Canada: "New" Limitations On The Powers Of The Court Of Appeal To "Reform" Final Judgments Of The Quebec Human Rights Tribunal – Fact Or Fiction?

Last Updated: June 28 2012
Article by Théodore Goloff

In Quebec, violations of fundamental rights set out in the Charter of Human Rights and Freedoms can be litigated either before the Quebec Human Rights Tribunal, hereinafter the "Tribunal" or before the common law courts. Each procedure has its advantages. In that sense, the jurisdiction of the aforesaid Tribunal is not exclusive.

Furthermore, final judgments of the aforesaid Tribunal are appealable to the Court of Appeal in accordance with Arts. 132 to 133 of the Charter. The legislature took pains to specify at Art. 131 thereof that "the rules relating to appeals set out in the Code of Civil Procedure, with the necessary modifications, apply to any appeal under this Chapter."

The Tribunal's judgments are also protected by a fairly robust privative clause at Art. 109 of the Charter, a privative clause that is per force directed at the Superior Court, and only the Superior Court.1 It provides :

"109. Except on a question of jurisdiction, no recourse provided for in articles 33 and 834 to 850 of the Code of Civil Procedure (chapter C-25) may be exercised nor any injunction granted against the Tribunal, its president or any other member acting in its or his official capacity.

A judge of the Court of Appeal may, upon a motion, annul summarily any decision, order or injunction issued or granted contrary to the first paragraph."

The superintending and reforming power of the Superior Court, whether exercised by way of judicial review (formerly styled either as writs of "evocation" or as prerogative writs of certiorari, prohibition, mandamus or harbeus corpus) or by way of direct action in nullity, is necessarily quite limited with the corresponding "deference" to be shown to the quasi-judicial Tribunal being very substantial.

Admittedly, since Pezim v. British Columbia (Superintendent of Brokers), [1974] 2 S.C.R. 557, in certain circumstances, "deference" of a somewhat lesser degree, but nonetheless substantial, should also be shown by an appellate court, in respect of decisions of a quasi-judicial tribunal, even when a right of appeal is provided by the statute and even in the absence of a privative clause. On the other hand, the Quebec Court of Appeal seems to have set out the broad parameters of its own appellate powers in respect of the Tribunal in two judgments rendered previously, particularly in the Jean Coutu case2.

Furthermore, in Commission scolaire des Phares v. Commission des droits de la personne et des droits de la jeunesse, [2006] QCCA 82, a unanimous court stated :

"[32] When it is the Tribunal which hears the complaint, its final decision is appealable to the Court of Appeal, by leave, pursuant to Art. 132 of the Quebec Charter. The Court of Appeal would not then be seized of a request for judicial review, but rather by an appeal. As was underlined by Gendreau J.A. in Coutu v. Tribunal des droits de la personne, this right of appeal gives rise to a re-examination of the decision "according to different and larger criteria than those applicable in matters of judicial review."(Translation and underlines, by the author)

The Court went on to say:

"[34] The decision of the Tribunal is subject to the same control criteria as those applied to decisions of all trial courts whose judgments are appealed, to wit manifest and determinative error, when the matter involves appreciation of facts, and correctness when the appeal is on a question of law. As respects mixed questions of fact and law, the standard could vary, depending on whether the error flows or does not flow from the application of an incorrect judicial norm to an agglomeration of facts." (Translation and underlines, by the author)

Citing the Supreme Court in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, the Court of Appeal then held:

"35. A decision of the tribunal that is appealed before this Court, is therefore subject, with respect to questions of fact or mixed fact and law to the standards of control set out by the Supreme Court in the Housen case." (Translation, by the author)

In Housen, the Supreme Court determined that:

  1. With respect to questions of fact, an appellate court should not interfere with a trial judge's reasons, unless there is "palpable and overriding error";
  2. On a pure question of law, an appellate court is free to replace the opinion of the trial court. The standard is correctness, because "universality" requires appellate Courts to ensure "that the same legal rules are applied in similar situations" and "delineate and refine" legal rules that will apply in a broad range of situations.

