Section 3: The proscribed grounds of discrimination
A. The proposed legislation would be stronger if the prohibited grounds of discrimination were described in the following manner, similar to that used in B.C.’ Human Rights Code:
3. Discrimination in the practices described in sections 5 to 13 is prohibited unless reasonable cause exists for such discrimination. For the purposes of this Act, none of the following constitutes a reasonable cause for discrimination: race, national or ethnic origin, etc….
The above terminology would require a change in each of the “discriminatory practices” sections, in that where the words “on a prohibited ground of discrimination” appear, the words “without reasonable cause” would be substituted.
Whether or not the above change is made in the proposed legislation, the section on prohibited grounds should be extended to cover further kinds of discrimination. The section should provide protection against discrimination based on sexual orientation and on political beliefs. Prohibiting discrimination on the ground of physical handicap should not be limited to the field of employment only, but should extend to the areas of providing premises and accommodations, and of providing services, facilities and accommodations. The prohibition regarding criminal convictions should not be limited only to those convictions for which a pardon has been granted. Rather, the prohibition should extend to convictions in general, with the proviso that discrimination on this ground may be permissible in the employment area if the character of the offence relates to the character of the occupation or employment.
Section 11: Equal wages
While this section is basically excellent, the words “in the same establishment” in Subsections (1) and (2) should be deleted. They are irrelevant and provide a loophole for a technical evasion of the proscription against unequal wages.
Section 19: Regulations
The discretionary power given to cabinet by this section should be removed. It should be mandatory for the cabinet to make regulations ensuring that contracts, licenses or grants made or granted by the Federal government comply with this Act.
Sections 33, 35, 37, and 33: discretionary powers regarding complaints
Under the proposed legislation, there is no certainty that a legitimate complaint will actually be investigated and resolved. Section 33 provides that the “Commission shall deal with any complaint filed with it unless…” the complaint is rejected for specific reasons set out in Subsections (a) and (b). That mandatory “shall” is encouraging, but appears to he diluted in further sections of the Act. In section 35(1), the Commission “may” designate someone to investigate the complaint. It “may” jump over that step and start the process by appointing a “conciliator” (section 37(1)). Or it “may” go directly to the most serious and formal of its procedures and appoint a Human Rights Tribunal [section 39(1)]. The discretionary power given the Commission to decide which of these three methods to start with is not objectionable, as long as it is mandatory to proceed until some final resolution of the problem is found.
To ensure that the investigatory process begins, we suggest that the present section 33 be considered as section 33(1), and that 33(2) be added as follows:
33.(2) All complaints filed with the Commission, except those to which subsection (1) refers, shall be directed to an investigator, a conciliator, or a tribunal, or whichever combination of those three is necessary to resolve the complaint.
Once the process has begun, we suggest the following changes to ensure that it is completed (underlined portions are the suggested additions):
Section 37(1) “Subject to subsection (2), the Commission may, on the filing of a complaint, or shall, if the complaint has not been (a) settled…” and so on.
Section 39(1) “The Commission may, at any stage after the filing of a complaint, and shall, if a complaint has not been settled by a conciliator under s.37, appoint a Human Rights Tribunal…”.
Section 41: Tribunal action when complaint is substantiated
Under section 4l(l), a tribunal that finds that the complaint at issue is not substantiated “shall dismiss the complaint.” If, on the other hand, it finds that the complaint is substantiated, it “may” do several things, but it doesn’t have to do anything [s.41(2)]. Such discretionary power is unwarranted. It is not our wish to tie the hands of the tribunal by telling it what to do when it finds a complaint to be substantiated, but surely the tribunal should be required at least to recognize the validity of the complaint. We therefore suggest that s.41(2) should read (underlined portions suggested addition):
41(2) “If, at the conclusion of its inquiry, a tribunal finds that the complaint… is substantiated… it shall make an order against the person found to be engaging or to have engaged in the discriminatory practice, directing that such person cease such discriminatory practice, and may include in such order…” and so on.
Submitted by Lynda Hird
August 31, 1977
Minister of Justice and Attorney General of Canada
Mr. Jim Dybikowski
British Columbia Civil Liberties Association
206 – 207 West Hastings St.
Dear Mr. Dybikowski:
Thank you very much for your letter of May 10, 1977 bringing to my attention the views of the British Columbia Civil Liberties Association on Bill C-25, the Canadian Human Rights Act. My apologies for the delay in replying.
Your letter expresses a few specific concerns about some provisions of the bill. I would like to address myself to these in turn.
Proscribed Grounds of Discrimination
Your first concern regards the proscribed grounds of discrimination as set out in clause 3 of the bill. You would prefer to see the legislation stated as in British Columbia’s Human Rights Code, prohibiting discrimination of any kind unless reasonable cause exists and specifying the grounds which do not constitute “reasonable cause”. This method of proscribing discrimination was considered in drafting Bill C-25. It was decided, however, that it would be preferable to proceed with a clear and precise statement of the prohibited grounds of discrimination so as to clearly define respective rights and duties.
You also suggest that several additional prohibited grounds ought to be included. These include sexual orientation and political belief, physical handicap in the areas of services, facilities and accommodation and all criminal convictions. The bill presently limits physical handicap as a ground to matters of employment and only covers convictions for which a pardon has been granted.
