nature (and hence takes precedence over other statutes in cases of conflict), it cannot operate to override a parliamentary privilege that enjoys constitutional protection.

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End Notes