September 19, 1983
Bill 27, the Human Rights Act of 1983, makes major changes in the enforcement of human rights. The purpose of this outline is to identify in some detail the effects of the new bill. We will first outline the changes in what grounds of discrimination are covered. We will then outline changes in the enforcement machinery. For convenience, we will refer to the existing Human Rights Code as “the Code” and to the proposed bill as “Bill 27”.
Means of enforcement
Perhaps the most significant changes concern the way in which complaints wi11 be handled. The Bill abolishes the Human Rights Commission and the position of Director of the Code. In place of these bodies, it establishes a Council of Human Rights, composed of no more than five people. Nowhere in the bill is there any provision concerning staff for this Council. It is possible some staff will be made available but there is no assurance of that fact, and it is possible that the Council would instead borrow people from other agencies such as Industrial Relations Officers. Industrial Relations Officers have no training in human rights issues, nor would they have the time to adequately perform these functions in light of their other duties
1. Functions of the Council
It is not clear from the wording of the bill exactly how this Council will operate. It seems, however, that the function of the council will be strictly to deal with complaints filed by private individuals. Apparently, its duties will not include the responsibility to engage in educational activities, to promote the principles of the Code, or to sponsor or participate in programs furthering human rights (compare section 11 of the Code). It also will not have the power to initiate a complaint as the Commission now has, and there is no provision for on annual report or for activities such as the Commission’s recent recommendations for legislative change. There is no power to approve special programs for disadvantaged groups. In dealing with complaints, the Council will be in charge of the investigation and will have the power to dismiss complaints, but not to appoint a Board of Inquiry. (See sections 9 and 10 of Bill 27.)
The following steps will be followed in dealing with complaints:
- The victim of the discrimination must file a complaint with particulars. It will no longer be possible for some other person, such as a trade union or a community group, to file a complaint. Also, as we have noted, the Council cannot itself initiate a complaint. Therefore, there will be no way for an employee to make a complaint without the employer learning of that fact. For example, the complaint would show which employee had filed an equal pay complaint, and it would be necessary for every employee affected to sign the complaint to receive compensation [see section 10(1)]. The result is likely to be complaints containing technical defects that will make enforcement much less effective and also lead to unnecessary litigation.
- The Council, after receiving a complaint and before any investigation can dismiss it if it is not covered by the Act, is trivial, frivolous, vexatious or made in bad faith, or if it could be “more appropriately dealt with under another Act”. One question that arises is how a finding could be made about whether a complaint is made in bad faith prior to any investigation. Perhaps the more significant point, however, is the reference to proceedings under other legislation. It would seem that the Council could refuse to commence an investigation until the complainant had taken all possible proceedings under the Labour Code, for example. Thus, it might be necessary to complete an arbitration process under a collective agreement before a human rights investigation would even be considered. Unions as well as employers are sometimes charged with discriminatory conduct, and a union may have other reasons for refusing to proceed so that an arbitration process is not, in practice, available. The result could be that the individual would be at the mercy of both the union and the employer in proceeding with the matter [see section 10(2)].
If the Council decides no investigation is required, it must notify the complainant in writing, but there is no requirement that it give reasons for its decision. Also, there is no appeal from the dismissal, and it is unlikely that a complainant could challenge the decision under the Judicial Review Procedure Act [see section 10(3)].
If the Council decides an investigation is required, it shall commence the investigation. Again, however, it is not clear that the Act provides for staff to do so. The Act gives the Council power to require disclosure of information and documents, though the power is narrowed in ways that could be important. However, there does not seem to be any penalty provided in the Act if a respondent refuses to comply (see section 11).
- At the end of the investigation the Council must either (a) order that the proceedings be discontinued, or (b) recommend a settlement. If all parties do not agree with the proposed settlement, the Council must submit a report to the Minister (see section 12(1)).
Two points are worth making. First, there seems to be a complete discretion to order that proceedings be discontinued. The Act does not provide any guidelines for the exercise of this discretion. Second, although the Council can recommend a settlement, there seems to be no provision for active attempts to conciliate the matter. The result may be that cases which are now settled will go to the Minister.
- If a case is referred to the Minister, he or she may dismiss it, recommend a settlement or appoint a Board of Inquiry consisting of one person [section 12(2) of the Bill]. In practice, that part of the procedure is similar to that under the Code. It is noteworthy that there are now a total of three stages at which a complaint can be dismissed: after the complaint is filed, after investigation, and after being referred to the Minister. Under the Code, all unsettled cases are referred to the Minister.
