Jazairi v. Ontario Human Rights Commission

Jazairi v. Ontario Human Rights Commission Collection Decisions of the Court of Appeal Date 1999-06-28 Docket numbers C27758 Judges Finlayson, George Duncan; Rosenberg, Marc; Feldman, Kathryn N. Subject Civil Decision Content DATE: 19990628 DOCKET: C27758 COURT OF APPEAL FOR ONTARIO FINLAYSON, ROSENBERG and FELDMAN JJ.A. BETWEEN: ) Ian B. Anderson and ) Amanda Pask NURI T. JAZAIRI ) for the appellant ) Applicant ) (Appellant) ) Anthony D. Griffin ) for the respondent, the and ) Ontario Human Rights ) Commission ONTARIO HUMAN RIGHTS ) COMMISSION, YORK UNIVERSITY, ) HARRY ARTHURS, SENATE ) Elizabeth Stewart for the COMMITTEE ON TENURE AND ) remaining respondents PROMOTION, FACULTY COMMITTEE ) ON TENURE AND PROMOTION, ) TOM TRAVES, JOHN C. EVANS, ) Cynthia Petersen for the intervenors ELIE APPELBAUM and ROGER ) LATHAM ) ) Robert E. Charney for the Respondents ) Attorney General for Ontario (Respondents) ) ) and ) ) CANADIAN ASSOCIATION OF ) UNIVERSITY TEACHERS and YORK ) UNIVERSITY FACULTY ASSOCIATION ) ) (Intervenors) ) ) ) ) Heard: June 9, 1999 On appeal from the judgment of the Ontario Court of Justice (Divisional Court) (O'Leary, Corbett and Marchand JJ.) dated April 16, 1997. FINLAYSON J.A. [1] This appeal is brought by the appellant from the decision of the Divisional Court dismissing his application for judicial review of a decision of the Ontario Human Rights Commission (“Commission”). The Commission had advised the appellant that the evidence supporting his complaint did not warrant the appointment of a Board of Inquiry pursuant to the Human Rights Code, R.S.O. 1990, c.H.19 (“Code”). History of the proceedings as disclosed in the appellant’s factum [2] The appellant is a professor in the Department of Economics at York University. He has been a professor in that Department since 1969 and was promoted to associate professor with tenure in 1972. The appellant is a Muslim Arab from Iraq. He states that he has very definite views on the Israeli-Palestinian conflict. He also states that his views are public, documented and well known to members in his Department and elsewhere, both within and outside the University. The appellant’s political opinions about the Israeli-Palestinian conflict are summarized in his letter to the editor published in the Globe and Mail on June 22, 1981. In that letter he wrote that: Israel has only two policy options: either to make peace with the Palestinians, or to remain in a permanent state of war with the Arabs. [3] Although this point of view has been the basis for the on- going reconciliation attempts in the Middle East, the appellant maintains that such a view, particularly when expressed by someone of his background, was considered controversial in the political context of the 1970s and 1980s. As a result of expressing his opinions about the political stance of the State of Israel, the appellant maintains that members of the York University Department of Economics labelled him as anti-Semitic and anti-Israeli. [4] At York University, a professor’s application for promotion is considered by four different committees, each of which makes a recommendation as to whether the application should be accepted, delayed or denied. In order, the application is considered by: a. the professor’s Department; b. the Faculty Committee on Tenure and Promotion; c. the Senate Committee on Tenure and Promotion; and d. the University President whose decision finally determines the outcome of the process. [5] In November 1980, the appellant was approached by the then Chair of the Department of Economics to apply for promotion to full professor. The Department of Economics prepared the documents for the appellant’s application and, on January 31, 1983, the Department recommended his promotion to the Faculty of Arts Committee on Tenure and Promotion. [6] On June 9, 1983, and again on June 4, 1984, the Faculty of Arts Committee on Tenure and Promotion voted for delay in order to seek more specific reference letters. In accordance with the Faculty Committee’s recommendations, additional letters of reference from both external and internal referees were added to the appellant’s file and, on July 31, 1984, the Department of Economics passed a unanimous resolution indicating that his file was complete. His file was again forwarded to the Faculty of Arts Committee on Tenure and Promotions. [7] In August 1984, contrary to the University’s procedural rules, the Faculty of Arts Committee on Tenure and Promotion received and considered two unsolicited letters from the respondents Elie Appelbaum and Roger Latham, both of whom are professors in the York Department of Economics and both of whom expressed grave reservations about the appellant’s accomplishments. [8] It is the appellant’s position that the unsolicited letters were motivated by the writers’ opposition to his political opinions. The appellant asserts that he and Professor Appelbaum, who is an Israeli, had discussed Middle East politics and held opposing political opinions. As a result, the appellant was labelled as anti-Semitic. In addition, a witness interviewed by the Commission’s investigator indicated that the respondent Latham had stated that he wrote his letter to make the respondent Appelbaum’s letter appear motivated by professional concerns rather than by disagreement with the appellant’s views on the Israeli-Palestinian conflict. [9] The two unsolicited letters were the only unfavourable letters on the appellant’s