Before dealing with the specific reasons for not including each of these additional grounds, I would emphasize that the list in the bill is the most comprehensive one in any anti-discrimination legislation in Canada or the United States at either the federal or state level. In developing this list an effort has been made to include a substantial number of prohibited forms of discrimination. However, an effort also has been made to ensure that the Commission will not face an impossible workload in its early years. Therefore, in general, the grounds that were included were drawn in view of the collective precedents developed in other North American jurisdictions.
This is not to say that grounds were omitted for purely administrative reasons. I would like to deal in turn with each of the matters mentioned in your brief. The first is sexual orientation. Because sexual orientation does not exist as a ground in any similar legislation in Canada at the provincial level or in the United States at either the state or federal level, the implications of including it are quite unexplored. In view of this, I feel that a fuller study of this question should be undertaken. Once the Human Rights Commission is established, I intend to request that it undertake a study of this problem, report to Parliament on the implications of including sexual orientation as a ground, and recommend whether Parliament should take action to include it.
Including political belief also would raise security problems when applied to employment within the public service. It is my view that this question should be dealt with in the context of security considerations and legislation before action is taken to include it as a ground in an anti-discrimination code.
You also suggest that the ground of physical handicap should be extended to the areas of federally regulated services, facilities and accommodations. I am very sympathetic to the problems faced by the physically handicapped in these areas. You will note that paragraph 22(l)(h) places a duty on the Human Rights Commission to “encourage the development and improvement of arrangements for physically handicapped persons to have access to services, facilities and accommodations within the federally regulated area. I expect that the Commission will be very active in this area and that in the long run greater improvements might be made for the handicapped in these areas than by including a strict prohibition against discrimination. If this does not prove to be the case we will have to review the legislation.
Your final suggestion is that protection under the Bill be extended to all persons with a criminal record. I would like to point out that extending protection in anti-discrimination legislation to persons who have received pardons from criminal convictions is, again, a relatively novel concept. The development of the principles involved in administering this ground can be expected to place a considerable demand on the Commission’s time. In addition, it seems to me that an unqualified requirement that past criminal activity must be ignored would create obvious concerns amongst members of the public. By confining the protection granted to those who have received a pardon (available under the Criminal Records Act) we provide some reassurance that the individual has demonstrated his rehabilitation. Again, however, it will be open to the Commission to recommend the extension of the protection in future to other categories of persons with criminal records.
Section II: Equal wages
I am pleased to receive your statement of support for this section. You express a concern about the use of the expression “in the same establishment” in sub-clauses 11(1) and (2) and suggest that this introduces a possible loophole for a technical evasion of the proscription against equal wages. The phrase “in the same establishment” has been included to allow for differences in wages based on regional economic factors. To ensure that this does not create a loophole, I proposed that the House of Commons Standing Committee on Justice and Legal Affairs amend the Bill to include the following new sub-clause:
“s. 11(2.1) Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be a single establishment.”
This provision was added at Committee stage and was then included in the Bill.
Section 19: Regulations
You suggest that clause 19 should be drafted in mandatory rather than discretionary terms. In choosing the discretionary format, I noted that persons with whom the federal government enters into a contract, licence or grant will generally be covered by provincial anti-discrimination law and in most circumstances this will be adequate to regulate the situation. If the clause were drafted in mandatory terms it could be interpreted by the provinces to be an unjustifiable interference with provincial jurisdiction. There may be situations, however, where the application of federal law by means of section 19 may well be appropriate.
Sections 33, 35, 37 and 49: Discretionary Powers Regarding Complaints
You suggest that too much discretion is vested in the Commission as to whether or not to deal with a complaint. I am not able to agree with your suggestion that there is no certainty that a legitimate complaint will be investigated and resolved. As you point out, clause 33 states that unless the complaint comes within certain limited exemptions the Commission “shall deal with any complaint filed with it”. This places a clear duty on the Commission to investigate and, if the complaint is not settled during the investigation stage or dismissed following investigation, the Commission must send the matter either to conciliation or directly to a Human Rights Tribunal for adjudication. If sent to conciliation but not resolved during that process, it would seem that the Commission would have to refer it to a Tribunal. I agree with you that the Commission should have to continue to deal with legitimate complaints until they are resolved but I feel that the legislation in its present form is effective to do this.
Section 41: Tribunal Action When Complaint Is Substantiated
You also suggest that too much discretion is vested in a Tribunal as to the type of order it can make when a complaint has been substantiated. It is common to express the types of orders which a court or a tribunal can impose in permissive language, to indicate that it must exercise reasonable discretion according to the circumstances.
You express concern that affirmative action programmes are permitted by clause 15 particularly, it would seem, because this could open the door to quota systems. I do not think that the wording of sub-clause 15(1), which permits special programs, plans or arrangements designed to improve opportunities respecting services, facilities, accommodation or employment for a certain group of people, would be interpreted in this manner. It merely permits special positive action of a general kind to be taken to assist these groups but does not permit discrimination to be actively practised against others in pursuit of this goal. To a large extent the determination of what constitutes a permissible program, plan or arrangement under this clause will be made by the Human Rights Commission under its power to give advice and assistance on such programs (s.15(2)) and to rule on their validity (s.22(2)).
I hope that this letter meets some of the concerns you express about Bill C-25. I very much appreciate the interest your group has shown in this Bill. Representations from your organization as well as from other groups and individuals have been of great assistance in developing the proposed Canadian Human Rights Act and in ensuring that it will be as strong and effective as possible.