Adding Social Condition to the Canadian Human Rights Act

Adding Social Condition to the Canadian Human Rights Act
Adding Social Condition to the
Canadian Human Rights Act
Wayne MacKay and Natasha Kim
February 2009
The opinions expressed in this report are those of the author
and do not necessarily reflect the views of
the Canadian Human Rights Commission
Aussi offert en français sous le titre L’ajout de la condition sociale à la Loi canadienne
sur les droits de la personne
1
ADDING SOCIAL CONDITION TO THE CANADIAN HUMAN RIGHTS ACT
- Wayne MacKay and Natasha Kim
ABSTRACT
Almost a decade ago, in June 2000, the Canadian Human Rights Act Review Panel
conducted a comprehensive review of the Canadian Human Rights Act [CHRA] and
recommended that “social condition” be added as a prohibited ground of discrimination.
Since then, no action has been taken to implement this recommendation, despite calls for
action from international bodies, political actors, human rights agencies and
organizations, and academic commentators to provide protections from discrimination for
those suffering from social and economic disadvantage. The authors analyze the
experiences at the provincial level with socio-economic grounds of discrimination,
jurisprudential developments under the Canadian Charter of Rights and Freedoms
related to claims based on socio-economic disadvantage, the broader proposal of
incorporating justiciable social and economic rights into Canadian law, and the range of
arguments both for and against recognizing social condition as a prohibited ground of
discrimination. In the end, the authors recommend a feasible and practical means for
adding social condition to the Canadian Human Rights Act so that it will provide
predictability for administrators, adjudicators and respondents, as well as sufficient
flexibility to reflect the multi-faceted and intersectional experience of discrimination of
human rights claimants. While socio-economic inequality continues to be a significant
and pressing problem in need of a multi-pronged and comprehensive solution, the
addition of the ground of social condition to the CHRA will be one more tool in
advancing the rights and interests of those on the very margins of Canadian society.
2
ADDING SOCIAL CONDITION TO THE CANADIAN HUMAN RIGHTS ACT
- Wayne MacKay and Natasha Kim
EXECUTIVE SUMMARY
I. Introduction
Almost a decade ago, in June 2000, the Canadian Human Rights Act Review
Panel conducted a comprehensive review of the Canadian Human Rights Act and
recommended that “social condition” be added as a prohibited ground of discrimination.
Since then, no action has been taken to implement this recommendation, despite calls for
action from international bodies, political actors, human rights agencies and
organizations, and academic commentators to provide protections from discrimination for
those suffering from social and economic disadvantage. In considering the wisdom and
feasibility of adding this ground to the Canadian Human Rights Act, it is necessary to
analyze the federal, provincial, and international legal landscape in this area, to determine
the definitional parameters of the ground, and to address the arguments both for and
against the recognition of social condition as a prohibited ground of discrimination.
Therefore, after reviewing developments relating to social condition since the
release of the Review Panel Report in 2000, in Part II, we conduct a comprehensive
overview of the legal developments related to defining and implementing social condition
or related grounds of discrimination in provincial and territorial human rights codes and
under the Canadian Charter of Rights and Freedoms. In addition, we discuss the
potential for the ground of social condition to better capture a more holistic experience of
discrimination when socio-economic disadvantage intersects with other grounds of
discrimination. In Part III of the paper, we explore the interconnection between protection
from discrimination based on social condition and the broader question of the recognition
of justiciable positive socio-economic rights. In Part IV, we address potential arguments
against adding social condition, including administrative, definitional and institutional
concerns, and in Part V, we address the legal, normative, institutional, practical, and
persuasive arguments for the addition of the ground. In Part VI, we review possible
options for addressing social condition and conclude with a three-part recommendation
for adding social condition to the Canadian Human Rights Act in a controlled and defined
manner.
II. What is Social Condition and how has it been Defined?
In examining the meaning of social condition, we look first to how it has been
defined. Except at the federal level, all Canadian jurisdictions recognize some type of
social or economic ground of discrimination in their human rights codes. Three Canadian
jurisdictions have adopted social condition as a prohibited ground of discrimination:
Quebec, New Brunswick and the Northwest Territories. The Quebec Charter of Human
3
Rights and Freedoms has included social condition since its inception in 1975, whereas
New Brunswick and the Northwest Territories added the ground just recently, in part in
response to the recommendation by the Canadian Human Rights Act Review Panel in
2000. While there has been little jurisprudence under these more recent provisions, the
experience in New Brunswick and the Northwest Territories is an interesting contrast to
Quebec, in that both jurisdictions opted for statutory definitions of the term; in addition,
the New Brunswick Human Rights Commission adopted guidelines that build on the
established jurisprudence for defining social condition in the Quebec context.
A common thread between these jurisdictions is the focus on addressing social
and economic disadvantage, which is expressed in the statutory definitions in
New Brunswick and the Northwest Territories and the result of an evolving jurisprudence
in Quebec that developed the meaning of social condition to accord with the overall
broad and purposive approach of human rights legislation. Both Quebec and
New Brunswick also adopt an objective-subjective test for social condition in the
guidelines of their respective human rights commissions. The objective component is the
economic rank or social standing of an individual based on factors including income,
occupation or level of education and the subjective component is the value attributed to
an individual based on social perceptions or stereotypes associated with factors such as
income, occupation or level of education. For example, level of income may be an
objective element of social condition but it is the impact of that level on the position a
person holds in society that is an element of social condition.
This test has evolved over time in Quebec to address discrimination against those
suffering from social and economic disadvantage, such as social assistance recipients and
workers in precarious and low-paying positions, who face discriminatory assumptions
regarding, for example, their ability to pay for rent or goods and services. The Quebec
case law has also recognized that temporary or mutable states, such as being a student,
could form a social condition. The one case reported in the Northwest Territories has
recognized seasonal workers as a social condition group, demonstrating a contextual
approach to the statutory limitation to the definition of social condition in the Northwest
Territories Human Rights Act that precludes “a condition…on a temporary basis.”
In the other provincial and territorial jurisdictions, narrower but related grounds of
discrimination have been adopted, such as “receipt of public assistance”, “source of
income” or “social origin”. An important distinction between these grounds and social
condition is the potential for social condition to cover a much broader range and/or
intersection of characteristics. The broad, multi-factored definition that has been adopted
by the courts in Quebec and the legislatures in the Northwest Territories and in
New Brunswick make it clear that the purpose of the ground extends beyond what exists
in other jurisdictions. The legislative discussions leading up to the adoption of social
condition in these three jurisdictions, as well as recommendations by human rights
agencies in other jurisdictions to broaden protection to include social condition, make it
clear that this breadth and flexibility is a valuable feature of the ground.
Significantly, our review of the human rights and Charter jurisprudence also
reveals a gap at the federal level caused by the lack of protection based on social
condition in the Canadian Human Rights Act, where claims in the realm of housing,
employment, and private and public services at the federal level could be better addressed
by social condition protection. Under the Charter, there has thus far been little success in
4
addressing equality claims involving a socio-economic aspect, unless claimants have
been able to fit their experience of discrimination within the enumerated or established
analogous grounds of section 15 of the Charter. Even in these successful cases, social
condition could provide a more accurate reflection of discrimination claims by
recognizing the manner in which social and economic disadvantage intersects with
existing grounds of discrimination under the Charter and the Canadian Human Rights
Act. Discrimination on multiple grounds is a complex dynamic, which must be
recognized if human rights principles are to be respected and if human rights legislation
is to be most effective and this is in itself a compelling reason to add social condition to
the CHRA.
III. What is the Relationship between Economic and Social Rights and
Social Condition as a Prohibited Ground of Discrimination?
It has been argued that, to address the pernicious problem of socio-economic
disadvantage, what is needed more than protection from discrimination based on social
condition is positive and justiciable economic and social rights to, for example, an
adequate standard of living, education, and housing. While such an approach would be
consistent with Canada’s international human rights obligations under the International
Covenant on Economic, Social and Cultural Rights and the International Covenant on
Civil and Political Rights, it has not been realized through litigation under the Canadian
Charter, through political efforts at constitutional reform, nor in the essentially symbolic
commitments reflected in the economic and social rights enumerated in the Quebec
human rights code.
Based on this analysis, the addition of social and economic rights as positive
rights would be a significant and far reaching way to protect social condition under the
Canadian Human Rights Act, however, the institutional and resource implications in
adopting this option would go well beyond the mandate of our study. Nonetheless, the
inclusion of protection from discrimination on the basis of social condition as a feasible
measure that can be implemented in the short-term for furthering our international
commitments and addressing the issue of socio-economic disadvantage until further study
is conducted on incorporating positive economic and social rights into the Canadian legal
landscape.
IV. What are the Arguments Against Including Social Condition as a
Prohibited Ground of Discrimination in the Canadian Human Rights
Act?
The arguments against including social condition in the CHRA can be categorized
into administrative, definitional and institutional concerns. Administratively, there is a
concern that the addition of a new ground, particularly one as broad and flexible as social
condition, could lead to resource implications for the Canadian Human Rights
Commission and Tribunal, resulting in backlog issues, the overshadowing of other
grounds of discrimination and lengthy litigation. After examining the experience of the
human rights commissions in Quebec, New Brunswick and the Northwest Territories, we
5
conclude that these potential issues are unlikely to raise significant problems at the
federal level, particularly if a definition of social condition is adopted to provide greater
certainty in its application.
There are also concerns that uncertainty with the definition of social condition
could result in unintended effects, such as a significant redistribution of market resources
or, conversely, protection for those respecting whom discrimination protection was not
intended. These concerns support including a definition of social condition if it were to
be added to the CHRA in order to ensure sufficient certainty for claimants and defendants
so that they know in advance what would constitute discrimination on the basis of social
condition. Conversely, the ground must not be defined so narrowly as to lose many of the
benefits yielded by the dynamic and flexible nature of social condition and to result in the
fragmentation or atomization of the protection provided by the CHRA.
Lastly, there are concerns related to the institutional competence of the statutory
human rights regime to deal with matters of socio-economic inequality. First, it could be
argued that the direct funding of public programs for those in need could more effectively
address socio-economic disadvantage. While we agree that the addition of social
condition alone is not sufficient to address the broader problem of poverty, the benefit it
would provide in protecting the poor from discrimination on this ground has independent
value. A second institutional argument is that adding social condition would afford the
Canadian Human Rights Commission and Tribunal too much administrative discretion
related to complex socio-economic issues. We also believe this concern can be addressed
by an appropriate definition and existing rules of administrative law that control the
exercise of administrative discretion.
V. What are the Arguments for Including Social Condition as a
Prohibited Ground of Discrimination in the Canadian Human Rights
Act?
There are a number of arguments for including social condition in the Canadian
Human Rights Act. First, it would advance the purpose and principles of the CHRA by
extending discrimination protection to one of the most marginalized and vulnerable
groups in society. Second, the addition of social condition to the CHRA would build
upon the existing infrastructure of the statutory human rights regime and the expertise of
the Canadian Human Rights Commission and Tribunal, enabling the resolution of
complaints in a more economical way and in a manner that permits a more authentic
reflection of the experience of discrimination where multiple grounds are involved.
Third, the inclusion of social condition could inform jurisprudential developments in the
Charter field, both in the application of equality rights under section 15 of the Charter
and in the consideration of broader socio-economic claims, due to the symbiotic
relationship between the Charter and human rights codes. Fourth, the addition of social
condition would be of practical benefit to those suffering from socio-economic
disadvantage, not only because they would have a legal recourse for discrimination where
there previously was none, but also because the statutory human rights regime would
provide a more accessible venue for those who, by definition, lack resources to fund an
expensive court challenge. In addition, the educational and symbolic value of adding
social condition to the CHRA will send an important message to the public that they are
6
equally deserving of dignity and protection from discrimination. Lastly, the addition
would respond to Canada’s international commitments and the recommendations of
human rights agencies and other commentators.
VI. What is the Best and Most Feasible Option for Adding Social
Condition as a Prohibited Ground of Discrimination under the
Canadian Human Rights Act?
After reviewing a number of possible options, we conclude that social condition
should be added as a prohibited ground of discrimination under the Canadian Human
Rights Act, but in a defined and controlled way in order to address potential concerns
with the addition. Thus, we propose a three-part option. First, at least a minimal statutory
definition should be included in the Act to focus the application of social condition on
those who suffer from social and economic disadvantage, drawing on the approaches in
New Brunswick and the Northwest Territories. This will anchor the definition in the
statute and ensure that it covers those for whom it was intended. To ensure greater
certainty in its application while maintaining some flexibility, the definitional parameters
of the ground should be fleshed out through a delegated statutory instrument. This could
take the form of binding regulations or non-binding policy directives. We prefer
regulations, passed by Cabinet or the responsible Minister on the recommendation of the
Commission, in order to establish greater certainty and accountability for the definition of
the ground, while ensuring the expertise of the Commission informs the process.
Additional policy guidelines could be adopted by the Commission for more detailed
guidance on how the ground should be applied.
Second, we conclude that additional justifications or specific exemptions would
not be required to accompany the inclusion of social condition, as the existing
justification provisions in the CHRA would likely address most situations. This was also
the approach taken in Quebec and the Northwest Territories.
Lastly, we recommend a measured approach to the application of the ground to
complex statutory and administrative governmental schemes, such as income tax or
immigration, which often make necessary economic distinctions. However, unlike
New Brunswick and the recommendation of the Review Panel in 2000, we do not agree
that a statutory exemption for legislative acts be adopted as this would too severely limit
the application of social condition and its potential to provide real protection to those
suffering from discrimination. Rather, we suggest that a delay in the coming into force be
used, which will allow departments and agencies to put their houses in order while also
providing a presumption of applicability to the entire federal sphere.