file. On August 31, 1984, the Faculty of Arts Committee on Tenure and Promotion reconsidered the appellant’s file, taking into account the two unsolicited letters and voted for delay. [10] In September 1984, the appellant’s file was forwarded to the Senate Committee on Tenure and Promotions. The appellant wrote to the Senate Committee to request that it remove the unsolicited letters from his file as their inclusion violated the Senate Procedures on Tenure and Promotion. On approximately November 21, 1984, following a lengthy discussion on the matter, the Senate Committee agreed to withdraw the two unsolicited letters. [11] In the course of its subsequent deliberations, and in violation of the Senate Procedures on Tenure and Promotion, the Senate Committee on Tenure and Promotions allowed the respondent John C. Evans, Chair of the Department of Economics, to make in camera representations regarding the appellant’s application without disclosing to the appellant the contents of the representations or providing him with an opportunity to respond. [12] On December 6, 1984, the Senate Committee on Tenure and Promotion voted for delay in the appellant’s application. On November 19, 1985, the respondent Harry Arthurs, then York University President, informed the appellant that he had accepted the Senate Committee on Tenure and Promotion’s recommendation for delay. [13] On July 13, 1989, the appellant filed a complaint with the Commission alleging that in denying him a promotion, the respondents had discriminated against him on the basis of race, religion and political opinion. [14] Between December 1989 and May 1993, the Commission investigated the appellant’s complaint. Under cover of letter dated June 8, 1994 the Commission released the Case Summary of its investigation which included the following findings: a. “[A]lthough political opinions and beliefs appear to be out of the Commission’s jurisdiction, the Officer addressed the issue during the investigation of the complaint, because of the uniqueness of the situation in that there is a perception on the part of the complainant and others that to be ‘anti-Israeli’ (politics) is synonymous with being ‘anti-semitic’ [sic] (creed). Furthermore, as alleged by the complainant, his political beliefs together with other facts, including race, ethnic origin and religion became an issue which affected his application for promotion.” b. “The evidence from witnesses indicates that they were aware of the complainant’s political views but they were less familiar with his religious views. Three witnesses who were aware of his views responded by saying that the complainant was ‘anti-Israeli’, not ‘anti-Semitic’. Another witness claimed that a number of his colleagues felt that the complainant was ‘anti-Jewish’ and another felt that anti- Jewish comments would not be popular in the Department.” c. Professors Appelbaum and Latham each denied knowledge that the other had submitted an unsolicited letter to Prof. Jazairi’s file. This was “in conflict with information provided by one witness who claimed that Prof. Latham told him that although he had nothing against Prof. Jazairi, he wrote the letter to support Prof. Appelbaum.” d. Prof. Latham stated that when he wrote his unsolicited letter he knew nothing about Prof. Jazairi’s political opinions. “He claims that the first time he became aware of the complainant’s views on Palestine was when he read the complainant’s letter in The Globe and Mail. … It should be noted that the statement of Prof. Latham is conflicting inasmuch as the complainant’s letter to the Globe and Mail was published in 1981 and his unsolicited letter was written in 1984.” e. “The witnesses’ consensus was that although [the] unsolicited letters were removed from the file it was believed that the damage was done. One witness who had been affiliated with Universities for over 30 years said this was the first time that he was aware of unsolicited letters being added to the file of a candidate whom the Department had recommended for promotion.” f. “The evidence as a whole indicates that the complainant’s differential treatment in the process for promotion to full professor consisted in the addition of the unsolicited letters by two members of his Department. The evidence indicates that the letters were considered by the Faculty Committee during the reconsideration of the file notwithstanding that this was in contravention of the Senate rules. Although the Senate Committee stated that the unsolicited letters would be removed from the file, and would not be included when the substantive questions were discussed, it appears that the Senate Committee had been aware of the controversy engendered by these letters. g. The evidence as a whole indicates that the complainant’s application for promotion did not receive a fair and timely evaluation; however irregularities in the process do not appear to be related to a prohibited ground of discrimination or the complainant’s association with persons identified by a prohibited ground of discrimination. [15] On or about August 30, 1994, the Commission issued its decision not to request the appointment of a Board of Inquiry to hear the appellant’s complaint. The full text of that decision is as follows: The Commission has decided not to request the appointment of a Board of Inquiry pursuant to Section 36(2) of the Code, for the following reasons: 1. The evidence indicates that the complainant’s application for promotion to Full Professor did not receive a fair and timely evaluation. However, the irregularities in the process did not appear to be related to any prohibited ground of discrimination. 