What is the Canadian Human Rights Act?
Introduction to the purpose, history and legal status of the Act
The Canadian Human Rights Act is federal legislation that prohibits discrimination in areas of federal jurisdiction. As Section 2 of the Act states:
The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle 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 race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.(Department of Justice Canada, Canadian Human Rights Act).
Central to the Act, then, is the principle that all individuals in Canada should have an equal opportunity to make for themselves “the lives they are able and wish to have” and to “have their needs accommodated.” The Act, moreover, is meant to promote this equality by prohibiting discriminatory practices, based on specific attributes such as race, ethnicity, sex, etc., which may hinder or prevent persons from doing so.
History of the Canadian Human Rights Act
How did the federal government come about enacting the Human Rights Act? The modern Act has its roots in a significant change in Canadian political culture that occurred during the 1940s. Previously, the notion of human rights, at least in the form of state legislation backed by legal sanctions, was not a key issue in Canadian politics. Following the Second World War, however, several events—namely, the Holocaust, the internment of Japanese Canadians during the war, and the introduction of human rights legislation in the United States—brought the issue to the forefront.
Human rights legislation first began to appear at the provincial level. In 1944, the Government of Ontario introduced the Racial Discrimination Act, which prohibited the publication, displaying or broadcasting of any materials involving racial or religious discrimination. In 1947, the Government of Saskatchewan passed the Saskatchewan Bill of Rights Act, which provided for the protection of civil liberties in the province, as well as prohibited discrimination in a number of areas, including employment, housing, the workplace, land transactions and education. Early human rights legislation were often quasi-criminal pieces of legislation, which approached discrimination as a crime to be dealt with by the police and through the courts.
The 1950s saw the introduction of a new type of human rights legislation. Commonly referred to as “fair practices legislation,” these acts prohibited discrimination in employment, housing and services. Initially focused on discrimination based on race and religion, these acts were eventually broadened to include other grounds, such as sex and age. The first province to enact fair practices was the Government of Ontario in 1951. By the 1960s, most jurisdictions in Canada, including the federal government, had passed some form of fair practices laws, although their precise scope and nature differed significantly from one jurisdiction to another. Unlike earlier legislation, these fair practices laws were not quasi-criminal laws. Violations of the acts were not considered criminal offences. Moreover, they emphasized mediation and settling disputes through negotiation, as opposed to adjudication through the courts.
The 1960s and 70s saw the introduction of human rights codes in Canada. These codes consolidated and built upon the basic framework of early fair practices legislation. Moreover, they included human rights commissions, which were separate agencies mandated to administer and enforce the law. By 2003, all jurisdictions in Canada (federal, provincial and territorial) had instituted some form of a human rights code and commission.
The Canadian Human Rights Act was introduced by the federal government in 1977. In addition to prohibiting discrimination at the federal level, the Act also established a human rights commission system, which included the Canadian Human Rights Commission (CHRC) and the Canadian Human Rights Tribunal (CHRT). Since its inception, the Act has undergone several important changes. In 1996, for example, the Act was amended to include sexual orientation as an enumerated ground of discrimination. As such, the Act now prohibits discrimination on the grounds of a person’s sexuality. In 2001, the Act was amended to explicitly include a prohibition on the communication of hate messages via the Internet (previously, the Act only explicitly prohibited hate messages through the telephone). More recently, in 2008, the federal government passed Bill C-21, which amended the Act to cover federal government and First Nations’ actions pursuant to the Indian Act. Previously, the Indian Act was exempted from review under the Canadian Human Rights Act.
Compared to the Charter of Rights and Freedoms
The effect of the Act is to provide individuals with a basic right not to be discriminated against. As such, the Act is comparable to other rights documents in Canada, such as the Canadian Charter of Rights and Freedoms. However, it is important to note a number of key differences between the Canadian Human Rights Act and the Charter.
First, the Charter is a very broad document, which provides Canadians with a wide range of rights, including basic freedoms, democratic rights, legal rights, language rights and equality rights. The Canadian Human Rights Act, by contrast, is a much narrower document, and only deals with equality rights; in particular, the right not to be discriminated against.
Second, the Charter is entrenched in the Constitution of Canada. In other words, it is part of the basic constitutional framework of the nation and can only be altered or subsumed under very strict circumstances. The Canadian Human Rights Act, however, is simply a piece of federal legislation, which may be repealed or revised by a simple majority vote in the federal House of Commons.
Third, while the Charter is applicable to all levels of government in Canada (federal, provincial, territorial and municipal), the Canadian Human Rights Act applies only to the federal government and federal areas of jurisdiction.
