The purpose of this submission is to outline statutory provisions that we believe are essential for the effective protection of human rights in British Columbia. This is not the time for academic discussion, and our goal has been to make recommendations that could realistically be adopted into legislation in the near future. Thus, we have not attempted to formulate the perfect human rights statute, and we do not discuss options such as affirmative action and contract compliance that would have merited serious consideration were we to have adopted a more far-reaching approach. Since our goal is immediate, our proposals are more modest and conform to the model of protection that presently exits in most Canadian jurisdictions. Indeed, the great majority of our recommendations are based directly on the Federal Human Rights Act and the statutes of other provinces.
We realize that our submission is unlikely to receive the attention that we believe it deserves unless it addresses the complaints made by the government concerning the machinery for protecting human rights that was in place as of July 6, 1983. Bill 27 has died on the order paper without debate, and there was never an official statements as to the purposes for introducing the bill. We assume, however, that the wording of Bill 27 and statements of the Minister of Labour and the Premier give some indication of the government’s concerns. As we understand them, these concerns were:
- a belief that the procedure for disposing of complaints is inefficient and that the system was strained because of the need to investigate unmeritorious complaints;
- a belief that the procedure was too slow;
- a belief that the “reasonable cause” provisions of the Code are not specific enough; and
- a belief that the division of responsibility between the Human Rights Commission and the Human rights Branch has led to duplication of effort or lack of co-ordination.
Part II of this submission deals with these concerns. We believe that the alleged problems have been exaggerated, but we of course also believe that human rights enforcement should be efficient, speedy and fair. In our opinion, the provisions of Bill 27 sacrificed effectiveness without achieving these goals. Indeed, some aspects of Bill 27 were counter-productive even in terms of the governments own objectives. Therefore, we make alternative recommendations that we believe better achieve the government’s stated objectives while, at the same time, providing effective protection.
While we recognize the need to be realistic in political terms, we also believe it is essential that legislation realistically deal with the problem of discrimination that exists in British Columbia. Frankly, we believe that the approach taken in Bill 27 must be abandoned. An entirely new bill is needed, not an amended version of Bill 27. Our conclusions about Bill 27 are supported by the great majority fo Canadian experts in the field of human rights who have examined the Bill. Therefore, we do not attempt to discuss in detail the various sections of Bill 27. Instead, in Part III we outline the provisions that, in addition to those recommended in Part II, are essential if a new bill is to provide effective protection of human rights.
As we have noted, the purported reason for introducing Bill 27 was to serve the interests of efficiency and speed, to modify the “reasonable cause” provisions of the existing Human Rights Code and to eliminate administrative duplication. We deal with each of these matters in turn.
There is no doubt that in inordinate period of time has passed before the final disposition of some complaints under the existing legislation. We support efforts to speed up the process, so long as increased speed is not purchased through the elimination of procedural safeguards designed to ensure a fair hearing and disposition on the merits. We will review the various stages through which a complaint passes and discuss methods for increasing the speed of its passage through each stage.
1. Receiving the complaint
Persons with human rights concerns should be able to obtain prompt assistance in determining whether to file a complaint, in what terms, and against what parties. This is a question of providing sufficient, well-trained intake staff. In this respect, it is essential that the statute make provision for such staff, and we so RECOMMEND.
Persons with potential complaints should be encouraged to move promptly in order that the party against whom an allegation is made has timely notice of it and can prepare to meet it. This is a question of staffing and of setting an appropriate limitation period. The existing Code which specifies a limitation period of six months within which cases must be brought with no provision for extensions, is too short and too harsh. We think that a period of one year is more appropriate, because it strikes a balance between the competing interests involved — the interest of the complainant in being able to proceed with a complaint on its merits and the interest of the other party in knowing at some point that a dispute has been laid to rest. Two years is the shortest limitation period set by the Limitation Act of this province, and applies to all claims for damage to person or property. Six years is the period applicable to actions for wrongful dismissal (comparable in some ways to employment-related complaints in human rights cases). We recommend a one year period but recommend that there should be provision for extension by order of the Commission when the complainant has not been purposely dilatory and when there is no actual prejudice suffered by the respondent aside from the loss of the benefit of the limitation period (see Canadian Human Rights Act, s. 33(b)(iv)).
2. Investigating the complaint
The speed of investigation depends entirely upon the staff allocated to the task, the procedures they follow, and the powers they have to compel production of documents and records. We understand that procedures had been developed prior to July 1983 for what was called the “Rapid Case” method—this is to be commended (we note that Bill 27 contained no express sanction for refusal to co-operate with an investigation and recommend that such sanction be provided in a replacement bill, either specifically or in a general offence section).
As we explain more fully in section C, it is essential in the interests of both speed and efficiency, not to mention effectiveness, that there be adequate full-time staff to perform this function, and legislation should provide for such staff. Enforcement using inadequate staff obviously sacrifices speed. It is also a false economy since inadequate staff usually leads to inefficiency caused by lack of co-ordination. The failure to provide for high quality training also would adversely affect both speed and efficiency.
Again, the speed of the process is a function of the quantity and quality fo persons delegated to perform it. It is also a function of the expectations of the parties about the eventual disposition of the matter.
We are aware of criticism that the existing procedure for investigation and conciliation is unfair because there is no clear demarcation between the investigation and conciliation stages. We note that the federal Human Rights Act establishes a two-stage procedure in which one member of staff conducts an investigation and a second member of staff is responsible for a separate conciliation stage of the proceedings. We understand that some provincial human rights agencies believe, however, that this two-stage process is unduly cumbersome and might sometimes impede settlements that are offered spontaneously in the midst of an investigation.
If settlement efforts are perceived as unfair, they will not achieve their purpose because they will lead to an uncooperative attitude on the part of respondents. Certainly a procedure perceived as unfair is unlikely to positively change a respondent’s attitude with respect to discrimination. On the other hand, adoption of an unduly cumbersome procedure should clearly be avoided. In these circumstances, we believe that a procedure similar to that under the federal Human Rights Act merits consideration but should be adopted only after further consultation with other human rights agencies.
