Human Rights
By John Gardner
III: Principles of Interpretation of Anti-Discrimination Enactments; Constitutional Aspects; the Burden of Proof
Click here for access to this CED title and its related Canadian Abridgment links on Westlaw Canada
III.1: Principles of Interpretation of Anti-Discrimination Enactments
See Canadian Abridgment: HUM.II Human rights | Applicability of human rights legislation; HUM.III.6 Human rights | What constitutes discrimination | Family status
Canadian anti-discrimination enactments are "quasi-constitutional" in nature.1 They may only be diminished or repealed by clear legislative language.2 They may not be waived or varied by private contracts, for example, by collective agreements, even if these were freely entered into after fair collective bargaining.3
Human rights codes take precedence and priority over other general (that is non-constitutional) statutes and regulations in Ontario,4 British Columbia,5 Alberta,6 Saskatchewan7 and Manitoba.8 The effect of these provisions is that when human rights legislation and subsequent legislation cannot stand together, the subsequent inconsistent enactment, unless it is clearly stated to create an exception to human rights legislation, must be construed as subject to it, or, where necessary, inoperable.9 This principle binds tribunals and administrative decision-makers responsible for applying the subsequent statutes.10 When human rights legislation is the subsequent enactment, it is construed, subject to express language to the contrary, as repealing by implication the other inconsistent legislation,11 except where there is a conflict with a right enshrined in the Constitution Act, 1867 or the Constitution Act, 1982.12
Exceptions to rights accorded in anti-discrimination legislation are to be construed narrowly.13
Anti-discrimination Codes and Acts are to be construed as remedial legislation.14 They are not subject to strictly grammatical construction15 or to the generalia specialibus non derogant rule.16 Differences in wording between parallel human rights protections in other provinces and territories should be construed to recognize the essentially similar legislative aims, unless clear different purposes are stated.17
Supplementary principles of interpretation of anti-discrimination enactments may be gleaned from the "purpose" or "objects" sections of the Canadian Human Rights Act,18 the Ontario Human Rights Code,19 the British Columbia Human Rights Code20 and the Saskatchewan Human Rights Code.21
The Canadian Human Rights Act (CHRA) provides that the purpose of the Act is to ensure that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices, based on certain prohibited grounds.22
The Ontario Human Rights Code states that the general purpose of the Code is to safeguard the right of all Ontarians to equal treatment with respect to services, goods and facilities, without discrimination based on prohibited grounds.23
The British Columbia Human Rights Code states that the purpose of the Code is: (a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia; (b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights; (c) to prevent discrimination prohibited by the Code; (d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by the Code; and (e) to provide a means of redress for those persons who are discriminated against contrary to the Code.24
The Saskatchewan Human Rights Code states that the objects of the Code are: (a) to promote recognition of the inherent dignity and the equal inalienable rights of all members of the human family; and (b) to further public policy in Saskatchewan that every person is free and equal in dignity and rights and to discourage and eliminate discrimination.25
Further principles of interpretation may be gleaned from the preambles to the Ontario Human Rights Code,26 the Alberta Human Rights Act27 and the Manitoba Human Rights Code.28 It will be noted that several of these preambles reaffirm the authority and relevance to provincial human rights of international covenants to which Canada is a signatory.29
In its preamble, the Ontario Human Rights Code recognizes the inherent dignity and equal and inalienable rights of all members of the human family, refers to the Universal Declaration of Human Rights as proclaimed by the United Nations,30 and declares it to be public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law.31
The preamble to the Alberta Human Rights Act states that recognition of the inherent dignity and the equal and inalienable rights of all persons is the foundation of freedom, justice, and peace in the world and that, as a matter of public policy, every person is free and equal in dignity, rights, and responsibilities without regard to certain proscribed discriminatory practices.32
The preamble of the Manitoba Human Rights Code states that Manitobans recognize the individual worth and dignity of every member of the human family, and this principle underlies the Universal Declaration of Human Rights,33 the Canadian Charter of Rights and Freedoms34 and other solemn undertakings, international and domestic, that Canadians honour and the fact that implicit in this principle is the right of all individuals to be treated in all matters solely on the basis of their personal merits, and to be accorded equality of opportunity with all other individuals.35
Charter jurisprudence, particularly in relation to equality rights under section 15, may inform the interpretation of provisions of anti-discrimination enactments.36
International covenants to which Canada is a signatory may be consulted in interpreting provisions in anti-discrimination law.37
III.2: Constitutional Aspects of Anti-Discrimination Enactments
See Canadian Abridgment: HUM.I Human rights | Constitutional issues
The Canadian Human Rights Act is binding on the federal Crown.1 It applies to federal employers, agencies and Crown corporations.2 It also applies to federally regulated enterprises (works, undertakings or businesses)3 as represented by their officers, directors, employees and/or agents.4 There is no indication in the Canadian Human Rights Act that its provisions were not intended to apply to Members of Parliament, although alternative dispute resolution procedures in other federal legislation may be preferable in some cases.5
The jurisdiction of the Canadian Human Rights Commission and Canadian Human Rights Tribunal with respect to Indian Bands or First Nations is more nuanced. The Canadian Human Rights Act formerly contained a saving provision with respect to provisions under the Indian Act.6 However, this provision was recently repealed.7 While the amending legislation provided that complaints against governing authorities on Indian reserves shall be handled with respect for "First Nations legal traditions and customary laws",8 it also allowed a three-year grace period before acts or omissions by these authorities may be the subject-matter of complaints under the Canadian Human Rights Act. That grace period expired on June 18, 2011.9