Moreover, the Charter applies only to governments and not to private individuals, groups or organizations. In other words, only governments, and not private entities, are required to respect the rights and freedoms provided for in the Charter. The Canadian Human Rights Act, by contrast, is applicable to all areas within federal jurisdiction. As such, it applies to both public and private institutions at the federal level. This includes the federal government itself (that is, the federal public services), as well as private organizations and businesses that fall within the authority of the federal government. Private organizations and businesses that fall under provincial authority, however, are not bound by the Canadian Human Rights Act.
Finally, the Human Rights Act is administered quite differently from the Charter. Whereas complaints of violations of Charter rights are adjudicated strictly through Canada’s court system, human rights complaints are generally dealt with through a special human rights commission system. In certain circumstances, however, complaints under the Human Rights Act can make their way to the regular court system.
See the Administration of the Canadian Human Rights Act for more information on how the Act is administered and enforced.
Discrimination under the Canadian Human Rights Act
What does the Canadian Human Rights Act prohibit?
Definition of Discrimination
The Canadian Human Rights Act prohibits discriminatory practices by employers and/or service providers that fall within federal jurisdiction. Generally speaking, the term “discrimination” is understood to mean “treating people differently, negatively or adversely without good reason” (Canadian Human Rights Commission, 2004). In other words, the Act prohibits any practices or conduct that involves treating people “differently, negatively or adversely,” unless there is “good reason” to do so.
In this context, the Act deals with discrimination in a wide range of forms:
- Employment: A person cannot be denied a job, or released from employment, due to some personal characteristic, such as race or disability, that does not affect job performance or that can be accommodated.
- Equal pay: Persons must be paid the same for jobs of equal value. In other words, an employer cannot pay a female employee less than a male employee for performing a job of equal value.
- Provision of goods and services: Businesses cannot refuse to provide a good or service to an individual simply on the grounds of some personal characteristic. In example, a bank cannot ask a married woman for her spouse’s signature when applying for a loan, on the grounds that she is a woman.
The Act also prohibits the communication of hate messages. This includes messages that encourage discrimination, hatred of a group, or which involve comments that are demeaning to a group. Initially, this prohibition was reserved only for the communication of hate messages through the telephone. In 2001, the Act was amended to explicitly include the Internet, making it unlawful to communicate hate messages on a website or via email. The Act does not apply to communications through other mediums, such as television, radio, or print media (these mediums are, instead, covered by the Canadian Broadcasting Act).
Enumerated Grounds of Discrimination
Within this context, the Act goes on to enumerate (or “specify”) specific grounds of discrimination:
- national or ethnic origin
- sex (including pregnancy and childbirth)
- sexual orientation
- marital status
- family status
- mental or physical disability (including previous or present drug or alcohol dependence)
- pardoned conviction.
The enumerated grounds are important in that they clearly identify what sort of discrimination the Act prohibits. It is only discrimination that is based on these specific grounds that is considered unlawful. Discriminatory activities on grounds not enumerated by the Act are not prohibited.
Exemptions to the Act
It is important to note that the Act makes several exemptions to its prohibition on discrimination. The first of these concerns mandatory retirement. Section 15(1)(b) of the Act allows employers to terminate or refuse employment once employees or prospective employees have reached the maximum age of employment set out by law. Section 9(2), furthermore, states that it is not discriminatory for unions to terminate membership at the normal age for retirement.
The second key exemption centres on insurance and pensions. The Act and its regulations state that certain distinctions in insurance and pension plans, which are based on enumerated grounds of discrimination, cannot be the subject of a complaint. This exemption is highly pertinent to insurance and pension plans offered to federal public servants, as well as national public pension plans (for example, Canada Pension Plan).
Another important exemption is with regard to special programs intended to eliminate or reduced disadvantages that are suffered by a group or individual. The classic example is an affirmative action program in which an employer adopts hiring policies that give advantages to minorities. Such a policy technically meets the definition of discrimination under the Act because it treats persons differently by giving an advantage to one enumerated group over another. Nevertheless, affirmative action programs are intended to promote greater overall equality in the workplace. Thus, in order to prevent such special programs from being caught within the law, the Act explicitly exempts them from being considered discriminatory.
Legal Defences for Discrimination
In addition to providing certain exemptions, the Act also allows for two key defences. The first is referred to as the bona fide occupational requirements defence (BFOR), and is related to employment practices. The second, the bona fide justification (BFJ) defence, is related to the provision of services.