2. The evidence indicates that the complainant may have been differently treated, however there is insufficient evidence to indicate that the differential treatment was as a result of his creed rather than his political remarks. For the above reasons, the Commission is of the view that the evidence in this matter does not warrant the appointment of a board of inquiry. [16] On September 14, 1994, the appellant filed an application pursuant to s.37 of the Code requesting the Commission to reconsider his complaint. That application specifically requested that the Commission consider whether “political opinion or belief” per se constitutes a “creed” within the meaning of the Code and, if not, whether the Code contravened s. 15(1) of the Charter. On May 2, 1995, the Commission released its decision on the reconsideration and again declined to request the appointment of a Board of Inquiry. [17] On September 19, 1995, the Commission revealed that the Commissioners had not been provided with written submissions on behalf of the appellant, which had been submitted in February 1995. The Commission therefore treated the May 1995 decision as a nullity and the appellant’s request for reconsideration was considered anew. [18] On November 29, 1995, the Commission released its reconsideration decision and upheld its original decision not to request the appointment of a Board of Inquiry. The full text of that decision provides as follows: Pursuant to s. 37 of the Code, the Commission has decided to uphold its original decision not to deal with this complaint for the following reasons 1. The Commission remains of the view that political belief is not included in the meaning of the word “creed”, and remains of the view that whatever differential treatment the complainant may have received from the respondent was not based on creed or any other prohibited ground of discrimination. 2. Accordingly, the Commission considers that there is insufficient evidence to warrant a reversal of its original decision. [19] The appellant applied to the Divisional Court for judicial review. In dismissing the application, the Divisional Court concluded: (i) The prohibition against discrimination on the basis of “creed” as it appears in the Code, does not include “political opinion”, and (ii) In any event, “creed”, within the meaning of the Code, did not include mere “political opinion” as opposed to a “cohesive belief system or structure”. (iii) The omission of “political opinion” as a prohibited ground of discrimination from the Code did result in a “distinction” pursuant to s.15(1) of the Charter, but (iv) The omission of “political opinion” from s. 5 of the Code did not fail to provide an avenue of redress for prejudiced treatment of a specific group. Accordingly, there was no violation of s.15(1) of the Charter. [20] When this appellant first sought leave to appeal to this court, he did so on two issues: (1) does the word “creed” in s. 5(1) of the Ontario Human Rights Code encompass “political opinion”; and (2) if not, does the Code’s omission of “political opinion” from the prohibited grounds of discrimination violate s. 15(1) of the Canadian Charter of Rights and Freedoms (“Charter”)? [21] On July 14, 1997, this court granted leave to appeal on the first issue only. On April 2, 1998 the Supreme Court of Canada released its decision in the case of Vriend v. Alberta, [1998] 1 S.C.R. 493. In that case the Supreme Court concluded that the non-inclusion of sexual orientation in the Alberta human rights legislation infringed the right to equality under s.15 of the Charter. The Court also concluded that sexual orientation should be read into that legislation. Following a renewal of the original application for leave, on June 17, 1998 this court granted leave to appeal on the second issue. Accordingly, the issues now before this court are: 1. Does the prohibition against discrimination on the basis of “creed” contained in s.5(1) of the Code include discrimination on the basis of “political opinion? 2. If s.5(1) of the Code does not prohibit discrimination on the basis of “political opinion”, does this violate s.15(1) of the Charter and, if so, is such discrimination justified under s. 1 of the Charter? Analysis [22] I have replicated, almost verbatim, the history of these proceedings as set out in the appellant’s factum and without reference to the position of the individual respondents. Accordingly, I am considering this matter in a light most favourable to the appellant. Having done so, I conclude that there is no evidence that any oblique motive that either of the respondents Appelbaum and Latham might have had in writing the two letters in question was ever brought to the attention of those persons who were involved, at any level, in the decision- making process. Additionally, and to the limited extent that it is relevant to a judicial review of the conduct of the decision makers, I also conclude that there is no factual basis to support the assertion that the conduct of the two respondents amounts to discrimination in any sense that is prohibited under the rubric of creed or indeed any other category of censorious conduct. [23] As I understand it, the appellant, who describes himself as a Muslim Arab, does not argue that he was unfairly labelled as anti-Semitic, or at least anti-Israeli, because of