Human rights legislation has been held to be the pre-eminent law of this province. Where it conflicts with other valid laws it prevails, and it can rightly be said that it should reflect the way we see ourselves as British Columbians; if not the way we are, at least the way we want to be.
The B.C. Civil Liberties Association (BCCLA) has had a long involvement with human rights law in B.C. and nationally. We have provided recommendations to various levels of government on equality issues virtually since the formation of the Association in the early 1960s, and have always supported a proactive and positive role for government in ensuring the protection of historically disadvantaged groups and advancing the goals of equality. The BCCLA was openly supportive of the Canadian Human Rights Commission and the B.C. human rights legislation since its inception, and our endorsement of the overall goals of the Act has in no way diminished over time.
Despite this, we have also been as vocal as possible when we have felt that the provisions of the Act have unacceptably infringed on the civil liberties of British Columbians, particularly with the introduction of the (now) section 7(b) and its restrictions of speech and expression. Our opposition to the provisions of this section also remains as vigorous as ever.
The BCCLA is grateful for the opportunity to review the proposed changes to the Human Rights Code, and, after careful review and discussion is pleased to offer our positions on each.
Throughout this process, our foremost concern has been weighing the efficacy of the legislation in attaining its goals, on one hand, and a cautionary approach to overextending its reach and infringing on civil liberties, on the other. More than anything else, the Human Rights Code, as one of the most powerful pieces of legislation in the province, must be unambiguous; it is the law to which British Columbians must look when deciding how to behave in a lengthening list of pursuits, and as such its clarity must be paramount. Several of our suggestions concern this requirement.
Also, a human rights code must provide protections for the individuals and institutions who are defendants before it; as in the criminal courts, the resources of the state may be brought to bear against them, and it is crucial that they are treated fairly and consistently with a high regard for due process. This concern too is reflected throughout our submission.
For the sake of convenience, we have addressed each of the proposed changes in sequence.
1. Include the phrase “unless reasonable cause exists for the refusal or discrimination” in sections 8, 9, 10, 11, 12, 13, and 14 of the Code.
It is the understanding of the BCCLA that this may allow tribunals to rely on the “analogous grounds” precedents. Wording similar to this existed in the human rights legislation for its first decade, and it was the interpretation of this passage that allowed, for instance, disability to be introduced as an analogous (and therefore prohibited ground) of discrimination.
Practically speaking, of course, the Code is a guide for employers and business owners, explaining to them the constraints within which they must conduct their affairs. The prohibited grounds are codified because, presumably, these potential defendants need to have somewhere to look to determine what behaviour is prohibited and what is not. Allowing “analogous grounds” at all seems contrary to this principle; human rights legislation has shown itself to evolve rapidly enough not to require it. Further, even in the absence of “analogous grounds” wording, courts can and have read in other grounds, such as the protection for sexual orientation where it has been absent in the Ontario human rights legislation. Part of the problem is that, necessarily, no one is able to give an example of an analogous ground for future protection; the BCCLA believes that the fact that analogous grounds cannot at this point be posited speaks against their blanket inclusion.
To conclude, the BCCLA believes that inclusion of an analogous grounds provision is not necessary and unacceptably vague, in that those affected by the Act should know what activity it proscribes. If, despite this recommendation, analogous grounds are reintroduced as a prohibited ground of discrimination, it should be done so explicitly and in plain language.
2. Include the ground of “age” in section 8 of the Code to prohibit discrimination on the basis of age in accommodation, services and facilities.
The BCCLA does not oppose the extension of coverage in this respect.
3. Amend the definition of “age” in section 1 of the Code to “means an age of 19 years or more” for the purpose of sections 8, 9 and 10 of the Code.
The BCCLA does not oppose this change, which extends protection against discrimination to those over 65 in the Code.
4. Include “age” and “family status” in section 9 of the Code to prohibit discrimination on the basis of family status in the purchase of property.
