Antidiscrimination laws in Canada: Human rights commissions and the search for equality

Human Rights Quarterly

Volumn 19, Issue 3, 1997, Pages 547-571

  Hucker, John ^a,b,c  

^a Canadian Human Rights Commission   (Canada)

^b UNIVERSITY OF WALES   (United Kingdom)

^c NONE

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[No Author keywords available]

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EID: 0000080104     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.1997.0028     Document Type: Article

References (126)

1. Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission: Report of the International Workshop on National Institutions for the Promotion and Protection of Human Rights - Paris, 7-9 October 1991, U.N. ESCOR, Comm'n on Hum. Rts., 48th Sess., Provisional Agenda Item 11(b), at 46, U.N. Doc. E/CN.4/1992/43 (1991) [hereinafter Paris Principles]. The Paris Principles were agreed to by human rights agencies from more than twenty countries participating at the International Workshop on National Institutions for the Promotion and Protection of Human Rights. Those present at the Paris session included: the Human Rights and Equal Opportunities Commission (Australia), Benin Commission on Human Rights, Canadian Human Rights Commission, Chilean Commission for Human Rights, United States Commission on Civil Rights, National Consultative Commission on Human Rights (France), National Commission on Human Rights (Mexico), New Zealand Human Rights Commission, Uganda Commission of Inquiry into Violations of Human Rights, Philippines Commission on Human Rights, Commission for Racial Equality (United Kingdom), and agencies from Senegal, Togo, Tunisia, Turkey, Brazil, Venezuela, and Yugoslavia. Id. at 1-2, The Paris Principles were subsequently accepted by the UN Commission on Human Rights as "Principles Relating to the Status of Commissions and Their Advisory Role." Id. at 46.
2. Id. ("A national institution shall be given as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence.")
3. See Ed Ratushny, B.C.'s "Giant Step Backward" in Human Rights, GLOBE AND MAIL (Toronto), 19 Aug. 1983, at A7. See also W. W. Black, Human Rights in British Columbia: Equality Postponed, 1984-85 CAN. HUM. RTS. Y.B. 219 (providing a more detailed account of the demise of the British Columbia Human Rights Commission and its replacement with a Human Rights Council, a body with significantly less authority).
4. See Ed Ratushny, B.C.'s "Giant Step Backward" in Human Rights, GLOBE AND MAIL (Toronto), 19 Aug. 1983, at A7. See also W. W. Black, Human Rights in British Columbia: Equality Postponed, 1984-85 CAN. HUM. RTS. Y.B. 219 (providing a more detailed account of the demise of the British Columbia Human Rights Commission and its replacement with a Human Rights Council, a body with significantly less authority).
5. The future of the Human Rights Commission in Alberta has been the subject of debate in the province for some time. Efforts to amend the provincial human rights law (known as the Individual's Rights Protection Act) to include protection for gays and lesbians have been the cause of at least part of the controversy and have undoubtedly prompted the special treatment critics. Two successive chief commissioners have been let go without having their terms extended and the provincial government has made it clear that it will not act upon recommendations to strengthen the commission. A flavor of the debate in the province can be gained from a recital of recent newspaper headlines. See Alberta's Strange Antipathy to Idea of Human Rights, EDMONTON J., 12 Apr. 1995, at A12; Calgarians Plead for Human Rights Commission, CALGARY HERALD, 17 Feb. 1994, at B2; "Dump Rights Body," Tory Urges, EDMONTON J., 1 Oct. 1993, at 815; Province Attempting to "Gut" Human Rights Commissions, CALGARY HERALD, 20 Dec. 1993, at A5; Rights Commissioner Critical of Government is Let Go, EDMONTON J., 8 Sept. 1994, at A3.
6. The future of the Human Rights Commission in Alberta has been the subject of debate in the province for some time. Efforts to amend the provincial human rights law (known as the Individual's Rights Protection Act) to include protection for gays and lesbians have been the cause of at least part of the controversy and have undoubtedly prompted the special treatment critics. Two successive chief commissioners have been let go without having their terms extended and the provincial government has made it clear that it will not act upon recommendations to strengthen the commission. A flavor of the debate in the province can be gained from a recital of recent newspaper headlines. See Alberta's Strange Antipathy to Idea of Human Rights, EDMONTON J., 12 Apr. 1995, at A12; Calgarians Plead for Human Rights Commission, CALGARY HERALD, 17 Feb. 1994, at B2; "Dump Rights Body," Tory Urges, EDMONTON J., 1 Oct. 1993, at 815; Province Attempting to "Gut" Human Rights Commissions, CALGARY HERALD, 20 Dec. 1993, at A5; Rights Commissioner Critical of Government is Let Go, EDMONTON J., 8 Sept. 1994, at A3.