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VII.
Concluding Thoughts
There continues to exist a significant problem of poverty in Canada and one of its
manifestations is in the form of social condition discrimination. The response of the
legislative, executive and judicial branches of the Canadian state has not been adequate,
in our view, and the addition of the ground of social condition to the CHRA in a
controlled and defined way will be one more tool in advancing the rights and interests of
those on the margins of Canadian society. Discrimination on the basis of poverty and
social condition requires a multi-pronged approach and a human rights code that includes
social condition is only one prong, albeit an important one. Parliament can position the
Commission to take a lead in this important area and we hope and urge that Parliament
has the courage to do so.
ADDING SOCIAL CONDITION TO THE CANADIAN HUMAN RIGHTS ACT
- Wayne MacKay and Natasha Kim ∗
I.
INTRODUCTION AND OVERVIEW ............................................................................................. 1
A.
1.
2.
3.
4.
B.
1.
2.
3.
4.
II.
REPORT OF THE CANADIAN HUMAN RIGHTS ACT REVIEW PANEL (2000) ........................................ 2
Recommendation by the Panel to include Social Condition........................................................ 3
What the Panel Heard During Public Consultations .................................................................. 4
Recommendation of the Panel regarding Social and Economic Rights ...................................... 4
(Lack of) A Federal Response to the La Forest Report since 2000 ............................................. 5
OVERVIEW OF OTHER DEVELOPMENTS SINCE THE PANEL REPORT .................................................. 8
Context: Statistics and the Face of Poverty in Canada ............................................................... 8
Commentary by Human Rights Agencies .................................................................................... 9
Organizations ............................................................................................................................ 11
Academic Commentary.............................................................................................................. 12
WHAT IS SOCIAL CONDITION AND HOW HAS IT BEEN DEFINED?............................... 17
A.
B.
CONTEXT: THE BROAD AND PURPOSIVE APPROACH TO ANTI-DISCRIMINATION LAWS .................. 17
PROVINCIAL APPROACHES .............................................................................................................. 21
1.
“Social Condition”.................................................................................................................... 21
a)
b)
c)
d)
Quebec.................................................................................................................................................. 32
New Brunswick .................................................................................................................................... 27
The Northwest Territories..................................................................................................................... 30
Differences in Provincial/Territorial Approaches to Defining Social Condition .................................. 32
2.
3.
4.
Compared to “Source of Income” and “Receipt of Public Assistance” ................................... 34
Compared to “Social Origin” ................................................................................................... 37
Summary: Definition of Social Condition.................................................................................. 37
C. PRACTICES LEADING TO DISCRIMINATION BASED ON SOCIAL CONDITION ..................................... 38
1.
Provincial/Territorial Experiences............................................................................................ 39
a)
b)
c)
2.
Addressing Discriminatory Attitudes based on Prejudgments and Stereotypes.................................... 39
Blanket Policies with an Adverse Effect are Discriminatory................................................................ 42
Challenges to Social Programs are Rarely Successful .......................................................................... 43
Discriminatory Practices with a Social Condition Dimension under Federal Jurisdiction ...... 45
a)
b)
c)
d)
e)
f)
Housing and Accommodation: the Federal Role in Housing................................................................ 45
Section 67 of the Canadian Human Rights Act and Aboriginal peoples............................................... 47
Employment ......................................................................................................................................... 48
Private Sector Services: Banking, Telecommunications and Broadcasting .......................................... 49
Public Sector “Services”....................................................................................................................... 52
Discrimination Practices arising from Demographics: Aging “Baby Boomers” and New Immigrants 53
D.
SECTION 15 OF THE CHARTER AND SOCIAL CONDITION ................................................................. 54
Section 15 Jurisprudence .......................................................................................................... 55
The Interrelationship Between Human Rights Codes and the Charter ..................................... 58
Social Condition and Charter Jurisprudence Generally ........................................................... 61
Social Condition or Poverty as an Analogous Ground ............................................................. 64
Under-Inclusiveness of Grounds and the Charter..................................................................... 73
Section 1 Justification and Socio-Economic Policy .................................................................. 74
E.
SOCIAL CONDITION’S FIT WITH OTHER PROHIBITED GROUNDS: THE ISSUES OF MULTIPLE
DISCRIMINATION AND INTERSECTIONALITY ............................................................................................. 76
1.
2.
3.
4.
5.
6.
III.
WHAT IS THE RELATIONSHIP BETWEEN ECONOMIC AND SOCIAL RIGHTS AND
SOCIAL CONDITION AS A PROHIBITED GROUND OF DISCRIMINATION?........................... 82
∗
The authors gratefully acknowledge the outstanding research and drafting assistance of Ken Jennings and
Dan McGruder members of the 2009 graduating class of Dalhousie Law School. Their tireless efforts, good
ideas and useful insights improved the quality of this study and their good humour enhanced the process of
preparing this document and contributed to a positive team effort. Another member of the Dalhousie Law
School graduating class of 2009, Alia Rosenstock, also provided some valuable research
assistance.
A.
INTERNATIONAL HUMAN RIGHTS COMMITMENTS .......................................................................... 82
International Covenant on Economic, Social and Cultural Rights ........................................... 83
International Covenant on Civil and Political Rights ............................................................... 85
Other International Documents................................................................................................. 87
Relationship to Domestic Rights................................................................................................ 87
B. ECONOMIC AND SOCIAL RIGHTS UNDER THE CANADIAN CHARTER ................................................. 90
1.
Comparative Institutional Competence ..................................................................................... 90
2.
Section 7: Chaoulli as the Exception to the Rule ...................................................................... 91
C. THE SOCIO-ECONOMIC CHARTER: THE CHALLENGE OF CONSTITUTIONAL REFORM ...................... 94
D. ECONOMIC AND SOCIAL RIGHTS UNDER THE QUEBEC CHARTER .................................................... 96
1.
2.
3.
4.
IV.
WHAT ARE THE ARGUMENTS AGAINST INCLUDING SOCIAL CONDITION AS A
GROUND OF DISCRIMINATION IN THE CANADIAN HUMAN RIGHTS ACT?......................... 101
A.
1.
2.
3.
B.
1.
2.
3.
C.
1.
2.
PRACTICAL ADMINISTRATIVE CONCERNS ..................................................................................... 101
Limited Resources and Backlog .............................................................................................. 101
Overshadowing Other Grounds .............................................................................................. 106
Lengthy Litigation ................................................................................................................... 107
PROBLEMS CONCERNING DEFINITION ........................................................................................... 107
Potential Unintended Effects................................................................................................... 107
Trade-offs in Definition and Vagueness .................................................................................. 108
Potential Abuse of the Broad Concept .................................................................................... 109
INSTITUTIONAL COMPETENCE....................................................................................................... 110
Human Rights Legislation is the Wrong Venue to Address the Problem................................. 110
Broad Administrative Discretion............................................................................................. 111
V. WHAT ARE THE ARGUMENTS FOR INCLUDING SOCIAL CONDITION AS A
PROHIBITED GROUND OF DISCRIMINATION IN THE CANADIAN HUMAN
RIGHTS ACT? .......................................................................................................................................... 112
A. THE PURPOSE OF THE ACT AND THE EDUCATIONAL AND SYMBOLIC SIGNIFICANCE OF
INCLUSION .............................................................................................................................................. 112
B. THE CANADIAN HUMAN RIGHTS COMMISSION AND TRIBUNAL ARE THE BEST VENUES FOR
PROTECTING DISCRIMINATION ON THE BASIS OF SOCIAL CONDITION .................................................... 113
1.
Expertise and Experience of the Canadian Human Rights Tribunal and Commission ........... 114
2.
Adding Social Condition is Economical.................................................................................. 115
3.
The Inclusion of Social Condition will Enhance Intersectionality .......................................... 115
C. THE LIMITED CHARTER ROLE TO DATE AND THE ROLE OF HUMAN RIGHTS STATUTES IN
INFLUENCING THE RECOGNITION OF ANALOGOUS GROUNDS UNDER THE CHARTER .............................. 117
D. PRACTICAL BENEFITS TO THE LIVES OF INDIVIDUALS LIVING IN POVERTY AND THE BENEFITS OF
STATUTORY HUMAN RIGHTS REGIMES .................................................................................................. 117
E.
INTERNATIONAL OBLIGATIONS ..................................................................................................... 118
F.
PROPOSED REFORM AND SUPPORT BY GOVERNMENT AND RELATED AGENCIES .......................... 118
VI.
WHAT IS THE BEST AND MOST FEASIBLE OPTION FOR ADDING SOCIAL
CONDITION TO THE CANADIAN HUMAN RIGHTS ACT? ............................................................ 119
A.
REJECTED OPTIONS ....................................................................................................................... 119
Not Include Social Condition (Status Quo) ............................................................................. 119
Rewrite the CHRA to Include Analogous Grounds ................................................................. 120
Include Social Condition without a Statutory Definition......................................................... 121
Include Positive Economic and Social Rights in the CHRA .................................................... 122
B. RECOMMENDED OPTION FOR INCLUDING SOCIAL CONDITION AS A PROHIBITED GROUND OF
DISCRIMINATION UNDER THE CANADIAN HUMAN RIGHTS ACT ............................................................. 125
1.
Include Social Condition with a Statutory Definition.............................................................. 127
2.
Do Not Include Additional Defences or Justifications ............................................................ 131
3.
Include Time Delays for Public Programs or Legislative Acts ............................................... 133
1.
2.
3.
4.
VII.
CONCLUDING THOUGHTS .................................................................................................. 135
1
I. Introduction and Overview
It is timely to enter the murky waters surrounding the recognition of social
condition as a ground of human rights discrimination. The waters are murky in part
because of the difficulty of defining social condition in a way that is broad enough to
provide real protection for those in need but narrow enough to fit within the current
human rights regime at the legislative, administrative and judicial levels. The inclusion of
this ground of discrimination in the Canadian Human Rights Act 1 also raises important
questions about the comparative competence of the legislative, administrative and
judicial branches of the Canadian state. The legislative branch of the state prefers to
safeguard a wide range of discretion on matters of economic and social policy and is
reticent to have either courts or administrative agencies limiting their actions. However, if
social condition discrimination is a form of human rights violation, then it should be
enumerated, as are other forms of discrimination.
One of the central problems in this field is agreeing upon a workable definition
that balances the various competing policies and interests at stake. This difficulty in
defining the term and the need to put social condition on the human rights agenda is
well-articulated in the following summary from Paul Kershaw’s book, Carefair:
Rethinking the Responsibilities and Rights of Citizenship, prepared by the Canadian
Human Rights Commission [“the Commission”]:
The point is that social rights – the access established to social programming
during the post-war social liberal movement – have become difficult to define. As
collective memory begins to forget the hardships of the Depression and World
War II – two events that shaped numerous generations – individuals have sought
to compensate by developing new ideologies based on personal experience. That
experience, however, lacks the same degree of inclusivity, shared memory, or
cohesiveness, thus yielding multiple and competing notions of social formations.
As a result, the discourse over social programming has become increasingly
diversified and subjective.
Moreover, social programs designed to address inequality under social liberalism
were relatively successful in generally bridging the economic gap between
disparate groups. As social strata levelled off and society became more affluent,
the issue of social condition was gradually superceded by other rights claimants.
As Michael Ignatieff remarks in his assessment on the evolution of social rights in
defining social condition,
abundant societies that could actually solve the problem of poverty seem
to care less about doing so than societies of scarcity that can’t. This
paradox may help to explain why the rights revolution of the past forty
years has made inequalities of gender, race, and sexual orientation visible,
while the older inequalities of class and income have dropped out of the
registers of indignation. Abundance has awakened us to denials of self
1
R.S.C. 1985, c. G-6, as amended [hereinafter “CHRA”].
2
while blinding us to poverty. We idly suppose that the poor have
disappeared. They haven’t. They’ve merely become invisible.
Increasingly, the visible rise of social inequalities in Canada and abroad has
sparked a renewed debate on the inclusion of social condition within the
framework of human rights. With growing income disparities, human rights
organizations have expressed considerable concern at the discriminatory practices
that have arisen as a product of the phenomenon, especially in the enactment of
barriers to access. By incorporating social condition as a prohibitive ground of
discrimination, the state would be obligated to extend protection against this
vulnerable element of society. 2
Also implicit in the debate about providing protection on the basis of social
condition are the comparative roles of the state and the individual in Canadian society
with respect to the status of poverty. This tension is accentuated by the tendency to use
the terms “social condition”, “poverty” and “economic and social rights” loosely and
interchangeably. This study will attempt to distinguish between the terms and focus on
social condition as the heart of our mandate. We will also explore the arguments on both
sides of expanding the Canadian Human Rights Act by adding this ground. So as to not
keep the reader in suspense we do come down on the side of adding social condition in a
defined and controlled way.
A. Report of the Canadian Human Rights Act Review Panel (2000)
On April 8, 1999, then federal Minister of Justice Anne McLellan established an
independent panel to conduct a review of the Canadian Human Rights Act. The
four-member Canadian Human Rights Act Review Panel [“the Panel”], chaired by the
Honourable Gérard La Forest, was given the mandate to examine the CHRA, including
its scope and jurisdiction, the complaints-based model, its purpose, and the grounds listed
in it. 3 This was the first comprehensive review of the CHRA since its enactment in 1977.
Relevant for our purposes, this review included the possibility of adding new prohibited
grounds of discrimination to the Act, including the ground of social condition. To assist
in the review, we submitted to the Canadian Human Rights Act Review Panel a research
paper on the topic of social condition, which included an overview of the law in the area,
an analysis of the policy context, arguments for and against the inclusion of social
condition as a prohibited ground of discrimination, and options for addressing the issue. 4
The present paper, submitted to the Canadian Human Rights Commission, serves as an
update of that work.