his views on the then current conflict in the middle east between the State of Israel and its Arab neighbours. To the contrary, counsel for the appellant on the appeal steadfastly resisted any suggestion that the motivation of the two letter writers was a response to the writers’ perceptions as to the appellant’s anti-Semitism or racism. He persisted in staking out the high ground that the prohibited ground of discrimination was strictly political. He maintained that the respondent Appelbaum had written his letter because he disagreed with the political thinking of the appellant, and that the respondent Latham had written his letter in support to make it appear that they both had professional concerns and were not motivated by disagreement with the appellant’s political views. [24] It is also noteworthy that during the course of the argument before this court, while there was much said about whether the two respondents were motivated as alleged, there was no suggestion on the part of appellant’s counsel that the mere fact of holding differing political views from those of the appellant was impermissible or reflected badly on the respondents or the appellant. It was said only that whatever the political views of the two respondents on the particular issue, they should not have played a part in the appellant’s application for a full professorship. [25] A problem with the record in this case is that there did not appear to be any basis to believe that the decision-makers in this review process knew of the motivation of the respondents’ Appelbaum and Latham. There is nothing in the letters themselves to indicate that the writers knew of, much less disagreed with, the political views of the appellant. The appellant seems to think that his views were controversial and commanded some public attention. If this were the fact, and the findings of the Commission seem to support that it was, at least within the university community, the letters were irrelevant. They did nothing to inform or inflame whatever opinions individual decision-makers might have had with respect to the appellant. [26] The first response of appellant’s counsel to this concern was that it is not our function to determine whether the appellant suffered from these perceived prejudices; this is a matter for the Commission. However, the Commission had an open file on this complaint for more than six years and apparently questioned numerous witnesses. There is nothing to indicate that if the matter was to be re-opened that the Commission could come up with a more damaging finding than that “the Senate committee had been aware of the controversy engendered by these letters”. Given the fact that the appellant made a successful application to the Senate to have the letters withdrawn, this finding is hardly surprising. At the end of the day, counsel for the appellant was reduced to the complaint that the motivation for the letter writing was relevant because it resulted in the only negative letters in the appellant’s file. It is suggested that had the respondents not been improperly motivated, the letters would not have been sent, and therefore it is not necessary for the appellant to show that the decision-makers were aware of, much less influenced by, the conflicting political views of the appellant and the respondent Appelbaum. Issue 1: Does the word “creed” in the Code include discrimination on the basis of “political opinion”? [27] The Divisional Court found that it did not. Corbett J. for the court stated at p. 19: Even if it can be said that political opinion may constitute creed, there is no evidence that the applicant’s views amount to a creed. I am not prepared to find that the applicant’s political views, no doubt shared by others in society, amount to a creed merely because the applicant is from Iraq. On the facts in this case, the applicant’s submission that political and religious commitments may be so aligned as to constitute “creed” is not established. Whether a political perspective, such as communism, that is made up of a recognizable cohesive belief system or structure may constitute a “creed” is not at issue and is not being determined. In my opinion, mere political opinion is not within the meaning of “creed” in s.1 of the Code. [Italics in original.] [28] I agree with this statement. I think it a mistake to deal with hypothetical scenarios. Clearly, the personal opinion of the appellant on this single issue of the relationship between the Palestinians and Israel does not amount to a creed. Whether or not some other system of “political opinion” could amount to a “creed” is not before the court. It is a mistake to deal with such important issues in the abstract. Issue 2. Does the failure of the Code to include political opinion as a prohibited ground of discrimination violate s.15(1) of the Charter, and if so, is such discrimination justified under s.1 of the Charter? [29] Once again, I think that this issue must be analysed in the context of the specific complaint of the appellant rather then on some broad philosophical basis. Part of that context is that the freedom to express a political opinion is already a fundamental right under the Charter. Section 2(b) provides inter alia for “freedom of thought, belief, opinion and expression ...”