RECOMMENDATION 1

The Committee recommends enshrining the Court Challenges Program in legislation in order to enhance its sustainability and to ensure that any government seeking its cancellation would require the approval of Parliament.

Recognizing that the government is currently conducting consultations on the restoration of the Court Challenges Program and considering the time needed to enact legislation, the Committee recommends that the government immediately restore the Court Challenges Program through policy until such legislation can be brought into force.

RECOMMENDATION 2

In order to minimize administrative costs, the Committee recommends that the renewed Court Challenges Program be an independent and autonomous entity housed in a federal government department or agency, such as the Canadian Human Rights Commission. Issues related to capacity, accessibility and public perceptions of independence must be taken into account in determining the appropriate department or agency.

RECOMMENDATION 3

Recognizing the distinct nature of equality and linguistic rights, the Committee recommends that the renewed Court Challenges Program be comprised of one board of directors and two separate expert panels responsible for making all decisions regarding funding, one for linguistic rights and one for equality rights. Members of these panels should only be entitled to reimbursement for reasonable travel and accommodation and a minimum per diem for attending meetings.

RECOMMENDATION 4

The Committee recommends that members of each panel be appointed by means of a federal government nomination process based on consultations with relevant stakeholders. For the linguistic rights expert panel, consultations must include members of linguistic minority communities and legal experts in the area. For the equality rights panel, consultations must include a diverse range of groups interested in equality rights, including poverty rights groups, as well as legal experts in the area.

RECOMMENDATION 5

The Committee recommends that funding criteria to be applied by the expert panels be made clear and transparent to avoid any perception of bias.

RECOMMENDATION 6

The Committee recommends that when a panel member is in a position of conflict of interest in relation to a funding application, including but not limited to a pre-existing relationship with an applicant to the program or a law firm representing such applicant, he or she must recuse him or herself from the decision-making process.

RECOMMENDATION 7

In order to ensure transparency, the Committee recommends that once a case is filed, the names of the recipients of Court Challenges Program funding be disclosed along with the nature of the cases in each annual report, except to the extent it is reasonably believed that such disclosure would prejudice the litigant(s). The Committee further recommends that all other information including funding information be automatically disclosed upon completion of litigation related to the case, including all appeals and the lapse of any appeal period.

RECOMMENDATION 8

In order to maximize the renewed Court Challenges Program funding envelope, the Committee recommends that the expert panels focus on funding cases that are national in scope and impact. Eligibility standards must also include that a case have some likelihood of success and that the applicant demonstrate a need for funding (“means test”). Applications that are frivolous or vexatious  and applications that cover issues already before the courts in a different case should not be eligible for funding.

RECOMMENDATION 9

The Committee recommends that the federal government provide the expert panels with the flexibility necessary to maximize the funding envelope which may include funding for intervenors in some circumstances and consultations among potential litigants, particularly when they have the potential to reduce overall costs.

RECOMMENDATION 10

The Committee recommends that there be no requirement for alternative dispute resolution in the renewed Court Challenges Program and that it may be considered only if the applicant(s) and the respondent(s) agree.

RECOMMENDATION 11

The Committee recommends that in addition to the existing constitutional and Canadian Charter of Rights and Freedoms provisions that can be used in support of minority language rights cases under the Language Rights Support Program, the renewed Court Challenges Program allow funding for challenges based on the Official Languages Act and all other federal laws with linguistic obligations.

RECOMMENDATION 12

The Committee recommends that in addition to the Canadian Charter of Rights and Freedoms provisions applicable under the former Court Challenges Program, the renewed Court Challenges Program allow for challenges based on section 7 in support of equality rights cases on a stand-alone basis.

RECOMMENDATION 13

The eligibility criteria for funding under the renewed Court Challenges Program should also include challenging provincial and territorial laws, providing that the cases are national in scope and impact. In other words, challenges under sections 7 and 15 of the Canadian Charter of Rights and Freedoms would be treated in the same way as existing language rights cases are under the current Language Rights Support Program.