Coalition fights for access to justice for marginalized communities at Supreme Court of Canada


OTTAWA – Tomorrow, the Supreme Court of Canada will hear an appeal in the case of Canadian Human Rights Commission v Attorney General of Canada. The case is about securing human rights protection for vulnerable groups against government discrimination. The Community Legal Assistance Society (“CLAS”), in coalition with other non-profit legal clinics, is intervening in the case to ensure that the interests of low-income and marginalized groups are highlighted for the Court as it considers this important case.

The case began with a group of Indigenous individuals who were unable to register their children as status Indians under the Indian Act. The discriminatory nature of the Indian Act’s registration provisions is well-known and the subject of ongoing debate in Parliament and the Senate. These individuals filed human rights complaints alleging that Indigenous and Northern Affairs Canada (“INAC”) discriminated against them in the provision of a service, contrary to the Canadian Human Rights Act (the “Act”). However, the Canadian Human Rights Tribunal dismissed their complaints on the basis that they did not relate to the provision of a “service” under the Act.

On appeal, the Federal Court of Appeal affirmed the Tribunal’s decisions. The Court characterized the complaints as challenges to the government’s act of legislating, and said that governments do not provide “services” when passing laws. Therefore, the case could not be brought as a human rights complaint. Instead, the Court said that the complainants could seek relief under the Charter of Rights and Freedoms.

“This case has critical implications for access to justice” said Kevin Love, staff lawyer with CLAS. “We have an access to justice crisis in this country, and the courts are increasingly unavailable to all but the wealthiest among us. A Charter challenge can easily cost the parties up to a million dollars. Human rights tribunals, on the other hand, provide an accessible, much less expensive forum for the resolution of complaints. When an accessible forum to challenge discriminatory government action is foreclosed, victims of discrimination are denied effective remedies and redress.”

The coalition includes CLAS, the Income Security Advocacy Centre, Sudbury Community Legal Clinic, Chinese and Southeast Asian Legal Clinic, and HIV AIDS Legal Clinic of Ontario. All of these legal clinics provide frontline services including free legal assistance to low-income and marginalized individuals, many of whom rely on government income supports for their very survival.

“If government income supports are denied for discriminatory reasons, the consequences for our clients can be extremely grave,” said Love. “For our clients, it doesn’t matter whether the discrimination is baked into legislation or results from the discriminatory application of legislation. The result for them is the same: they’re denied a critical service. If this decision is allowed to stand, the low-income and marginalized clients we serve could lose one of the most effective means of obtaining redress for discriminatory treatment. An interpretation of “provision of services” that includes benefits conferred by legislation must be adopted.”

The Coalition is represented by Marie Chen and Jackie Esmonde of the Income Security Advocacy Centre.

The Coalition’s legal argument is available here.

The hearing will begin at 6:30am PST / 9:30am EST on Tuesday, November 28.