7. The future of the Human Rights Commission in Alberta has been the subject of debate in the province for some time. Efforts to amend the provincial human rights law (known as the Individual's Rights Protection Act) to include protection for gays and lesbians have been the cause of at least part of the controversy and have undoubtedly prompted the special treatment critics. Two successive chief commissioners have been let go without having their terms extended and the provincial government has made it clear that it will not act upon recommendations to strengthen the commission. A flavor of the debate in the province can be gained from a recital of recent newspaper headlines. See Alberta's Strange Antipathy to Idea of Human Rights, EDMONTON J., 12 Apr. 1995, at A12; Calgarians Plead for Human Rights Commission, CALGARY HERALD, 17 Feb. 1994, at B2; "Dump Rights Body," Tory Urges, EDMONTON J., 1 Oct. 1993, at 815; Province Attempting to "Gut" Human Rights Commissions, CALGARY HERALD, 20 Dec. 1993, at A5; Rights Commissioner Critical of Government is Let Go, EDMONTON J., 8 Sept. 1994, at A3.
8. The future of the Human Rights Commission in Alberta has been the subject of debate in the province for some time. Efforts to amend the provincial human rights law (known as the Individual's Rights Protection Act) to include protection for gays and lesbians have been the cause of at least part of the controversy and have undoubtedly prompted the special treatment critics. Two successive chief commissioners have been let go without having their terms extended and the provincial government has made it clear that it will not act upon recommendations to strengthen the commission. A flavor of the debate in the province can be gained from a recital of recent newspaper headlines. See Alberta's Strange Antipathy to Idea of Human Rights, EDMONTON J., 12 Apr. 1995, at A12; Calgarians Plead for Human Rights Commission, CALGARY HERALD, 17 Feb. 1994, at B2; "Dump Rights Body," Tory Urges, EDMONTON J., 1 Oct. 1993, at 815; Province Attempting to "Gut" Human Rights Commissions, CALGARY HERALD, 20 Dec. 1993, at A5; Rights Commissioner Critical of Government is Let Go, EDMONTON J., 8 Sept. 1994, at A3.
9. The future of the Human Rights Commission in Alberta has been the subject of debate in the province for some time. Efforts to amend the provincial human rights law (known as the Individual's Rights Protection Act) to include protection for gays and lesbians have been the cause of at least part of the controversy and have undoubtedly prompted the special treatment critics. Two successive chief commissioners have been let go without having their terms extended and the provincial government has made it clear that it will not act upon recommendations to strengthen the commission. A flavor of the debate in the province can be gained from a recital of recent newspaper headlines. See Alberta's Strange Antipathy to Idea of Human Rights, EDMONTON J., 12 Apr. 1995, at A12; Calgarians Plead for Human Rights Commission, CALGARY HERALD, 17 Feb. 1994, at B2; "Dump Rights Body," Tory Urges, EDMONTON J., 1 Oct. 1993, at 815; Province Attempting to "Gut" Human Rights Commissions, CALGARY HERALD, 20 Dec. 1993, at A5; Rights Commissioner Critical of Government is Let Go, EDMONTON J., 8 Sept. 1994, at A3.
10. See James Walker, Ontario to Repeal Job Equity Act, FIN. POST (Toronto), 20 July 1995, at 5; Ontario to Scrap Equity Law: Conservatives Say New Bill Will Stress Equal Opportunities, GLOBE AND MAIL (Toronto), 20 July 1995, at A1 [hereinafter Ontario to Scrap Equity Law].
11. See James Walker, Ontario to Repeal Job Equity Act, FIN. POST (Toronto), 20 July 1995, at 5; Ontario to Scrap Equity Law: Conservatives Say New Bill Will Stress Equal Opportunities, GLOBE AND MAIL (Toronto), 20 July 1995, at A1 [hereinafter Ontario to Scrap Equity Law].