2
P. Kershaw, Carefair: Rethinking the Responsibilities and Rights of Citizenship (Vancouver: H.B.C.
Press, 2005. Also citing Michael Ignatieff, The Rights Revolution (Toronto: Anansi, 2000) at 92 (as
summarized by Maciej Mark Karpinski in CHRC 2007 document “Social Condition”).
3
Canada, Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision, Report of the
Canadian Human Rights Act Review Panel, (Ottawa: Department of Justice and Attorney General, 2000)
(hereinafter La Forest Report) at 3.
4
A.W. MacKay, T. Piper and N. Kim, Social Condition as a Prohibited Ground of Discrimination under
the Canadian Human Rights Act (December 1999), submitted to the Canadian Human Rights Act Review
Panel.
3
1.
Recommendation by the Panel to include Social Condition
The Panel submitted its Report to the Minister of Justice on June 21, 2000. Based
on commissioned research and public consultations, the Panel concluded that social
condition should be added as a prohibited ground of discrimination in the CHRA. It also
made five related recommendations.
First, the Panel recommended that the ground be defined after the definition
developed in Quebec, but expressly limited to the protection of disadvantaged groups.
Noting that it did not consider social condition to be the same thing as poverty, the Panel
endorsed the definition set out in Québec v. Gauthier in 1993 by the Quebec Tribunal on
Human Rights: 5
The definition of ‘social condition’ contains an objective component. A person’s
standing in society is often determined by his or her occupation, income or education
level, or family background. It also has a subjective component, associated with
perceptions that are drawn from these various objective points of reference. A
plaintiff need not prove that all of these factors influenced the decision to exclude. It
will, however, be necessary to show that, as a result of one or more of these factors,
the plaintiff can be regarded as part of a socially identifiable group and that it is in
this context that the discrimination occurred. 6
The Panel noted that the multi-factored definition based on multiple characteristics would
likely be more difficult for adjudicators to apply, but felt that it better reflected the
subtleties of discrimination based on social condition and the need for flexibility it would
require. The Panel also added that it believed the protection should apply to protect
persons whose situation of poverty is ongoing rather than persons who may temporarily
find themselves in that condition. 7
Second, the Panel recommended the inclusion of exemptions where it is essential
to shield complex governmental programs from review under the CHRA. While it noted
that there were many areas of federal jurisdiction in both the public and private sectors in
which protection from discrimination based on social condition could apply, it expressed
concern with the application of the protections of the CHRA in complex areas of social
and economic policy such as income tax and immigration. It also noted in particular that
exemptions should be allowed for programs designed to benefit only certain categories of
the underprivileged, such as employment insurance and training programs. However, it
suggested that such exemptions should be time-limited and subject to regular review and
justification. Its recommendation for exemptions was motivated by concerns that
governments could be discouraged from initiating social programs; that there would be a
greater potential for considerable litigation; that the bona fide justification to
discrimination would be inadequate to address these types of distinctions; and that the
Tribunal would have difficulty weighing complex policy choices. 8
5
La Forest Report, supra note 3 at 107.
Québec (Commission des droits de la personne) c. Gauthier (1993), 19 CHRR D/312 [emphasis in
original].
7
La Forest Report, supra note 3 at 111.
8
Ibid. at 111-12.
6
4
Third, recognizing that the Act cannot alone address the whole reality of poverty,
which also requires broader public and private action aimed at improving the conditions
of the socially and economically disadvantaged, the Panel recommended that social
condition be added to the “affirmative action or equity program defence” in the Act so
that both public and private organizations could be able to carry out affirmative action or
equity programs to improve the conditions of people disadvantaged by their social
condition. 9 Similarly, it recommended that the government review all programs to reduce
the kind of discrimination that is based on social condition and to create programs to deal
with the inequalities created by poverty. Lastly, emphasizing the educational function of
adding the ground, it suggested that the Canadian Human Rights Commission study the
issues identified by social condition, including interactions between this ground and other
prohibited grounds of discrimination, and to consider the appropriateness of issuing
guidelines to specify the constituent elements of this ground. 10
2.
What the Panel Heard During Public Consultations
As part of its study, the Panel developed an elaborate consultation process. It held
roundtable discussions with employers, labour organizations, government departments,
non-governmental groups, and specialists in the area. It also held evening meetings with
members of the general public in six cities across the country. 11 During these
consultations, the Panel heard more about poverty than any other issue. 12 In particular, it
heard evidence of stereotypes and prejudicial attitudes against the poor in general and
social assistance recipients in particular, systemic patterns of discrimination that can
reinforce a cycle of poverty, and the desire for social condition to be included in the
CHRA so that there could be an instrument with which to fight back against a growing
disparity between poor people and the affluent in Canada. 13 However, the Panel also
heard concerns about the ability to effectively define the ground of social condition, the
potential conflict of social condition with the objectives of other laws and governmental
programs and the non-immutability of social condition as a ground of discrimination.
3.
Recommendation of the Panel regarding Social and Economic Rights
Although not expressly part of its mandate, during the public consultations many
participants urged the Panel to consider, in addition to adding social condition as a
prohibited ground of discrimination under the CHRA, the addition of social and
economic rights. In contrast to being protected only from discrimination on a particular
enumerated ground, social and economic rights would create a positive right to a
particular benefit, such as a right to adequate health care, to a minimum standard of
living, to education, or to housing.
9
Ibid. at 110.
Ibid. at 113.
11
Ibid. at 3.
12
Ibid. at 106.
13
Ibid. at 106-110.
10
5
While recognizing a connection between equality issues and social and economic
rights and noting that Canada has existing international human rights obligations in this
area, the Panel declined to recommend inclusion of social and economic rights in the
CHRA. This decision was primarily motivated by concerns of uncertainty as to how they
would be defined, interpreted and applied in the federal sphere, how they would operate
in the legal context of the CHRA, and the political and policy implications of their
inclusion. The Panel concluded:
Concerns such as these lead us to the conclusion that we should not recommend
the addition of social and economic rights at this time and that the Tribunal be
empowered to grant orders enforcing them. However, we do believe there is a role
to be played by the Commission in monitoring Canada’s compliance with
international human rights treaties, either alone or in cooperation with provincial
human rights commissions. 14
4.
(Lack of) A Federal Response to the La Forest Report since 2000
Aside from consequential amendments, the CHRA has not been amended since
the La Forest Report was released in June 2000. Appearing before the House of
Commons Standing Committee on Justice and Human Rights almost a year later, then
Minister of Justice Anne McLellan stated as follows in response to a question from a
committee member:
As you know, I undertook a major review of CHRA, the Canadian Human Rights
Act, under the chairmanship of the former Supreme Court Justice
Gérard La Forest. He and his commission reported to me last June. They have
some 160 amendments for change. In fact, because there are so many
amendments and they are so sweeping in nature, both in terms of the structure of
the commission and the tribunal process as well as substantive grounds, for
example, in relation to the adding of social condition and other things, we are
engaged right now in an interdepartmental process.
His recommendations affect every department of government. There's not one
department or agency that would not in some way be impacted by at least some of
those 160 recommendations. So that process is being led by my department. In
fact that is ongoing. But it is a major process because we have so many people to
talk to. Then we have the federally regulated private sector, which is also dealt
with under the Canadian Human Rights Act—for example, the
telecommunications sector, the banking sector, railways, and so on.
So what we are doing now is engaging that process in relation to the specific
recommendations. But, absolutely, I undertook this investigation because I
believed that some twenty or more years after the CHRA it was time to review it.
I think we've seen recently, from the commission itself commissioning that
14
Ibid. at 116.
6
in-house study of their internal management, that there are issues we need to
address. We want an effective Human Rights Commission. We want an effective
complaint system. We want legislation that reflects the modern realities of
Canadian society.
That's not an easy task, but it's an important task. And in light of some things we
saw last week, at least in terms of processes and structure, we need to work and
move fairly quickly on this.
…I can't promise that I'm going to table proposed amendments to the CHRA. We
may move on some structural changes in September, or even sooner if I could.
In terms of our consultations with other departments and the federally regulated
private sector, I'm not sure we're going to be able to do that by September, but we
are working on it. I give you my word that we are working diligently in terms of
the implications of some of these recommendations. 15
During the 39th Parliament, the issue was revisited in the same Standing
Committee by then Minister of Justice Vic Toews on May 16, 2006. When asked whether
his government would be moving forward on the Review Panel’s recommendation to
include social condition in the CHRA, Minister Toews stated:
On the specific issue with respect to the commission, I will take a look at the
recommendations of Justice La Forest in his report. I can indicate that it is not on
our priority list, but I'm willing to look forward to having any discussion on that
particular issue. 16
Government has since introduced a bill to repeal section 67 of the CHRA, which exempts
from the application of the CHRA any provision of the Indian Act or any provision made
under or pursuant to Indian Act. 17 This was a recommendation of the Review Panel.
However, to date, there has been no government initiative to add social condition as a
ground of discrimination to the CHRA.
Despite the lack of federal government action to implement the recommendation
of the Panel regarding the inclusion of social condition, members of the Bloc Québécois
and the New Democratic Party have regularly raised the issue through private members’
business. 18 The Senate, which originally proposed the addition of social condition with
15
Canada, Parliament, House of Commons, Standing Committee on Justice and Human Rights, Minutes of
Proceedings and Evidence, 37th Parl., 1st sess. (May 16, 2001).
16
Canada, Parliament, House of Commons, Standing Committee on Justice and Human Rights, Minutes of
Proceedings and Evidence, 39th Parl., 1st sess. (May 16, 2006).
17
An Act to amend the Canadian Human Rights Act. Bill C-21. As introduced November 13, 2007
(originally introduced in the House of Commons on December 13, 2006, as Bill C-44) (Canada, 39th Parl.,
2nd sess.), repealing s. 67 of the Act (before the Standing Committee on Aboriginal Affairs as of January
27, 2008).
18
See Antipoverty Act (amendments to the Canadian Human Rights Act and Criminal Code). Bill C-322.
As introduced in the House of Commons June 13, 2006 (Canada, 39th Parl., 1st sess.), adding social
condition as a prohibited ground of discrimination and declaring the refusal by a financial institution to
provide a banking service to an individual by reason only of the individual’s low income to be a
discriminatory practice. Bill C-322 was a reintroduction of Bill C-228 (Canada, 37th Parl., 2nd sess.),
7
its passage of Bill S-11 19 in 1997 (later defeated in the House of Commons), has also
revisited the matter. For instance, during a study on international human rights, the
Senate Standing Committee on Human Rights specifically recommended an immediate
amendment to the CHRA to include social condition as a prohibited ground of
discrimination. 20
Similarly, the Canadian Human Rights Commission has recommended the
inclusion of social condition, 21 which has been conveyed to and encouraged by
international bodies. For instance, in 2006, the International Labour Organization
Committee of Experts on the Application of Conventions and Recommendations noted in
relation to the implementation of the International Labour Organization Convention
No. 111:
The Committee recalls that the Canadian Human Rights Act does not prohibit
discrimination on the grounds of political opinion and social origin. The
government states that the inclusion of social condition has been recommended by
the Canadian Human Rights Commission, and that consultations were undertaken
in 2004 on this issue with a variety of stakeholders, including employers, trade
unions, NGOs and relevant ministries. As a result of these consultations, the
government notes that there is a general recognition of the need to add social
condition as a new prohibited ground. 22
debated once February 4, 2003, but was not votable, and Bill C-326 (Canada, 37th Parl., 1st sess.). See also
Private Member’s Motion M-46, as tabled October 16, 2007 (Canada, 39th Parl., 2nd sess.) by Ms. L.
Davies: That, in the opinion of the House, the government should amend the Canadian Human Rights Act
to include “social condition” as a prohibited grounds of discrimination (not debated as of March 31, 2008).
19
An Act to amend the Canadian Human Rights Act in order to add social condition as a prohibited ground
of discrimination. Bill S-11. As passed by the Senate June 9, 1998 (Canada. 36th Parl., 1st sess.).
20
Canada, Parliament, Senate, Standing Senate Committee on Human Rights, Report (Promises to Keep:
Implementing Canada’s Human Rights Obligations), 37th Parl., 1st sess. (December 2001).
21
Canada, Canadian Human Rights Commission, Annual Report 2003 (Ottawa: Minister of Public Works
and Government Services, 2003) at 53:
There are also other gaps in the legislation that the Commission proposes be filled. Chief among
them is the addition of “social condition” as a ground of discrimination. Since 1976, when Canada
ratified the International Covenant on Economic, Social and Cultural Rights, the government has
had an obligation to look at poverty as a human rights issue. In many respects, Canada has fallen
short in meeting this duty. The United Nations Committee on Economic, Social and Cultural
Rights has commented on the persistence of poverty in our country for particularly vulnerable
groups and has called on Canada to “expand protection in human rights legislation . . . to protect
poor people . . . from discrimination because of social or economic status.”
The Commission is therefore proposing that Parliament consider adding the ground of “social
condition” to the Canadian Human Rights Act to respond to this need. Most provincial human
rights codes include grounds related to poverty, such as “social condition” or “source of income.”
The idea is that a person’s social condition must not be used to discriminate against him or her.
For instance, financial institutions may assume that all people who have low paying jobs are an
unacceptable risk for a loan. Or, an employer may impose unnecessary job requirements that deny
employment to capable people who have low literacy skills as a result of their social disadvantage.
22
International Labour Organization, Comments made by the Committee of Experts on the
Application of Conventions and Recommendations, Direct Request (CEACR 2006/77th Session), online:
ILO <http://webfusion.ilo.org/public/db/standards/normes/appl/appldisplayAllComments.cfm?hdroff=1&ctry=0110&conv=C111&Lang=EN> (date accessed: March 5, 2008).
