Last summer, the provincial government introduced Bill 27, a new Human Rights Act. This bill, which was sharply criticized, was never enacted. The government has now introduced a new bill—Bill 11—which still contains most of the objectionable features of Bill 27. This brief compares Bill 11 with Bill 27, and with the existing Human Rights Code.
A. Elimination of reasonable cause provisions
Bill 11, like Bill 27, removes protection against discrimination without reasonable cause. The effect is to remove protection against discrimination due to grounds such as age (except for those between 45 and 65), sexual orientation, language ability, and any other ground not explicitly named. It is unclear whether pregnancy discrimination is still covered.
B. Proof of intent to discriminate
Bill 11, like Bill 27, probably will cover only intentional discrimination. For example, height and weight restrictions would no longer be considered sex discrimination unless it could be proved the purpose was to exclude women or people of Asian ancestry. And, a person excluded because of lack of wheelchair access to a building, would have to prove that the stairs were built for the purpose of excluding the disabled.
D. Discriminatory advertisements and application forms
Bill 27 eliminated the protection in the existing Code against discriminatory advertisements and application forms. Bill 11 restores the prohibition against discriminatory advertisements but there is no section like that in the existing Code dealing with discriminatory application forms. Therefore, an applicant could be required to furnish information about matters such as race, religion and political belief.
E. Enforcement agency
The Human Rights Commission, which was dismissed in July 1983, and the Human Rights Branch are replaced by a new Council. The Council will have no responsibility for educational programs. There is no explicit provision for staff, and the Minister has been reported as stating that the Council will rely on staff from other parts of the Ministry.
As explained below, the Council is given powers to dismiss complaints on a variety of grounds, powers that neither the Human Rights Branch or Commission have under the existing Code. The powers given to the Council in Bill 11 are even broader than the powers granted the Council in Bill 27. Bill 11 contains no provisions to ensure the independence of the Council, and members can be dismissed by cabinet order at any time without cause.
Complaints of violations will be filed with the Council, which will be in charge of investigating them and will decide whether they should proceed. The following summarizes some of the changes that have been made in the procedure for dealing with complaints:
- Complaints must be filed by the person discriminated against, or by someone else on behalf of that person and with that person’s consent. For example, a member of the public who witnessed a violation cannot file a complaint without finding and obtaining the consent of the victim of the discrimination.
- As in Bill 27, the Council can dismiss a complaint before any investigation if it is deemed frivolous, vexatious, in bad faith, or could “more appropriately be dealt with under another Act”. These powers existed in Bill 27 but not in the existing Code.
- After investigation, the Council can discontinue a complaint at its discretion. Bill 11, like Bill 27, provides no limits on the power of the Council to order a discontinuance.
- The Council can choose to appoint one of its members to conduct a hearing, or can refer a case to the Minister who can decide whether or not to appoint a Board of inquiry. The power of the Council to conduct its own hearings is new and is not contained in either the existing Code or in Bill 27. The effect is that the same agency will sometimes be both the investigator and the judge of a case.
- Whether a hearing is before a member of the Council or a board of inquiry, complainants apparently will be on their own at the hearing and will have to provide their own lawyer or present the case themselves. This is a change from the present practice of the Human Rights Branch, which almost always presents the case on behalf of a complainant.
- The language of Bill 11, like Bill 27, suggests that the complainant may have the burden of provof in all elements of the case, including an intent to discriminate. The reasonable cause provisions of the existing Code provided that once a denial has been shown, the respondent would have the burden of presenting evidence showing that reasonable cause existed far the conduct.
- In cases of employment discrimination, there is no violation if the employer shows that the exclusion of a group was a “bona fide occupational requirement”. It is open to an employer to argue that any ground of discrimination, including race, religion or sex, is a bona fide occupational requirement.
- The remedies available for a violation are similar to both the existing Code and Bill 27, with one exception. In addition to actual monetary loss such as lost wages and expenses, the existing Code allows up to $15,000 in damages for humiliation and loss of self respect if the violation was done knowingly or with wanton disregard. Bill 21 allowed no such damages in any circumstances. Bill 11 allows an award over and above monetary loss, and there is no explicit requirement that there be a knowing violation, but the limit on the damages is reduced from $5,000 to $2,O0O.
- As with Bill 27, there is no right of appeal from the decision of a board of inquiry, or a member of the Council, for either side, though the proceedings could sometimes be challenged under the Judicial Review Procedure Act. The existing Code gives a right of appeal.
G. Criminal penalty
Bill 11, like Bill 27, specifically denies the right to charge a person who discriminates with a provincial offence. The existing Code contains a section creating an offence.
H. Protection of those with physical and mental disabilities
The bill gives explicit protection to people with physical and mental disabilities. In cases involving the sale or rental of property, protection is strengthened. However, in cases involving public facilities and employment, the practical effect is likely to be to give less protection than that given by the reasonable cause provisions of the existing Code. Therefore, although it looks as if these groups benefit from the Bill, the net effect may well be to lessen protection.
I. Approval of programs to benefit groups
The power to approve “affirmative action” programs, which was omitted from Bill 27, has been restored.
If it had been enacted, Bill 27 would have effectively ended protection for most victims of discrimination. The same is true of Bill 11. Bill 11 makes fairly minor improvements on Bill 27, but it retains the general scheme of that Bill. The result is that a number of groups are denied protection entirely, and even those groups that are protected are likely to succeed only if they have the financial resources to take a case forward on their own.