Expanding Horizons: Rethinking Access to Justice in Canada
Appendix B (continued)
Diversity and Access to Justice Workshop
By Prof. Brian Etherington
Faculty of Law
University of Windsor
I have been asked to provide my views on how well we are doing at meeting the needs of members of diversity groups in Canadian society for access to justice, based on my own knowledge and experiences. In this brief paper I will attempt to present my perceptions of recent developments in the recognition of diversity interests and the meaning of justice and equality for members of diversity groups within our civil justice system and the most serious problems inhibiting access to justice for members of diversity groups today. My thesis is quite straightforward. We have witnessed significant advances on the substantive side of the ledger, both in the recognition of diversity interests and the meaning of justice and equality for members of diversity groups. However, those advances on the substantive side have not been met with corresponding advances in terms of delivery mechanisms and procedures necessary to achieve access to justice. In fact, consistent with the trend among Canadian governments in the 1990's to downsize government and privatise the delivery of government services to provide tax cuts, there has been a hollowing out of government mechanisms and a significant attempt to privatise the resolution of diversity issues under human rights legislation in many jurisdictions in Canada.
The removal or withdrawal of governments from processes to resolve disputes concerning diversity cannot be a good thing for the recognition and protection of diversity interests. Diversity groups are generally minority groups, both in terms of numbers and resources. The imbalance of power between minority racial and religious groups in a market economy and the failure of our courts to adapt the common law to protect minority interests against unequal treatment led to the development of human rights legislation in the 1950's and 1960's to give governments a major role in protecting members of minority groups from discrimination in their business lives. The role of government was essential to overcome the imbalance of power which determined outcomes in the private sphere. The recent return to a reduced role for governments in the protection of diversity interests has resulted in an increasing gap between the promise and the experience of access to justice for members of diversity groups.
The Promise: Substantive Developments in the Recognition of Diversity and the Meaning of Equality and Justice
Increasing Recognition of Diversity
The past twenty to twenty-five years have seen a tremendous growth in the recognition of diversity interests deserving of protection from discrimination by our justice system. These developments have been the result of interaction between four agents of change, legislative amendment, judicial interpretation, the Canadian Charter of Rights and Freedoms, and the diversity groups themselves. The growth has come both in the area of recognition of prohibited grounds of discrimination and the definitions of discrimination and equality.
Prohibited grounds of discrimination are nothing less than those attributes of diversity which we have determined should not be allowed to be the basis of differential treatment between individuals which imposes burdens or denies benefits. By recognising a particular personal characteristic as a prohibited ground of discrimination for human rights or Charter of Rights purposes, we recognise that it would be an affront to our deeply held values concerning the right of all members of Canadian society to equality and human dignity to allow for the imposition of disadvantage on the basis of the proscribed ground of discrimination.
From the inception of human rights legislation in Canada in the 1940's and the 1950's we have witnessed a significant expansion of grounds of discrimination. The earliest statutes generally included only race, colour and religion. The 1960's saw the addition of age, and ethnicity or place of origin in most jurisdictions. This was followed by the addition of sex in the late 1960's and early 1970's. Marital status was added in most jurisdictions in the 1970s to be followed by family status in the late 1970's and early 1980's. More recently, disability or handicap was not recognised as a prohibited ground of discrimination in many jurisdictions until the early 1980's. Quebec has added social condition as a prohibited ground and several jurisdictions have added receipt of social assistance as a prohibited ground for limited purposes such as non-discrimination in access to accommodation. Sexual orientation was not a prohibited ground until it was added legislatively in Ontario in 1986. This was followed by legislative addition in several other jurisdictions in the late 1980's and early 1990's, including the amendment of the federal human rights code to add sexual orientation in 1996 after many years of failed attempts.
Finally, in 1998 in Vriend v. Alberta , by judicial pronouncement under s. 15 of the Charter of Rights, sexual orientation was added to the Alberta human rights statute and the human rights legislation of any other jurisdiction which had not included it to that point. In Vriend and the earlier decision of Egan v. Canada, the Supreme Court of Canada held that sexual orientation was an attribute of diversity that should be recognised as an analogous ground of discrimination to those enumerated under s. 15. The Court provided a definition of analogous ground which is likely to be instructive and influential for future development of prohibited grounds under the Charter and under anti-discrimination legislation. The Court emphasised the notion of a
“deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs” and urged consideration of whether persons who share the attribute of diversity
“form an identifiable minority who have suffered and continue to suffer serious social, political and economic disadvantage.”