The Committee concluded: “The Committee notes the importance of prohibiting discrimination on all the
grounds enumerated in the Convention, including political opinion and social origin, and requests the
8
Thus, there continues to be advocacy from many different quarters to add the
ground of social condition to the Canadian Human Rights Act. In addition to the
Canadian Human Rights Commission itself, there is also diverse and widespread support
from other bodies, such as the United Nations Committee on Economic, Social and
Cultural Rights, opposition parties, committees of the Senate, academics and a
wide-range of interest groups concerned with issues of poverty.
B. Overview of Other Developments Since the Panel Report
Outside of the federal government context, other developments that are relevant to
the question of including social condition as a prohibited ground of discrimination
include current demographic trends related to poverty, proposals and changes by human
rights agencies, and academic and other commentary. The two most pressing reasons
cited for the inclusion of social condition are the obligation to line up to our international
commitments and the need to combat discrimination based on social condition, as one
facet of the on-going fight against poverty in Canada.
1.
Context: Statistics and the Face of Poverty in Canada
Since the La Forest Report in 2000, poverty in Canada continues to be a matter of
pressing concern. Approximately 3.5 million Canadians were living in poverty in 2004 −
more than 11% of the population. While the proportion of Canadian families living in
poverty declined slightly, from 8.5% in 2003 to 7.8% in 2004, 684,000 families were
living below the poverty line in 2004 with the rates of poverty highest among female
single-parent families (35.6%). In 2005, nearly 1.7 million Canadians, or 5% of the
population, relied on welfare, including almost half a million children. Notably, annual
welfare benefits for a single person ranged from $3,201 to $7,189 across the provinces
when the low income cut-off determined by Statistics Canada for the same year ranged
from $11,264 to $17,219, depending on where a person lives in the country.
Nevertheless, between 2004 and 2005, welfare benefits for single employable individuals
went down in most provinces. 23
According to one study that looked at the “duration of poverty” between 1999 and
2004, approximately 4.5 million Canadians experienced poverty for at least one year,
challenging the notion that poverty is a temporary or transitory state. Indeed, almost half
a million lived in poverty for all six years of the study and, among children,
121,000 lived in poverty each year over that period. Notably, women were more likely
than men to live in poverty for extended periods of time. Between 1999 and 2004, 2.5%
of women lived in poverty for all six years, compared to 1.8% of men. 24
Government to take the necessary measures to amend the Canadian Human Rights Act to include these
grounds, and to provide information on any action taken or envisaged in this respect.”
23
Canadian Council on Social Development, CCSD’s Stats & Facts: Economic Security − Poverty, online:
CCSD < http://www.ccsd.ca/factsheets/economic_security/poverty/index.htm>.
24
Ibid.
9
In addition, the stratification between the rich and the poor in Canada continues to
widen, making disparities between socio-economic classes more acute. Between 1999
and 2005, the gap between the nation's families with the highest net worth and those with
the lowest widened, in part because of gains in the value of housing; the median net
worth of families in the top fifth of the wealth distribution increased by 19%, while the
net worth of their counterparts in the bottom fifth remained virtually unchanged. In 2005,
the top 20% of families held 75% of total household wealth in 2005, compared to 73%
in 1999 and 69% in 1984, whereas the bottom 20% of families stagnated during the same
period. 25
Statistics such as these led the Quebec Commission of Human Rights to declare
that “[p]overty is the most pressing issue concerning Human Rights and Freedoms in
today’s Quebec,” 26 even though Quebec was the first jurisdiction to recognize social
condition as a prohibited ground of discrimination and is the only jurisdiction to enshrine
economic and social rights in its Charter of Human Rights and Freedoms. 27 In particular,
the Commission notes the strong interrelationship between poverty and the realization of
social inclusion - including the effect of poverty on physical and psychological health, on
fair working conditions, on access to education, and access to justice - and the
intersection between poverty and other grounds of discrimination, noting the
disproportionate number of single mother families, children, older persons, visible
minorities, people with disabilities, and Aboriginal persons affected by poverty.
2.
Commentary by Human Rights Agencies
Against this backdrop, the addition of human rights protection based on social
condition has been considered and recommended by many human rights agencies in
Canada, although only the legislatures in New Brunswick and the Northwest Territories
have acted to legislate protection on this ground since the La Forest Report. Notably, on
May 30, 2001, the Canadian Association of Statutory Human Rights Agencies
(CASHRA) passed a resolution to promote the realization of the obligations in the United
Nations Convention on Economic, Social and Cultural Rights. As described by the
Quebec Human Rights Commission, this included promoting the inclusion of “social
condition” as a prohibited ground of discrimination:
[TRANSLATION]
The resolution adopted by CASHRA, which is based on, among other things, the
experience of Quebec, where social condition is a prohibited ground of
discrimination, puts pressure on the governments concerned to add this ground to
the list of grounds already prohibited by their respective statutes. Moreover, it
commits CASHRA members to using the provisions of the International Covenant
on Economic, Social and Cultural Rights as an interpretive tool in the
25
Canada, Statistics Canada, The Daily: Study: Inequality in Wealth (December 13, 2006),
<http://www.statcan.ca/Daily/English/061213/d061213c.htm> (date accessed: February 10, 2008).
26
Quebec, Commission des droits de la personne et des droits de la jeunesse, Poverty is the Most Pressing
Human Rights Issue in Today's Quebec. Statement issued on the occasion of the World March of Women
Against Poverty and Violence Against Women, (October 2000) online: CDPDJQ
<http://www.cdpdj.qc.ca/en/publications/docs/poverty.PDF> (date accessed: April 20, 2008).
27
Charte des droits et libertés de la personne du Québec, L.R.Q., c. 12, s. 10 [hereinafter Quebec Charter].
10
enforcement and promotion of human rights and to referring to them in all of their
activities. 28
As noted above, the Canadian Human Rights Commission has also proposed,
most recently in its 2004 annual report, 29 that in order for the CHRA to fulfill one of the
five key principles of Canadian human rights reform (i.e. comprehensiveness), it should
be amended to recognize social condition as a prohibited ground of discrimination. In
2004, the Canadian Human Rights Commission conducted a series of public
consultations on the future directions of the Commission. In its consultation document,
Looking Ahead, it noted the following with regard to the issue of adding social condition
to the CHRA as a prohibited ground of discrimination:
There are also gaps in the [CHRA] that the Commission proposes be filled. Chief
among them is the addition of “social condition” as a ground of discrimination.
Since 1976, when Canada ratified the International Covenant on Economic,
Social and Cultural Rights, the government has had an obligation to look at
poverty as a human rights issue. In many respects, Canada has fallen short in
meeting this duty. The United Nations Committee on Economic, Social and
Cultural Rights has commented on the persistence of poverty in our country for
particularly vulnerable groups and has called on Canada to expand protection in
human rights legislation . . . to protect poor people . . . from discrimination
because of social or economic status.
More recently, in April 2006, the Commission appears to have taken a more cautious
approach, noting in its submission to the United Nations Committee on Economic, Social
and Cultural Rights 30 on the Fourth and Fifth Periodic Reports of Canada under the
International Covenant on Economic, Social and Cultural Rights: 31
However, in Canadian law the term “social condition” on its own is a broad and
vague term which does not only refer to persons living in poverty, but also
includes a wide range of groups in our society who do not require the same level
of protection. One important safeguard may be to make it clear that to establish
discrimination on the grounds of social condition, the victim must be a member of
a socially disadvantaged group. In defining social condition in a federal context, it
will be important to carefully consider the complexity of social programs, such as
how the social benefit features of the income tax system could be shielded from
undue interference as a result of human rights claims.
28
As cited in Quebec, Commission des droits de la personne et des droits de la jeunesse, Rapports
d’activités et de gestion 2001 (2002) [French only] at 22.
29
Canada, Canadian Human Rights Commission, Annual Report 2004, (Ottawa: Minister of Public Works
and Government Services, 2005).
30
The Committee on Economic, Social and Cultural Rights is a treaty-based body of the United Nations
that is responsible for monitoring implementation of the International Covenant on Economic, Social and
Cultural Rights.
31
International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21
U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (December 16, 1966), 993 U.N.T.S. 3 (entered into
force: January 3, 1976) [hereinafter ICESCR].
11
The Commission believes that more research is required on a definition of social
condition and its potential impact on other statutes and social programs. As a
starting point, the Commission believes the CHRA should be amended to
eliminate discrimination on the basis of source of income.
At the provincial level, as we noted in our 1999 report, a number of studies
undertaken by human rights agencies have recommended inclusion of social condition,
even though many of these jurisdictions already include protection on more narrowlydefined grounds such as source of income or receipt of public assistance. In British
Columbia, reform was proposed to amend the British Columbia Human Rights Code to
include social condition in 1998. 32 The majority of the submissions heard by the
Commission focused on how the term ‘‘lawful source of income’’ did not adequately
protect poor people from discrimination in accommodation, service, facility, purchase of
property, employment and by unions and associations. 33
In Saskatchewan, the Chief Commissioner of Human rights in Saskatchewan
advocated the inclusion of social condition as a ground in their Human Rights Code,
arguing that differences in social and economic status are as much a source of inequality
as ancestry, gender and disability. 34
In 2001, a report commissioned by the Ontario Human Rights Commission
examined the possibility of including “social condition” within the prohibited grounds of
discrimination at the provincial level. 35 The report found that the addition of social
condition would ensure greater protection of social and economic rights in Ontario,
which currently only offers protection on source of income. According to the report, the
addition of a ground that would deal more directly with the circumstances surrounding
the experience of poverty would give human rights commissions more latitude in
protecting and promoting social and economic rights.
3.
Organizations
The International Centre for Human Rights and Democratic Development,
through its 2004 report entitled Renewing Canada’s Commitment to Human Rights:
Strategic Actions for At Home and Abroad, has commented on the topic of adding social
condition to the federal, provincial, and territorial human rights statutes. Under the
heading of “Urgent and Compelling Concerns”, the report echoes the La Forest Report
and the United Nations Committee on Economic, Social and Cultural Rights, citing
32
See British Columbia, Human Rights Commission, Human Rights for the Next Millennium, (Vancouver;
1998) online: BCHRT < http://www.bchrt.bc.ca/ > at recommendations 9(a), (b) and (c).
33
S. Kilcommins, E. McClean, M. McDonagh, S. Mullally and D. Whelan, Extending the Scope of
Employment Equality Legislation: Comparative Perspectives on the Prohibited Grounds of Discrimination
(Report Commissioned by the Department of Justice, Equality and Law Reform - Ireland) (Dublin:
Stationary Office, 2004), online: <http://www.ucc.ie/en/lawsite/research/research-projects/> (date accessed:
February 4, 2008.) at 77.
34
See Saskatchewan, Human Rights Commission, Annual Report 2000-01, online:
<http://www.shrc.gov.sk.ca/publications.html>.
35
Ontario, Human Rights Commission, Human Rights Commissions and Economic and Social Rights
(2001), online: <http://www.ohrc.on.ca/en/resources/discussion_consultation/EconomicSocialRights/pdf>
(date accessed: April 20, 2008).
12
Canada’s international commitments and its insufficient domestic efforts to reduce
poverty as justification for issuing the following statement,
We urge the Government of Canada, along with the provinces which have
not yet done so, to include social condition as a prohibited ground of
discrimination in their respective human rights legislation.36
The Centre for Equality Rights in Accommodation [CERA] advocates the
inclusion of social condition as being preferable to other more restrictive grounds such as
“source of income” and “public receipt of assistance”. This position is due to the
intersectional aspect of the ground (described below) and CERA’s belief that the
inclusion of social condition will enhance the protection of other grounds. CERA notes
that there has been a tendency, particularly in Quebec, to use social condition as a proxy
for discrimination based on source of income, and thus advocates a broad, liberal and
flexible interpretation of the potential ground. CERA believes that if social condition is
interpreted in this manner, it could prove to be an effective tool for the promotion of
social and economic rights in Canada. 37
These organizations lend their voice to the position advocated by the National
Association of Women and the Law [NAWL] in 1998 and in papers commissioned by the
Status of Women Canada, which we discussed in our 1999 paper. As noted there, these
authors were particularly concerned with the intersection between the ground of social
condition and the socio-economic inequality of women in Canada and advocated the
inclusion of social condition as one element of a broader plan for addressing
socio economic disadvantage. NAWL called upon the Prime Minister as recently as
June 28, 2006 38 to take steps to satisfy the government’s international obligations on
socio-economic rights, including the inclusion of social condition as a protected ground
of discrimination under the CHRA. 39
4.
Academic Commentary
In the past decade, the debate surrounding social and economic rights, including
the possibility of adding social condition to human rights legislation, has received an
increasing amount of attention in academic discourse. There is a remarkable degree of
consensus that something must be done to address the pressing problem of
socio-economic disadvantage in Canada, but predictably somewhat less consensus about
precisely how the issue is best addressed. Nonetheless, what appears from a review of the
academic literature is that the addition of social condition as a prohibited ground of
discrimination in the Canadian Human Rights Act would be a positive step in tackling the
36
Rights & Democracy, Renewing Canada’s Commitment to Human Rights: Strategic Actions for at Home
and Abroad (Montreal: International Centre for Human Rights and Democratic Development, 2004) at 57.
37
Centre for Equality Rights in Accommodation, Human Rights: Prohibited Grounds of Discrimination,
online: Canada Housing Equality Resources
<http://www.equalityrights.org/cher/index.cfm?nav=hr&sub=pro> (date accessed: March 1, 2008).
38
A. Côté, Press release: letter from National Association of Women and the Law to Prime Minister
Stephen Harper (June 28, 2006), online: NAWL <http://www.nawl.ca/ns/en/Actions/act-cescr-en.html>
(date accessed: March 1, 2008).
