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Burge v. Prince Edward Island (Liquor Control Commission) (P.E.I.C.A.) [** Unedited **][Indexed as:]
Between Michael Burge, Co-Applicant, (Complainant), and The Prince Edward Island Human Rights Commission ("The Commission"),
Co-Applicant, (Statutory Party), and Her Majesty the Queen in right of the Province of Prince Edward Island as represented by the Prince
Edward Island Liquor Control Commission ("The Province"), Respondent, and Gerald R. Foster, Q.C., a Board of Inquiry, appointed pursuant
to Section 25 of the Human Rights Act, R.S.P.E.I. 1988, Cap. H-12, as amended ("The Board"), Respondent 
[1991] P.E.I.J. No. 104 DRS 93-02688 Action No. AD-0292
Also reported at: 97 Nfld. & P.E.I.R. 70 308 A.P.R. 70
Prince Edward Island Supreme Court - Appeal Division Carruthers C.J.P.E.I., Mitchell and McMahon JJ.A.
Heard: September 3, 1991
Judgment: September 12, 1991
(7 pp.)
Constitutional law — Whether Human Rights legislation
violating Canadian Charter of Rights and Freedoms —
Interpretation of legislation — Political belief
discrimination — Onus of proof of complainant.
This was an application for an order declaring that
provisions of the Human Rights Act, including section 1(3)
shall be interpreted in a liberal manner, interpreting and
declaring that the statutory onus on the complainant under
section 1(3) is no different than the onus that generally rests
on any complainant alleging discrimination or in the
alternative, for a declaration that section 1(3) was
unconstitutional on the ground that it infringed section 15(1)
of the Canadian Charter of Rights and Freedoms or alternatively
infringed the applicant's section 2 Charter rights.
HELD: Section 9 of the Interpretation Act applied and
mandated that the Human Rights Act be construed as being
remedial and that it be given liberal and fair construction and
interpretation. The burden of proof in cases alleging political
belief discrimination was upon the person making the
allegation. Section 1(3) was clear to that effect. There was
no violation of the Charter. All political belief complainants
had to meet the same onus and the standard of proof was not
different than for complaints based on other grounds of
discrimination prescribed by the Act.
STATUTES, REGULATIONS AND RULES CITED:
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Canadian Charter of Rights and Freedoms, 1982, ss. 2, 15(1),
24(1).
Human Rights Act, R.S.P.E.I. 1988, c. H-12, s. 1(d), 1(3).
Interpretation Act, R.S.P.E.I. 1988, c. I-8, s. 9.
Supreme Court Act, R.S.P.E.I. 1988, c. S-10, c. 13(2). |
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Ian W. Bailey, for Mr. Burge.
Mark Ledwell, for The Commission.
Stephen D.G. McKnight, for the Province.
Philip Mullally, for The Board. |
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MITCHELL J.A. (for the Court):— The co-applicants seek the
following orders:
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(1) |
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An Order declaring that provisions of the Human Rights
Act, including sub-section 1(3), shall be interpreted in a
large and liberal manner as will best ensure that the
objects and purposes of the Act are attained as directed by
the Supreme Court of Canada in Canadian National Railway
Co. v. Canada (Canadian Human Rights Commission), [1987],
S.C.R. 1114 and Robichaud v. Canada (Treasury Board),
[1987] 2 S.C.R. 84; |
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(2) |
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An Order interpreting and declaring that the statutory
onus on the complainant, Michael Burge, as set forth in
subsection 1(3) of the Human Rights Act, is no different
than the onus that rests generally on any complainant
alleging discrimination under any of the remaining eleven
(11) grounds enumerated in subsection 1(d) of the Human
Rights Act. |
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(3) |
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In the alternative, if this Honourable Court
determines that the statutory onus is sub-section 1(3) of
the Human Rights Act does in fact impose a more stringent
standard of proof in matters of discrimination in relation
to political belief not present in complaints of
discrimination on any other enumerated ground (i.e. race,
religion, creed, color, sex, marital status, ethnic or
national origin, age, physical or mental handicap), as
described in sub-section 1(d) of the Act, an Order pursuant
to sections 52 and 24(1) of the Charter of Rights and
Freedoms declaring sub-section 1(3) of the Act
unconstitutional on the basis that it infringes the section
15(1) or alternatively, section 2 Charter rights(s) of the
Applicant Burge. |
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The application for these orders was removed from the trial
division to this court by an order made pursuant to s. 13(2) of
the Supreme Court Act, R.S.P.E.I. 1988, Cap. S-10.
