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Court File No. 37208 in the SUPREME COURT of CANADA (ON APPEAL from the FEDERAL COURT of APPEAL)

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Court File No. 37208 in the SUPREME COURT of CANADA (ON APPEAL from the FEDERAL COURT of APPEAL) Court File No. 37208 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) B E T W E E N: CANADIAN HUMAN RIGHTS COMMISSION Appellant - and - ATTORNEY GENERAL OF CANADA Respondent - and - WOMEN’S LEGAL EDUCATION AND ACTION FUND INC. AND NATIVE WOMEN’S ASSOCIATION OF CANADA Interveners MEMORANDUM OF ARGUMENT OF THE INTERVENERS WOMEN’S LEGAL EDUCATION AND ACTION FUND INC. AND NATIVE WOMEN’S ASSOCIATION OF CANADA (Rule 42 of the Rules of the Supreme Court of Canada) ______________________________________________________________________________ LAW OFFICE OF MARY EBERTS BORDEN LADNER GERVAIS LLP 95 Howland Avenue Suite 1300, 100 Queen Street Toronto, ON M5R 3B4 Ottawa, ON K1P 1J9 Mary Eberts Nadia Effendi Tel.: (416) 923 5215 Tel.: (613) 787-3562 Fax: (416) 595-7191 Fax: (613) 230-8842 Email: [email protected] Email: [email protected] WOMEN’S LEGAL EDUCATION Ottawa Agent for the Interveners, AND ACTION FUND INC. Women’s Legal Education and Action 260 Spadina Avenue, Suite 309 Fund Inc.and Native Women’s Toronto, ON M5T 2E4 Association of Canada Kim Stanton Tel.: (416) 595-7170 x 223 Fax: (416) 595-7191 Email: [email protected] 2 NATIVE WOMEN’S ASSOCIATION OF CANADA 1 Nicholas Street, 9th Floor Ottawa, ON K1N 7B7 K. R. Virginia Lomax Tel.: (613) 722 3033 ext. 246 Fax: (613) 722 7687 Email : [email protected] Counsel for the Interveners, Women’s Legal Education and Action Fund Inc. and Native Women’s Association of Canada Brian Smith / Fiona Keith Valerie Phillips Canadian Human Rights Commission Canadian Human Rights Commission Legal Services Division 344 Slater Street, 9th Floor 344 Slater Street, 8th Floor Ottawa, Ontario Ottawa, Ontario K1A 1E1 K1A 1E1 Telephone: (613) 943-9205 Telephone: (613) 943-9357 FAX: (613) 993-3089 FAX: (613) 993-3089 E-mail: [email protected] E-mail: [email protected] Counsel for Appellant, Canadian Human Agent for Appellant, Canadian Human Rights Commission Rights Commission Christine Mohr / Catherine Lawrence Christopher M. Rupar Attorney General of Canada Attorney General of Canada 3400 - 130 King Street West 50 O'Connor Street, Suite 500, Room 557 The Exchange Tower, Box 36 Ottawa, Ontario Toronto, Ontario M5X 1K6 K1A 0H8 Telephone: (416) 973-4111 Telephone: (613) 670-6290 FAX: (416) 952-4518 FAX: (613) 954-1920 E-mail: [email protected] E-mail: [email protected] Counsel for Respondent, Attorney General of Agent for Respondent, Attorney General Canada of Canada 3 Stephen J. Moreau Moira Dillon Cavalluzzo Shilton McIntyre Cornish LLP Supreme Law Group 300-474 Bathurst Street 900 – 275 Slater Street Toronto, Ontario M5T 2S6 Ottawa, ON K1P 5H9 Telephone: (416) 964-1115 Telephone: (613) 691-1224 FAX: (416) 964-5895 FAX: (613) 691-1338 E-mail: [email protected] E-mail: [email protected] Counsel for Intervener, Tania Zulkoskey Agent for Intervener, Tania Zulkoskey Marie Chen Marie-France Major Income Security Advocacy Centre Supreme Advocacy LLP 1500 - 55 University Avenue 100- 340 Gilmour Street Toronto, Ontario Ottawa, Ontario M5J 2H7 K2P 0R3 Telephone: (416) 597-5820 Ext: 5152 Telephone: (613) 695-8855 Ext: 102 FAX: (416) 597-5821 FAX: (613) 695-8580 E-mail: [email protected] E-mail: [email protected] Counsel for Interveners, Income Security Agent for Interveners, Income Security Advocacy Centre, Sudbury Community Legal Advocacy Centre, Sudbury Community Clinic, Chinese and Southeast Asian Legal Legal Clinic, Chinese and Southeast Clinic, Community Legal Assistance Society Asian Legal Clinic, Community Legal and HIV & AIDS Legal Clinic Ontario Assistance Society and HIV & AIDS Legal Clinic Ontario Kumail Karimjee / Nabila F. Qureshi D. Lynne Watt Karimjee Greene LLP Gowling WLG (Canada) LLP 401 Bay Street 160 Elgin Street Suite 2008, P.O. Box 80 Suite 2600 Toronto, Ontario M5G 2G8 Ottawa, Ontario K1P 1C3 Telephone: (416) 593-0007 Telephone: (613) 786-8695 FAX: (416) 593-9907 FAX: (613) 788-3509 E-mail: [email protected] E-mail: [email protected] Counsel for Intervener, Canadian Muslim Counsel for Intervener, Canadian Lawyers Association Muslim Lawyers Association 4 Kerri Joffe / Dianne Wintermute Michael Bossin ARCH Disability Law Centre Community Legal Services-Ottawa 55 University Avenue Carleton 15th floor 1 Nicholas Street, Suite 422 Toronto, Ontario M5J 2H7 Ottawa, Ontario K1N 7B7 Telephone: (416) 482-8255 Telephone: (613) 241-7008 Ext: 224 FAX: (416) 482-2981 FAX: (613) 241-8680 E-mail: [email protected] E-mail: [email protected] Counsel for Intervener, Council of Canadians Counsel for Intervener, Council of with Disabilities Canadians with Disabilities Justin Safayeni / Stephen Alyward