T-66-80
Canadian Football League (Applicant)
v.
Canadian Human Rights Commission and Maryka
Omatsu (Respondents)
Trial Division, Dubé J.—Toronto, February 4;
Ottawa, February 11, 1980.
Prerogative writs — Prohibition — Canadian Human
Rights Commission — Jurisdiction — Complaint of discrimi
nation based on national and ethnic origin made against
C.F.L.'s designated import rule — Same complaint made with
reference to Hamilton Tiger-Cats and adjudicated upon by
Ontario Human Rights Commission — Whether or not prohi
bition should lie against the Canadian Human Rights Com
mission to prevent their investigation on the grounds that the
Canadian Government had no jurisdiction over the C.F.L. and
that the matter had already been determined by the Ontario
Human Rights Commission — Canadian Human Rights Act,
S.C. 1976-77, c. 33, ss. 2, 3, 4, 33 — The Ontario Human
Rights Code, R.S.O. 1970, c. 318, s. 14(1) — The British
North America Act, 1867, 30 & 31 Viet., c. 3 (U.K.) ]R.S.C.
1970, Appendix II, No. 5, ss. 91(2), 92(10)(a)] — Interpreta
tion Act, R.S.C. 1970, c. 1-23, s. 11.
Applicant seeks an order prohibiting respondent Commission
or any tribunal constituted under the Canadian Human Rights
Act and Maryka Omatsu from pursuing any investigation of
the Canadian Football League (C.F.L.) on the grounds that the
Government of Canada has no jurisdiction over the C.F.L. and
that the complaint of Jamie Bone, a football player with the
Hamilton Tiger-Cats, had already been heard and determined
by the Ontario Human Rights Commission. Jamie Bone alleged
that he had been discriminated against by the C.F.L. on the
basis of his national and ethnic origin (Canadian). Classified as
a non-import player, Bone was unable to play the position of
quarterback because of the C.F.L.'s designated import rule—
when fifteen import players are dressed a football club shall
designate two imports as quarterbacks prior to the game. The
same complaint, but made with reference to the Hamilton
Tiger-Cats, had been determined by the Ontario Human
Rights Commission.
Held, the application is dismissed. The complaint before the
federal Commission is not against the Hamilton football club
but against the C.F.L. and on the ground that the designated
import rule prevents Canadians from being hired to play the
position of professional quarterback. The determination of the
provincial Commission does not by itself prevent the federal
Commission from entertaining a complaint against the C.F.L.
if it is otherwise empowered to do so. It is mandatory for the
Commission under section 33 to deal with any complaint,
unless it appears to itself that it should not, on grounds clearly
outlined under the subparagraphs, including the question of
jurisdiction. At this early stage it is for the Commission, not the
Court, to find that a complaint lies outside the jurisdiction of
the Commission. It is far from "clear and beyond doubt" that
the Commission is without jurisdiction to deal with a complaint
against the C.F.L. Section 91(2) of The British North America
Act, 1867, the regulation of trade and commerce, or section
92(10)(a), undertakings extending beyond the limits of the
province, are possible heads of federal jurisdiction under which
the C.F,L.'s activities might lie.
Bell v. The Ontario Human Rights Commission [1971]
S.C.R. 756, considered. Attorney General of Canada v.
Cumming [1980] 2 F.C. 122, considered. Lodge v. Minis
ter of Employment and Immigration [1979] 1 F.C. 775,
considered.
APPLICATION.
COUNSEL:
G. D. Finlayson, Q.C. for applicant.
G. Henderson, Q.C. and E. Binavince for
respondents.
SOLICITORS:
McCarthy & McCarthy, Toronto, for appli
cant.
Gowling & Henderson, Ottawa, for respond
ents.
The following are the reasons for order ren
dered in English by
Dust J.: The applicant ("C.F.L.") seeks an
order prohibiting the respondent ("the Commis
sion") or any tribunal constituted under the
Canadian Human Rights Act' and Maryka
Omatsu from pursuing any investigation of the
C.F.L. on the grounds that the Government of
Canada has no jurisdiction over the C.F.L. and
that the complaint of Jamie Bone, a football player
with the Hamilton Tiger-Cats, has already been
heard and determined by the Ontario Human
Rights Commission.
The affidavit of Jacob Gill Gaudaur filed in
support of the application recites that the C.F.L. is
an unincorporated non-profit association made up
of its nine member football clubs and governed by
its constitution. The affiant states that pursuant to
subsection 14(1) of The Ontario Human Rights
Code 2 the Minister of Labour of the Government
of Ontario established a Board of Inquiry to inves-
' S.C. 1976-77, c. 33.
2 R.S.O. 1970, c. 318, as amended.
tigate into the complaint of football player Jamie
Bone. Said Board consisted of Professor John D.