4. Decision whether to order a Board of Inquiry
The government has stated that it is concerned about the manner in which complaints come before Boards of Inquiry, in particular about the selection process which is used to separate those complaints which warrant a hearing from those which do not. This has been expressed as a concern about “frivolous and vexatious complaints”. In our opinion, this problem has been exaggerated. We agree, however, that there should be authority, within the Human Rights administrative framework, to refuse to proceed further with complaints which are clearly untimely, frivolous, vexatious, or made in bad faith, which are clearly outside the jurisdiction of the Human Rights Code, or for which there is clearly a more appropriate forum than a Human Rights Board of Inquiry for disposition of the matter on its merits.
This general statement, however, leaves four particular questions to be answered:
- What criteria should be used in determining whether a complaint should be dismissed or stayed?
- Should a complainant’s refusal to accept a settlement which seems reasonable constitute a ground for refusing to send the matter to a Board of Inquiry?
- What should the consequences of refusing to send the complaint to a Board, and what framework should be used in making that determination?
- Who should make the decision whether to order a Board of Inquiry?
These questions will be addressed in order.(a) Criteria for determining which complaints are to be referred
- First, we make the observation that the courts, statutory tribunals other than human rights Board, and private administrative tribunals, all operate despite the possibility that individuals may attempt to misuse their facilities. This possibility is a simple fact of life. It materializes in a very small number of cases and, in our view, should not become the paramount factor in establishing the rules for accessibility to a hearing for human rights complaints, most of which raise legitimate issues under the stature. The human rights legislation exists for good reason. We think that complainants should have access as of right to the mechanisms provided for enforcing human rights, including the final mechanism of a Board of Inquiry if settlement is not achieved. This access as of right should only be limited in the clearest cases of complaints which are untimely, frivolous or vexatious, made in bad faith, outside the jurisdiction of the Code, or more appropriately dealt with in another forum.
(1) Complaints that are trivial frivolous, vexatious or in bad faith
- The courts have jurisdiction to strike out or amend proceedings which are “unnecessary, scandalous, frivolous or vexatious”, which fail to disclose a “reasonable claim or defence”, which may “prejudice, embarrass, or delay the fair trial or hearing of the proceeding” or which are “otherwise an abuse of the process of the Court”. (B.C. Supreme Court Rules, Rule 19(24).) The courts have always been very reluctant to make such orders except in the clearest cases—ones in which there is no possible substance to the matter pleaded, even if all of the facts alleged are true. No evidence is admissible on applications under Rule 19(24) because the concept is not that there be an adjudication on the merits at that stage but rather that there be a method for protecting litigants and the courts from future trials of actions which are without any basis in law whatsoever. An example might be a claim by a customer of a supermarket for damages for “wrongful failure to smile” on the part of the check-out clerk. There is not basis for such a claim in the law and an order under Rule 19(24) would very likely be made upon application by the defendant supermarket.
- We recommend that the standard for weeding out frivolous or vexatious complaints (Which would therefore be made in bad faith) should be similar to that used by the courts. If there is a basis for the complaint under the legislation, assuming the facts alleged are true, then it should pass this test. In fact, there are even stronger reasons for applying a strict test in this context than in the context of the courts. The courts make such decisions after a hearing and argument from both sides, in which the party whose pleading is attacked has the opportunity to defend it. We are not suggesting such an elaborate procedure here—but point to the absence of a hearing as a reason for giving the benefit of any possible doubt about the matter to the Complainant.
- As for “trivial” complaints, we are concerned about the subjectivity of that concept. For example, to one person, a complaint about the refusal of a public recreational facility to permit entry to members of a particular race, religion or sex during certain hours may seem trivial. To another person (for example, the person denied access during hours which permit a reasonable opportunity to use the facility) such a refusal may seem far from trivial. Cases should be dismissed as trivial only in very unusual circumstances.
(2) Cases outside the jurisdiction of the Human Rights legislation
- We recommend that the same standard be used to determine this matter as for the decision about whether a complaint is frivolous or vexatious—if a Board arguably would have jurisdiction to make an order if the facts alleged were proved, then the matter should go to a Board.
(3) Cases for which there is clearly a more appropriate forum
- It makes sense to advise complainants of more efficacious alternatives, but we have grave concerns about forcing a complainant to use an alternative procedure. It may be that a remedy available in theory is not available in fact (for example, a union may refuse to proceed with a grievance arbitration; a person with a possible wrongful dismissal action may not be able to retain a lawyer due to lack of funds). This should be taken into account and, as discussed further below, complaints should not be dismissed on this basis, but at most should be suspended.
(b) What should be the consequences of a complainant’s refusal to accept a settlement recommended by the human rights authorities?
- We think that there should be an incentive for complainants to accept reasonable settlement offers, but we do not think that the sanction of dismissal of the complaint is appropriate. A better method would be to provide that a Board of Inquiry could be informed, after making a determination as to the merits of a complaint, that there had been an offer to settle on particular terms, and that it could then award double costs against either the complainant or the respondent, if it considered a settlement had been refused unreasonably. This is analogous to provisions in the
B.C. Supreme Court Rules
- , Rule 57(13)-(20) (Offer to Settle) and Rule 37(1)-(21) (Payment into Court by Defendant). We consider this approach to be better than refusing to appoint a board of inquiry because, in the majority of cases, it is only after all of the evidence has been heard that a decision can properly be made about the disposition of a complaint. To permit disposition of a complaint prior to the hearing of evidence on the basis that a settlement should have been accepted is to ignore that fact. A potential penalty in costs will be a sufficient incentive for both parties to agree to a reasonable settlement in the great majority of cases. Therefore, we recommend a provision specifically stating that a refusal to settle shall not constitute grounds to deny a hearing, though this provision might appear by way of regulation rather than in the statute itself. We further recommend that a board of inquiry be authorized to award double costs against a complainant who has refused a reasonable offer of settlement, but such an award should never exceed the amount awarded as compensation. The complainant would still risk losing the entire amount of the award by refusing to settle, and we believe this sanction is sufficient to deter unreasonable refusals to settle. If costs exceeded the award, there might be financial hardship to a complainant, and we do not believe a human rights statute should cause such hardship.
(c) Summary of guidelines for dismissal, suspension and referral of complaints.
