View cases - Stewart McKelvey

Page: 13[49] In applying the reasonableness standard, the Court must consider the justification,transparency and intelligibility of the decision-making process, and whether the decision falls withinthe range of possible acceptable outcomes which are defensible in light of the facts and the law: seeDunsmuir, at para. 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1S.C.R. 339, at para. 59.VIII. Is Paragraph 15(1)(c) of the Canadian Human Rights Act a Reasonable Limit in a Freeand Democratic Society?2011 FC 120 (CanLII)[50] Before examining this issue, it should be noted that ACPA served a Notice of ConstitutionalQuestion on the Federal and Provincial Attorneys General pursuant to the provisions of section 57of the Federal Courts Act, R.S., 1985, c. F-7, advising that the constitutional validity of paragraph15(1)(c) of the CHRA is in issue in these applications. None of the Attorneys General have electedto participate in these proceedings.[51] There is no question that the Canadian Human Rights Tribunal has the power to decideCharter questions, as the CHRA statutorily empowers the Tribunal to decide questions of law: seesubsection 50(2), and Nova Scotia (Workers' Compensation Board) v. Martin, above, at para. 3.[52] The parties agree that the onus of justifying the limitation on Messrs. Vilven and Kelly’sequality rights rests on Air Canada and ACPA: see Stoffman v. Vancouver General Hospital, [1990]3 S.C.R. 483, [1990] S.C.J. No. 125, at para. 50. The standard of proof under section 1 of theCharter is the ordinary civil standard, that is, the balance of probabilities: Oakes, at para. 67.