McCamus. Hearings were conducted and Profes
sor McCamus delivered his decision on August 16,
1979.
On July 11, 1979 Jamie Bone filed another
complaint, but under the provisions of the Canadi-
an Human Rights Act and against the C.F.L.,
alleging that the C.F.L. has discriminated against
him on the basis of his national and ethnic origin
(Canadian), contrary to sections 7 and 10 of the
Act, in that the designated import rule prevents
Canadians from being hired to play the position of
professional quarterback. Pursuant to the com
plaint the Commission designated Maryka Omatsu
to investigate the matter and to prepare a report
for the Commissioners.
Paragraph 9 of section 8 of the constitution
by-laws of the C.F.L. stipulates that a member
club shall be permitted to dress for a game a
maximum of 33 players of whom not more than 15
may be imports. When 15 import players are so
dressed a club shall, prior to the game, "designate
two import players as quarterbacks". Bone is clas
sified as a non-import player under paragraph
11(e), that is a player who was "physically resi
dent in Canada for an aggregate period of seven
teen years prior to his attaining the age of twenty-
one years."
Professor McCamus concluded his report by
ordering the Hamilton Club to pay compensation
to Bone, to invite him to participate in a five-day
trial with the club, and to offer to enter into a
contract of employment with him for the 1980
season. Learned counsel for the applicant asserts
that the order has been and will be complied with,
and that the matter should rest there.
The complaint before the federal Commission,
however, is not against the Hamilton football club
but against the C.F.L. and on the ground that the
designated import rule prevents Canadians from
being hired to play the position of professional
quarterback. The determination of the provincial
Commission does not by itself,- therefore, prevent
the federal Commission from entertaining a com
plaint against the C.F.L., if it is otherwise empow
ered so to do.
Section 2 of the Canadian Human Rights Act
provides that the purpose of the Act "is to extend
the present laws in Canada to give effect, within
the purview of matters coming within the legisla
tive authority of the Parliament of Canada, to the
following principles". One of the principles is to
the effect that every individual should have an
equal opportunity in life without being hindered by
discriminatory practices based on race, national
origin or other factors. Under section 3 race, na
tional or ethnic origin are prohibited grounds of
discrimination. Under section 4 such a discrimina
tory practice may be the subject of a complaint.
Section 32 provides that "any individual ...
having reasonable grounds for believing that a
person is engaging in a discriminatory practice
may file with the Commission a complaint ...".
Section 33 outlines how the Commission is to deal
with such a complaint. It reads in part:
33. Subject to section 32, the Commission shall deal with
any complaint filed with it unless in respect of that complaint it
appears to the Commission that
(b) the complaint
(ii) is beyond the jurisdiction of the Commission,
It is therefore mandatory for the Commission
under section 33 to deal with any complaint, unless
it appears to itself that it should not, on grounds
clearly outlined under the subparagraphs, includ
ing the question of jurisdiction. Thus, at this early
stage it is for the Commission, not the Court, to
find that a complaint lies outside the jurisdiction
of the Commission.
In Lodge v. Minister of Employment and
Immigration', an appeal before the Federal Court
of Appeal from a judgment of the Trial Division
dismissing an application for an injunction to
restrain the Minister from executing deportation
orders pending the disposition under the Canadian
Human Rights Act of a complaint that the depor
tation proceedings amounted to a discriminatory
practice contrary to the Act, the Court held that it
cannot make a finding that there has been a
discriminatory practice within the meaning of the
Act, as jurisdiction to make such a finding has
been confined to the Commission under the Act.
3 [1979] 1 F.C. 775.
Le Dain J. on behalf of the Court said at page 786:
It is preferable, I think, that these questions should be deter
mined in the first instance by the Commission, as section 33
would appear to intend, before a court is called upon to
pronounce upon them.
In the Attorney General of Canada v.
Cumming 4 a writ of prohibition was sought to
prevent Peter Cumming from acting in his capaci
ty as a Human Rights Tribunal under the Cana-
dian Human Rights Act. The complaint was that
Revenue Canada Taxation was engaging in a dis
criminatory practice for not allowing the com
plainant to claim another person as a dependant on
her income tax because of marital status. Thurlow
A.C.J. (now the Chief Justice of this Court) said
this at page 129:
It will be observed that section 33 is mandatory in requiring
the Commission to deal with a complaint unless it appears to
the Commission, inter alga, that the complaint is beyond its
jurisdiction. Paragraph 36(3)(b) is also mandatory and again
by reference requires the Commission to dismiss the complaint
if it appears to the Commission that the complaint is beyond its
jurisdiction. By inference, if the complaint is not dismissed on
any of the grounds mentioned, the Commission must continue
to deal with it under other provisions of the Act.