- While complaints should be dismissed “with prejudice” if, applying the test we have described, they are clearly untimely, trivial, frivolous, vexatious made in bad faith or outside jurisdiction, this should not be done if an amendment to the wording of the complaint or to name a party properly can be made which would bring the complaint within the legislation, so long as the circumstances are such that no-one will be prejudiced by the amendment in being able to prepare to meet the case against him. If the limitation period for bringing a complaint has not expired, then a dismissal of a complaint as “frivolous or vexatious” would not preclude bringing another one, properly framed, arising out of the same events. There are further comments about the limitation periods for filing complaints below. In all cases other than those described in the previous paragraph, we recommend the following procedure:
- (1) If it has been determined that another forum is clearly more appropriate, the complaint should be suspended. The suspension should be reviewed at reasonable intervals to determine whether the Complainant has been able to proceed before the tribunal thought to be more appropriate. If the Complainant has not been able to do so within a reasonable time, or if it in some other way becomes apparent that the tribunal is not more appropriate, the complaint should be immediately revived. We recommend further that regulations be enacted to ensure that a suspension does not remain in effect for an unreasonable period of time. For example, if the alternative procedure involves a hearing, the regulations could specify that the suspension would terminate unless the hearing commenced within a specified period (provided that the Complainant was not responsible for the delay.)
- (2) If, at the time of the decision whether to appoint a Board of Inquiry, it is determined that a reasonable settlement has been rejected by the Complainant, but the complaint in other respects would constitute a violation if proved, a Board of Inquiry should be appointed but the Complainant should be advised that human rights authorities will not be taking a position at the hearing and that there may be a penalty as to costs.
- (3) If it is determined that the complaint is untimely, trivial frivolous, vexatious, made in bad faith or outside jurisdiction, we have considered three possible approaches:
- (i) Permit them to be dismissed or stayed in the discretion of the Commission without possibility of review.
- (ii) Permit them to be dismissed or stayed by the Commission but require that the Commission give brief reasons for the dismissal and provide that the decision is subject to review by the courts.
- (iii) Permit them to go to a Board of Inquiry after issuing a clear warning that the Complainant may be penalized in costs for persisting with the complaint, even if it is found, technically, to have been proved.
We believe that the first method should be rejected. To dismiss a case without recourse at that stage is to deprive a complainant of even a rudimentary opportunity to be heard. The second and third methods each have advantages. The advantage of the third method is that a Board of Inquiry, after hearing all the evidence, is usually in the best position to make the decision. Boards of Inquiry could be given authority to make orders for costs against complainants who have proceeded with trivial, frivolous or vexatious complaints if there has been a clear warning as described above. The disadvantage is that this approach can be viewed as discriminating in favour of those complainants who have the resources to proceed on their own and who can take the risk of an award of costs. The second approach also could involve some advantage to the person with resources to appeal, but the disparity is not as great, though it may sometimes mean that a case will be dismissed that would, after full hearing, have been found meritorious. In the end, we have decided that a human rights statute should strive so far as possible to provide equal benefits to all and therefore recommend the second option.
- (4) We recommend that the statute provide for the appointment of a Board of Inquiry in all cases except those described above, though of course the Complainant could abandon proceedings after having received legal advice about the matter. We believe that the dismissal powers we have outlined above, together with the conciliation and settlement procedures, will resolve the great majority of complaints before the board of inquiry stage. All other cases should go to a board of inquiry for the simple reason that the complainant deserves the right to a public hearing. Also, such a hearing can assist in clearing the air even when there is no finding of discrimination. Thus, a hearing serves the public interest as well as the interest of the complainant. If this procedure is not deemed acceptable, however, we would recommend alternatively that the decision to dismiss a case as unsubstantiated be made by the Commission, that a case be dismissed only when it is clearly unsupported by the evidence, that the complainant be provided with reasons for the dismissal and that the dismissal be subject to judicial review.
(d) Who should decide whether or not to appoint a Board of Inquiry?
- We recommend that the decision should be made by the Commission,* and not by the Minister. That proposal is basically similar to the procedure under the federal Human Rights Act and the Acts of Alberta, Saskatchewan, Manitoba and Ontario, all of which provide that a decision by the Commission that a board should be appointed is binding. (Even in provinces where the statute provides for ministerial discretion, we understand that a Commission recommendation of a Board is automatically approved in almost all cases.) [*We use the word “Commission” in this brief, but our recommendations would also apply to the “council” proposed in Bill 27.]
- We believe there are strong practical and theoretical reasons for putting it in the hands of the Commission:
- (1) The appearance of conflict of interest when one of the parties is a government agency would be eliminated;
- (2) More settlements could be achieved if respondents knew that unsettled cases were almost certain to go to a board of inquiry if meritorious.
- (3) The Commission could devote more time and detailed attention to the decision-making in individual cases than could a busy Minister. Thus, delay would be avoided.
- We submit that placing this task in the hands of the Commission should speed up the process considerably – the Commission would have the time to give to case-by-case decisions, which a Minister of Labour may not have. Moreover, under the guidelines we have suggested, decision-making would not be a long-drawn-out process because the basic principle would be that unsettled cases would go to a Board of Inquiry unless they were clearly untimely, frivolous or vexatious, made in bad faith, or outside the jurisdiction of a Board (see above). Some might be suspended pending other proceedings; others might go to the Board with a warning as to costs. The Commission would build up procedures for and expertise in making these decisions, and would be able to make them in an efficient manner.
- As described more fully in Part III, section B, we further recommend that the Commission be authorized to make its decisions by a simple majority, but that no complaint could be dismissed without the vote of the Chairperson of the Commission in favour of dismissal unless all Commission members are chosen in the manner in which the Ombudsman is chosen. As we have noted, we also recommend that the Commission be required to give brief written reasons, in letter form, for decisions to dismiss or suspend complaints, to all parties to the complaint. (See s. 7(5) of Saskatchewan Regulation 216/79, made under the Saskatchewan
Human Rights Code
- We use the word “Commission” in this brief, but our recommendations would also apply to the “council” proposed in Bill 27.
5. Proceedings before a Board of Inquiry
- At the Board of Inquiry level, there are presently several possible sources of delay:
- (i) waiting for convenient dates for Board members and counsel,
- (ii) adjournments at the request of parties, counsel or the Board,
- (iii) lengthy evidence and argument, and
- (iv) delay between the hearing and the decision.
- We have no specific proposals with respect to the first matter; with respect to the other matters, we have several proposals which should speed up the hearing procedure and serve both the interests of fairness and efficiency.