39
National Association for Women and the Law, Social and Economic Right for Women, online: NAWL
<http://www.nawl.ca/ns/en/is-serights.html> (date accessed: March 1, 2008).
13
problem of social and economic disadvantage. Before we turn our focus to the arguments
made explicitly in this regard, we should take a brief detour through the two other
remedies that have been proposed by academic commentators: economic rights under the
Constitution and positive social and economic rights in human rights legislation.
It is difficult to find a scholar in the field of social and economic rights that does
not advocate the recognition of these rights under the Canadian Charter of Rights and
Freedoms. 40 This predominant view recognizes dually that the best way to address
socio-economic disadvantage is through positive rights and that positive protections, such
as rights to food or shelter, can only be guaranteed in the public domain. This would
seem to suggest the need for government-funded public policy programs, but calls for
such programs often go unheeded: “Poverty and homelessness in Canada is more
abhorrent because it is completely unnecessary and almost invariably a matter of
legislative or administrative choice. Our governments have chosen to ignore the interests
of the most marginalized and disadvantaged groups.” 41 This being the case, academics
such as Bruce Porter argue that these decisions must not be immune from judicial review
under the Charter, and that such review does not exceed the competence or legitimate
role of the courts.
Porter notes a widening gulf between Canada’s human rights culture and the
international human rights movement. 42 This view is echoed by much of the literature on
the Canadian human rights regime. 43 His concern is that our approach thus far to social
and economic rights in Canada leaves us structurally incapable of redressing this gap. He
and other scholars feel that the Canadian Charter of Rights and Freedoms would be the
ideal venue in which to fulfill the promise of international guarantees such as the
International Covenant on Economic Social and Cultural Rights, to which Canada is a
signatory. 44
Courts in Canada need to interpret and apply the rights in the Charter in a
manner that recognizes the interdependence and indivisibility of all human
rights and to bring within its scope critical issues of poverty and
homelessness among vulnerable groups. This means that social and
economic rights such as the right to an adequate standard of living,
including adequate food, clothing and housing, must be recognized as
40
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter]. Indeed, even under the
current Charter equality analysis, there is more that could be done to address the problems of social and
economic disadvantage. See N. Kim & T. Piper, “Gosselin v. Quebec: Back to the Poorhouse”, (2003) 48
R.D. McGill 749.
41
B. Porter, "ReWriting the Charter at 20 or Reading it Right: The Challenge of Poverty and Homelessness
in Canada," Conference Proceedings at the Canadian Charter of Rights and Freedoms, Twenty Years Later
(Ottawa: Canadian Bar Association, 2001).
42
B. Porter, "Judging Poverty: Using International Human Rights Law to Refine the Scope of Charter
Rights" (2000) 15 J. of Law & Soc’l Pol. See also M. Jackman and B. Porter, “Socio-Economic Rights
Under the Canadian Charter” in M. Langford, ed, Social Rights Jurisprudence: Emerging Trends in
International and Comparative Law (New York: Cambridge University Press, 2007).
43
B. Porter, "Socio-Economic Rights Advocacy - Using International Law: Notes from Canada" (1999) 2
Economic and Social Rights Review, online: CERA <http://www.equalityrights.org/cera/docs/treaty.htm>
(date accessed: April 20, 2008). See also L.A. Iding, “In a Poor State: The Long Road to Human Rights,”
(2003) 41 Alta. L. Rev. 513 – 525.
44
M. Jackman and B. Porter, supra note 42.
14
rights which can be claimed and adjudicated by way of existing Charter
rights, as well as through other areas of law. 45
Constitutional protection is an ambitious goal, with which we do not disagree, however,
practicality sometimes may require a more incremental approach to change.
For instance, Lynn Iding agrees that positive economic rights must be interpreted
to exist under the Charter, but equality protections in human rights legislation can also
have a positive impact:
The line between negative and positive rights is not always clear.
Prohibition of discrimination, if applied to its full extent, may have the
implicit effect of creating a positive right if the only thing preventing a
claimant from accessing the goal in question is discrimination. 46
In other words, protection from discrimination can have substantive results through
human rights regimes, which also have the benefit of dedicated administrative resources
and jurisdiction over public and private actors.
The notion of the false dichotomy between negative and positive rights – the
indivisibility of human rights – has also been cited by others as a justification for taking
the step towards broader social and economic rights protection under the Charter and the
CHRA, which already recognize the obligation for substantive equality protections.
Martha Jackman argues that “recognizing social and economic rights as fundamental
components of equality rights is consistent with the evolving equality rights analysis of
the Supreme Court of Canada, as well as with its emerging jurisprudence on the role of
international law in interpreting the Canadian Charter and human rights legislation.” 47
Thus, including such positive rights in human rights legislation would affirm the inherent
connection between social and economic rights and equality rights, ensuring that
protection for claimants is real and not downgraded to mere lip service to “principles” 48
and, perhaps most importantly, ensuring access to justice. Jackman states:
A procedure for claiming social and economic rights must respond to the
needs of the most disadvantaged members of society. Human rights
tribunals are more accessible, less expensive and less tied to legal
procedures than are the courts. Advocates before human rights tribunals do
not need to be lawyers, and tribunal members can be chosen for their
expertise in human rights, without the requirement that they have formal
legal training or accreditation. Racialized women, women with disabilities,
and other members of equality seeking groups are better represented on
human rights tribunals than on courts. Human rights tribunals will therefore
45
B. Porter, supra note 42 at 3.
L. Iding, supra note 43 at para 22.
47
M. Jackman and B. Porter, "Women's Substantive Equality and the Protection of Social and Economic
Rights Under the Canadian Human Rights Act," in Women and the Canadian Human Rights Act: A
Collection of Policy Research Reports (Ottawa: Status of Women Canada, 1999) at 10. See also Health
Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391,
[2007] 2 S.C.R. 391, 2007 SCC 27 [hereinafter “Health Services”]..
48
M. Jackman and B. Porter, ibid. at 10.
46
15
provide a more accessible and responsive forum for the consideration of
social and economic rights claims. 49
These arguments have also led legal scholars to advocate the much more straightforward
inclusion of “social condition” or “poverty” in human rights legislation as a pragmatic
and feasible part of a more comprehensive scheme involving not only the administrative
branch of government, but also the executive and the courts.
Some time ago Martha Jackman posited that the failure to include poverty under
provincial and federal human rights codes constitutes a violation of section 15 of the
Charter. 50 She encouraged the courts to read into human rights codes “poverty” as a
prohibited ground of discrimination. Jackman supports the use of human rights codes to
provide protection to Canadians living in poverty since the codes prohibit discrimination
on the basis of “services, goods and facilities; discrimination in accommodation and
employment; and discriminatory publications”. 51 Hence, human rights codes, in addition
to being more accessible, have a more direct impact on the daily interactions of
Canadians living in poverty. Jackman highlights that legislation protecting historic and
systemic discrimination has not helped those whom she believes are suffering from the
greatest disadvantage. She concludes that such an omission “reflects, reinforces, and
facilitates continued systemic bias against them in Canadian society”. 52
In a similar vein, Sheilagh Turkington has advocated the expansion of the grounds
of discrimination under the Ontario Human Rights Code to include poverty. 53 According
to Turkington, one of the benefits of including “povertyism” in human rights legislation
is that complainants are given access to the remedial potential of Boards of Inquiry which
can, among other remedies, require extensive education and training on “issues
surrounding the protected ground found to have been discriminated against”. 54 Another
benefit of the remedial powers of the Boards of Inquiry is the power of on-going
monitoring. Turkington also highlights the mandate of a human rights commission to
educate and the role this could play in opening dialogue and fostering understanding.
Finally, including a ground of poverty would allow a mechanism for individuals living in
poverty to gain access to the goods, services and facilities which they may have
otherwise been denied. Turkington emphasizes that the inclusion of “povertyism” in the
provincial human rights code must be borne of a process of consultation with those who
would be affected by its inclusion, the poor. Hence “the addition of ‘poverty’ cannot be a
strictly legal strategy; it must be primarily both social and political.” 55 Finally, echoing
the general view in the academic literature, she argues that reform of human rights codes
(by adding poverty as a prohibited ground of discrimination) should only be seen as one
element of an overall strategy to eliminate poverty, not as a solution in and of itself.
49
Ibid. at 21.
M. Jackman, “Constitutional Contact with the Disparities in the World: Poverty as a prohibited ground of
discrimination under the Canadian Charter and human rights law,” (1994) 2 Rev. Const. Studies 76.
51
Ibid. at 111.
52
Ibid.
53
S. Turkington, “A Proposal to Amend the Ontario Human Rights Code: Recognizing Povertyism”,
(1993) 9 J. L. & Soc Pol’y 134.
54
Ibid. at 169.
55
Ibid. at 177.
50
16
The arguments of both Jackman and Turkington highlight the unique forum of
human rights commissions for addressing the situation of social and economic
disadvantage and social condition. This in turn raises the important issue of institutional
competence, which also has been addressed in the academic literature. Human rights
scholar A. Wayne MacKay argues that “due to their flexibility and accessibility, Human
Rights Tribunals should supplement the role of the courts and legislatures in giving effect
to social and economic rights, which should form part of a holistic package of rights in
Canada.” 56 Not only does implementation of social and economic rights through
administrative tribunals respect the principle of legislative supremacy, they also provide
more flexibility in remedies and dispute resolution mechanisms. Furthermore, human
rights tribunals have additional jurisdiction over the private sector, and are more
accessible to claimants in terms of costs than the courts. Thus, the addition of social
condition to the CHRA would provide a dimension of supplemental protection to
Canadians which is currently lacking in the federal human rights scheme, while
remaining consistent with it. This sentiment was echoed by the Review Panel in the
La Forest Report:
None of the current grounds are specifically economic in nature. However,
we certainly came to understand the close connection between many of the
current grounds and the poverty and economic disadvantage suffered by
those who share many of the personal characteristics already referred to in
the Act. 57
Murray Wesson puts the protection afforded in a slightly different way.
“Dignity”, he argues, “is the touchstone of equality”. 58 Equality must refer to equality of
something – be it resources, or opportunity. In a sense, social and economic rights aim at
both of these. The addition of social condition as a prohibited ground of discrimination in
the CHRA also aims for equality of dignity and that is certainly an integral piece in the
larger puzzle of addressing social and economic disadvantage. To meet this objective,
Wesson proposes that social condition be defined as “those individuals who cannot
reasonably be expected to meet their socio-economic needs with their own resources.” 59
In other words, it would include both those reliant on social services and those who need
them. While Wesson is one of few commentators that actually propose a definition of
social condition, the emphasis on socio-economic disadvantage by all of the above
commentators is consistent with the current approach to defining social condition in those
jurisdictions that recognize it, which we will discuss in the next section.
56
A. Wayne MacKay, “Social and Economic Rights in Canada: What Are They and Who Can Best Protect
Them?” Canadian Issues (Montreal: Fall 2007) 37- 41, at 37.
57
La Forest Report, supra note 3 at chapter 17e.
58
M. Wesson, “Social Condition and Social Rights” (2006) 69 Sask. L.R. 101 at para 5.
59
Ibid at 106, para 16.
17
II. What is Social Condition and how has it been Defined?
A. Context: The Broad and Purposive Approach to Anti-Discrimination Laws
At least since the 1960s, Canada has attacked the pernicious problems of
discrimination by way of increasingly comprehensive human rights codes. The high cost
and limited success of pursuing discrimination complaints in courts 60 and the relative
ineffectiveness of quasi-criminal statutes, led to the adoption of an administrative model
in the form of human rights commissions. These commissions have a multi-faceted
mandate including the resolution of individual complaints, advice to governments,
education and community outreach. These agencies were intended to be more accessible
to the victims of discrimination and in theory provide more speedy resolution of disputes.
The focus of the commissions’ work is conciliatory and settlement-focused but more
adversarial and adjudicative tribunals are available as a harder-line approach or, as the
late Walter Tarnopolsky called it, as the “iron hand in the velvet glove.” 61
Over the years, human rights codes became increasingly comprehensive as more
grounds of discrimination were added and the number of complaints grew. The range of
services offered by human rights commissions also grew, although there was not always a
corresponding increase in their budgets. The comprehensive nature of human rights codes
was judicially noted in the Supreme Court of Canada as a central reason for denying a
claim for a tort of discrimination in the courts.62 However, courts as well as commissions
have continued to play an important role in shaping human rights law as courts must
interpret the scope of the statutes and be available for review and appeal of Commission
and Tribunal decisions.
Human rights statutes in Canada cover three primary areas, including
employment, accommodations, and services, both in the public and private sectors. The
purpose of this comprehensive scheme can be best explained by section 2 of the CHRA:
2. The purpose of the 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. 63
The Commission, on behalf of the complainant, must establish that the respondent
discriminated, directly or indirectly, on a prohibited ground under the CHRA. The
60
Christie v. York [1940] S.C.R. 13.
W. Tarnopolsky, “The Iron Hand in the Velvet Glove”: Administration and Enforcement of Human
Rights Legislation in Canada” (1968), 46 Can. Bar Rev. 565.
62
Seneca College v. Bhaudaria [1981] 2 S.C.R. 181.
63
CHRA, supra note 1, s. 2 as am. by S.C. 1996, c. 14, s.1.
61
18
discrimination caused by the practice of the respondent must be one included under the
provisions and jurisdiction of the CHRA. The pursuit of substantive equality for all
persons has been primarily affected by giving human rights legislation a broad and liberal
interpretation.