David Taylor Stockwoods LLP Power Law TD North Tower, suite 4130 130 Albert Street 77 King Street West, P.O. Box 140 Suite 1103 Toronto, Ontario Ottawa, Ontario M5K 1H1 K1P 5G4 Telephone: (416) 593-7200 Telephone: (613) 702-5563 FAX: (416) 593-9345 FAX: (613) 702-5563 E-mail: [email protected] E-mail: [email protected] Counsel for Intervener Amnesty Counsel for Intervener Amnesty International International David P. Taylor Conway Baxter Wilson LLP 400 - 411 Roosevelt Avenue Ottawa, Ontario K2A 3X9 Telephone: (613) 691-0368 FAX: (613) 613-6880 E-mail: [email protected] Counsel for Intervener First Nations Child and Family Caring Society of Canada 5 Jeremy Matson 4516 Walker Road Kelowna, British Columbia V1W 2Z1 [email protected] Self-Represented Intervener Danardo Jones Michael A. Crystal Faisal Mirza Spiteri & Ursulak LLP African Canadian Legal Clinic 1010 - 141 Laurier Avenue West 402-250 Dundas Street West Ottawa, Ontario Toronto, Ontario M5T 2Z5 K1P 5J3 Telephone: (416) 214-4747 Telephone: (613) 563-1010 FAX: (416) 214-4748 FAX: (613) 563-1011 E-mail: [email protected] E-mail: [email protected] Counsel for Intervener African Canadian Agent for Intervener African Canadian Legal Clinic Legal Clinic Emily Hill / Emilie Lahaie Michael Bossin Aboriginal Legal Services Community Legal Services-Ottawa 211 Yonge Street, Suite 500 Carleton Toronto, Ontario 1 Nicholas Street, Suite 422 M5B 1M4 Ottawa, Ontario K1N 7B7 Telephone: (416) 408-4041 Ext: 224 Telephone: (613) 241-7008 Ext: 224 FAX: (416) 408-1568 FAX: (613) 241-8680 E-mail: [email protected] E-mail: [email protected] Counsel for Intervener Aboriginal Legal Agent for Intervener Aboriginal Legal Services Services Amélie Pelletier Desrosiers Pierre Landry Ministère de la Justice du Québec Noël & Associés 1200, route de l'Église 111, rue Champlain 2e étage Gatineau, Quebec Québec, Quebec G1V 4M1 J8X 3R1 Telephone: (418) 643-1477 Ext: 21006 Telephone: (819) 771-7393 FAX: (418) 644-7030 FAX: (819) 771-5397 E-mail: E-mail: [email protected] [email protected] Counsel for Intervener Attorney General of Agent for Intervener Attorney General of Quebec Quebec 6 Andrew Raven Andrew Astritis Morgan Rowe Raven, Cameron, Ballantyne & Yazbeck LLP 1600 - 220 Laurier Ave West Ottawa, Ontario K1P 5Z9 Telephone: (613) 567-2901 FAX: (613) 567-2921 E-mail: [email protected] Counsel for Intervener Public Service Alliance of Canada TABLE OF CONTENTS PART I – OVERVIEW ................................................................................................................... 1 PART II – QUESTIONS AT ISSUE .............................................................................................. 1 PART III – STATEMENT OF ARGUMENT ................................................................................ 2 A. Equality and access to justice are fundamental legal principles that must inform the Court’s analysis ......................................................................................2 B. Parliament intended services under the Indian Act, including status registration, to fall under the CHRT’s jurisdiction ..................................................6 C. Indigenous women and other marginalized groups should be able to bring a claim of discrimination in whichever forum they choose ........................................8 PARTS IV & V – COSTS & ORDER REQUESTED ................................................................. 10 PART VI – TABLE OF AUTHORITIES ..................................................................................... 11 PART VII – STATUTORY PROVISIONS ................................................................................. 14 1 PART I – OVERVIEW 1. The Women’s Legal Education and Action Fund (LEAF) and the Native Women’s Association of Canada (NWAC) adopt the arguments of the Canadian Human Rights Commission (CHRC) with respect to the jurisdiction of the Canadian Human Rights Tribunal (CHRT). LEAF and NWAC propose an analysis that provides additional reasons why the Court should accept the CHRC argument that the CHRT has jurisdiction to consider an assertion of discrimination embedded in legislation. 2. LEAF and NWAC submit that just as it is essential that this Court look at questions through an equality lens, so must access to justice inform judicial analysis. The lower court decisions failed to consider these animating principles in adopting a narrow conception of “service” and in rejecting case law that acknowledged equality and access to justice values. 3. LEAF and NWAC submit that where there are competing lines of authority regarding the appropriate role of human rights tribunals, the Court should endorse the authorities that promote access to justice. LEAF and NWAC submit that the Federal Court of Appeal erred when it departed from this interpretive principle
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