Canadian Human Rights Act (6:IV)
The Canadian Human Rights Act [CHRA] prohibits certain forms of discrimination in the federal jurisdiction. As mentioned above, that jurisdiction is set out in s 91 of the Constitution Act, 1867. The CHRA applies to both public and private bodies and individuals and covers federal departments and agencies, federal Crown corporations, chartered banks, the broadcast media, airlines, buses and railways that travel between provinces, First Nations, and other federally regulated industries such as mining operations.
A. Prohibited Grounds of Discrimination
The eleven prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, conviction for which a pardon has been granted, and mental or physical disability (including previous or present alcohol dependence). At the time of writing, a government bill adding gender identity and expression to the list has been passed by the House of Commons and Senate and will likely become law soon (Bill C-16, 1st Session, 42nd Parliament, 2017). These grounds apply to all activities covered by the CHRA. Section 3(2) explicitly makes discrimination on the grounds of pregnancy illegal and s 14(2) explicitly prohibits sexual harassment.
Note that the federal equal pay provisions are broader than the provincial ones since it is discriminatory practice to pay different wages to female and male employees for work of “equal value”, even if the work itself is not similar. Factors considered when defining “equal value” include skills required, responsibilities, and working conditions. Pursuant to s 65(1), employers are liable for the discriminatory acts of their employees.
B. Activities Where Discrimination is Prohibited
The activities where discrimination is prohibited include:
- The provision of goods, services, facilities or accommodation customarily available to the general public (s 5)
- The provision of commercial premises or residential accommodation (s 6)
- Employment, employment application advertising, and membership in, or benefit from, employee organizations (ss 7-10)
- Unequal wage payment for male and female employees unless justified under s 27(2) (s 11)
- Publication of discriminatory notices, signs, symbols, emblems or other representations (s 12)
- Harassing an individual on prohibited grounds of discrimination (s 13)
- Situations where an individual filed a complaint under the CHRA (s 14)
Under s 15, there are general exceptions to practices considered discriminatory, comparable but not identical to those found in BC’s HRC, such as those relating to bona fide occupational requirements, pension plans, and insurance schemes. Retirement policies are still exceptions under ss 9 & 15 of the CHRA which is now a significant difference from the HRC of BC, where mandatory retirement is now generally prohibited.
Section 16 of the CHRA (similar to s 42 of the B.C. HRC) states that an Equity plan designed to reduce the disadvantage suffered by a group of individuals, where that disadvantage is related to one of the grounds discussed above, is not discrimination in and of itself.
Previously, s 67 of the CHRA stated that the CHRA did not apply to the Indian Act, with the result that any actions taken by band councils or the federal government under the Indian Act were exempt from the CHRA. Section 67 has since been repealed, which was a contentious move among some First Nations leaders.
D. Filing a Complaint Under the Act
Any individual or group may file a complaint with the Canadian Human Rights Commission. If someone other than the alleged victim files a complaint, the Commission may refuse to proceed without the victim’s consent. The Commission itself may lay a complaint or it may discontinue an investigation if it deems the complaint to be frivolous or if other alternatives would be more appropriate.
The Commission will provide advice and assistance in proceeding with the complaint. Correspondence may be addressed to the Ottawa office but in practice it is generally preferable to deal with the Commission’s Vancouver office. Please consult the Commission’s website for a detailed description of the complaint process (see Section I.B:Resources, above).
1. How Complaints are Handled
It is, in most cases, both possible and preferable that complaints be resolved through discussions leading to mutual agreement. To facilitate this, the CHRA provides for an investigation stage and, where necessary, a conciliatory stage. By law, the complaint investigator cannot also be the conciliator, although in practice the investigator attempts to resolve the dispute whenever possible.
Instead of or subsequent to these stages, the Commission may refer the complaint to a quasi-judicial Canadian Human Rights Tribunal. The Commission has the power to assist the claimant at all stages of the process, and usually represents the claimant at the hearing stage. However, it acts in a more neutral fashion at the investigation and mediation stages. The Tribunal may award damages and relief similar to an injunction. An order of the Tribunal is enforceable as if it were an order of the Federal Court. Any judicial review is governed by the limitation period set out in the Federal Courts Act, R.S. 1985, c. F-7 (see Chapter 20: Public Complaints Procedures). It is an offence, punishable on summary conviction, to obstruct any investigation under the CHRA (s 60).
The CHRA can award punitive damages in amount of $20, 000 where they believe that the discriminatory conduct was done recklessly or with wilful disregard. This is different than the HRC, as the HRC is remedial rather than punitive focused.
2. Reasons Why Complaints May Not Proceed
Section 41 of the CHRA lists the most common reasons for the termination of an investigation. The reasons are very similar to those discussed under the HRC, including:
- a) the complaint is beyond the jurisdiction of the Commission;
- b) the complaint could more appropriately be dealt with under another Act;
- c) the complaint is trivial, frivolous, vexatious, or made in bad faith;
- d) the complainant has not exhausted all reasonable alternative grievance or review procedures (if collective agreement or arbitration procedures are available, the client will be expected to pursue them); and
- e) the complaint was not filed within one year of the alleged act of discrimination (the Commission has the power to extend this period in certain circumstances).
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