- (a) We recommend that counsel be provided to ensure that a Complainant’s case is fairly and adequately presented. The provision for counsel is in many ways analogous to the use of Crown Counsel in criminal cases, for a human rights hearing serves not just the role of providing a remedy to a private party, but also of ensuring that the public is protected against similar acts of discrimination in the future (see
Human Rights Code
- , s. 17(2)). Most complainants are unable to afford to pay lawyers, and legal aid is not available in human rights cases. Moreover, Boards of Inquiry (particularly but not only when the Board does not have legal training) need the assistance of counsel in order to render decisions promptly on the merits. If complainants are put in the position of presenting their case without assistance, the result will often be not only unfairness, but additional delay and expense, due to misunderstanding about legal rules, that will often far outweigh the cost of providing counsel. Moreover, counsel can very often facilitate settlement by focussing on the important issues and advising complainants to settle The presence of counsel will, very frequently, serve to shorten the hearing and focus the issues. The cases in which parties represent themselves present the greatest risk that the hearing will drag on beyond reason.
- (b) We recommend that the Commission be permitted to be a party to the proceedings to ensure that the public interest is protected, whether or not the Commission originally filed the complaint. For example, a complainant might argue for an interpretation of the statute that protected the Complainant in that case but would deny protection in the future to others. It is essential that the public interest be represented in such situations. Moreover, representation by the Commission may often make it possible to avoid results that will cause uncertainty and make the future work of the Commission more difficult. Thus, this recommendATION serves the interests of both fairness and efficiency.
- (c) We recommend that, at least four weeks prior to the hearing, the complainant’s counsel be required to supply to all other parties an outline of the case which will be presented at the hearing with a brief summary of the evidence, and an outline of the legal argument; and two weeks prior to the hearing, the other parties be required to provide such statements to the complainant and each other. This device would speed up hearings through preventing surprise and requests for adjournment, and through forcing the parties to focus the issues well in advance thereby being in a position to eliminate some issues and present their cases concisely. It would also make the procedure in human rights cases more like that of judicial proceedings.
- (d) As for the final matter listed above, we support the inclusion of a provision allowing a party to bring to the Commission a complaint that a Board of Inquiry has failed to proceed expeditiously. with power to make the appropriate order to ensure the matter is disposed of without further undue delay.
- In summary, we agree that complaints should be disposed of expeditiously and consider that the suggestions we have made would further that goal without impairing the effectiveness of the protection offered by the human rights legislation.
- The sections of the existing
Human Rights Code
- dealing with public accommodations, services and facilities (section 3), and with discrimination by employers (section 8) and trade unions and other employee organizations (section 9), protect against discrimination in two ways. Like the other sections of the Code, they contain a list of prohibited grounds of discrimination (race, sex, religion etc.). In addition, however, they prohibit all discrimination without reasonable cause. The result of the “reasonable cause” provisions is that the
- covers grounds of discrimination that are not specifically named. For example, boards of inquiry have decided that discrimination on the grounds of immigrant status, pregnancy, physical disability, and sexual orientation are covered, as are unreasonable height and weight requirements or language requirements, even though none of these grounds is specifically set out in the Code.
- Since Bill 27 deleted the provisions concerning “reasonable cause”, it appears that the government disagrees with that approach. As far as we know, there has been no public explanation of the reasons for deleting reference to “reasonable cause”, however, and it is thus difficult for us to respond. We believe that use of the “reasonable cause” approach has a number of advantages, among which are the following:
- 1. One result has been that the Code protects against intentional as well as unintentional discrimination. Unintentional discrimination results from policies that are not designed to exclude groups but that have that effect. For example, height and weight requirements often exclude a high proportion of women and members of certain ethnic groups. A stairway can effectively exclude people in wheelchairs though that obviously is not the purpose. Where the requirement or barrier is reasonable in the sense that it is necessary for the performance of the required work, or where modification would entail unreasonable expense, there is no violation of the Code. But when the policy is not reasonably related to ability to perform the work and modifications can be made without undue hardship to a business, the “reasonable cause”
- provisions require that steps be taken to ensure equality of opportunity.
- The consensus of human rights experts is that such unintentional discrimination does far greater harm in the aggregate to disadvantaged groups than does intentional discrimination. Human Rights legislation is simply not effective unless it deals with such practices.
- 2. The “reasonable cause” language has also made it possible to avoid technical defences that would otherwise undermine the effectiveness of the Code. For example, cases in other provinces are split as to whether or not discrimination due to pregnancy is covered under the prohibition of sex discrimination. B.C. has avoided this problem because boards have held that such discrimination is in any event covered by the reasonable cause provision.
- 3. The reasonable cause provisions have also ensured that once the complainant shows there has been a denial, the burden shifts to the respondent to present evidence showing some legitimate reason for the conduct. This “burden of proof” rule is important since the respondent often has sole access to the relevant information.
- Because of the advantages we have outlined, we recommend that the reasonable cause provisions be retained, though we also support the 1982 recommendations of the Human Rights Commission that the list of specifically prohibited grounds of discrimination be expanded. In view of the government’s apparent desire to depart from the reasonable cause approach, however, we propose in the alternative that the legislation should at least include provisions designed to preserve some of the benefits of that approach.
- Specifically, we recommend the following:
- 1. All sections that prohibit discrimination should be worded so that grounds of discrimination previously held to come within the “reasonable cause” provisions are specifically prohibited. The addition of physical and mental disability to the list of prohibited grounds in Bill 27 was a step in this direction. Reference to discrimination on the ground of immigrant status, language or language first spoken, and sexual orientation also should be added. (See Québec
Charter of Human Rights and Freedoms
- , s. 10 regarding sexual orientation.) The definition of “age” in section 1 should be defined as all ages over the age of majority. (See Manitoba
Human Rights Act
- , s. 6(1).) The statute should make clear that there is protection against sexual harassment (Ontario
Human Rights Code
- , s. 6(3)) and pregnancy discrimination (Saskatchewan
Human Rights Code
- , s. 2(o)). There should also be a prohibition against discrimination on the grounds of family status and source of income. We recognize that no board has considered the latter two grounds in B.C., but they are included in other legislation (e.g. Manitoba
Human Rights Act
- , s. 2(1)) and almost certainly would come within the reasonable cause language.