12. See James Walker, Ontario to Repeal Job Equity Act, FIN. POST (Toronto), 20 July 1995, at 5; Ontario to Scrap Equity Law: Conservatives Say New Bill Will Stress Equal Opportunities, GLOBE AND MAIL (Toronto), 20 July 1995, at A1 [hereinafter Ontario to Scrap Equity Law].
13. See Walker, supra note 5, at 5; Ontario to Scrap Equity Law, supra note 5, at A1. The Ontario government will scrap the province's controversial employment equity law, replacing it with weaker legislation that stresses equal opportunities for disadvantaged persons. In his electoral campaign, the Conservative Leader did not threaten to dismantle the Ontario Human Rights Commission which he apparently viewed as dealing with legitimate issues of discrimination. Id. In contrast to the federal sphere, where the Canadian Human Rights Commission's mandate includes pay equity and employment equity, Ontario had established separate agencies for the latter two programs. The Pay Equity Commission has, to date, survived the change in government.
14. See Walker, supra note 5, at 5; Ontario to Scrap Equity Law, supra note 5, at A1. The Ontario government will scrap the province's controversial employment equity law, replacing it with weaker legislation that stresses equal opportunities for disadvantaged persons. In his electoral campaign, the Conservative Leader did not threaten to dismantle the Ontario Human Rights Commission which he apparently viewed as dealing with legitimate issues of discrimination. Id. In contrast to the federal sphere, where the Canadian Human Rights Commission's mandate includes pay equity and employment equity, Ontario had established separate agencies for the latter two programs. The Pay Equity Commission has, to date, survived the change in government.
15. The Paris Principles, in a section entitled "Composition and guarantees of independence and pluralism," declares that: The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might affect its independence. Paris Principles, supra note 1, at 48.
16. See, e.g., Ontario Human Rights Code, R.S.O., ch. H-19, § 36(1) (1990) (Can.). This code states: Where the Commission fails to effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may request the Minister to appoint a board of inquiry and refer the subject-matter of the complaint to the board. Id.
17. Paris Principles, supra note 1, at 46.
18. Id.
19. Id. at 47.
20. In Canada most human rights commissions enjoy a considerable degree of independence, though none is constitutionally entrenched. Their focus is upon domestic rather than international affairs. Even the Canadian Human Rights Commission, which comments on a wide array of issues in its annual reports to Parliament, does not generally pass judgment on its own government's performance under applicable international human rights instruments.
21. CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms). The Charter came into force on 1 7 April 1982. See PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA 825 (3d ed. 1992).
22. CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms). The Charter came into force on 1 7 April 1982. See PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA 825 (3d ed. 1992).
23. CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), § 15(1). Section 15 of the Charter came into force on 17 April 1985. Id. § 32(2). The three year delay was intended to provide time for the federal and provincial governments to review their existing laws and make any needed changes to bring them into conformity with section 15.
24. See generally HOGG, supra note 13, at 793-827 (discussing the Canadian Charter of Rights and Freedoms).
25. CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), § 32(1).
26. Canadian Human Rights Act, R.S.C., ch. H-6, § 2 (1985) (Can.). The following text will focus largely on the CHRC, but human rights agencies in Canada share many common features and are guided by similar jurisprudence.
27. Id. § 27 (outlining the Commission's powers, duties, and functions).
28. Id. § 61.
29. Id. § 3. (1) For the purposes of this Act, race, national or ethnic origin, color, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination. (2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. Id.
30. See id. § 44(1).
31. See id.
32. See id. § 44(4)(a).
33. See W. § 46.
34. See id. § 47.
35. See id. § 48.
36. See id. §§ 44(1), 49(1).
37. See id. § 50(2)(a).
38. See id. § 53. Under section 53(3) the maximum amount payable in respect of feelings or self-respect is fixed at $5,000. Id. § 53(3). There is no limit in the Act on the quantum of damages payable for lost wages, and amounts in excess of $100,000 have been awarded. See Thwaites v. Canada (Armed Forces) [1993], 19 Can. Hum. Rts. Rep. D/ 259 (Can. Hum. Rts. Trib.); aff'd., (1994) 3 F.C. 38, 21 Can. Hum. Rts. Rep. D/224 (T.D.).
39. See id. §§ 55-56. The Act provides for an appeal from a tribunal decision to a three-person review tribunal but it is now common for initial tribunal hearings to take place before a three-member panel, thereby obviating the review tribunal stage.