This recommendation was adopted by the BCCLA in our 1994 brief(1), with the caveat that a similar protection for senior citizens as under the tenancy provisions be adopted. It is our understanding that this is what is currently proposed, and to that extent we endorse it.
We do not adopt this position without some hesitation. There is in B.C. a movement afoot of “adult communities”, in which the (often) strata owners enforce age restrictions on purchasers. Frequently, these adult communities include a large number of seniors, who may wish to live in an adult only environment, but still enjoy the company of younger mature adults; this ought not to be discounted lightly.
Nonetheless, the BCCLA recognizes the difficulty experienced by families with children in finding accommodation, and believe that such provisions, combined with a protection for senior housing, is a reasonable balancing of these competing interests.
The BCCLA suggests that the commission consider whether replacing the phrase “a person must not…” with “a person must not, without a bona fide and reasonable justification” will allow the tribunals and courts more flexibility in dealing with this difficult problem.
5. Add a new provision in the Code that would protect persons from discrimination because they are related to or associate with a person or group of persons covered by the Code.
The BCCLA endorses the inclusion of this protection in the Code.
6. Amend the Code to prohibit any request for information about a prohibited ground of discrimination unless the information is needed for a purpose permitted by the Code.
While doubtless well intentioned, this provision could prove to be a problem. It would stop employers from asking “what is your race/gender, etc.” on application forms, unless it was in the interest of gender equity programs, etc. However, notwithstanding its usefulness for employers in this respect, it might also be very useful for the employers to know the status of its applicant pool, for instance to demonstrate the number of minority applicants should they be later accused of adverse effect discrimination in hiring. This information is also, of course, of interest to the complainant in such a case, who might bear the onus of demonstrating that, for instance, minority applicants are less successful in securing positions with the employer.
Further, the Black report(2) suggested a more proactive role for the Commissioner in researching areas of systemic discrimination. The statistical information gathered by employers at the time of application could prove valuable for this research.
The BCCLA submits that this problem could be addressed by allowing employers to perform a blind survey, having another form without identifying information in it upon which applicants could declare age, sex, marital status, race, etc. The BCCLA would only endorse the change proposed here if such allowance was made for employers to keep such information where they could do so without breaking the spirit of the rule, and if sufficient safeguards can be established to separate it from the application form per se.
7. Amend the Code to clarify that discrimination on the basis of gender identity is prohibited in sections 7 through 14 of the Code.
There is a considerable argument that this category of persons could achieve this protection without explicit inclusion in the Code; the commission could allow it to develop through the Courts and the Charter in the public service sector under gender or sexual orientation protections.
However, the BCCLA also recognize that transgendered individuals are a very small and particularly vulnerable minority, perhaps without the resources to pursue this effort through the courts. We also recognize that the discrimination faced by many transgendered persons is particularly severe. Balancing these factors, we endorse the inclusion of gender identity as a prohibited ground.
This is, of course, offered with the caveat that the BCCLA vigorously opposes section 7(b) of the Code, in that we believe it unreasonably impedes freedom of expression. Nothing in our endorsement of this change should be taken as an implicit recognition of the validity of section 7(b).
8. Add a clear “duty to accommodate” provision in sections 8, 9, 10, 11, 13 and 14 of the Code to ensure that the duty to accommodate applies regardless of whether the discrimination is direct or adverse effect discrimination.
The BCCLA interprets this as an attempt to simplify what has become a very confusing series of cases; however, it may not be the best way to achieve it. As it stands now, the immediate duty to accommodate arises in cases of adverse effect discrimination. In cases of direct discrimination, there is still a bona fide occupational requirement that must be overcome.
It is the concern of the BCCLA that the addition of duty to accommodate to these sections will undermine the notion of BFOR, a defence that is narrowly interpreted already, and replace it with a requirement to accommodate short of undue hardship. While simplifying the case by case analysis, this may also be eroding a valid defence.
The BCCLA agrees that there should be one set of rules whether the discrimination is direct or adverse effect. To this end, however, we submit that a two step analysis, with the defence of BFOR available before a duty to accommodate is triggered. We reiterate that we are extremely concerned with any provision that would erode the already weakened BFOR defence.