Human rights statutes were designed to be remedial and focused on compensating
the victims rather than punishing the perpetrators of discrimination and the courts
adopted a broad and purposive interpretation of these statutes. Discrimination was
broadly defined as being both intentional and unintentional, so that actions or rules with
an unintended adverse effect on particular groups or individuals were found to also be a
violation of the statutes. Indeed, the courts have treated human rights codes as
quasi-constitutional in nature and thus above a regular statute while being less than
constitutional in nature. As quasi-constitutional documents, human rights codes enjoy
similar principles of interpretation afforded to constitutional documents, including a
“large and liberal”, purposive and contextual approach. This principle was best described
by McIntyre J. in O’Malley regarding the Ontario Human Rights Code:
The accepted rules of construction are flexible enough to enable the Court
to recognize in the construction of a human rights code the special nature
and purpose of the enactment … and give to it an interpretation which will
advance its broad purposes. Legislation of this type is of a special nature,
not quite constitutional but certainly more than the ordinary -- and it is for
the courts to seek out its purpose and give it effect. The Code aims at the
removal of discrimination. This is to state the obvious. Its main approach,
however, is not to punish the discriminator, but rather to provide relief for
the victims of discrimination. It is the result or the effect of the action
complained of which is significant. If it does, in fact, cause discrimination;
if its effect is to impose on one person or group of persons obligations,
penalties, or restrictive conditions not imposed on other members of the
community, it is discriminatory. 64
The result of this approach is to ensure the intent and purpose of the CHRA – to eliminate
discrimination – is given effect and respect without being unduly restricted by strict rules
of interpretation.
However, commissions have to balance the protection of people against
discrimination, with the fair treatment of those who have allegedly discriminated. 65 One
way of providing this balance is to provide reasonable defences to employers and service
providers in both the public and private sectors. In addition to some specific defences for
mandatory retirement (in some cases), pension schemes, and valid equity programs, the
main justifications are in the form of bona fide justifications or qualifications. The burden
of establishing these justifications rests with the respondents to establish on a balance of
probabilities, once the claimant has proven discrimination on a similar standard of proof.
64
O’Malley v. Simpsons Sears [1985] 2 S.C.R. 536 at 547. [Emphasis added.]
The difficulty of striking this balance is exemplified in Blencoe v. British Columbia (Human Rights
Commission), [2000] 2 S.C.R. 307.
65
19
It is noteworthy that these justifications are not called defences because if a justification
is established there is deemed to have been no discrimination at the end of the day.
Bona fide justifications used to be reserved for cases of direct or intentional
discrimination while a duty to accommodate up to the point of undue hardship was used
for cases of indirect or adverse effects discrimination. There is now one unified
justification test for discrimination whether the form of discrimination is direct or
indirect. In a pair of cases, Meiorin 66 and Grismer, 67 the Supreme Court articulated the
test in the following terms:
1. Whether or not the standard (procedure) was adopted for a purpose rationally
connected to performance of the function being performed;
2. Whether the particular standard was adopted in a good faith belief that it is
necessary to the fulfillment of the legitimate purpose or goal;
3. Where the standard is reasonably necessary to accomplish the legitimate purpose
or goal, the defendant may claim it cannot accommodate persons with the
characteristics of the claimant without incurring undue hardship, whether the
hardship takes the form of impossibility, serious risk or excessive cost. 68
This is a high standard to meet and it has essentially been incorporated directly
into section 15 of the Canadian Human Rights Act. 69 The effect of this new test for
justification is to emphasize a point made earlier in Central Okanogan School District v.
Renaud 70 that some degree of hardship on the part of both public and private respondents
is acceptable and to justify alleged discrimination the respondent must show that the
burden is undue, even after all available options have been explored. As part of
promoting human rights, justifications, unlike the grounds of discrimination, are to be
strictly construed.
The flavour of the Meiorin decision is revealed in the following quotations from
the case, which started as a decision by a human rights tribunal based upon a complaint
of sex discrimination. Madam Justice McLachlin, speaking for the Court, makes the
following statements about the nature of equality and discrimination:
41 Although the practical result of the conventional analysis
may be that individual claimants are accommodated and the
particular discriminatory effect they experience may be
alleviated, the larger import of the analysis cannot be ignored. It
bars courts and tribunals from assessing the legitimacy of the
standard itself. Referring to the distinction that the conventional
analysis draws between the accepted neutral standard and the duty
to accommodate those who are adversely affected by it, Day and
Brodsky, supra, write at p. 462:
66
British Columbia v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 [hereinafter “Meiorin”].
B.C. Superintendant of Motor Vehicles v. B.C. (Council of Human Rights), [1999] 3 S.C.R. 868
[hereinafter “Grismer”].
68
Ibid.
69
CHRA, supra note 1, s. 15.
70
[1992] 2 S.C.R. 970 at 974.
67
20
The difficulty with this paradigm is that it does not challenge
the imbalances of power, or the discourses of dominance, such as
racism, able-bodyism and sexism, which result in a society being
designed well for some and not for others. It allows those who
consider themselves "normal" to continue to construct institutions
and relations in their image, as long as others, when they
challenge this construction are "accommodated".
Accommodation, conceived this way, appears to be rooted in
the formal model of equality. As a formula, different treatment
for "different" people is merely the flip side of like treatment for
likes. Accommodation does not go to the heart of the equality
question, to the goal of transformation, to an examination of the
way institutions and relations must be changed in order to make
them available, accessible, meaningful and rewarding for the
many diverse groups of which our society is composed.
Accommodation seems to mean that we do not change procedures
or services, we simply "accommodate" those who do not quite fit.
We make some concessions to those who are "different", rather
than abandoning the idea of "normal" and working for genuine
inclusiveness…
42 This case, where Ms. Meiorin seeks to keep her position in a
male-dominated occupation, is a good example of how the
conventional analysis shields systemic discrimination from
scrutiny. This analysis prevents the Court from rigorously
assessing a standard which, in the course of regulating entry to a
male-dominated occupation, adversely affects women as a group.
Although the government may have a duty to accommodate an
individual claimant, the practical result of the conventional
analysis is that the complex web of seemingly neutral, systemic
barriers to traditionally male-dominated occupations remains
beyond the direct reach of the law. The right to be free from
discrimination is reduced to a question of whether the
"mainstream" can afford to confer proper treatment on those
adversely affected, within the confines of its existing formal
standard. If it cannot, the edifice of systemic discrimination
receives the law's approval. This cannot be right. 71
These observations about the nature of equality, the purpose of accommodation and the
value of a substantive effects-based analysis are valuable in understanding the
sometimes-subtle process of exclusion. Acknowledging that the advocated purpose of
human rights legislation is the “removal of discrimination”, accommodation, and
substantive social equality, the inclusion of “social condition” in the CHRA would
certainly be an appropriate means to this end.
71
Meiorin, supra note 66 at paras. 41-42.
21
Justifications within human rights codes can be distinguished from the section 1
reasonable limits clause in the Charter of Rights by the broader societal focus of the
latter. Justifications are to be considered in the specific context of the case in issue
whereas the broader language of section 1 of the Charter allows for larger policy
considerations (even beyond the particular case in issue) to be weighed in the balance. In
spite of this distinction, some provinces, such as Nova Scotia and Alberta, do provide a
reasonable limits defence within their statutes. 72 The possible inclusion of this larger
defence was advocated in our earlier paper to the La Forest Review Panel and will be
discussed later on in the section on recommendations. 73
This rather lengthy contextual analysis is intended to set the stage for the need to
define social condition in a manner that fits within the equality world as articulated in the
various human rights codes and the Charter of Rights. The broad definition of economic
and social rights as defined at the international level (discussed later) does not fit as
easily within the current model. Economic and social rights are defined internationally as
positive rights that would entitle people to programs, services and benefits that go beyond
rights of non-discrimination. This would involve human rights commissions in a
regulatory role that would involve changes to the administrative structure that go beyond
the mandate of this study. We will also return to this point in the recommendations
section.
B. Provincial Approaches
1.
“Social Condition”
a) Quebec
In our 1999 paper, we provided a comprehensive review of the Quebec
experience with the inclusion of social condition as a prohibited ground of
discrimination, which has been part of the Quebec Charter of Human Rights and
Freedoms since its adoption in 1975. 74 Section 10 reads:
10. Every person has a right to full and equal recognition and exercise of his
human rights and freedoms, without distinction, exclusion or preference based on
race, colour, sex, pregnancy, sexual orientation, civil status, age except as
provided by law, religion, political convictions, language, ethnic or national
origin, social condition, a handicap or the use of any means to palliate a handicap.
Discrimination exists where such a distinction, exclusion or preference has the
effect of nullifying or impairing such right.
The non-discrimination right in section 10 is exercisable as a modality of a certain right,
such as the right to non-discrimination in employment (sections 16 to 19), in the
completion of a juridical act, such as a contract for goods, services or accommodations
(sections 12 to 13), or in the posting of notices (section 11). While there is a general
72
Human Rights Act, R.S.N.S. 1989, c. 214, s. 6(f)(ii), as am. by S.N.S. 1991, c. 12 and Alberta Human
Rights, Citizenship and Multiculturalism Act R.S.A. 1980, c. H-11.7, s. 11.1.
73
A.W. MacKay, T. Piper and N. Kim, supra note 4 at 151-153.
74
Quebec Charter, supra note 27, s. 10.
22
defence provision at section 9.1 for the exercise of “fundamental freedoms and rights”
(i.e. those in sections 1 to 9, such as freedom of expression), 75 the equality provisions in
the Quebec Charter are made explicitly subject only to specific exceptions, such as
discriminating on the basis of age as provided by law (section 10), leasing rental premises
to a family member (section 14), making distinctions in employment based on aptitudes
or for an ameliorative purpose (section 20), or making distinctions on specified grounds
based on actuarial data in an insurance or pension plan (section 20.1). Consistent with
Supreme Court jurisprudence on section 10, the Quebec tribunal and courts generally
approach section 10 on the basis of a three-part test:
It appears from s. 10 of the Charter of human rights and freedoms that three
elements are necessary to establish discrimination: (1) a “distinction, exclusion or
preference”, (2) based on one of the grounds listed in s. 10, and (3) which "has the
effect of nullifying or impairing” the right to full and equal recognition and
exercise of a human right or freedom. 76
Recently, the Supreme Court of Canada has also confirmed that the Meorin approach
should apply equally in the Quebec context. 77
At the time of our 1999 research paper, Quebec was the only jurisdiction in
Canada with social condition protection and through judicial consideration, academic
analysis and the issuing of guidelines by the Quebec Commission, a definition of the
ground was formulated over the course of approximately 20 years. The key elements that
are defined as part of “social condition” include:
An objective component regarding the economic rank or social standing
of an individual based on factors such as income, occupation or level of
education and a subjective component regarding the value attributed to
an individual based on social perceptions or stereotypes associated with
factors such as income, occupation or level of education; 78 in other
words, level of income may be an objective element of social condition
but it is the impact of that level on the position a person holds in society
that is an element of social condition; 79
75
Ibid., s. 9.1. Section 9.1. reads:
9.1 In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for
democratic values, public order and the general well-being of the citizens of Québec.
In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by
law.
In Irwin toy ltd. v. Quebec (Attorney general), [1989] 1 S.C.R. 927, the Supreme Court applied section 9.1
to justify a limit on freedom of expression under the Quebec Charter in the same way it applied section 1
under the Canadian Charter.
76
Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90, applied more recently in Brossard (Town) v.
Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279
77
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc.,
[2003] 3 S.C.R. 228 at para. 12.
78
See Gauthier, supra note 6, Centre Hospitalier Regina Limitée c. Commission des droits de la personne
du Québec et Laurin (1985), 7 C.H.R.R. D/3359, D’Aoust c. Vallières, (1994) 19 CHRR D/322 (TDPQ),
Leroux et CDPQ c. J.M. Brouillette Inc., [1994] JTDPQ No. 16.
79
Québec (CDP) c. Whittom (re Drouin), [1997] A.Q. No. 2328 (C.A.). Put another way, Alberte Ledoyen
in La Condition sociale comme critère de discrimination : document de travail (Montreal: Commission des
23
-
Social condition is more dynamic than the concept of social origin; it
encompasses one’s social origin and refers to a present situation rather
than one’s background or history; 80
-
Social condition should be looked at holistically and based on the
ensemble of factors within the social context; not all criteria (e.g.
income, occupation and education) need be present to establish
discrimination based on social condition 81 and an openness to looking at
the multiplicity of factors influencing discrimination should be
encouraged; 82
-
Social condition can be a temporary state and need not be immutable like
sex or race; 83 and
-
All members of a certain social condition need not be targeted by the
measure nor need social condition be the only basis for discrimination. 84
In summary, the Quebec definition of social condition includes both social and
economic aspects and is much more dynamic and flexible than more traditional grounds
of discrimination, such as sex or race, may be. Moreover, the case law developed to
approach social condition in a manner that emphasized the purpose of human rights
legislation, 85 rejecting early decisions that indicated a doctor’s level of income 86 or being
droits de la personne, January 1994) at 8, emphasized the need to examine social condition in the context of
socio-economic hierarchal structures in society:
[TRANSLATION]
It should be borne in mind that, according to the dictionary, the term (social) “condition” refers to
any situation that has an impact on the place attributed to a person within a social hierarchy. The
definition of the concept covers both objective (situation) and subjective elements (attributed). As
social condition is attributed to a person, a person’s social condition therefore results from a
judgment made about that person, associating his or her objective situation with a specific social
category, which stems from a mental reference scheme. … This social hierarchy and the positions
it implies are the result of visions of the world specific to that type of society, that is, a particular
cosmogony, source of social tradition and organization, that legitimizes individual and collective
social positions.
80
Gauthier, supra note 6; D’Aoust, supra note 78; Quebec, National Assembly, Commission permanente
de la Justice, Journal des débats (3rd sess., 30th leg.) at B-5044 (J. Morin).