40. See CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 111 (1994).
41. See generally Canadian Human Rights Act, R.S.C., ch. H-6, § 3 (1985) (Can.) (amended 1996) (prohibiting discrimination based on sexual orientation). This change to the law was sought by the Commission for several years. In the absence of such an amendment, two gay men successfully challenged the wording of section 3 as a denial of equal protection under section 15(1) of the Charter of Rights and Freedoms. Haig v. Canada [1992] 16 Can. Hum. Rts. Rep. D/226 (Ont. C.A.). The Ontario Court of Appeal upheld the challenge and ordered the CHRA to "be interpreted, applied and administered as though it contained 'sexual orientation' as a prohibited ground of discrimination in s. 3 of that Act." Id. at D/232. The government decided not to appeal this ruling and, until the recently passed amendment to the CHRA, the CHRC accepted sexual orientation complaints on the strength of the Haig decision. See CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 94, 111 (1994).
42. See generally Canadian Human Rights Act, R.S.C., ch. H-6, § 3 (1985) (Can.) (amended 1996) (prohibiting discrimination based on sexual orientation). This change to the law was sought by the Commission for several years. In the absence of such an amendment, two gay men successfully challenged the wording of section 3 as a denial of equal protection under section 15(1) of the Charter of Rights and Freedoms. Haig v. Canada [1992] 16 Can. Hum. Rts. Rep. D/226 (Ont. C.A.). The Ontario Court of Appeal upheld the challenge and ordered the CHRA to "be interpreted, applied and administered as though it contained 'sexual orientation' as a prohibited ground of discrimination in s. 3 of that Act." Id. at D/232. The government decided not to appeal this ruling and, until the recently passed amendment to the CHRA, the CHRC accepted sexual orientation complaints on the strength of the Haig decision. See CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 94, 111 (1994).
43. See Ontario Human Rights Comm'n v. Simpsons-Sears Ltd. [1985] S.C.R. 536 (Can.).
44. See, e.g., Canadian Human Rights Act § 15(a) ("It is not a discriminatory practice if (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be a bona fide occupational requirement."); id. § 15(g) (providing for a bona fide justification for the denial of a service).
45. See Alberta Human Rights Comm'n v. Central Alta. Dairy Pool [1990] 72 D.L.R. (4th) 41 7 (Can.).
46. See Ede v. Canadian Armed Forces [1990] 11 Can. Hum. Rts. Rep. D/439 (Can. Hum. Rts. Trib.).
47. Canadian Human Rights Act §§ 5-6.
48. Id. §§ 7-9.
49. Id. §§ 10-11.
50. See Mark L. Berlin, Jurisdiction Over Human Rights in Canada, in HUMAN RIGHTS AND FREEDOMS IN CANADA: CASES, NOTES AND MATERIALS (Mark L. Berlin & William F. Pentney eds., 1987). Berlin notes: The [Canadian Human Rights] Act itself applies to all federal government departments, agencies, Crown corporations and to business and industry under federal jurisdiction such as banks, airlines and railway companies in their employment policies, in matters of accommodation, as well as in their dealings with the public in the provision of the goods, services and facilities. In other words, the Commission is charged with the responsibility for settling disputes arising from situations within the "purview of matters coming within the legislative authority of the Parliament of anada." Id. at 2-16.
51. Canadian Human Rights Act § 5. The Act states that: It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the public (a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or (b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination. Id.
52. See, e.g., Menghani v. Canada Employment & Immigration Comm'n [1992] 17 Can. Hum. Rts. Rep. D/236 (Can. Hum. Rts. Trib.) (holding that the services offered by Canada Employment and Immigration are services offered to the public); Naqvi v. Canada Employment & Immigration Comm'n [1993] 19 Can. Hum. Rts. Rep. D/139 (Can. Hum. Rts. Trib.) (holding that Canada Employment and Immigration's dealing with applications for visitors' visas and immigrant status are services which are customarily available to the public).
53. Canadian Human Rights Act § 7 ("It is a discriminatory practice, directly or indirectly, a) to refuse to employ or continue to employ any individual, or b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.").
54. Id. § 10.
55. Id. The Act states that: It is a discriminatory practice for an employer, employee organization, or organization of employers (a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. Id.