- We can perceive of no reason whatsoever for changes that would permit grounds of discrimination that are presently prohibited. Indeed, the failure to protect certain groups against discrimination that has been found in the past to be unreasonable may well be in violation of section 15 of the
Charter of Rights and Freedoms
- (which comes into effect in April 1985) which provides the right to the “equal protection and equal benefit of the law”.
- 2. We recommend a provision specifically ensuring that unintentional discrimination based on policies or practices that have the effect of excluding a disproportionate number of members of a protected group is prohibited unless the policy or practice constitutes a business necessity. Recent legal decisions leave serious doubt as to whether language similar to that used in Bill 27 would cover unintentional discrimination, and the matter should not be left in doubt. We note that section 10 of the Ontario
Human Rights Code
- contains a provision of the type we recommend and might serve as a model.
- 3. We recommend a provision stating that once a Complainant presents evidence showing a denial or less favourable treatment, the onus should shift to the respondent to present evidence showing a legitimate reason for the conduct.
- 4. There are occasions when it may be acceptable to have differential treatment of members of certain groups. For example, a physical disability may sometimes make it impossible to perform certain work even if an employer is willing to make reasonable accommodation to the applicant. The reasonable cause provisions automatically take account of such situations, but there is need of a special provision if they are deleted.
- Section 7(3) of Bill 27 was an inadequate response to this problem. It provided that the prohibition of employment discrimination would not apply if a refusal or limitation was based on a “
- occupational qualification”. This section was overly broad in two respects. First, it applies equally to all grounds of discrimination, allowing any employer to argue, for example, that discrimination on the ground of race was reasonable. We note that other provinces such as Ontario (s. 23(b) and Saskatchewan (s. 16(7) limit somewhat similar provisions to certain grounds of discrimination (such as physical disability and age). Secondly, the words “bona fide occupational qualification” establish too lax a standard, in our opinion. Distinctions should be allowed only if, after making all reasonable accommodation, the distinction serves an essential or overriding business purpose or would create undue hardship to the business. We recommend that replacement legislation be drafted so as to avoid these defects. We note that section 1(b) of Saskatchewan Regulation 216179, enacted under the Saskatchewan
Human Rights Code
- , deserves consideration in this regard. (We might also note that Bill 27 contained no provision allowing any differential treatment with regard to public accommodations, services or facilities or the sale or rental of property.)
- In addition to the matters we have raised, we note that the various sections of the existing Code each contain a different list of prohibited grounds of discrimination. In particular, section 3 contains only a short list of prohibited grounds, and grounds such as political belief are omitted. The “reasonable cause” provisions have, in practice, avoided most of the problems created by this defect. If those provisions are deleted, the problem will be magnified. Therefore, we believe that all of the grounds of discrimination contained in section 7 of Bill 27, plus those we have proposed, should apply with respect to public accommodations, services and facilities, sale and rental of housing and to discrimination by employers and employee organizations.
- The change in administrative machinery in Bill 27 seemed to reflect a concern about the existing arrangement by which the Human Rights Branch is a part of the Ministry of Labour and the Director was responsible to the Minister whereas the Commission is an independent entity which, to some degree, has operated with its own separate staff. On paper, at least, this arrangement seems unduly complicated and to invite duplication of effort.
- If Bill 27 was intended to deal with such factors, the legislative intent reflects to some extent concerns expressed by the Human Rights Commission in its 1983 recommendations. (
How To Make It Work
- , at 34.) The integration of the Commission (or Council) and Branch would move B.C. in the direction of the arrangement that exists at the federal level and in most other provinces. We believe, however, that as it was drafted, Bill 27 represented a compromise that would have prevented achievement of the goal of efficiency while creating at least the appearance of unfairness.
- One problem was that the Council was to be given no statutory power to hire staff. Thus, the process was not so much the integration of the Branch and Council as the elimination of the former. That approach seemed to lead to inefficiencies much greater than those caused by the existing arrangement. Obviously, it would be impossible for a commission to do all the work personally, and efficiency would hardly be enhanced by making members of a commission personally responsible for administrative details. Another alternative—that the Council rely on staff from other parts of the Ministry—is also a recipe for inefficiency since such staff would not be able to build up the experience that allows one to operate at full efficiency and the Council would spend much of its time keeping track of these part-time assistants.
- We believe it is essential, both in the interests of effectiveness and efficiency, that there be adequate numbers of full-time staff and recommend that any replacement to the Code so provide. We also recommend that training of high quality be provided to ensure that staff can operate as effectively and efficiently as possible.
- A second concern was that Bill 27 gave no one responsibility for educational activities that can prevent discrimination before it occurs. Whether the goal is efficiency or effectiveness, it makes sense to have such educational programs, and we do not believe that any other agency of government is in a position to perform this task as effectively or efficiently as the agency responsible for Human Rights (see section A of Part III, below).
- A third concern arose out of the fact that new powers were given the Council that were not formerly performed by the Commission. Specifically, the Council was given broad power to dismiss cases at two stages (before and after investigation). As with the existing Code, only the Minister could appoint a board of inquiry, however.
- The result was that more stages are added to the process. We deal elsewhere with the procedural aspects of the dismissal of complaints and recommend that both the decision to dismiss a complaint or to proceed to a board of inquiry be made by the Commission alone. We have noted that, under the procedure established by Bill 27, any saving achieved by early dismissal of such cases would have been offset by a more complicated procedure with respect to other cases. If the goal is efficiency, it would make sense to place complete control over a case with the Commission, eliminating ministerial involvement.
- More than efficiency is at issue, however. If the Commission is to be empowered to dismiss a complaint prior to a hearing or to appoint a board as we propose, it is essential that the Commission be appointed in a manner that assures its independence. Our recommendations concerning appointment of the Commission are contained in Part III, below. A final recommendATION is that the terms of members of the Council be staggered so that there will always be a number of members to carry out the duties of the Council and so that experienced members can pass on their expertise to newly appointed members. This recommendation serves both the interests of effectiveness and efficiency.
- In Part II, we dealt with the concerns that have been expressed by government concerning human rights enforcement. We tried to show that the goals that are said to have led to the introduction of Bill 27 were not in fact served by the bill, and we recommended adoption of provisions that we believe do meet those goals but at the same time are consistent with effective protection of human rights.
