A federal tribunal is asking senators this week to divulge emails sent between three of their colleagues, that it argues are relevant to whether an employee was fired on the basis of racial discrimination. Senators sit in Senate of Canada Building in Ottawa, on Wednesday, Sept. 23, 2020. THE CANADIAN PRESS/Justin Tang
OTTAWA – A federal tribunal is asking senators to divulge emails that it believes are relevant to determining whether an employee was fired on the basis of racial discrimination, in a case that pits claims of inequity against the rules governing Parliament.
“The Senate is not only a chamber that passes our laws for the country. I think they also have to set a standard,” Paul Champ, the lawyer representing the former employee, said in an interview.
His client is Darshan Singh, who served two years as the Senate’s human-resources director, the first person of colour join its executive team of public servants.
The Senate extended his one-year term, but then shuffled upper management in a way that Singh complained left him sidelined by a supervisor he believes undermined him on the basis of racial prejudice.
The Senate fired Singh in December 2015 without cause, in a letter that noted “the breakdown of confidence and trust which are essential to the viability of your employment,” and specifically Singh’s “attitude and behaviour” toward his supervisor.
Singh filed a grievance, alleging unlawful and discriminatory treatment by his supervisor, an inadequate probe into those allegations, and that he was fired in retaliation for raising discrimination allegations.
Sen. Leo Housakos, a Conservative senator from Quebec who at the time was Speaker of the upper chamber conducted an informal probe involving discussions with Singh’s supervisor, 12 other senators who had worked with her, and various human-resources employees.
Housakos concluded Singh’s allegations of discrimination had no merit.
The Federal Public Sector Labour Relations and Employment Board, a quasi-judicial tribunal that deals with disputes within the federal public service and Parliament, noted the probe did not involve speaking with any person of colour – including Singh himself.
But an adjudicator dismissed Singh’s case in January 2021, on the basis that he didn’t establish that the probe wasn’t sufficient.
In June 2022, Federal Court ordered the board to reconsider the evidence, saying the probe by Housakos was insufficient because “the most fundamental requirement of even an informal investigation had been ignored,” including the duty to have heard Singh’s point of view.
In the new hearings, Singh is seeking access to two emails, each sent to Housakos on Nov. 30, 2015, by Sen. David Wells and then-senator George Furey. Housakos has previously told the tribunal that both emails were relevant to Singh’s dismissal.
Lawyers for the Senate argue the emails are protected by parliamentary privilege, which means Parliament has certain rights to maintain its independence from the executive and judicial branches of government.
The board has rejected those claims, saying the Senate has not made a detailed case as to why these emails would be protected from a judicial process aimed at establishing the truth.
In July, the Senate rejected an order to produce the emails, writing that its standing committee on internal economy, which oversees the administration of the upper chamber, would “submit the matter to the (full) Senate promptly upon commencement of the Senate’s fall sitting.”
The labour relations board issued another production order on Sept. 28.
Normally, Federal Court would decide whether to find an institution in contempt for not providing documents needed to establish facts. Yet Champ says legal convention would likely not allow such a finding against the Senate, as that could undermine parliamentary supremacy and the separation between legislative bodies and the courts.
Instead, the tribunal has asked the House and Senate, to each decide on whether the upper chamber must comply with the board.
Last week, the board wrote to all parties in the case, saying it anticipates that its request for documents “will be put before Parliament” by Tuesday.
It’s unclear whether that will mean an individual parliamentarian in each chamber will table the request for documents, whether a committee will be asked to study it, or if either house will ignore the request.
Champ says he’ll be asking to make representations to both the House and the Senate on why they should call for the emails to be divulged. He believes it’s the first time this procedure has ever been exercised.
“It’s troubling that the Senate is trying to hide behind procedural rules and parliamentary privilege, to avoid an open and transparent hearing about this issue,” he said.
“When you see this important institution not taking complaints of racial discrimination seriously, I think really undermines the respect for our human rights laws in this country.”
The Senate declined to comment on these claims.
“In respect of the fact that this case is still before the board for adjudication, the Senate will not be providing any comment,” Senate law clerk Philippe Hallée wrote in a statement.
Housakos was not immediately available for comment on Monday.
The cases raises principles of parliamentary privilege established in another case from decades ago that involved a claim of racial discrimination by someone working on Parliament Hill.
Satnam Vaid spent a decade working a chauffeur for different Speakers of the House of Commons, but was fired in 1995. Vaid accused the House administration of discriminating against him because of his race, colour and ethnic origin. The House argued it was not subject to human-rights tribunals due to parliamentary privilege.
The case reached the Supreme Court of Canada, which in 2005 ruled that parliamentary privilege can be applied only to issues relevant to the duties of holding the government to account and deliberating legislation, and not its entire operations.
The top court also found that parliamentary employees cannot refer matters to the Canadian Human Rights Tribunal and instead must bring matters before a federal board, according to the Parliamentary Employment and Staff Relations Act. That is the act under which Singh brought his complaint to the labour relations board.
This report by The Canadian Press was first published Oct. 16, 2023.