Evolution in Conceptions of Equality and Discrimination
However, even more significant to the expansion of the legal recognition of diversity interests was the judicial and legislative evolution of our basic conceptions of equality and discrimination in the early to mid 1980's. The traditional meaning of equality as purely formal equality in the sense of identical treatment for all regardless of their personal attributes was rejected in favour of a new conception of substantive equality of opportunity to demonstrate one’s potential without being impeded by barriers which are based on irrelevant diversity attributes or which have an unnecessary adverse impact on members of groups identified by a prohibited ground of discrimination. Under this new conception of equality it was recognised that access to justice in the form of equal treatment could often require the recognition of diversity attributes and the accommodation of differences to enable full participation free of unnecessary barriers.
This new conception of equality required a new definition of discrimination and the Supreme Court of Canada and several of our legislatures obliged. In 1985 in O'Malley and Ont. Human Rights Comm. v. Simpsons-Sears Ltd. the Court recognised for the first time that the concept of adverse effect discrimination was sufficient to satisfy a requirement for discrimination under human rights legislation. It arises where an employer for business reasons adopts a rule or standard which appears neutral on its face, and which applies uniformly to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or a group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. Thus while intentional discrimination continued to be prohibited, the Court began in the mid 1980's to shift away from a fault or intent based approach and towards a results or effects based approach to the application and enforcement of human rights legislation in Canada. A similar approach was reflected in the Court’s watershed decision in Action Travaill des femmes v. C.N.R. Co. .
In that decision the Court defined systemic discrimination as discrimination that results from the simple operation of everyday established procedures of recruitment, hiring and promotion, none of which is designed to promote discrimination but which cumulatively are reinforced by the very exclusion of members of disadvantaged groups which results because it supports the belief or stereotype that members of the group are not capable of performing the work. Further, it upheld the granting of systemic remedial orders in the form of employment equity initiatives to obtain results in recruitment that would break the cycle of systemic discrimination. In the 1980's, some jurisdictions also amended their human rights codes to incorporate the concepts of adverse effects and systemic discrimination.
A further significant expansion of legal protection of diversity interests in the workplace arose in the 1980's with the judicial and legislative recognition that harassment on a prohibited ground of discrimination constituted discrimination for the purposes of human rights legislation. Many jurisdictions, including Ontario, amended their human rights legislation to remove all doubt, but for those jurisdictions which failed to do so the Supreme Court settled the question in favour of protection against harassment in 1989 in Janzen v. Platy Enterprises Ltd. . In addition, the theme of transition from a focus on employer fault or intent to a focus on effects on employees has been maintained in numerous Supreme Court of Canada decisions on human rights issues in the last 15 years, including decisions on employer liability for harassment by co-workers and the relationship between the requirements of a bona fida occupational requirement and an employer’s duty to accommodate. The recent decision in British Columbia (Public Service Emp. Relations Comm.) v. B.C.G.S.E.U. will have a significant expansionary effect on the substantive ability of individual employees to challenge employer rules or practices which have an adverse effect as not being bona fide occupational requirements because the employer has not gone to sufficient lengths to accommodate the individual employee’s diversity interests in the original construction of the business rule or practice.
The common theme of all of these developments is a greater recognition of attributes of diversity and the importance of accommodation of those diversity interests if we are to further the values of substantive equality and respect for human dignity that are central to the mission of the Canadian Charter of Rights and Freedoms and human rights legislation in Canada. But at the same time all of these developments significantly increase the potential for individual claims by members of diversity groups to assert that their right to substantive equality is being violated by employer practices or the conduct of unions or co-workers. To what extent have we been able to provide similar expansion or adaptation of procedures and mechanisms for protection of diversity interests to ensure that the increases in substantive rights and responsibilities are more than simply hollow promises?
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