- If a Board of Inquiry is appointed, the hearing will take place much as it has in the past, with one very important exception. The only parties to the hearing will be the complainant, the respondent and other persons directly affected [see section 14(2) of Bill 27]. Under the existing Code, the Director is a party, and the counsel representing the complainant will almost always be supplied through the Director. Under Bill 27, it seems that complainants will have to proceed on their own and supply their own counsel or take charge of the proceedings themselves. It is unlikely that legal aid would be available in the foreseeable future. Losing complainants can be ordered to pay costs to the respondent as well as the fee of their own lawyer. In short, a board proceeding could involve considerable expense, and the Council would not appear at the proceeding at all. The result is that the complainant has the worst of both worlds; he or she does not have the control that would exist if the matter were taken to court by way of civil proceedings, nor the assistance that other provinces provide in human rights proceedings.
That fact is especially important when considered together with a change in the remedy section. If a Board of Inquiry finds that the Act has been violated, it may still order that the violation cease, that the complainant be given what was wrongly denied (the suite, or the job, for example) and out of pocket losses. A Board will no longer be allowed to award damages for any humiliation or loss of respect caused by the event, however (see section 15 of Bill 27). That omission is especially important in cases regarding the refusal of entry into public facilities where there is seldom any out of pocket loss. For example, it would appear that in a case like the Misty’s case, in which a cabaret discriminated against patrons on the ground of race, a Board could award no damages at all under the new wording. Also, it seems that any award that is made would have to be enforced by the complainant who would have to commence court proceedings if the respondent did not voluntarily pay.
- The new Act does not give any right of appeal from the decision of the Board, though it may sometimes be possible to use the Judicial Review Procedure Act to challenge a decision on certain rather narrow grounds. The Code gives both sides a right of appeal.
In summary, the new procedures wil1 make it much more difficult to proceed with a complaint without assistance in formulating a complaint against the appropriate party, in obtaining the necessary information to prove it to the satisfaction of a board and in presenting the facts and the appropriate law to a board, even well educated and sophisticated persons with legitimate complaints will find it almost impossible to obtain a remedy. It need hardly be pointed out that many complainants have only minimal communication skills, and no knowledge of the law.
The changes are also a move away from conciliation and toward adversarial proceedings. In addition, the investigative powers are narrowed and the discretionary powers to dismiss a case are increased.
Section 24 of the existing Code allows any person to file an information charging a person who violates the Code with a penal offence. The section has seldom been used, but it has been an important safeguard because it provides an alternative way of proceeding if a Minister refuses to appoint a Board of Inquiry.
Section 21 of the new bill specifically provides that no penal proceedings will no longer be allowed (see section 21). Therefore, if the Minister refuses to appoint a Board, that is the end of the matter.
Physical and mental disability: Is protection improved?
At first glance, it would appear that two groups who benefit from the new Act are those with physical and mental disabilities. In cases involving the sale or rental of housing, that conclusion is completely accurate since the current legilsation gives no protection against such discrimination. The addition of these prohibited grounds of discrimination is also to be welcomed in other sections, if only for its educative effect.
On closer exanimation, however, it is clear that even these two groups may be given less protection by the new Act than by the Code. One important reason is that it is likely that all complainants will have to prove an intent to discriminate under the new Act. For example, if an employer required all applicants to take an aptitude test that excluded those with certain mental conditions, there would probably be no violation even if the test had nothing to do with the actual requirements of the job. Similarly, it seems unlikely that an employer or public facility could be required to build a ramp or otherwise accommodate a person with a physical disability unless it could be proved that the stairway or other impediment had been constructed for the purpose of excluding the disabled. In addition, of course, the limitations on the investigation procedure and the added costs to the complainant of a Board of Inquiry would apply to persons with physical and mental disabilities along with everyone else.
Boards of Inquiry have held that discrimination on the ground of physical disability is covered by the reasonable cause provisions of the Code, even though it is not explicitly named. It is almost certain that the reasonable cause provisions also covers mental disability. As a result, in cases involving employment or public facilities, although Bill 27 seems to improve the position of people with physical and mental disabilities, it, in fact, removes benefits that the Code provided, such as coverage against systemic and unintentional discrimination, and assistance arguing before a board of inquiry. It is far from clear that the net effect is positive.
Elimination of reasonable cause provisions
The sections of the Code dealing with public accommodations, services and facilities, with discrimination by employers and with discrimination by trade unions (sections 3, 8 and 9) all prohibit discrimination without reasonable cause. These sections then specifically name certain prohibited grounds of discrimination (race, sex and religion). The effect is that, in addition to the named grounds of discrimination, discrimination on other unnamed grounds is prohibited if it is unreasonable. For example, Boards of Inquiry have held that the reasonable cause language covers discrimination on the basis of physical disability, sexual orientation, language and immigrant status, although these grounds are not explicitly named in the Code.