81
Gauthier, supra note 6.
82
Quebec, Commission des droits de la personne et des droits de la jeunesse, Lignes directrices sur la
condition sociale (March 2004) [hereinafter “Lignes directrices”].
83
Gauthier, supra note 6.
84
Guay et Commission des droits de la personne et des droits de la jeunesse c. Briand, [1997] JTDPQ
No. 18.
85
See e.g. Couet c. Québec (Procureur général), [1997] A.Q. No. 3559, finding that the status of being a
“snowbird” could not found a claim based on social condition because it did not engage social prejudices
based on one’s place in society, education or income.
86
Guimond c. Université de Montréal, [1985 ] 1985-03-29 (C.S.). But see Skelly and Quebec Human
Rights Commission v. O’Hashi, [1996] JTDPQ No. 32 at para. 62, finding that there was no harassment
based on social condition by a doctor towards a nurse because “we are dealing with a nurse and a doctor,
24
a judge 87 could constitute a social condition deserving of human rights protection or that
found that being a recipient of social assistance was not a social condition. 88
Since our 1999 paper, Quebec courts and the Tribunal have consistently
confirmed the broad definition of social condition aimed at situations of socio-economic
disadvantage. Receipt of social assistance has repeatedly been found to be a social
condition by the Tribunal and the courts. This has occurred most often in the area of
tenancy where landlords have refused to rent premises to social assistance recipients
based on assumptions of their ability to pay, 89 even if it was only an influential factor in a
discriminatory practice. 90 Receipt of social assistance was also found to ground a
complaint of discrimination in the context of services in Sejko c. Gabriel Aubé inc. In that
case, a company refused to complete a purchase contract with a social assistance recipient
because of assumptions that she had more free time to cause problems given that she was
not employed. 91 In Lambert c. Québec (Procureur général), the Quebec Court of Appeal
found that a distinction on social condition existed against beneficiaries of a work
assistance program receiving public assistance because they were paid an hourly wage
lower than the minimum wage. However, in that case, the Court decided no
discrimination existed because the program was designed to benefit participants in the
program so the distinction did not offend human dignity.92
In addition to receipt of public assistance, one’s type of occupation was found to
ground a claim in social condition in Bia-Domingo c. Sinatra. 93 The Tribunal found that
a landlord discriminated in refusing to rent to a freelance writer whose type of work was
associated with a low level of income. Drawing on expert evidence presented by the
Commission, the Tribunal noted that freelance or precarious work fit within the
recognized definition of social condition:
[TRANSLATION]
Freelance work and precarious work therefore entail some of the elements of
social condition, essentially type of employment and the low income generated by
such work. Furthermore, the situation of freelance workers whose employment is
precarious also entails a subjective element, as perceptions are connected to the
various objective data. Consequently, the Tribunal concludes that individuals who
are freelancers whose employment is precarious and characterized by low income
two professionals working in the field of health care services. Although their respective duties are different,
both of them have substantially the same social condition.”
87
Droit de la famille - 1473, (1991) R.D.F. 691 (C.S.); see Vaillancourt c. Centre communautaire juridique
Laurentides-Lanaudière, J.E. 93-1412 (C.S.), where being an articling student compared to a full member
of the Bar could not find a claim based on social condition.
88
Québec (Commission des droits de la personne) c. Paquet, (1981) 2 C.H.R.R. D/444 (C.P.), overturned
in Gauthier, supra note 6.
89
See e.g. J.M. Brouillette, supra note 78; Reeves et Québec (CDPDJ) c. Fondation Abbé Charles-Émile
Gadbois, [2001] JTDPQ No. 13; Lavigne et Québec (CDPDJ) c. Latreille, [2000] JTDPQ No. 12.
90
Commission des droits de la personne et des droits de la jeunesse c. Huong, [2005] JTDPQ No. 4, at
para. 33: [TRANSLATION] “The Tribunal wishes to point out that it is not necessary for a refusal to rent
an apartment to be entirely based on a discriminatory ground: it suffices, in fact, for the discriminatory
ground to have influenced the decision.”
91
Sejko c. Gabriel Aubé inc., [1999] JQ No. 2858 (CQ).
92
Lambert c. Québec (Procureur général), [2002] JQ No. 364 (C.A.) leave to appeal to SCC dismissed:
[2002] CSCR no 228. See further infra Part II,C,1,c).
93
Bia-Domingo et Québec (CDPDJ) c. Sinatra, [1999] JTDPQ No. 19.
25
may, under the Charter, be protected against discrimination based on social
condition. 94
The Tribunal also emphasized that social condition must be interpreted with sufficient
flexibility to assure continued protection in the context of evolving political and social
circumstances. 95 This is consistent with the broad purposive approach taken to both the
Canadian Charter of Rights and human rights code interpretation.
In line with this approach and in contrast with early cases on social condition, the
courts have been reluctant to find that a professional occupation characterized by a higher
level of income constitutes a social condition. For instance, in Ordre des comptables
généraux licenciés du Québec c. Procureur général du Québec, the Court of Appeal
found being a licensed as opposed to a chartered accountant was not a social condition. 96
While noting that one’s profession can influence one’s social condition, the court
emphasized the purpose of the CHRA to protect vulnerable groups in society who cannot
easily escape their condition:
[TRANSLATION]
This is quite different from the notion of social condition as defined by case law.
That notion generally refers to rank, a person’s place in society. In the more
specific context of an allegation of discrimination, this notion has been applied to
disadvantaged or vulnerable individuals who suffer rather than benefit from their
social condition. 97
Similarly, the Court of Appeal found that being an optician who is charged higher
professional fees for having multiple places of business was not a social condition. 98 This
is in line with the approach rejecting that one’s occupation or level of income alone, apart
from social perceptions related to it, can constitute a social condition. 99
As noted in our 1999 paper, the Court of Appeal recognized in Levesque v.
Quebec (Attorney General), that the status of a student could be a social condition,
although it was not found to be in that case where a student was cut off social assistance
because she went back to school full-time and could benefit from student aid. 100 More
recently, in 2003, the Court of Appeal affirmed that level of education could determine
one’s social condition, but found it did not in the context of an automobile accident
94
Ibid. at paras. 55-56. See also Lignes directrices, supra note 82 at 8: [TRANSLATION] “In other words,
only precariousness combined with a low-paying job is likely to be considered to be the equivalent of a
poor economic condition.”
95
Bia-Domingo, ibid. at para. 45.
96
Ordre des comptables généraux licenciés du Québec c. Procureur général du Québec, [2004] J.Q.
No. 4881 (C.A.).
97
Ibid. at para. 70.
98
Farhat c. Ordre des opticiens d’ordonnances du Québec, [1998] A.Q. No. 3661.
99
See Québec (Procureur général) c. Modes Cohoes Inc., [1993] A.Q. No. 1852 (C.A.) at para. 17 :
[TRANSLATION] “Moreover, the appellant cannot argue that the right to earn a living is included in the
ground of social condition, as … our Court has already described the factors for evaluating “social
condition”, which are far from being limited to a person’s income; see also Patry c. Barreau du Québec,
[1991] A.Q. No. 1237 (Que. C.S.), finding that refusal of membership to the Bar because one was a police
officer was not discrimination based on social condition because there was no reference to the class or
social rank of the plaintiff.
100
(1987), 10 Q.A.C. 212 (C.A.).
26
insurance indemnity scheme where indemnities were accorded at different levels based
on one’s level of education. 101 Indeed, despite this openness to the possibility expressed
by the Court of Appeal, there does not appear to be a case where the status of student or
one’s level of education was found to ground a finding of discrimination based on social
condition. Two cases found that it was not discrimination based on social condition to
require a certain level of education for employment or membership in a profession. 102
Indeed, in 2007, the Court of Appeal appeared to take a different approach in finding that
the status of student could not be a social condition because it was deliberately chosen
and could be changed, 103 seemingly contradicting its past recognition that being a student
could be a social condition and that social condition could encompass temporary states.
In contrast, the courts have been consistent in continuing to find that having a
criminal record does not come within the definition of social condition. As in other early
cases, in 1981 in Commission des droits de la personne du Québec v. Ville de Beauport,
it was held that a criminal record stems from one’s unlawful conduct rather than one’s
social rank:
. . . discrimination based on an individual’s criminal record is not based on the
individual’s “social condition”, because it is not based on the position that he or
she holds in society; rather, it is based on the unlawful conduct engaged in by the
individual, regardless of the position he or she occupies in the social order. 104
In 1982, the Quebec National Assembly rejected a recommendation by the Quebec
Commission that the Quebec Charter be amended to state that social condition should be
interpreted as including having a criminal record, opting instead to enact section 18.2 of
the Charter, which provides a limited protection against discrimination based on criminal
conviction in the realm of employment. 105 Courts have taken this as a confirmation that
having a criminal record cannot be the basis of discrimination based on social condition.
For instance, in Wagner c. ING, Le Groupe Commerce, Cie d’assurance, the Court of
Quebec found that it was not discriminatory for an insurance company to treat a contract
as void ab initio because the complainant did not disclose her partner’s criminal record. It
held:
[TRANSLATION]
Having one or more criminal records is also not a social condition within the
meaning of section 10 of the Charter of human rights and freedoms. One cannot
101
Champagne c. Société de l’assurance automobile du Québec, [2003] JQ No. 13948 (C.A.).
Québec (Procureur général) c. Choinière, [1999] JQ No. 766 (C.S.), where preference was given to
college graduates in a public service competition; Fleurent c Association des courtiers et agent immobiliers
du Québec, [2004] JQ No. 3902 (C.S.), where college courses were required for admission into the
profession.
103
Harvey c. Québec (Procureur général), [2007] JQ No. 892 (C.A.), rejecting an application for a class
action on behalf of students who were prevented from paying into the Quebec Pension Plan under the Loi
sur le régime de rentes du Quebec, which only workers paid into.
104
[1981] C.P. 292, as translated in Maksteel, supra note 77.
105
Quebec Charter, supra note 27, s. 18.2. Section 18.2 currently reads: “No one may dismiss, refuse to
hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a
penal or criminal offence, if the offence was in no way connected with the employment or if the person has
obtained a pardon for the offence.”
102
27
conclude otherwise, as it would mean granting a right to a person who has broken
social rules designed to ensure the protection and fulfillment of all individuals
simply because the particular situation of being a convicted offender has been
integrated into social condition. 106
In the same vein, in St-Jacques c. Phil Larochelle Equipement Inc, the Tribunal held that
being charged with an offence, as opposed to having a criminal conviction, could not be a
social condition. 107
In summary, while the definition of social condition has remained relatively stable
over the last decade or so and has emphasized a purposive approach in protecting
vulnerable socio-economic groups, the cases have also tended to confine social condition
almost exclusively to the receipt of social assistance. The Bia-Domingo case recognized
that low income associated with precarious types of work could also fall under social
condition and the door to recognizing level of education as the basis for social condition
has not been closed. However, almost all successful findings of discrimination have
focused on receipt of public assistance, which, as will be reviewed in the next section, is
already recognized as a ground of discrimination in many other provincial human rights
codes.
b) New Brunswick
The New Brunswick Human Rights Act 108 was amended in 2004 to include “social
condition” as a prohibited ground of discrimination. This amendment came into force
January 31, 2005. 109 Along with the inclusion of “social condition” as a ground of
discrimination, the amendment included a definition of the term in section 2 of the
NBHRA:
“social condition”, in respect of an individual, means the condition of
inclusion of the individual in a socially identifiable group that suffers from
social or economic disadvantage on the basis of his or her source of
income, occupation or level of education; 110
Prior to this amendment, New Brunswick did not have any economically related ground
of discrimination, such as receipt of public assistance or source of income, in its human
rights legislation. The amendment to include “social condition” was supported by the
2004 New Brunswick Human Rights Commission, Position Paper on Human Rights
Renewal in the Province of New Brunswick, 111 which relied on the La Forest Report,
among others, as justification of its position supporting the addition of “social condition”.
106
(2001) JQ No. 1409 (CQ) at paras 20-21.
[1998] JTDPQ No. 37.
108
New Brunswick Human Rights Act, R.S.N.B. 1973, c. H-11, s. 2, as am. by An Act to Amend the Human
Rights Act, R.S.N.B. 2004, c.21 [hereinafter NBHRA].
109
An Act to Amend An Act to Amend the Human Rights Act, R.S.N.B. 2004, c.44, delaying the coming into
force of the adding of social condition as a prohibited ground until January 31, 2005.
110
NBHRA, supra note 108. The NBHRA is divided into a number of different protected areas of
discrimination, each with their own list of protected grounds: employment (section 3), property interests
and housing (section 4), services (section 5), publications (section 6), and professional, business and trade
associations (section 7). Social condition has been added as a protected ground in each section.
111
New Brunswick, Human Rights Commission, Position Paper on Human Rights Renewal in the Province
107
28
The effect the amendment would have on existing governmental statutes and
programs was the only argument for not adding social condition identified by the paper.
In response to this argument against the addition of social condition, section 7.01 of the
NBHRA was included. It states the following:
Despite any provision of this Act, a limitation, specification, exclusion,
denial or preference on the basis of social condition shall be permitted if it
is required or authorized by an Act of the Legislature. 112
This exclusion is unique amongst the three Canadian jurisdictions that protect social
condition under their human rights legislation. The effect of this exclusion would appear
to exempt Acts of the New Brunswick legislature from being subjected to human rights
scrutiny with respect to social condition, as well as decisions taken pursuant to those
Acts.