Recently, in Commission Scolaire Marguerite-Bourgeois et al. v. Gallardo, 2012 QCCA 908, the Court of Appeal apparently « refined » the standards or limitations that govern its appellate jurisdiction. Whether ultimately such "refinements" broaden or narrow the Appeal Court's powers of review to, remains to be seen.3 Unless and until reversed by the Court itself or by higher authority, the rules, on the basis of Gallardo, now seem to be as follows:

  1. If the appeal raises questions of fact or mixed questions of fact and law, not only is "palpable error" required but "unreasonableness" in the Dunsmuir4 sense;
  2. If the appeal raises questions of law, then the analysis becomes more complex. The standard of correctness will apply when "competence" strictu sensu is involved. The same standard of correctness will apply where the question of law is one of central importance to the system of justice. Since the Tribunal has no exclusivity with respect to the interpretation/applicability of the fundamental rights set out in the Charter, and since by definition such rights, being fundamental, are of central importance to the system of justice, no deference is required. On other more peripheral questions of law such as the choice of remedy or the interpretation of rules of procedure, the standard of unreasonableness must be applied.

Dunsmuir involved judicial review before the Court of Queen's Bench, the New Brunswick equivalent to the Quebec Superior Court, in respect of an arbitrator's decision that was protected by a full and muscled privative clause.

Given the differences in context between the Dunsmuir and Gallardo cases, judicial review vs. appeal, the appropriateness of applying the Dunsmuir analysis to the Court's appellate powers, in this author's view, most respectfully, and with due deference to those who decided the latter case, is open to question.

Indeed, in an even more recent decision, Commission scolaire des Phares v. C.D.P.D.J. 2012 QCCA 988 a partially different panel of the Court of Appeal5 seems to have reverted to the earlier and less complex analysis, Rochette J.C.A. writing:

"[8] In appeal from that decision, our court noted that it was not "in the presence of judicial review but rather an appeal".

The standard for intervention is therefore manifest and determinative error when what is involved is appreciation of fact, and the correctness of the decision, when what is involved is a question of law [9]" (Translation, by the author)

Using the above standards, rather than those articulated in the Gallardocase, Mr. Justice Rochette held:

"[20] The Trial Judge erred in law in putting aside evidence that she failed to weigh, dissatisfied with Appellant's failure to pursue its search for adaptive measures to integrate the child into an ordinary classroom....

[21] The Judge committed a manifest and determinative error in concluding, from the evidence, that Appellant had created a bogus process to justify a decision taken, from the outset, not to integrate the child into a normal classroom. The grounds for coming to such conclusion do not resist analysis and are not consistent with the Judge's own determination of Appellants' good faith...


[123] More particularly, the Commission has not shown that the decisions for which Appellant was chastised were unreasonable" (Translation and underlines, by the author)

The analysis used in this latest case does not seem to reflect the far more restrictive Gallardo principles. Whether this represents an actual difference among the Justices, yet to be resolved by subsequent decisions, or is simply reflective of the ever present tension between the wish to render the decision that ought to have been rendered and the presumed need to insulate quasi-judicial decisions of inferior tribunals from review, by way of "deference", remains to be seen.

Admittedly, the presence or absence of a privative clause is one indice, but only one indice, of whether "deference" is due and in what measure!

On the other hand, the Supreme Court has not yet dealt with a case where:

  1. There is a privative clause, but directed solely to the Superior Court; and where
  2. There is a statutory right of appeal by leave to the Court of Appeal, said to be subject to the normal rules regarding appeals.

Has this atypical "hybrid" situation that the Quebec Charter presents been given sufficient weight? Have the judgments from other provinces regarding other and dissimilar statutes, post Dunsmuir, been given too great an emphasis in Gallardo? With the greatest of deference to the Justices in both the Gallardo and Commission Scolaire des Phares cases, I would answer a resounding no to the first and a cautious yes to the second, though I leave it to other practitioners to take up the challenge and sort this out in future litigation!


1 In Quebec it is the Superior Court that exercises the superintending and reforming powers set out at Arts. 33 and 834-850 C.P.C. as well as injunctive relief pursuant to Arts. 751 et seq. C.P.C.

2 Jean Coutu v. Tribunal des droits de la Personne et al., C.A.M. 500-09-001488-923;

3 The author's personal point of view is that they narrow such powers quite substantially;

4 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190;

5 The Gallardo judgment was rendered on May 15, 2012, in Montreal, by Dalphond J.C.A., with Rochette J.C.A. and Chamberland J.C.A. concurring. The Commission Scolaire des Phares judgment was rendered in Quebec City on May 29, 2012, by Rochette J.C.A. with Beauregard J.C.A. and Giroux J.C.A. concurring;

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