- In Part III, we deal with our own concerns. We make recommendations for provisions that, in addition to those set out in Part II, we believe must be included in any human rights statute if it is to be effective.
- Human rights legislation in all Canadian jurisdictions places strong emphasis on education. The principle underlying this approach is that it is cheaper and more effective to prevent discrimination than to deal with the problems it causes after they occur. Section 11 of the existing Code requires the Commission to develop educational programs to serve this preventative role. There was no comparable provision in Bill 27. ‘We do not understand the reason for this omission and have not heard any justification for it. If the only reason was expense, the approach was short-sighted, for eliminating educational programs would be expensive in the end. We believe that educational programs are essential to effective protection against discrimination and recommend that any new legislation provide for such programs. We also recommend that the resources necessary to make such programs effective be provided. Finally, we recommend that the Commission be required to file an annual report with the legislature. Such a report informs the public about the current status of human rights enforcement and can serve a valuable educational function.
- Under our proposals, the Commission would be empowered to decide whether a case proceeds or whether it is dismissed. (Bill 27 gave a power of dismissal to the Council.) The power to dismiss a civil case is usually made by a judge in our legal system, and we believe it is a fundamental principle of our legal system that such decisions be made by an independent and impartial tribunal. The danger is not simply one of unfairness, it is that a decision by a body that is not independent will be perceived as unfair whatever the merits of its decision. The procedure of the existing Code violates this principle since the decision is made by the Minister. On that ground, it has been criticized by lawyers, community groups and in a number of reports of the Commission. The problem should not be perpetuated in new legislation. To meet this objection, we recommend that the members of the Commission be appointed for fixed terms to serve during good behaviour subject to removal by the Lieutenant-Governor in Council on address to the Legislative Assembly. This procedure is similar to that contained in section 21 of the Canadian
Human Rights Act
- . We also recommend that the members of the Commission be appointed in the same manner as the Ombudsman is presently appointed (recommendation of an all-party legislative committee.) It should report to a legislative committee rather than to a ministry. Because of the controversy that has surrounded the introduction of Bill 27 and the dismissal of the Commission in July, we believe that these steps are necessary if any new commission is to have the public trust that is necessary if it is to effectively carry out its duties. The only disadvantage to our recommendation is that, as applied to a number of people, the process of appointment by legislative committee might be perceived as too cumbersome. If so, we alternatively recommend that the Chairperson alone be appointed in this manner; the other members would be appointed without concurrence of a legislative committee but subject to the other safeguards we have outlined. In that event, to preserve the principle of independence, we recommend that the Commission be given the power to dismiss a case before hearing only with the concurrence of the Chairperson.
- Bill 27 contained no provision concerning discriminatory advertisements comparable to section 7 of the existing Code. It also eliminated the provisions now included in section 7 concerning employment application forms. It is essential that replacement legislation correct this deficiency. It is true that the prohibition of employment discrimination would sometimes apply if a discriminatory application form were used, but it would be necessary to show that the information obtained had been used improperly and that a person had been denied employment as a result. It is much more effective to make use of the form a violation in itself. Similarly, other sections of the
- do not by themselves adequately deal with the problem of discriminatory advertisements. For example, it is not clear that section 2 of the existing
- applies to oral advertisements, and the wording of section 2 does not make clear that a newspaper or other publication would itself be liable since the intent to discriminate is that of the advertiser, not the publisher. These problems would become even more serious if new legislation incorporated the requirement in Bill 27 that only a person discriminated against may file a complaint. Indeed, that limitation would preclude effective protection even if a provision similar to the existing section 7 were included since it is unclear who would come within the category of a person discriminated against because of a discriminatory advertisement. We recommend that a provision similar to section 7 of the existing Code be included in any new legislation. Indeed, we believe that the provision should be strengthened so that an employer is prohibited from requesting any information that would reveal membership in a protected group except where it is relevant to ability to perform the work. It should also be strengthened to make clear that it covers the circulating and broadcasting of any advertisement. (See Ontario Code, s. 4.).
- Saskatchewan, Manitoba and Ontario all provide the right to contract without discrimination in addition to the other areas of activity covered. Of course many contracts are covered by the sections concerning public accommodation and services, employment and the sale and rental of property. Not all contracts come within that protection, however. For example if a business refused a bid by an independent contractor, it would seem that no section of either the existing Code or Bill 27 would be violated. We believe that this omission is a defect in the existing Code. We recommend that any legislative change incorporate protection against discrimination with respect to contracts.
- Section 6 of the existing Code requires that men and women be paid at the same scale for performing “similar or substantially similar work”. Experience has shown that this protection inadequate. Ironically, a woman performing a job requiring high levels of skill, effort and responsibility could lose a case precisely because her more onerous duties made the job dissimilar from that of a man paid higher wages. The federal
Human Rights Act
- provides the right to equal pay for work of equal value. Experience in enforcing the federal
- has shown that the provision has not caused the problems predicted by its opponents. Therefore, we recommend that any new legislation provide the right to equal pay for work of equal value.
- Comparing section 15(2) of Bill 27 with section 17 of the existing Code, the major difference was that the board would no longer have been empowered to award aggravated damages in respect of feelings or self respect. Any replacement legislation must grant compensation for emotional distress as well as monetary loss. If it does not, the provisions regarding public accommodation, services and facilities will become unenforceable in practice. When a person is denied access to a public facility there is often only minimal monetary loss, and the denial of damages for injured feelings means that there is no recovery for that aspect of the event that caused the real ham. The gist of the wrong is often that the conduct has caused humiliation and loss of self-respect, and an award covering monetary loss simply does not compensate for the harm caused. General damages for emotional distress are regularly awarded by the courts in a variety of circumstances. We see no reason to deny comparable awards in human rights cases and so recommend. One possible model would be section 28(2)(c) of the Manitoba
Human Rights Act
- . At the least, provisions similar to section 17(2)(c) of the existing B.C. Code should be retained.
- We dealt with a number of procedural matters in the process of discussing matters of apparent concern to the government in Part II. In this section, we make a number of other recommendations that we believe are essential to any legislation that is to be both fair and effective.
