In 1981, the B.C. Human Rights Commission published recommendations for legislative reform. These recommendations are now under active consideration by the Commission, and we have been asked to respond to them. Because of time limitations, it has not been possible to reproduce our full submission.
We have not completed our consideration of mandatory retirement, nor have we formulated proposals concerning discriminatory notices (recommendation 20). Therefore, we make no recommendations about these matters.
The Commission’s 1981 recommendations suggest that no consideration is being given at this time to alternative approaches to the protection of human rights such as equal employment opportunity programs. While this submission discusses only the approach presently used, we believe that consideration should be given to a variety of programs to prevent discrimination before it occurs and would be happy to prepare a submission concerning that approach.
Areas of activity covered
We recommend that discrimination with respect to licensing (including driver’s licences, security officer licences etc.) be prohibited.
We recommend that discrimination with regard to contracts be prohibited and that language similar to Section 3 of Ontario‘s Code be adopted. We recommend that the new provision apply only to contracts made in the ordinary course of business.
To avoid ambiguity, We recommend that the Code specifically state that all accommodation, services or facilities provided by the government are subject to the provisions of the Code.
Grounds of discrimination
We recommend that the Code continue to prohibit discrimination without reasonable cause. The Code should make clear, however, that only conduct that has the effect of creating some disadvantage to an identifiable group of people is covered.
We recommend that the Code prohibit discrimination without reasonable cause in section 4 (sale of property) and section 5 (tenancies) as well as the sections presently using that approach (sections 3, 8 and 9). However, exemptions along the lines described in recommendation 23 of the Commission (regarding accommodation for senior citizens etc.) may be appropriate.
We support the recommendation that physical or mental condition be added as a ground of discrimination to sections 3, 4, 5, 8 and 9 of the Code, but we recognize that this prohibition requires qualification in some circumstances. The Code should specify that the onus is on the alleged person discriminating against a person with a physical or mental condition to prove that an exception applies.
We recommend that the right to purchase property, granted by section 4, should prohibit discrimination on these grounds in all circumstances.
A problem arises if the discrimination results from the fact that physical modifications would be needed to provide access to a disabled person. We are not opposed to an exemption that would apply if such work would cause undue hardship or the cost would far outweigh the benefit to the customer. We recommend that any exemption based on hardship should not apply with respect to governmental or quasi-governmental services. With regard to denial of employment, a denial based on lack of access to the workplace should be condoned only in exceptional circumstances.
Another question is when it is legitimate to deny employment on the ground that the physical or mental condition makes a person unsuitable for a job. The wording proposed in Commission recommendation 7 (“unless that condition materially affects the quantity or quality of production”) is acceptable, but we prefer the wording of section 16(l)(b) of the Ontario Code, which provides an exemption if “the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap”.
We agree with recommendations 10 to 13, which grant protection on the ground of sexual orientation under all sections of the Code. We recommend, however, that the wording be modified so that it clearly covers all forms of discrimination on the ground of sexual orientation.
We support Commission Recommendation 14 that the concept of equal pay for work of equal value be incorporated into the Code. We also support recommendation 15 concerning sexual harassment.
We agree with recommendation 21 that sections 3, 5 and 8 of the Code be amended to prohibit discrimination on the basis of family status. We would extend this protection to sections 4, 7 and 9 as well. We recommend, however, an employer be allowed to adopt an anti-nepotism policy if one relative would be in a position to supervise another.
We agree with the recommendation that section 5 be amended to prohibit discrimination by landlords on the basis of family composition, though some exceptions may be appropriate. We recommend that consideration also be given to adding family composition as a prohibited ground of discrimination in section 8.
We agree with the recommendation (in Recommendations 22 and 24) that section 5 prohibit discrimination on the ground of source of income and RECOMMEND that this ground be prohibited in section 3 as well.
We agree with the recommendation that section 5 prohibit discrimination on the ground of age with respect to tenancies. We also recommend that the definition of “age” in section 1 be modified to include all ages over the age of majority and that all sections of the Code prohibit age discrimination.
It should be clear that the Code covers indirect or unintentional discrimination, and We recommend that a provision similar to section 10 of the Ontario Code be adopted.
We agree with Recommendation 26 that the Human Rights Code should generally supersede other legislation where there is a conflict. Some exceptions to this rule may be appropriate, but we do not believe that any broad exemption of the insurance industry would be appropriate.
We recommend that the Code permit the dismissal of complaints that are trivial, frivolous or vexatious.
We recommend that the Code be amended to broaden the circumstances in which damages can be awarded for injury to feelings or self-respect. We also recommend that the $5,000 limit on the award of such compensation be deleted.
We recommend that the six month limitation period be extended to at least twelve months, and that complaints be permitted even after 12 months in appropriate circumstances.
Administration and organization
We recommend that the Human Rights Commission be assigned the responsibi1ity for deciding whether or not to appoint a Board of Inquiry.
We recommend that the investigation of a complaint and the settlement process be the sole responsibility of the Director and that any member of the Commission who has taken part in that phase of the proceedings be disqualified from participating in the decision whether or not to appoint a board of inquiry.
A problem occurs if the Commission has itself instigated the complaint. In order to avoid any conflict, We recommend that a board of inquiry be automatically appointed in those circumstances, and that the composition of the board be determined by a formula over which the Commission has no control. As a preliminary matter, the Board should decide whether or not a full hearing is warranted.
We recommend that the Human Rights Commission be appointed in a manner similar to the procedure for appointing the ombudsman (unanimous approval by a special legislative Committee followed by approval by the Legislative Assembly).
We also recommend that the terms of the members of the Commission be staggered so that the Commission is at all times capable of carrying out its duties.