Re: Bill C-141, Amendments to the Canadian Human Rights Act

Honourable Mark MacGuigan
Minister of Justice
Parliament Buildings
Ottawa, Ontario

Dear Mr. MacGuigan,

Re: Bill C-141, Amendments to the Canadian Human Rights Act

We are disappointed that this bill does not go further in incorporating the recommendations made by the Human Rights Commission in its 1979 and 1980 Annual Reports. In particular, we are disappointed that the bill does not add political belief and sexual orientation as prohibited grounds of discrimination. We hope that you will reconsider these omissions either by amending this bill or introducing another bill early in the new session of Parliament.

For the most part, however, the bill is a step in the right direction, and we are pleased that it incorporates some of the Commission’s recommendations. But we do not understand why the bill delays protection to the mentally disabled and to the physically disabled when there is a problem of physical access. There seems to be no excuse whatsoever for delaying protection to the mentally disabled. Certainly, the explanatory comments concerning the bill give no reason justifying the delay. With regard to physical access, we realize that physical modifications may take a certain amount of time, but the provisions in section 15.1 (regarding the right to apply to the Commission for approval of a plan) and in section 41(4)(a) (concerning undue hardship) provide adequate protection to employers and businesses that must make modifications. Thus, the delay gives the impression that the government wants to allow discrimination on grounds of disability as long as it constitutionally can do so. Therefore, we strongly urge that section 65.1 be deleted.

We have a number of other suggestions concerning the bill:

  1. Section 48(6) of the Act provides that companies and organizations are not vicariously liable for acts of employees and agents in the course of employment if the organization did not consent to the commission of the act or omission and exercised due diligence to prevent it. This limitation does not apply in other areas of the law. For example, a trucking firm would be held liable for the negligence of a driver whether or not the firm had used due diligence to prevent the conduct. The principle of vicarious liability does not require that the employer be at fault. It is instead based on the proposition that the employer obtains a benefit from the activities of employees and should also bear the costs when these activities cause harm. That principle is as valid in the area of human rights as in other areas of the law.
  2. Section 19(1)(1) should be amended to provide that regulations prescribing standards of accessibility to services, facilities or premises be enacted only upon recommendation of the Human Rights Commission. Subsection (2) prohibits a complaint where such standards are met. Thus, the section could be used to limit the protection afforded the disabled. A requirement that regulations be made on recommendation of the Commission would ensure that the agency responsible for the protection of human rights participated in the process of enacting the regulations.
  3. Regarding subsection (5) of section 19(1), we agree that there may be circumstances in which a variance with the standards established by regulation should not constitute a violation of the Act. However, subsection (5) should be amended to provide that a failure to comply with the standards constitutes prima facie evidence of a violation. While exceptions will sometimes be warranted, the onus should be on the respondent to justify the failure to conform.
  4. We agree with the amendment in Section 10 to cover an organization of employers. However, we recommend that the section be amended to cover an organization established jointly by an employer or organization of employers and an employee organization. A complaint under the B.C. Human Rights Code against an apprenticeship board formed jointly by an employer and a trade union failed on the ground that the apprenticeship board was not covered by the Code [see Re Burns and UPPT Local 170 (1978) 82 D.L.R. (3d) 488 (B.C.S.C.)]. It is clear that the intent of section 10 is to cover such situations, and our proposed amendment would avoid a technical defence.

We recognize that these suggestions come late in the process. However, the timing of the introduction of the bill has left little time for groups such as ours to study the it. We hope that you will find it possible to amend the bill to take account of our suggestions.

Yours sincerely,

R.A.H. Robson