- Because there are circumstances in which a potential complainant might be reluctant to initiate proceedings, and circumstances in which it would be appropriate for a complaint to be brought by one person on behalf of a number of others, the legislation should provide for complaints to be brought in these situations. We recommend that any person with reasonable grounds to believe a violation has occurred be permitted to file a complaint. We also recommend that the complaint be accepted whether made orally, in writing or in any other form, but the complaint should be reduced to writing thereafter to ensure that the respondent is adequately informed of the allegations. We further recommend that the Commission be permitted to file a complaint. There are occasions, for example, when a violation is widely reported in the press but no complaint is filed, either because of fear of reprisals or the fact that the victim of the discrimination is unaware of the legal rights available. Similarly, discrimination in the tourist industry might go unremedied because the victims often leave the province shortly after the event. In such circumstances, a response to the discrimination should not be thwarted by the fact that no one has filed a complaint, the Commission should have the power to commence proceedings.
- While we believe it is wrong to require that the victim of the discrimination file a complaint, we also recognize that a complaint by someone else, however well meaning, could cause the victim of the discrimination distress and even hardship. The person would have to cooperate with the investigation and could be called as a witness at a board of inquiry hearing.
- In an attempt to balance effective enforcement against the right of individuals to make determinations about their own lives, we recommend that when a complaint is filed by someone other than the victim of the discrimination, the complaint not proceed if the victim of the discrimination so requests after having been advised of the right to do so. Of course, such a request would not prevent the complaint proceeding with respect to others who had also been discriminated against nor would it prevent other complaints against the same respondent from proceeding if there had been other instances of discrimination.
- We recommend that a board of inquiry be empowered to admit as a party any person or group that has a legitimate interest in the subject matter of the complaint. We believe this is the intent of section 16(3)(d) of the existing Code but that the language might be clarified.
- Finally, as noted in Part II, section A.5, we also recommend that the Commission be authorized to appear as a party whether or not the Commission initially filed a complaint.
- We think that the right to appeal to the Supreme Court from Board of Inquiry decisions should be retained, and we so recommend. The right to appeal a case is essential to Complainants and Respondents alike. Section 18 of the existing Code provides for an appeal by was of stated case. In practice, that form of appeal has not saved time or expense; indeed, it has created procedural complications on occasion. We recommend that the procedure for bringing appeals be reviewed.
- When a Board of Inquiry makes an order other than one dismissing the complaint without costs, we recommend that the Human Rights staff provide whatever assistance is necessary to enforce that order. Many successful Complainants would be totally at a loss if they had to see to enforcement on their own.
(4) Alternative Remedies.
- Section 24 of the existing Code provides that a contravention of the
- or a failure to obey an order of a Board of Inquiry constitutes an offence. Section 21 of Bill 27 specifically exempted the
Human Rights Code
- from the provisions of the
- . We note that only one jurisdiction in Canada has no offence provision. The existence of an offence provision makes it clear that contraventions of human rights legislation are taken as seriously by society as are contraventions of other statutes, such as the
Motor Vehicle Act
- , which do contain offence provisions.
- We do not believe that the criminal process is, by itself, an effective means of dealing with human rights. However, the offence provision in the existing Code serves the purpose of providing some process by which a person denied a board of inquiry can proceed with a complaint. Even if our proposals concerning the complaint process were adopted, there could be cases in which a Complainant believes he or she has wrongly been denied a hearing. We believe that the offence provision serves a valuable function in such cases. Therefore, we recommend that it be retained. Experience over the last decade suggests that the offence provision creates no unfairness to respondents. In any event, the power to stay proceedings provides protection against oppressiveness.
- Alternatively, we recommend that a supplementary remedy by way of civil proceedings in Court be provided. Again, we emphasize that any such remedy would, by itself, be ineffective since most victims of discrimination do not have the resources to bring such an action and the costs would in any event often consume the entire award. However, it might provide recourse to some persons denied a board of inquiry. The expense of litigation, plus the power of the courts to award costs, provide protection against any possible misuse of the power to bring such proceedings.
- Section 11(5) of the existing Code provides that the Commission may approve programs designed to promote the welfare of any class of individuals, and an approved program is deemed not to violate the Code. This power is essential. If it is not included, the legislation could be used to prohibit special programs designed to deal with the consequences of historical discrimination. For example, special educational programs to assist persons with physical disabilities or to encourage entry of Native people into new occupations would be prohibited. It would be ironic if human rights legislation operated to prohibit programs designed to facilitate equality of opportunity. The legitimate scope of such programs is a matter that requires further consideration, but it is clear that the Commission should be empowered to authorize programs that meet acceptable standards. Therefore, we recommend that any new legislation contain a provision similar to section 11(5) of the Code.
A. Areas of Activity Covered
- We recommend that a provision similar to section 7 of the existing Code concerning discriminatory advertising and application forms be included in any new legislation. The provision should be strengthened so that an employer is prohibited from requesting any information that would reveal membership in a protected group except where it is relevant to ability to perform the work. It should also be strengthened to make clear that it covers the circulating and broadcasting of any advertisement. (See Ontario Code, s. 4.).
- We recommend that any legislative change incorporate protection against discrimination with respect to contracts.
- We recommend that any new legislation provide the right to equal pay for work of equal value.
- We recommend a provision specifically ensuring that unintentional discrimination based on policies or practices that have the effect of excluding a disproportionate number of members of a protected group is prohibited unless the policy or practice constitutes a business necessity. We note that section 10 of the Ontario Human Rights Code contains a provision of the type we recommend and might serve as a model.
B. Grounds of Discrimination
- (a) We recommend that the reasonable cause provisions be retained, though we also support the 1982 recommendations of the Human Rights Commission that the list of specifically prohibited grounds of discrimination be expanded.
(b) As a less satisfactory alternative, we recommend that all sections that prohibit discrimination should be worded so that grounds of discrimination previously held to come within the “reasonable cause” provisions are specifically prohibited. This would include physical and mental disability, immigrant status, language or language first spoken, and sexual orientation. (See Québec Charter of Human Rights and Freedoms, s. 10 regarding sexual orientation.) The definition of age in section 1 should be defined as all ages over the age of majority. (See Manitoba Human Rights Act, s. 6(1).) The statute should make clear that there is protection against sexual harassment (Ontario Human Rights Code, s. 6(3) and pregnancy discrimination (Saskatchewan Human Rights Code, s. 2(o)). There should also be a prohibition against discrimination on the grounds of family status and source of income. All of these grounds should be included in each of the sections of the statute that prohibits discrimination.