56. See Winnipeg Sch. Div. No. 1 v. Craton [1985] S.C.R. 1 50, 156 (Can.); see also WALTER S. TARNOPOLSKY, DISCRIMINATION AND THE LAW 2-28 (William F. Pentney, revised edition, 1993) (1982).
57. See Winnipeg Sch. Div. No. 1 v. Craton [1985] S.C.R. 1 50, 156 (Can.); see also WALTER S. TARNOPOLSKY, DISCRIMINATION AND THE LAW 2-28 (William F. Pentney, revised edition, 1993) (1982).
58. See Canada (Attorney General) v. Druken [1989] F.C. 24 (Can. C.A.).
59. See Canada (Attorney General) v. Martin [1994] F.C. 524 (Can. Trial Div.).
60. See CANADIAN HUMAN RIGHTS COMM'N, ANNUAL REPORT 84 (1993).
61. See Egan v. Canada [1995] S.C.R. 513 (Can.) (holding that same-sex partner not entitled to spousal allowance under Old Age Security Act); see also Canada (Attorney General) v. Mossop [1993] S.C.R. 554 (Can.) (bereavement leave); Ontario Blue Cross v. Ontario Human Rights Comm'n (1994) 21 Can. Hum. Rts. Rep. D/342 (Ont. Ct. Justice) (medical benefits); Leshner v. Ontario [1992] 16 Can. Hum. Rts. Rep. D/184 (Ont. Board of Inquiry) (survivor benefits under Public Service Pension Plans); Nielsen v. Canadian Human Rights Comm'n [1992] 5 Admin. L.R. (2d) 278 (Can. Trial Div.) (dental benefits).
62. Mercier v. Canadian Human Rights Comm'n [1994] 3 F.C. 3, 6-9 (Can. C.A.).
63. See id. at 9-10.
64. See id. at 10-14.
65. See, e.g., Canadian Human Rights Comm'n v. Pathak [1995] 2 F.C. 455 (Can. C.A.).
66. See Canadian Nat'l Ry. Co. v. Niles [1992] 18 Can. Hum. Rts. Rep. D/152 (Can. C.A.).
67. See, e.g., Corner-store Porn Hearing Called a Waste, TORONTO STAR, 22 June 1993, at A11. But see Reva Landau, Bread, Milk and Pornography: Convenience Store Magazine Racks Insult and Degrade Women, TORONTO STAR, 22 Feb. 1994, at A20 (editorial article supporting the Human Rights Commission).
68. See, e.g., Corner-store Porn Hearing Called a Waste, TORONTO STAR, 22 June 1993, at A11. But see Reva Landau, Bread, Milk and Pornography: Convenience Store Magazine Racks Insult and Degrade Women, TORONTO STAR, 22 Feb. 1994, at A20 (editorial article supporting the Human Rights Commission).
69. See Mayor to Proclaim Cay Pride Week, GLOBE AND MAIL (Toronto), 15 June 1995, at A4.
70. See Oliver v. Morrow, 6 Mar. 1995, 95-010 at 25 (Ont. Board of Inquiry) (unreported) 7 (on file with author).
71. Canadian Human Rights Act, R.S.C., ch. H-6, § 25 (1985) (Can.).
72. See Canadian Nat'l Ry. Co., 18 Can. Hum. Rts. Rep. at D/157.
73. See Oliver v. Morrow, 6 Mar. 1995, 95-010 at 19 (Ont. Board of Inquiry) (unreported) (on file with author).
74. Alberta Human Rights Comm'n v. Central Alta. Dairy Pool [1990] S.C.R. 489 (Can.).
75. Id. at 495.
76. Id.
77. Id. at 496.
78. Id.
79. Id.
80. Bhinder v. Canadian Nat'l Ry. [1985] S.C.R. 561 (Can.).
81. Id. at 578.
82. Dairy Pool, [1990] S.C.R. at 591.
83. Id. at 521.
84. Id.
85. CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), § 15(2) ("Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.").
86. Canadian Human Rights Act, R.S.C., ch. H-6 (1985) (Can.). The Act states that: It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be or are based on or related to the race, national or ethnic origin, colour, religion, age, sex, marital status, family status or disability of members of that group, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group. Id. § 16(1).