In cases decided under the Canadian Human Rights Act while the former saving provision was in force, employment on Indian reserves was considered not to be a provision, or a function of a provision, made under the Indian Act.10 However, in several cases, Indian Bands and First Nations have been characterized as being service providers to the "public" on Indian reserves.11
Self-governing First Nations which have opted out of the scheme of the Indian Act by signing treaties with Canada12 are in any case not shielded under the Indian Act. The law is unsettled as to whether the Department of Indian Affairs and Northern Development (now known as Aboriginal Affairs and Northern Development Canada) is a service provider, in which case it might be liable as a respondent in complaints by aboriginals of denial of residential accommodations13 or for discriminatory provision of public goods, services and facilities to the "public" of a specific Indian Band or First Nation,14 or merely an agency for drafting policy. Nor is it clear whether membership in a self-governing
First Nation is equivalent to a form of "citizenship" akin to, but different than, Canadian citizenship. If this is the case, it might pose jurisdictional questions under the Canadian Human Rights Act if this status were construed to mean something other than being "lawfully present in Canada" or "entitled to return to Canada".15
The application of the Canadian Human Rights Act to the Yukon, Northwest Territories and Nunavut is also somewhat nuanced. The Canadian Human Rights Act does not apply to matters inside the territorial jurisdiction of any of the Territories.16 Complaints involving such matters fall within the jurisdiction of the human rights bodies of the Territories.17 Complaints against the Territorial governments were formerly brought under federal jurisdiction,18 but exceptions have now been made in the Yukon and Northwest Territories, whereby the territorial Commissions and adjudicative bodies19 deal with such complaints, as do their sister commissions and adjudicative bodies elsewhere in Canada. However, complaints made against the territorial government of Nunavut remain under the jurisdiction of the Canadian Human Rights Act.20
The area of criminal law is exclusively under federal jurisdiction.21 The provisions of anti-discrimination enactments do not trench upon the federal criminal law power, in that they do not explicitly set penalties for contraventions. Remedies under human rights enactments are intended to compensate victims of discrimination, and to deter future discriminatory practices, rather than to penalize discriminators.22 Human rights adjudicative bodies are not section 96 courts.23
The area of public political speech does not fall exclusively within either federal or provincial jurisdiction.24 Provided a provincial/territorial human rights code does not penalize a respondent for communicating hate messages by imposing a fine or imprisonment for such conduct, it does not trench on federal criminal law jurisdiction.25 If there is an "implied bill of rights" doctrine that political speech may not be abridged by either federal or provincial/territorial governments, it would operate only subject to the doctrine of "reasonable limits" under the Charter.26
In general, all human rights complaints against individuals and organizations in the public and private sector, other than ones falling under exclusive federal jurisdiction,27 fall within the constitutional jurisdiction of provincial or territorial human rights investigative and adjudicative bodies. Provincial legislation in relation to "fair accommodation" has been upheld under the Constitution Act, 1867.28 Respondents in human rights cases have applied successfully for writs of prohibition to restrain provincial human rights adjudicative bodies from addressing complaints which are ultra vires the provinces/territories.29
The provincial Crown and its agents are bound by the provisions of the Ontario Human Rights Code.30 In particular, the Crown and/or its agents are bound, in the absence of a BFOR/Q or a statutory defence or exemption, with respect to contracts and subcontracts which the Crown or its agents enter into.31 The provincial Crown is similarly bound in cases involving grants, contributions, loans or guarantees made by the Crown and/or its agents.32 The Alberta Human Rights Act binds the provincial Crown and Crown corporations,33 as does the Saskatchewan Human Rights Code34 and the Manitoba Human Rights Code.35
III.3: Proof of Discrimination Under Anti-Discrimination Enactments
See Canadian Abridgment: HUM.III Human rights | What constitutes discrimination
In cases brought under anti-discrimination enactments, the complainant bears the burden of proof.1 The complainant must establish a prima facie case of discrimination on a balance of probabilities.2 To do this, the complainant must, as a first step, show that he or she is a member of a group defined and protected by one or more of the prohibited grounds defined in anti-discrimination legislation. Then he or she must show that he or she was a victim of a discriminatory practice, or more than one such practice.3 In determining whether the complainant has established a prima facie case, the decision-maker need not take the respondent's answer into account.4
In employment discrimination cases, a distinction has been drawn between (1) instances in which a qualified minoritarian candidate is passed over, but a less qualified non-minoritarian candidate is hired;5 and (2) ones in which a minoritarian candidate is not hired, but the position remains unfilled.6 An inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses.7 The complainant need not prove that the respondent intended to discriminate or had any other animus toward the complainant.8 Nor is the motive of the complainant in filing a complaint relevant to the question of whether discrimination has occurred.9
A complainant need not prove that discrimination was the sole, or even the primary, factor in the respondent's decision. Where there are a number of reasons for a discriminatory action, only one of which is based on a prohibited ground, the relevance of that prohibited ground is sufficient to create a breach of the Canadian Human Rights Act,10 the Ontario Human Rights Code,11 the British Columbia Human Rights Code,12 or the Alberta Human Rights Act.13
While the complainant must do more than to assert that the respondent's conduct was discriminatory14 it has been recognized that there will rarely be direct evidence that a practice was motivated by discrimination, since discrimination is not usually displayed overtly.15 A complainant need not prove that the respondent intended to discriminate.16
If the complainant makes out a prima facie case of discrimination, the burden shifts to the respondent to provide a reasonable, non-pretextual explanation for the discriminatory treatment.17 This may be in the form of a BFOR/Q18 or by reliance on a statutory exemption which permits the impugned conduct.19
One way in which the respondent can discharge this burden is to demonstrate that the practice, while prima facie discriminatory, was justified in the circumstances of the case as a BFOR/Q.20 The doctrine of the BFOR/Q, and its ancillary doctrine of reasonable accommodation short of undue hardship, are discussed in earlier paragraphs.21