Bill 27 eliminates the reasonable cause protection and prohibits only the grounds of discrimination specifically named in the bill. Physical and mental disability have been added to the list of prohibited grounds in all sections of the bill but, because these grounds were already covered by the reasonable cause provisions of the Code, the actual protection to people with disabilities may actually be reduced, as we have already explained. Also, the section dealing with public accommodation, services and facilities adds marital status as a prohibited ground. Again, it is almost certainly now covered by reasonable cause. The net effect of the changes is to eliminate protection for certain groups and to reduce the effectiveness of the protection given the groups that are specifically named.
Since only the named grounds of discrimination would be prohibited, there is no longer any protection against discrimination on grounds such as the language one speaks, sexual orientation or age (outside of the specific protection for those between 45 and 65). The effect is to overturn a number of decisions. For example, the recent case of Dhaliwal v. Plateau Mills held that the Code was violated when a mill refused to hire a person because he was allegedly not fluent in English. Under the Bill, this discrimination probably would be legal even though language ability was irrelevant to the job. Similarly, the Burns case suggested that it would be illegal to exclude a thirty year old from an apprenticeship program; the bill would not give any remedy. The Board of Inquiry in G.A.T.E. v. Vancouver Sun held that discrimination on the ground of sexual orientation was prohibited, and this conclusion was not overturned on appeal, though the courts held that the Code did not apply to the content of newspaper advertisements. Bill 27 would eliminate protections against discrimination due to sexual orientation. Finally, the bill creates considerable doubt as to whether discrimination due to pregnancy is prohibited.
Even when a complaint concerns a ground of discrimination that is still included in the Code, the elimination of the “reasonable cause” provisions will in all probability make it more difficult to prove a violation for two reasons:
- Intent and systemic discrimination
A number of cases have held that it is not necessary under the Code to prove an intent to discriminate; a violation exists if a policy has a discriminatory effect on a protected group. That conclusion is based on the reasonable cause provisions. For example, the Dhaliwal case held that an unreasonable language requirement had the effect of discriminating on the ground of place of origin even if there was no such intent. Similarly, the Grafe case held that height and weight restrictions had a discriminatory effect on women, and it has been recognized that a policy prohibiting beards would constitute illegal discrimination against members of the Sikh faith.
Recent federal and Ontario cases make it likely that the new wording in Bill 27 will require proof of a discriminatory intent. The fact that a policy has a discriminatory effect will not be enough to prove a violation of the Code. As a result of the Ontario decision requiring proof of intent, that province recently amended its Code to make clear that a discriminatory effect is covered whether or not intent can be proved. Bill 27, however, adopts the approach that Ontario has just abandoned.
- Burden of proof
It is clear under the Code that once it is shown that a complainant applied for a job and was turned down, the employer must present evidence showing that there was reasonable cause for refusing to hire, or to fire. Since it is almost always very difficult for a complainant to prove the exact reason for the rejection, placing the burden on the respondent is crucial. Placing the burden of proof on the respondent is also consistent with the practice in court in wrongful dismissal cases and with the rule in labour relations contexts such as grievance arbitrations. The elimination of the reasonable cause provisions removes the underpinnings of this rule about burden of proof and makes it possible that the complainant will have to prove in every case that the refusal was caused by a particular ground of discrimination.
One can hope that future boards of inquiry will interpret the Act in a way that overcomes these difficulties. But there is a very significant danger that they will not be able to do so in applying the new wording. At the very least, it will be necessary to argue these points from scratch.
Discriminatory employment advertisements and application forms
Section 7 of the existing Code prohibits publication of discriminatory employment advertisements and makes it illegal to require an applicant to furnish any information concerning certain discriminatory grounds, such as race and religion and political belief. This section had the effect of ending the practice of dividing employment advertisements into “help wanted, men” and “help wanted, women” columns. It also is an important safeguard against discrimination later in the hiring process, since people cannot misuse information they do not have. Under this section, a Board of Inquiry held that an employer violated the Code by asking the applicant’s place of origin on an application form.
Bill 27 contains no comparable section. Therefore, it may well be legal to ask for a person’s race, religion, place of origin and political belief in an application form, and a newspaper could divide help wanted” columns by sex, or by race, religion or any other basis, without violating the Act. Section 2 may occasionally cover such situations, but is far from an effective substitute for section 7 of the Code.