87. Action Travail des Femmes v. Canadian Nat'l Ry. [1987] S.C.R. 1114 (Can.).
88. Id. at 1125.
89. Id.
90. Id.
91. Id at 1141-42.
92. ROSALIE S. ABELLA, REPORT OF THE COMMISSION ON EQUALITY IN EMPLOYMENT (1984).
93. Id at 19-51, 193-94.
94. Id at 255-69.
95. Employment Equity Act, R.S.C., ch. 23 (1985, 2d Supp.) (Can.).
96. Id § 6(1).
97. Id § 6(1) (d).
98. Id § 5(1).
99. Id § 7.
100. Id § 8.
101. See CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 34-35 (1989). The complaints named an array of government departments and large corporations. Some of the complaints have since been settled but the majority remain under investigation, where progress has been slow. Several employers refused to cooperate with the investigations on the basis that they were unwarranted; they initiated court proceedings arguing, among other things, that numbers alone could not support even a prima facie allegation of discrimination sufficient to justify the taking of a human rights complaint. Id.
102. See CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 69-70 (1994).
103. HOUSE OF COMMONS CANADA, A MATTER OF FAIRNESS: REPORT OF THE SPECIAL COMMITTEE ON THE REVIEW OF THE EMPLOYMENT EQUITY ACT 39-44 (1992).
104. Id. at 39.
105. An Act Respecting Employment Equity, ch. 44, 1995 S.C. (Can.). The Act received Royal Assent on 15 December 1995. Id.
106. Id. §§ 22-26.
107. Id. §§ 2, 5.
108. In re Drummond Wren [1945] O.R. 778 (Ont.). See generally TARNOPOLSKY, supra note 46, at 2-8.
109. See An Act to Amend the Immigration Act and to Repeal the Chinese Immigration Act, ch. 19, 1947 S.C. § 4 (Can.); see also John Hucker, Immigration, Natural Justice and the Bill of Rights, 13 OSGOODE HALL L.J. 649, 651-52 (1975).
110. See An Act to Amend the Immigration Act and to Repeal the Chinese Immigration Act, ch. 19, 1947 S.C. § 4 (Can.); see also John Hucker, Immigration, Natural Justice and the Bill of Rights, 13 OSGOODE HALL L.J. 649, 651-52 (1975).
111. See generally Immigration Regulations, Privy Council 1962-86, Jan. 1962, Statutory Orders and Regulations 62-36 Part I, § 31.
112. See TARNOPOLSKY, supra note 46, at 2-4, 10.
113. See HOUSING, FAMILY AND SOCIAL STATISTICS DIVISION, STATISTICS CANADA, WOMEN IN CANADA: A STATISTICAL REPORT 86 (3d ed. 1995); see also Women Cain More of Employment Pie: Most Still Get Less Pay Than Men, GLOBE AND MAIL (Toronto), 9 Aug. 1995, at A1; Women Still Two Steps Behind Men: Statistics Canada Report Paints Portrait of Women Today, TORONTO STAR, 9 Aug. 1995, at A15.
114. See HOUSING, FAMILY AND SOCIAL STATISTICS DIVISION, STATISTICS CANADA, WOMEN IN CANADA: A STATISTICAL REPORT 86 (3d ed. 1995); see also Women Cain More of Employment Pie: Most Still Get Less Pay Than Men, GLOBE AND MAIL (Toronto), 9 Aug. 1995, at A1; Women Still Two Steps Behind Men: Statistics Canada Report Paints Portrait of Women Today, TORONTO STAR, 9 Aug. 1995, at A15.
115. See HOUSING, FAMILY AND SOCIAL STATISTICS DIVISION, STATISTICS CANADA, WOMEN IN CANADA: A STATISTICAL REPORT 86 (3d ed. 1995); see also Women Cain More of Employment Pie: Most Still Get Less Pay Than Men, GLOBE AND MAIL (Toronto), 9 Aug. 1995, at A1; Women Still Two Steps Behind Men: Statistics Canada Report Paints Portrait of Women Today, TORONTO STAR, 9 Aug. 1995, at A15.
116. See, e.g., CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 14-17 (1989); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 20-27 (1993); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 27-35 (1994); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 17-24 (1995) (identifying the plight of Aboriginal Canadians as the country's major human rights challenge).
117. See, e.g., CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 14-17 (1989); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 20-27 (1993); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 27-35 (1994); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 17-24 (1995) (identifying the plight of Aboriginal Canadians as the country's major human rights challenge).