. In this regard, the Attorney General has also raised some serious practical considerations arising out of the need to examine whether the Human Rights Commission has sufficient staff and resources to administer and enforce an expanded Code. [30] As I have already noted, the complaints before us were much diminished in importance as the case proceeded through the Commission and the courts. There is no longer any suggestion that the appellant was stigmatised before his peers as an anti-Semite, a racist, a bigot or by any other epithet. In the last analysis, the proposition put to us was that the fact of an objection to the credentials of the appellant, when motivated by disagreement with his political views, deprived the appellant of the right to equal treatment without discrimination under s.5 of the Code. Put another way, the fact that the respondent Applebaum disagreed with the appellant’s political views disqualified him from criticising the appellant’s credentials regardless of the merits of the criticism. It is difficult to accept that this case is an argument for the remedy requested under s.15(1) of the Charter, namely the declaration that “political opinion” is an analogous ground of discrimination to those enumerated in s.5(1) of the Code. [31] Section 15(1) of the Charter has been the subject of two recent cases in the Supreme Court of Canada. In Law v. Canada (Minister of Employment and Immigration), [1999] S.C.J. No. 12, delivered March 25, 1999, Iacobucci J. for the Court reviewed the case law relating to s.15(1) of the Charter and summarised and commented upon the basic principles to be considered. He said at paragraph 88: The approach adopted and regularly applied by this Court to the interpretation of s.15(1) focuses upon three central issues: (A) whether a law imposes differential treatment between the claimant and others, in purpose or effect; (B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and (C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee. [32] This case does not require a complete s.15 analysis. Nor is it necessary to address broader issues of discrimination on the basis of political opinion divorced from the facts of this case. Accordingly, I think that if we concentrate on (C) above that it will be sufficient to dispose of this ground of appeal. Under (C), we are invited by Iacobucci J. to make the following broad inquiry: C. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetrating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect and consideration. [33] Earlier in his reasons, Iacobucci J. had written of the nature of the interest involved in this analysis. He said at para.74: [74] A further contextual factor which may be relevant in appropriate cases in determining whether the claimant’s dignity has been violated will be the nature and scope of the interest affected by the legislation. This point was well explained by L’Heureux-Dubé J. in Egan, supra, at paras. 63-64. As she noted, at para. 63, “[i]f all other things are equal, the more severe and localized the … consequences on the affected group, the more likely that the distinction responsible for these consequences is discriminatory within the meaning of s.15 of the Charter”. L’Heureux-Dubé J. explained, at para. 64, that the discriminatory calibre of differential treatment cannot be fully appreciated without evaluating not only the economic but also the constitutional and societal significance attributed to the interest or interests adversely affected by the legislation in question. Moreover, it is relevant to consider whether the distinction restricts access to a fundamental social institution, or affects “a basic aspect of full membership in Canadian society”, or “constitute[s] a complete non-recognition of a particular group”. [34] Law v. Canada was a case in which the complainant argued that she was denied the survivor benefits available to older widows under the Canada Pension Plan and accordingly was the subject of discrimination on the enumerated ground of age. In applying his own analysis to the facts of the case, Iacobucci J. said at paragraph 108: [108] In these circumstances, recalling the purposes of s.15(1), I am at a loss to locate any violation of human dignity. The impugned distinctions in the present case do not stigmatize young persons, nor can they be said to perpetuate the view that surviving spouses under age 45 are less deserving of concern, respect or consideration than any others. Nor do they withhold a government benefit on the basis of stereotypical assumptions about the demographic group of which the appellant happens to be a member. I must conclude that, when considered in the social, political, and legal context of the claim, the age distinctions in ss.44(1)(d) and 58 of the CPP are not discriminatory. [35] While Law v. Canada dealt with a claim of discrimination under an enumerated head, Iacobucci made clear that his analysis of s.15 included analogous grounds of discrimination. Even more recently, the Supreme Court of Canada delivered M. v. H., [1999] S.C.J. No. 23, on May 20, 1999. Here the Court applied s.15(1) in the context of considering whether sexual orientation was an analogous ground of discrimination to the enumerated ground of sex. In following the reasoning of Law, supra, Cory J. stated at paragraphs 72 – 75: [72] A fourth contextual factor specifically adverted to by Iacobucci J. in Law, at para. 74, was the nature of the interest affected by the impugned legislation. Drawing upon the reasons of L’Heureux-Dubé J. in Egan, supra, Iacobucci J. stated that the discriminatory calibre of differential treatment cannot be fully appreciated without considering whether the distinction in question