Ontario (Human Rights Commission) v. National Dental Examining Board of Canada, [1991] 3 S.C.R. 121

The National Dental Examining Board of Canada Appellant

v.

The Ontario Human Rights Commission, Dr. Jennifer Footman and Dr. Nellie Mendelsohn Respondents

and

The Attorney General of Quebec and the Attorney General for Alberta Interveners

Indexed as: Ontario (Human Rights Commission) v. National Dental Examining Board of Canada

File No.: 21185.

1991: October 2.

Present: La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.

on appeal from the court of appeal for ontario

Constitutional law ‑‑ Division of powers ‑‑ Jurisdiction ‑‑ Federally incorporated board ‑‑ Board not operating under Peace, Order and Good Government clause or federal Trade and Commerce power ‑‑ Board subject to provincial human rights legislation ‑‑ Ontario Human Rights Commission jurisdiction over complaints.

Courts ‑‑ Res judicatia ‑‑ Cause of action before Federal Court and various boards not same cause of action as complaint of discrimination under the Human Rights Code, 1981, S.O. 1981, c. 53.

Statutes and Regulations Cited

Constitution Act, 1867, s. 91.

Human Rights Code, 1981, S.O. 1981, c. 53.

APPEAL from a judgment of the Ontario Court of Appeal dismissing an appeal from a judgment of the Supreme Court of Ontario (Divisional Court) dismissing an application for judicial review. Appeal dismissed.

E. R. Murray and Nora A. Gillespie, for the appellant.

Janet E. Minor and John A. Terry, for the respondents.

Francoise St‑Martin, for the intervener the Attorney General of Quebec.

Robert C. Maybank, for the intervener the Attorney General for Alberta.

//La Forest J.//

The judgment of the Court was delivered orally by

La Forest J. ‑‑ It will not be necessary to hear you Ms. Minor. The Court is ready to give judgment. The constitutional question reads:

Under the Constitution Act, 1867, is the Ontario Human Rights Code applicable to the National Dental Examining Board of Canada with respect to the investigations which are the subject of this appeal?

The Board is not operating under the Peace, Order and Good Government clause or the trade and commerce power under s. 91 of the Constitution Act, 1867, but is simply a federally incorporated board subject to provincial human rights legislation. Therefore, the Ontario Human Rights Commission has jurisdiction over complaints that are the subject of this appeal.

The appellant also argued that the doctrine of res judicata should apply to deprive the respondent Commission of jurisdiction to entertain the complaints. We do not agree. So far as Dr. Footman is concerned, the complaint of discrimination under the Human Rights Code, 1981, S.O. 1981, c. 53, is not the cause of action that came before the Federal Court and the various boards. The questions to be decided before the respondent Commission are not the same as those decided in the earlier proceedings.

In the case of Dr. Mendelsohn, there is not even a decision that could give rise to res judicata because her proceedings before the Federal Court were abandoned.

The appeal is accordingly dismissed with costs. The constitutional question is answered in the affirmative.

Judgment accordingly.

Solicitors for the appellant: Genest Murray Desbrisay Lamek, Toronto.

Solicitor for the respondents: The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec: The Attorney General of Quebec, Ste‑Foy.

Solicitor for the intervener the Attorney General for Alberta: The Attorney General for Alberta, Edmonton.