In basic terms, these defences allow an employer or service provider to engage in conduct that treats persons differently, but can nevertheless be adequately justified. In other words, the Act’s prohibition against discrimination is not absolute. Instead, one may engage in discriminatory practices if they can show good reason or cause for doing so.
The legal tests for the BFOR and BFJ defences were clarified by the Supreme Court of Canada in two cases in the late-1990s: the Meiorin and Grismer decisions. In those cases, the Supreme Court concluded that employers and service providers were obligated to accommodate all persons to the point of undue hardship. As such, the notion of “undue hardship” is an important threshold. If an employer or service provider can show that accommodation would cause undue hardship, then an employer or service provider is permitted to treat persons differently.
In order to meet the threshold of “undue hardship,” an employer or service provider must prove a number of things. In regard to the BFOR defence (which is related to employment practices), one must show that:
- The employment practice or policy is rationally connected to the job.
- The employment practice or policy was adopted by the employer in an honest and good faith belief that it was necessary in order to fulfill the job.
- The employment practice or policy is the least discriminatory way to achieve the purpose or goal related to the job.
Take, for example, a case in which an employer required persons to be married in order to be hired. Such a policy would be discriminatory in the sense that it treats married and single persons differently. In order to justify such a policy, the employer would have to show that the “married-only” policy was rationally connected to the job. That is, that it was necessary in order for the person to properly fulfill the goal or duties of the job. Moreover, the employer would have to show that it adopted the policy in good faith, and that the policy was the least discriminatory way to ensure the job was fulfilled properly.
The test for BFJ defences, which are related to the provision of services, is very similar. A service provider must show that the policy or practice is rationally connected to the service provider’s function. Moreover, one must show that it was adopted in an honest and good faith belief that it was necessary, and that the particular policy was the least discriminatory way to achieve the service provider’s goal or purpose.
Application of the Canadian Human Rights Act
To whom does the Canadian Human Rights Act apply?
Application to Federal Jurisdiction
The Canadian Human Rights Act is legislation passed by the federal government and therefore only applies within the realm of federal jurisdiction. As such, the Act does not extend to areas that fall within provincial, territorial or municipal jurisdiction. This is not to suggest that these areas operate in the absence of human rights laws, as each provincial and territorial government has enacted its own human rights legislation. It is important to note, however, that there are significant differences between the human rights codes of the different Canadian jurisdictions.
Key Areas of Federal Jurisdiction
Within federal jurisdiction, the Canadian Human Rights Act applies to two key areas. The first is the federal government itself. This includes all federal legislation, regulations, departments, agencies and Crown corporations. In this context, the federal government is obliged under the Act to hire and deliver services in a manner that does not discriminate between persons.
The second key area is federally regulated businesses and industries. Key examples include charter banks, national airlines, interprovincial telephone companies and interprovincial transportation companies. Again, the Act requires organizations in each of these areas to hire individuals and deliver services in a non-discriminatory manner, and prohibits the communication of hate messages via federally regulated telecommunications and the Internet.
Application to Aboriginal Persons
When the Act was first passed in 1977, it included an important exemption. Section 67 of the Act stipulated that “nothing in this Act [the Canadian Human Rights Act] affects any provision of the Indian Act or any provision made under or pursuant to that Act.” The effect of Section 67 was to exempt actions carried out by the Government of Canada or a First Nation government, and which were pursuant to the Indian Act, from complaints of discrimination under the Canadian Human Rights Act.
The exemption was justified on the grounds that the federal government was obliged not to make any modifications to the Indian Act without prior and full consultation with First Nations (Canadian Human Rights Commission, 2005). As such, the federal government would have to consult with First Nations before the new Canadian Human Rights Act could be applied to them. Thirty years after the passage of the Act, however, this “temporary” exemption had still not been amended.
The issue of the exemption has been a contentious one in Canadian politics. In 2000, for example, a Canadian Human Rights Review Panel was appointed to conduct a comprehensive review of the Canadian Human Rights Act. In its findings, the Panel found that many segments of the Aboriginal population faced human rights concerns related to the limited availability of government and band services (Hurley, 2007). As such, the Panel advocated removing the blanket exemption of Section 67 and extending the full protection of the Act to Aboriginal persons. Supporters of Section 67 have, by contrast, argued that “European” conceptions of human rights should not be applied to Aboriginal groups. First Nations should, instead, be free to determine their own anti-discrimination laws and practices.