9. Amend sections 12 and 13 of the Code to include successor employers.
Although this is an important policy issue worthy of some debate, we do not consider it a pressing civil liberties concern, and therefore make no submission on this point.
10. Amend section 12(5) of the Code to remove the 12-month limit on recovery of wages.
On this point too the BCCLA chooses to make no submission, as it does not appear to be a pressing civil liberties concern.
11. Amend section 8(2)(b) and 13(3)(b) of the Code to specifically prohibit discrimination on the basis of pregnancy.
It is the understanding of the BCCLA that this change will bring the Code in line with the Supreme Court of Canada decision in Brooks v. Canada Safeway. To that extent we have no objection to this change. The removal of ambiguity provided by such specific wording, even if not strictly speaking legally necessary, allows employers and others to act with more certainty in the conduct of their affairs, something that the BCCLA is important when considering the wording of the statute.
12. Amend the Code to include “lawful source of income” in sections 8, 9, 13 and 14.
The BCCLA recognizes the discrimination born by those on social assistance, and accepts that it is reasonable to extend protection against this discrimination to other sections of the Code. The BCCLA also endorses that this provision be extended to s. 10, in order to cover rental accommodations.
It is important to point out that this would require the inclusion of this same ground in section 42(1), to prevent its acting against, for instance, employment programs designed to assist people on social assistance or unemployment insurance.
1. Amend section 8 [should this read section 10?] of the Code to provide for protection against discrimination because of source of income in tenancy.
Failing adoption of our recommendations in 12. above, the BCCLA agrees that section 10 should be so amended.
2. Apply the bona fide and reasonable justification defence to sections 8(2) and 13(3) and clarify the meaning of those phrases.
The BCCLA recommended this change in 1994(3), and endorses it now. However, in his report, Professor Black noted that “[d]efenses such as these have been interpreted extensively by the courts and do not need modification at this time”(4), a sentiment with which we concur; so, while we approve of the extension of these defences to these sections in the interest of certainty and consistency, we do not understand the requirement for clarification.
3. Amend section 43 of the Code to extend coverage against retaliation because a person refuses, has refused, or will refuse, to contravene the Code.
The BCCLA agrees that this seems like a good idea, but is concerned that there might be a problem with vagueness if enacted in conjunction with analogous grounds wording discussed in the first proposed change. If an employee refuses to discriminate against another on the basis of a non-protected but possibly analogous ground, would the employee be protected by this section as amended? Would the degree of the employee’s protection be dependent on whether a tribunal later considered the ground analogous?
To take an admittedly extreme example, say a law school admissions officer refused to discriminate against people with bad marks and a poor LSAT, contending that low intelligence is a ground analogous to disability.
At what point would the officer be protected? When she invokes the analogous ground argument, or when the tribunal finds that it has merit? While this argument may seem somewhat obtuse, it illustrates our concern that the protected grounds might become increasingly vague, and the individual’s right to act with some certainty as to the requirements of the law be further undermined.
4. Amend Section 49(2) to allow for regulation making power in order to provide guidance in substantive areas.
The BCCLA is concerned about the effect of this change. We do not see the need, and can see several drawbacks, to allowing Cabinet, on recommendation of the Commission, to provide guidance as to substantive matters. It is, in effect, blurring the line between the cabinet and the Commission, which, as Professor Black noted, has the power to file complaints and intervene in cases(5). It is perhaps allowing, in our submission, too much power to be focussed in the hands of the Commissioner, and is also going beyond Professor Black’s recommendation that this power to enact regulations be restricted to prescribing standards for compliance with the HRC(6), and appears to go well beyond the powers granted commissioners and cabinet in other jurisdictions in Canada.
5. Amend section 41 of the Code to read “organization, corporation or group” to ensure consistency in language.
This is in the true sense a housekeeping provision and the BCCLA correspondingly takes no position on this change.