Section 13(2) provides as follows:
(2) A judge sitting in the trial division shall decide all
questions coming properly before him, but may reserve any
proceeding or any questions in any proceeding for consideration
of the appeal division.
This provision gives a trial judge a discretion to refer a
matter to the Court of Appeal. The power must be exercised with
restraint so that matters are not removed to the Court of
Appeal which should properly be decided by the trial division
in the first instance. Matters which would require the Court
of Appeal to hear evidence in order to determine questions of
fact should not be referred under s. 13(2). Indeed the orderly
administration of justice requires that resort to s. 13(2)
should only occur in rare and exceptional circumstances such as
the following:
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(1) |
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when there are conflicting decisions in the trial
division on an important point of law; |
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(2) |
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where there are conflicting decisions on a point of
law by the courts of appeal of other Provinces but there is
no decision on the point by the Court of Appeal of this
Province; |
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(3) |
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where one of the parties seeks to establish that a
decision of the Court of Appeal of this Province should not
be followed; |
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(4) |
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where the public interest requires the early
resolution of a point of law by the Court of Appeal; |
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(5) |
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where the early resolution of a point of law by the
Court of Appeal will likely result in saving costs and
reducing otherwise lengthy litigation. |
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I am satisfied that this is a case in which the trial judge
exercised his discretion properly in making an order under s.
13(2). The Court of Appeal does not have to hear evidence on
the matter and due to the large number of complaints of
political belief discrimination now before the Human Rights
Commission it is in the public interest to have the issues of
law raised in the application decided by this court at an early
date.
Interpretative Approach
The first issue raised by the application concerns the
interpretative approach that ought to be taken towards the
provisions of the Human Rights Act, R.S.P.E.I., 1988, Cap.
H-12. In my view that issue is answered by s. 9 of the
Interpretation Act, R.S.P.E.I. 1988, Cap. I-8. It is true that
the Human Rights Act prevails over all other Provincial laws,
but there is no conflict between it and s. 9 of the
Interpretation Act. Section 9 therefore applies and mandates
that the Human Rights Act be construed as being remedial and
accordingly that it be given such fair, large and liberal
construction and interpretation as best ensures the attainment
of its objects.
Onus
The second issue raised by the application concerns the
burden of proof in cases of alleged political belief
discrimination. This issue is determined by the crystal clear
language of subsection 1(3) of the Human Rights Act itself
which states:
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1(3) |
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Onus. - For the purposes of this Act the onus of
establishing an allegation of discrimination or action on a
discriminatory basis in relation to political belief is upon
the person making the allegation. |
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That provision is not ambiguous. One does not have to resort
to extrinsic aids in order to discern its meaning. For the
purposes of the Human Rights Act, it places the burden of
establishing allegations of political belief discrimination
squarely on the shoulders of the complainant.
Subsection 26(1) of the Human Rights Act provides that the
Human Rights Commission is a party to a complaint before a
board of inquiry and that all parties are entitled to present
evidence. The complainant, therefore, can rely on evidence
adduced by any of the parties, including the Human Rights
Commission, to substantiate his case. However, in the end the
complaint will fail unless it is supported by a reasonable
preponderance of the evidence. Section 1(3) leaves no doubt
that in cases of alleged political belief discrimination the
burden rests on the complainant throughout and never shifts to
the respondent.
S. 15 of the Charter
As an alternative the applicants seek an order striking down
s. 1(3) of the Human Rights Act on the grounds that it offends
s. 15 of the Canadian Charter of Rights and Freedoms. I would
dismiss this aspect of the application. Section 15 of the
Charter is not offended by a provision requiring anyone making
a complaint of political belief discrimination to substantiate
it by a reasonable preponderance of evidence. All political
belief complainants have to meet the same onus and in the final
analysis the standard of proof is not different than for
complaints based on other grounds of discrimination prescribed
by the Human Rights Act. Subsection 26(4) of the Human Rights
Act indicates that any complaint before a board of inquiry must
be supported by a reasonable preponderance of the evidence if
it is to warrant any further action.
S. 2 of the Charter
The applicants advanced no arguments to support the
contention that s-s. 1(3) of the Human Rights Act offends s. 2
of the Charter accordingly I do not propose to deal with it.
MITCHELL J.A.
I concur: CARRUTHERS C.J.P.E.I.
I concur: MCMAHON J.A.
DRS/DRS
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