In 2008, the federal government passed An Act to amend the Canadian Human Rights Act (Bill C-21). The first clause of this Act repealed Section 67 of the Canadian Human Rights Act. As such, actions undertaken pursuant to the Indian Act, either by the federal government or a First Nation government, are no longer exempt from review. Moreover, the Act included an interpretive clause which requires the Canadian Human Rights Act to be applied with “due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests…” The purpose of this clause is to ensure that the “individual rights” contained in the Canadian Human Rights Act are properly balanced against the “collective interests” of First Nations.
Administration of the Canadian Human Rights Act
How is the Canadian Human Rights Act interpreted and enforced?
Claim Process under the Act
The Canadian Human Rights Act not only prohibits discrimination at the federal level, it also establishes a human rights commission system to administer and enforce the Act. Central here are two agencies: the Canadian Human Rights Commission (CHRC) and the Canadian Human Rights Tribunal (CHRT).
The CHRC is an independent federal agency mandated to receive, investigate and mediate alleged violations of the Act. As stated above, the Act is administered quite differently than other rights legislation, such as the Canadian Charter of Rights and Freedoms. When an individual or group alleges discrimination, they do not apply to the courts to have their case heard. Instead, they submit their claim to the CHRC for review and investigation. If the CHRC finds the allegation to be substantive, it will then attempt to mediate a solution between the two parties. This involves CHRC officials negotiating with the parties in an attempt to find a mutually acceptable resolution to the issue.
If, however, mediation fails, then the case is referred to the Canadian Human Rights Tribunal. This is a separate agency that functions as an informal court, with its own rules and procedures. The CHRT will hear arguments from both sides of the dispute, and will render a decision as to whether a violation of the Act has taken place and, if so, what remedy and/or sanctions will be applied (see below on what sorts of sanctions the CHRT may apply).
The regular courts only become involved in a human rights case if one of the parties wants to appeal the decision of the CHRC or CHRT. In such circumstances, a party may appeal the decision to the Federal Court and, if necessary, all the way to the Supreme Court of Canada.
Sanctions under the Act
Violations of the Act are not criminal offences and do not result in a criminal record or imprisonment. They are, instead, more akin to a civil dispute. Moreover, the human rights commission system is structured to encourage the settlement of cases through mediation and conciliation. In this context, the goal is not to assign blame and punishment, but to find a mutually agreeable solution between the parties to the dispute.
Some cases, however, cannot be settled through mediation and conciliation. In such circumstances, the case is heard by the Canadian Human Rights Tribunal, which must decide whether or not the Act has been violated. When a violation has been found, the CHRT has broad discretionary powers under the Act in ordering a remedy. This includes the power to order the offending party to cease the discriminatory activity, to order the party to take measures to redress the practice or to prevent it from occurring in the future, as well as ordering compensation to the victim for expenses, loss of wages or pain and suffering resulting from the practice.
Interpretation of the Act
Another key element of the Act’s administration is the interpretation of its clauses. The Act itself is a very short and abstract document, and provides little direction as to how it is to be interpreted and applied in particular cases. For example, what precisely is to count as a discriminatory practice? What is the test for determining that an alleged discriminatory practice is justified under the bona fide occupational requirement or bona fide justification defences?
The Canadian Human Rights Tribunal and the regular courts play a very important role in this context. When deciding a case, the CHRT must work out these particulars, and is required to provide a written decision, which outlines its lines of reasoning. These written decisions fill out the details of the Act, and how it is to be interpreted and applied to specific circumstances.
The CHRT, however, is not the final say on the Act’s interpretation. Parties to a dispute may appeal a CHRT decision to the Federal Court and eventually to the Supreme Court of Canada. In reviewing decisions, these higher courts may disagree with how the CHRT has interpreted the Act and, as a result, overturn its decision. In doing so, the higher court often sets out its own conception of how the Act ought to be interpreted and applied, which the CHRT and the CHRC are subsequently obliged to follow.
The Supreme Court of Canada’s Meiorin and Grismer decisions are key examples. In those cases, the Supreme Court recognized that there existed uncertainty over the application of the bona fide occupational requirement and bona fide justification defences. It used its written decision in those cases to establish a legal test for these defences, which the CHRC and CHRT were subsequently obliged to follow.
Finally, Parliament plays a key role in the application of the Act. The CHRC, CHRT and the courts may only apply the Act as it is written by the legislature (although, they may add their own interpretation to the written words). The government can and does attempt to direct the interpretation and application of the Act through formal amendments to its text. In 2001, for example, the federal government wanted to ensure that hate messages communicated via the Internet would be prohibited under the Act. In order to ensure this, it passed an amendment that explicitly stated that the Act applied to the Internet.