Then at page 130:
It appears to me that in substance what the Court is being
asked to do on this application is to pre-empt the Tribunal and
to decide a question that the statute gives the Tribunal the
authority to decide.
The learned Judge concluded at pages 132-133:
The preferable course for the Court is to leave the Tribunal
free to carry out its inquiries and not to prohibit it save in a
case where it is clear and beyond doubt that the Tribunal is
without jurisdiction to deal with the matter before it. In my
opinion, the present is not such a case. [My underlining.]
In the case at bar it is far from "clear and
beyond doubt" that the Commission is without
jurisdiction to deal with a complaint against the
C.F.L. Again, this complaint is not about a con
tract of employment between a football player and
his team, a matter falling clearly under provincial
jurisdiction and properly entertained by the
Ontario Commission. The present complaint opens
up a much wider vista.
4 [1980] 2 F.C. 122.
Under its constitution the C.F.L. provides for
memberships across the country: presently there
are nine members from six Canadian provinces.
The teams play an interlocking schedule with
games in all six provinces. The games are televised
in Canada and the United States. Article VII of
the constitution provides for gate equalization and
an equalization pool. Article V provides that when
ever monies are required to meet the expenses of
the League, the Commissioner shall request, and
each member shall forthwith contribute equally,
its share of the required monies. The annual
amount of all Canadian television revenues in
excess of certain stipulated revenues shall be paid
to the C.F.L. and it shall pay three-quarters of
such excess to the Western Football Conference,
and one-quarter to the Eastern Football Confer
ence. Television revenues of telecast games outside
Canada shall be divided equally among the mem
bers. There is obviously economic interdependence
between the teams and league activities across
provincial borders.
As pointed out by learned counsel for the Com
mission, a possible head of federal jurisdiction
under which these activities might very well fall is
section 91(2) of The British North America Act,
1867, [R.S.C. 1970, Appendix II, No. 5], the
regulation of trade and commerce. Or section
92(10)(a), undertakings extending beyond the
limits of the province.
The purpose of the Act, it will be recalled, is "to
extend the present laws in Canada to give effect
[to principles] within the purview of matters
coming within the legislative authority of the Par
liament of Canada". Under section 11 of the
Interpretation Act 5 every enactment shall be
deemed remedial, and shall be given such "fair,
large and liberal construction and interpretation as
best ensures the attainment of its objects."
Learned counsel for the applicant relied strongly
on the Supreme Court of Canada decision in Bell
v. The Ontario Human Rights Commission 6
wherein the Court held that the appellant was not
compelled to await the decision of the board on
whether certain dwelling units were covered by the
Code before seeking to have it determined in a
5 R.S.C. 1970, c. 1-23.
6 [1971] S.C.R. 756.
Court of law by an application for prohibition, and
prohibition was granted to restrain the Ontario
Commission. However, The Ontario Human
Rights Code, 1961-62, S.O. 1961-62, c. 93, in
force at the time, did not make it mandatory for
the Commission to proceed with the investigation
of a complaint and did not include a section 33
type of provision as to jurisdiction. The Ontario
Act was amended shortly afterwards to make it
mandatory for the Commission to inquire into a
complaint. 7
Associate Chief Justice Thurlow (as he then
was) in the Cumming judgment supra referred to
the Bell decision and then endorsed Culliton
C.J.S.'s judgment in Re CIP Paper Products Ltd.
and Saskatchewan Human Rights Commission 8 .
The two passages appear at page 131 of the
decision.
The Court is undoubtedly entitled, when the jurisdiction of
an inferior tribunal turns on a clear and severable question of
law arising on undisputed facts, to decide that point of law and,
if the conclusion from it is that the Tribunal does not have
jurisdiction, to prohibit the Tribunal from proceeding. See Bell
v. The Ontario Human Rights Commission ([1971] S.C.R.
756). But, as pointed out in Re CIP Paper Products Ltd. and
Saskatchewan Human Rights Commission ((1978) 87 D.L.R.
(3d) 609) per Culliton, C.J.S. at page 612:
Care must be taken not to give to the decision in Bell v.
Human Rights Com'n, supra, too wide an application. That
case simply decided that, where there is a clear point of law
not depending upon particular facts upon the determination
of which the jurisdiction of the tribunal depends, that deter
mination may be made in an application for prohibition.
That judgment did not decide that prohibition lies on the
contention that the complaint is one which cannot be sus
tained within the provisions of the Act in respect to which the
complaint is made.
The application therefore is premature and
should be dismissed with costs.
ORDER
The motion is denied with costs.
7 Subsection 12(1) of the 1961-62 Act provided that the
Commission "may inquire into the complaint". Subsection
14(1) of the amended Act [S.O. 1974, c. 73, s. 5] now provides
that the Commission "shall inquire into the complaint".
8 (1978) 87 D.L.R. (3d) 609.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.