Tétreault‑Gadoury v. Canada (Employment and Immigration Commission) (Motion), [1989] 2 S.C.R. 1110
The Canada Employment and Immigration Commission,
the Deputy Attorney General of Canada
and the Attorney General of Canada Applicants
v.
Marcelle Tétreault‑Gadoury Respondent
and
Léon Vellone, Rodrigue Deraiche
and André Manocchio Mis en cause
indexed as: tétreault‑gadoury v. canada (employment and immigration commission)
File No.: 21222.
Present: Lamer J.
1989: October 24; 1989: November 17.
motion to state constitutional questions
Practice ‑‑ Constitutional questions ‑‑ Statement ‑‑ Refusal by Court to state two constitutional questions ‑‑ Questions not in accordance with Rule 32 of the Rules of the Supreme Court of Canada.
Under Rule 32 of the Rules of the Supreme Court of Canada, a constitutional question under the Canadian Charter of Rights and Freedoms is no different from any other constitutional question. A question shall be stated only when the constitutional validity or the constitutional applicability of a statute or of regulations is raised, or the inoperability thereof is urged.
Cases Cited
Referred to: Dubois v. The Queen, S.C.C., No. 18608, June 28, 1984, unreported; Mills v. The Queen, S.C.C., No. 17818, November 24, 1983, unreported; Staranchuk v. The Queen, S.C.C., No. 17931, December 16, 1983, unreported; Guillemette v. The Queen, S.C.C., No. 18145, March 6, 1984, unreported; Operation Dismantle Inc. v. The Queen, S.C.C., No. 18154, January 10, 1984, unreported.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 24.
Constitution Act, 1982, s. 52.
Rules of the Supreme Court of Canada, SOR/83-74, rr. 4, 32 [am. SOR/84-821, s. 1].
MOTION to state constitutional questions and to extend time. Motion granted in part.
Claude Joyal and Carole Bureau, for the applicants.
Robert Décary and Jean‑Guy Ouellet, for the respondent.
//Lamer J.//
The following reasons for the order were delivered by
LAMER J. -- I have been asked to state the following constitutional questions pursuant to Rule 32(1) of the Rules of Court, and to extend time to so do.
1. Does s. 19 of the Unemployment Insurance Act, R.S.C., 1985, c. U‑1, (formerly s. 31 of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, as amended 1976-77, c. 54) which excludes persons aged 65 and over from unemployment insurance benefits violate the equality rights of s. 15(1) of the Canadian Charter of Rights and Freedoms?
2. If the answer to question 1 is affirmative, is s. 19 of the Unemployment Insurance Act, R.S.C., 1985, c. U‑1, (formerly s. 31 of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, as amended 1976-77, c. 54) justified pursuant to s. 1 of the Canadian Charter of Rights and Freedoms and thus consistent with the Constitution Act, 1982?
3. Is a board of referees established pursuant to s. 76 of the Unemployment Insurance Act, R.S.C., 1985, c. U‑1, (formerly s. 91 of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48) constitutionally competent to find or declare that a statutory provision which it must apply is of no force or effect for the reason that it considers the provision to be in violation of s. 15(1) of the Canadian Charter of Rights and Freedoms?
4. Regardless of the answer to question 3, can the Federal Court of Appeal, in the case of an application to review and set aside a decision of a board of referees pursuant to s. 28(1) of the Federal Court Act, R.S.C., 1985, c. F‑7, issue a direction to the board to assume that a statutory provision which it must apply is inconsistent with s. 15(1) of the Canadian Charter of Rights and Freedoms and is, in consequence, inoperative?
Rule 32(1) reads as follows:
32. (1) When a party to an appeal
(a) intends to raise a question as to the constitutional validity or the constitutional applicability of a statute of the Parliament of Canada or of a legislature of a province or of Regulations made thereunder, or
(b) intends to urge the inoperability of a statute of the Parliament of Canada or of a legislature of a province or of regulations made thereunder,
(c) (Revoked, SOR/84-821, s. 1)
such party shall, upon notice to the other parties, apply to the Chief Justice or a Judge for the purpose of stating the question, within thirty days from the granting of leave to appeal or within thirty days from the filing of the notice of appeal in an appeal with leave of the court of final resort in a province, the Federal Court of Appeal, or in an appeal as of right.
Rule 32(1) was amended on October 23, 1984. The amendment was for the purpose of modifying para. (b) and deleting para. (c). Paragraph (c) read as follows:
(c) intends to urge that his rights as guaranteed by the Canadian Charter of Rights and Freedoms have been infringed or denied,
Notwithstanding the generality of that subsection as regards the nature of the application, which included not only s. 52 challenges but also s. 24 applications for remedy not seeking a declaration of inoperability of a law, this Court, as a matter of policy, and exercising discretion under Rule 4 of the Rules of Court, refused to state such questions when,
(1) the question proposed did not comprehend the degree of generality which would justify the application of Rule 32,
(2) the issue raised was essentially one of evidence,
(3) the question arose from the facts of the case,
(4) there was no attack on the validity of a law, but when the Court was being asked to construe a law in the light of a section of the Charter, or
(5) that the alleged infringement or denial of guaranteed rights arose from particular facts as opposed to a law or regulation.
(See Dubois v. The Queen, S.C.C., No. 18608, June 28, 1984 (per Dickson C.J.); Mills v. The Queen, S.C.C., No. 17818, November 24, 1983 (per Laskin C.J.); Staranchuk v. The Queen, S.C.C., No. 17931, December 16, 1983 (per Laskin C.J.); Operation Dismantle Inc. v. The Queen, No. 18154, January 10, 1984 (per Estey J.); Guillemette v. The Queen, S.C.C., No. 18145, March 6, 1984 (per Beetz J.))
The amendment to our Rules in October 1984, a few months after the Chief Justice's decision in Dubois, supra, reflects the policy of the Court under the previous Rule 32(1). It made it amply clear that under Rule 32(1) a constitutional question under the Charter is no different from any other constitutional question, and thus a question shall be stated only when the constitutional validity, or the constitutional applicability of a statute or of regulations is raised, or that the inoperability thereof is urged.
When reading the questions it is obvious to me that questions 1 and 2 meet the test, but that questions 3 and 4 do not.
For these reasons, I extend time, and state questions 1 and 2 only.
Judgment accordingly.
Solicitor for the applicants: John Tait, Ottawa.
Solicitors for the respondent: Campeau, Ouellet, Nadon & Lussier, Montréal.