118. See, e.g., CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 14-17 (1989); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 20-27 (1993); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 27-35 (1994); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 17-24 (1995) (identifying the plight of Aboriginal Canadians as the country's major human rights challenge).
119. See, e.g., CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 14-17 (1989); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 20-27 (1993); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 27-35 (1994); CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 17-24 (1995) (identifying the plight of Aboriginal Canadians as the country's major human rights challenge).
120. See generally DESATINC AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY AND THE POLITICS OF INCLUSION (Nicolaus Mills ed., 1994) (providing a collection of articles representing different points of view on affirmative action). Books and articles about affirmative action in the United States are legion.
121. See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995) (5-4 decision), justice O'Connor, writing for the Court, stated that: "[A] free people whose institutions are founded on the doctrine of equality," should tolerate no retreat from the principle that government may treat people differently because of their race only for the most compelling reasons. Accordingly, we hold that all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. Id. at 2113 (citation omitted) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). See also Justices, 5 to 4, Cast Doubts on U.S. Programs That Give Preferences Based on Race, N.Y. TIMES, 13 June 1995, at A1.
122. See, e.g., David Frum, Ontario Tories Did Not Misrepresent Employment Equity: It Is a Quota Law and Was Intended to Be a Quota Law, FIN. POST (Toronto), 17 June 1995, at 24. The term "quota" has become one of the nastier epithets in the affirmative action/ employment equity debate. In Canada, no law or court decision has called for the imposition of quotas, in the sense of a mandatory percentage of hires being reserved for any group. The term "targets" is not, I would suggest, a synonym, particularly when courts or legislatures are clear (as they have been in Canada) that numbers prescribed for the hire of target groups are contingent on the availability of qualified candidates, and no sanction is imposed for failure to achieve the targets in question provided that reasonable efforts are made.
123. See Nicholas Lemann, Taking Affirmative Action Apart, N.Y. TIMES MAG., 11 June 1995, at 36; Michael Kinsley, The Spoils of Victimhood: The Case Against the Case Against Affirmative Action, NEW YORKER, 27 Mar. 1995, at 62.
124. See Nicholas Lemann, Taking Affirmative Action Apart, N.Y. TIMES MAG., 11 June 1995, at 36; Michael Kinsley, The Spoils of Victimhood: The Case Against the Case Against Affirmative Action, NEW YORKER, 27 Mar. 1995, at 62.
125. See Margaret Wente, The Case for Affirmative Action, GLOBE AND MAIL (Toronto), 12 Aug. 1995, at D7. Wente argues: In fact, affirmative action programs have never been more popular, more widespread or more mainstream than they are today. They are spreading, not shrinking. Their biggest boosters are powerful, middle-aged white men who live comfortably in Premier Mike Harris' ideological neighbourhood. Some places where affirmative action is flourishing are Canada's biggest police forces, the RCMP and the Metro Toronto Police; several big banks; and Hewlett-Packard, one of Canada's leading high tech companies . . . For these organizations, the business case for affirmative action is compelling. They need diversity in their work-forces, not to remedy past injustices but to be more successful. Id.
126. See, e.g., CANADIAN HUMAN RIGHTS COMMISSION, ANNUAL REPORT 67-69 (1995) (providing an account of the CHRC's experience in dealing with equal pay cases). The tenor of the CHRC's assessment of progress can be seen by the subheading of the relevant section: "Waiting for Godot." Id. A telling illustration of the difficulties that can confront human rights agencies arises from the CHRC's experience with section 11 of the CHRA. Canadian Human Rights Act, R.S.C., ch. H-6, § 11 (1985) (Can.). This provision requires employers to pay men and women equally for work of equal value. Id. Section 11(2) states that "the criterion to be applied [in determining value] is a composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed." Id. § 11 (2). The intention is to permit comparisons to be drawn between seemingly disparate occupations, for example secretaries (female dominated) and maintenance workers (largely male). The difficulties that have ensued in the application of section 11 are legion. Fact-finding and adjudication are far removed from the traditional antidiscrimination case and have become heavily dependent upon the technical evidence of expert witnesses. In light of the considerable costs which can be involved, conciliated settlements are rare in all but the smallest cases, and large employers have become adept at delaying final decisions. The waters are further muddied by the fact that unions sometimes use the filing of an equal pay complaint under section 11 of the CHRA as an adjunct to the collective bargaining process when it is tactically opportune to do so.