restricts access to a fundamental social institution, or affects a basic aspect of full membership in Canadian society, or constitutes a complete non-recognition of a particular group. In the present case, the interest protected by s.29 of the FLA is fundamental, namely the ability to meet basic financial needs following the breakdown of a relationship characterized by intimacy and economic dependence. Members of same-sex couples are entirely ignored by the statute, notwithstanding the undeniable importance to them of the benefits accorded by the statute. The societal significance of the benefit conferred by the statute cannot be overemphasized. The exclusion of same-sex partners from the benefits of s.29 of the FLA promotes the view that M., and individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite-sex couples, without regard to their actual circumstances. As the intervener EGALE submitted, such exclusion perpetuates the disadvantages suffered by individuals in same- sex relationships and contributes to the erasure of their existence. Therefore I conclude that an examination of the four factors outlined above, in the context of the present appeal, indicate that the human dignity of individuals in same-sex relationships is violated by the impugned legislation. In light of this, I conclude that the definition of spouse in s.29 of the FLA violates s.15(1). [36] In my view, the human dignity of the appellant in this case was never engaged, much less violated. There is nothing on the record to suggest that his political beliefs disentitled him to consideration for advancement in the Department of Economics, that he was somehow less worthy for having those beliefs or that he was a member of a group deserving of protection. [37] As I read the reasons of Corbett J. in the Divisional Court, she takes a similar view, that the facts of this case do not warrant a declaration that the omission of “political opinion” for s.5 of the Code contravenes s.15 of the Charter. While her analysis predates the decisions of the Supreme Court of Canada in Law and M. v. H., supra, her findings are fully consistent with their reasoning. If anything, the summary of Iacobucci J. in Law is supportive of the judgment in appeal. [38] Accordingly, I can find no basis for interfering with the judgment in appeal. I would dismiss the appeal. I would entertain written submissions from the respondents in appeal as to costs. [39] I cannot leave this case without stating that even if I was of the view that there were errors in the judgment below with respect to the alleged breach of the equality provisions contained in s.15 of the Charter, I would not grant the appellant the remedy of judicial review that he is seeking. I do not think that this is the case to deal boldly with the addition of a new ground of discrimination analogous to those enumerated in s.5(1) of the Code. [40] The court has always had the discretion to refuse to grant prerogative writs such as certiorari and the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 preserves this discretion. Sections 2(5) and (6) state: 2(5) Where, in any of the proceedings enumerated in subsection (1), the court had before the 17th day of April, 1972 a discretion to refuse to grant relief on any grounds, the court has a like discretion on like grounds to refuse to grant any relief on an application for judicial review. 2(6) Subsection (5) does not apply to the discretion of the court before the 17th day of April, 1972 to refuse to grant relief in any of the proceedings enumerated in subsection (1) on the ground that the relief should have been sought in other proceedings enumerated in subsection (1). [41] In Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 122 D.L.R. (4th) 129 (S.C.C.), Lamer C.J. said at p. 143: The respondents had the right to seek judicial review before the Federal Court, Trial Division. That does not mean, however, that they have a right to require the court to undertake judicial review. There is a long-standing general principle that the relief which a court may grant by way of judicial review is, in essence, discretionary. This principle flows from the fact that the prerogative writs are extraordinary remedies. [42] In Blake, Administrative Law in Canada, 2d ed. (1997), the author states at p.187: On judicial review there is no right to a remedy even if all the necessary criteria are met. A court may choose not to grant a remedy to an applicant who is otherwise entitled. [43] The reasons listed by the author for refusing to grant certiorari include that the application is premature, an alternate remedy is available, the errors were minor and the remedy would have no practical effect. [44] The reasons I would advance for not granting judicial review in this case are closely related to the ground that the remedy would have no practical effect. On the facts of this case, there is no reason to believe that the appellant would be ultimately successful even if the Commission had jurisdiction over political opinions. Further, the record in this case does not provide a sufficient factual basis to permit the court to extend the Code in a manner “which flows with sufficient precision from the requirements of the Constitution”: see Schacter v. Canada, [1992] 2 S.C.R. 679 at 707; Vriend v. Alberta, supra, at 570 and Reference Re Human Rights Act (P.E.I.), [1985] P.E.I. R. No.36. Released: GDF JUN 28 1999 Signed: “G.D. Finlayson J.A.” “I agree M. Rosenberg J.A.” “I agree K. Feldman J.A.”