C. Administration and Organization
- We recommend that the members of the Commission be appointed for fixed terms to serve during good behaviour subject to removal by the Lieutenant-Governor in Council on address to the Legislative Assembly.
- We recommend that the members of the Commission be appointed in the same manner as the Ombudsman is presently appointed (recommendation of an all-party legislative committee). If this procedure is deemed unduly cumbersome, we alternatively recommend that the Chairperson alone be appointed in this manner; the other members would be appointed without concurrence of a legislative committee but subject to the other safeguards we have outlined. In that event, to preserve the principle of independence, we recommend that the Commission be given the power to dismiss a case before hearing only with the concurrence of the Chairperson.
- We recommend that the terms of members of the Council be staggered so that there will always be a number of members to carry out the Commission’s duties.
- We recommend that the Commission report to a legislative committee rather than to a ministry.
- We believe it is essential that there be adequate numbers of full-time staff and recommend that any replacement to the Code so provide. We also recommend that training of high quality be provided to ensure that staff can operate as effectively and efficiently as possible.
I. Filing and investigation
- We recommend that any person with reasonable grounds to believe a violation has occurred be permitted to file a complaint.
- We recommend that when a complaint is filed by someone other than the victim of the discrimination, the complaint not proceed if the victim of the discrimination so requests after having been advised of the right to do so.
- We recommend that the complaint be accepted whether made orally, in writing or in any other form, but the complaint should be reduced to writing thereafter to ensure that the respondent is adequately informed of the allegations.
- We recommend that the Commission be permitted to file a complaint.
- We recommend that the legislation provide an enforcement mechanism to ensure that a respondent cannot thwart a complaint through lack of co-operation.
- We believe that a procedure similar to that under the federal Human Rights Act, in which the investigation and conciliation stages are separate and are performed by separate officers, merits consideration but should be adopted only after further consultation with other human rights agencies.
II. Decision whether to appoint a Board of Inquiry
- We recommend that the decision be made by the Commission rather than by the Minister, as at present.
- We recommend that the Commission be empowered to dismiss trivial, frivolous, or vexatious complaints, or complaints made in bad faith, only in the clearest of cases. The standard should be similar to that exercised by the courts in similar circumstances.
- We recommend that the Commission be empowered to dismiss a case clearly outside the jurisdiction granted by the legislation, but that an arguable case should always be referred to a Board of Inquiry for consideration.
- We recommend that the Commission be empowered to dismiss a case that is not timely, but that the limitation period should be extended to one year and that the Commission be empowered to grant a further extension, if the complainant has not been purposely dilatory and there is no unfairness to the respondent.
- We recommend that the Commission not be empowered to suspend proceeding on the ground that there is a more appropriate forum except, perhaps, in the clearest of cases. In addition, we recommend that any suspension be for a reasonable time and that regulations specify a maximum time during which it could be suspended.
- We recommend that there be no power to dismiss a case on the ground that the complainant has refused a reasonable settlement, but that a complainant who pursues a complaint in such circumstances be advised that the Board of Inquiry may award double damages against the complainant, not to exceed the total amount of the award.
- (a) Preferred recommendation: The Commission may dismiss a complaint only on the grounds specified above; all other cases shall be referred to a Board of Inquiry unless settled with the agreement of all parties.
(b) We recommend alternatively that, in addition to the above grounds, the Commission be empowered to dismiss a case as unsubstantiated, but only when it is clearly unsupported by evidence.
- We recommend that the Commission be required to provide the complainant with a short statement of reasons for dismissing a complaint and that the dismissal be subject to judicial review.
III. Board of Inquiry, Procedure
- We recommend that the Commission be authorized to appear as a party whether or not the Commission initially filed a complaint.
- We recommend that the Board of Inquiry be permitted to admit as a party any individual or group with a legitimate interest in the subject matter of the complaint.
- We recommend that it be made clear that counsel will be provided to a complainant in all cases.
- We recommend the inclusion of a provision allowing a party to bring to the Commission a complaint that a Board of Inquiry has failed to proceed expeditiously, with power to make the appropriate order to ensure the matter is disposed of without further undue delay.
- We recommend that, at least four weeks prior to the hearing, the complainant’s counsel be required to supply to all other parties an outline of the case which will be presented at the hearing with a brief summary of the evidence, and an outline of the legal argument; and two weeks prior to the hearing, the other parties be required to provide such statements to the complainant and each other.
- We recommend that once a complainant presents evidence showing a denial (of employment services, etc.) or less favourable treatment, the onus should shift to the respondent to present evidence showing a legitimate reason for the conduct.
IV. Board of Inquiry, Powers and Remedies
- Boards of Inquiry should be allowed to dismiss a case in circumstances in which there is differential treatment of a group only if, after making all reasonable accommodation, the distinction serves an essential or overriding business purpose or would create undue hardship to the business. We recommend that replacement legislation be drafted so as to enact such a standard and that language such as “bona fide qualification” not be used.
- General damages for emotional distress are regularly awarded by the courts in a variety of circumstances. We see no reason to deny comparable awards in human rights cases and recommend that Boards of Inquiry be empowered to award general damages in respect of emotional distress as well as damages for monetary loss.
- When a Board of Inquiry makes an order other than one dismissing the complaint without costs, the human rights staff should provide whatever assistance is necessary to enforce that order.
- We think that the right to appeal to the Supreme Court from Board of Inquiry decisions should be retained, and we so recommend. We recommend, however, that the procedure for bringing appeals be reviewed.
E. Other Essential Provisions
- Educational programs are essential to effective protection against discrimination, and we recommend that new legislation assign responsibility for educational programs to the Commission and that the necessary resources be provided.
- We recommend that the Commission be required to file an annual report to be submitted to the legislature.
- Human rights legislation must provide an exemption to allow for programs designed to facilitate equality of opportunity. Therefore, we recommend that any new legislation contain a provision similar to section 11(5) of the existing Code.
- (a) We recommend that a provision making violation of human rights legislation an offence be retained, though we strongly believe that such a remedy would not by itself provide effective protection.
(b) Alternatively, we recommend that a supplementary remedy by way of civil proceeding in court be provided.