To date, no complaint based on the ground of “social condition” has reached the
stage of going before the New Brunswick Board of Inquiry, and as such there are no
decisions on record. However, there is guidance from the New Brunswick Human Rights
Commission’s Guideline on Social Condition 113 about how to interpret the sections of the
NBHRA relating to “social condition”. The NBHRC Guideline explicitly states that the
grounds protected under the NBHRA are to be interpreted in line with Canada and
New Brunswick’s obligations under the Charter and the International Covenant on
Economic, Social and Cultural Rights. 114 The NBHRC Guideline specifically refers to
New Brunswick’s commitments under Article 11 of the ICESCR, where it, along with the
rest of Canada, has agreed to uphold the “right to a decent standard of living.” 115 It
should be noted that although this commitment does exist, the protection of social
condition under the NBHRA does not confer any positive rights on those protected by it.
The NBHRC Guideline further states that the interpretation of the ground of social
condition should follow the Quebec case law on this ground. The NBHRC Guideline
advocates that judicial bodies interpret the ground in accordance with the Quebec case of
Gauthier, 116 stating that the NBHRA definition of “social condition”,
…contains an objective element and a subjective element. The objective
element is the occupation, source of income or level of education of a
person. The subjective element is society’s perception of these objective
facts. 117
Furthermore, the NBHRC Guideline follows a number of Quebec cases in its issuance of
the following directive,
According to court and tribunal decisions, only one of the above factors
(source of income, occupation or level of education) need be present in
order for discrimination on the basis of social condition to occur, but any
of New Brunswick (Fredericton: New Brunswick Human Rights Commission, 2004) at 7.
112
NBHRA, supra note 108, s.7.01.
113
New Brunswick, Human Rights Commission, Guideline on Social Condition, adopted on
January 27, 2005 [hereinafter NBHRC Guideline].
114
ICESCR, supra note 31.
115
NBHRC Guideline, supra note 113 at page 3, paraphrasing Article 11 of the ICESCR.
116
Gauthier, supra note 6.
117
NBHRC Guideline, supra note 113 at 3.
29
combination of these factors is also sufficient. A person’s social condition
may be the person’s actual social status, or merely a perceived social
condition upon which discrimination is based. Social condition may also
be a temporary condition, such as unemployment. 118
The NBHRC Guideline identifies situations and circumstances in which there
would likely be a finding of discrimination based on “social condition” under each of the
areas of: housing, employment, the service sector, and other. Under the area of housing,
the NBHRC Guideline states that,
Discrimination based on social condition occurs when a landlord refuses
to rent to someone based on the assumption that he or she is unable to pay
simply because he or she is receiving social assistance, employment
insurance, disability insurance or a pension. 119
As well, the NBHRC Guideline warns against the use of rent/income ratios, or minimum
income requirements for tenancy, as these requirements would constitute adverse effect
discrimination. What is recommended is that landlords must conduct an individual
assessment of the likelihood of payment in accepting or refusing to rent; the NBHRC
Guideline relies on both Quebec and Ontario case law as justification for this
recommendation. 120
Under the area of employment, the NBHRC Guideline gives examples of conduct
that may give rise to a complaint under social condition. The NBHRC Guideline states
that questions about whether potential employees have ever been a recipient of social
assistance, or are presently collecting workers’ compensation, will be regarded as
discriminatory. Harassment of an employee whose occupation has a low status, or the
failure to investigate complaints or allegations of such harassment, will also be regarded
as discrimination. The NBHRC Guideline further states that not every difference in
treatment will be regarded as discrimination, and that bona fide occupational
requirements are not discriminatory. 121
In the service sector area, the NBHRC Guideline is brief, but states firmly that
those in the service sector must not deny services or discriminate against clients or
potential clients based on their social condition. This includes the manner in which
services are offered or denied, and the harassment of clients based on their condition. 122
The NBHRC Guideline also identifies two further examples of social condition
discrimination under the category of other. The NBHRC Guideline warns against
discriminating on the basis of social condition in signs, and discriminatory, differential
treatment affecting membership based on social condition by a professional, business or
trade organization.
118
NBHRC Guideline, ibid. at 4. This quote is in reference to three Quebec cases: (1) Commission des
droits de la personne c. Ianiro, (1997), 29 C.H.R.R. D/79 (T.D.P., Que.)., (2) Commission des droits de la
personne et des droits de la jeunesse c. Sinatra (1999), (3) C.H.R.R.D/218 (T.D.P. Que)., (3) Johnson c.
Commission des affaires sociales, [1984] C.A. 61 (Que.).
119
NBHRC Guideline, supra note 113 at 5.
120
Whittom, supra note 79. Shelter Corporation v. Ontario (Human Rights Commission) (2001), 39
C.H.R.R. D/111 (Ont. Div. Ct).
121
NBHRC Guideline, supra note 113 at 6.
122
NBHRC Guideline, supra note 113 at 6.
30
Finally, the NBHRC Guideline identifies two defences to social condition
discrimination available to those subject to the NBHRA’s prohibitions, stating at page 8
that the NBHRA,
… does not prevent employers, landlords or service providers from:
•
•
Establishing and enforcing bona fide occupational or other
qualifications based on an individual’s social condition (e.g.
education or professional status); or
Managing performance and setting expectations with respect to
workplace productivity. 123
The first defence simply seems to confirm that bona fide qualifications and justifications
can be applied to alleged social condition discrimination in the same way that they apply
to any other ground of discrimination. The second one concerning performance
management and establishing workplace standards or expectations, appears to clarify that
matters such as education levels and experience can be the basis of relevant and nondiscriminatory distinctions. The New Brunswick definition in both its statute form and its
elaborating guidelines clearly draws upon the years of experience in Quebec with social
condition. New Brunswick provides one model to follow at the federal level; the
Northwest Territories offers another approach.
c) The Northwest Territories
The Northwest Territories Human Rights Act specifies in section 5(1) that:
For the purposes of this Act, the prohibited grounds of
discrimination are race, colour, ancestry, nationality, ethnic origin,
place of origin, creed, religion, age, disability, sex, sexual
orientation, gender identity, marital status, family status, family
affiliation, political belief, political association, social condition
and a conviction for which a pardon has been granted. 124
The ground of social condition was included in the original version of the NWTHRA,
which was brought into force July 1, 2004. This inclusion was backed by significant
public support, as well as the Standing Committee of Social Programs, a committee
created by the Northwest Territories Legislature to consider the NWTHRA in the context
of human rights legislation across the country, and in particular to hear the views and
suggestions of residents of the Northwest Territories. The NWT Council for Disabilities,
the National Anti-Poverty Organization, Status of Women Council, EGALE Canada and
the NWT Federation of Labour were among the organizations who supported the
reference to social condition.
Along with the inclusion of “social condition” as a ground of discrimination,
section 1(1) of the NWTHRA includes a definition of the term:
“social condition”, in respect of an individual, means the condition
of inclusion of the individual, other than on a temporary basis, in a
socially identifiable group that suffers from social or economic
123
124
NBHRC Guideline, supra note 113 at 8.
Human Rights Act, S.N.W.T. 2002, c.18 [hereinafter NWTHRA, emphasis added].
31
disadvantage resulting from poverty, source of income, illiteracy,
level of education or any other similar circumstance. 125
This definition has been the subject of some debate, as identified in the 2002 Report on
Bill 1, Human Rights Act 126 by the Northwest Territories Standing Committee of Social
Programs. At issue was the narrow scope and ambiguity of the definition. Human rights
groups expressed concern that the requirement that the complainant be part of a “socially
identifiable” group unnecessarily narrows the definition, and may be subject to strict
interpretation on behalf of the courts. A further concern heard by the Standing
Committee on Social Programs is that the definition is ambiguous, and may be difficult to
apply in practice.
However, suggestions that “social condition” be replaced with more specific terms
such as “poverty” or “net source of income” were rejected by the Standing Committee,
who believed that any uncertainty and ambiguity created by including “social condition”
would be reduced through court interpretation. Further, the committee determined that
the ambiguity surrounding “social condition” is outweighed by the potential the ground
has to advance equality rights, as more precise terms such as “poverty” or “net source of
income” may not sufficiently protect individuals from discrimination based on complex
socio-economic factors. It is important that the ground reflects the complexity of the
discrimination that it is designed to remedy.
The only human rights complaint filed under the ground of “social condition” to
make it to the Northwest Territories Human Rights Adjudication Panel (“Panel”) has
been Mercer v. Northwest Territories and Nunavut (Workers' Compensation Board). 127
In this case, the Panel noted the shortage of jurisprudence on the issue of social condition.
The Panel thus followed the NBHRC Guideline noting that “the prohibited ground of
social condition ‘contains a subjective and an objective element.’” 128 The Panel expanded
somewhat on this concept, stating that,
part of the concept may be more tangible, such as occupation, source of
income, and level of education. But there is also the subjective part of this
concept, that is, society’s perception of these objective facts. The
objective and subjective elements must also be kept in mind when dealing
with this issue. 129
Further, the Panel took a broad perspective on the interpretation of “social condition”,
stating that this is in line with Supreme Court of Canada decisions advocating a liberal
and purposive interpretation to be given to human rights legislation. 130
The Panel then determined that in order to fall within the statutory definition of
social condition in the NWTHRA, an individual must satisfy a four-part test. The
individual must (1) be part of a socially identifiable group, (2) on other than a temporary
125
Ibid.
Northwest Territories, Legislative Assembly, Standing Committee of Social Programs, Report on Bill 1,
Human Rights Act, (N.W.T. Committee Report 10-14(5), 2002) (Chair: Brendan Bell).
127
(2007), CHRR Doc. 07-479 (N.W.T.H.R.A.P.) [hereinafter Mercer].
128
Ibid. at para 12.
129
Ibid. at para 12.
130
Ibid. at para 27, citing Quebec (Commission des droits de la personne et des droits de la jeunesse) v.
Boisbriand (City), [2000] S.C.J. No. 24 and Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571.
126
32
basis, and (3) that group must suffer from either (a) social disadvantage or (b) economic
disadvantage, (4) resulting from one or more of the following: (a) poverty, (b) source of
income, (c) illiteracy, (d) level of education, or (e) any similar circumstances. 131
In Mercer, the complainant was a seasonal worker, from Newfoundland, injured
while seasonally employed as a truck driver in the Northwest Territories. As a result, he
applied for and was granted total disability compensation from the Northwest Territories
and Nunavut Workers’ Compensation Board [“WCB”]. However, in the calculation of
his remuneration under the disability compensation scheme the WCB refused to include
Mr. Mercer’s yearly income from Employment Insurance [“EI”]. Mr. Mercer filed a
human rights complaint alleging that the WCB discriminated against him by excluding
his EI benefits from the calculation of his remuneration.
The complaint was brought before the Panel, who determined that the
complainant was discriminated against by the WCB on the basis of social condition. The
Panel determined that Mr. Mercer did in fact satisfy the four-part test, and therefore did
fall within the definition of social condition in the NWTHRA. He satisfied the first part
of the test, as the Panel found that seasonal workers from areas of high unemployment
were a socially identifiable group. These workers are required to work away from home,
often outside their home province, earn less than national and provincial average salaries,
have lower education levels, and have fewer employment opportunities. Mr. Mercer also
satisfied the second part, in that he was a seasonal worker whose period of employment
fluctuated over the years, which was a characteristic of the group as a whole; thus, it was
not a temporary condition. The third part was satisfied, as the Panel determined that
seasonal workers suffered from both social and economic disadvantage, noting that the
interconnectedness of both makes them difficult to separate. Seasonal workers are
required to work away from home, often outside their home provinces, and those
receiving EI are often marginalized and stereotyped as lazy. Further, seasonal workers
do not have the job security and employment benefits available to permanent employees.
The fourth and final part of the test was also satisfied, as the Panel determined that the
social and economic disadvantage derived from a combination of factors, such as the
source of income and the low level of education, which results in social and economic
disadvantage such as fewer job opportunities and lower incomes.
Further, after finding that the relevant comparator groups should be workers who
are employed on a permanent basis within jurisdictions with higher employment levels,
and workers who are better educated, have more job opportunities and earn salaries more
in keeping with the average salary of Canadians, the Panel concluded that the policy of
the WCB did adversely affect the complainant. The policy did not recognize that
seasonal workers are reliant on EI for part of their yearly income, and it reinforced the
stereotype that seasonal workers received EI by choice, further lowering their
self-esteem. As a result, the Panel ordered the WCB to amend the policy and put the
complainant in the position he would have been but for the discriminatory policy.
d) Differences in Provincial/Territorial Approaches to Defining Social Condition
The approach to defining social condition differs between the three
provincial/territorial jurisdictions that now recognize the ground. First, the vehicles
differ. The Quebec Charter does not include a statutory definition, but the meaning of
131
Mercer, ibid, at para. 13.
33
social condition has evolved through guidelines and case law. In contrast, both
New Brunswick and the Northwest Territories have adopted statutory definitions but,
while these two jurisdictions added the ground in their human rights legislation within
one year of each other, there are still differences in their approaches to doing so. For
instance, the New Brunswick Commission has provided guidelines to assist in the
implementation of the ground whereas the Northwest Territories have not.
Second, there are differences in term of the content of the definition. All three
jurisdictions provide that only a social condition associated with “social or economic
disadvantage” is worthy of protection, but whereas this is defined expressly in the
legislation in New Brunswick and the Northwest Territories, it has resulted through years
of case law in Quebec eventually linking the protection with the purpose of human rights
legislation. Similarly, there are differences in the factors or characteristics that may
underlie a claim based on social condition. The Quebec approach is flexible and
recognizes a non-exhaustive list of factors, such as “income, occupation or education”.
The Northwest Territories also provides an open-ended list, but with a longer list of
factors including “poverty, source of income, illiteracy, level of education or any similar
circumstance.” 132 In contrast, New Brunswick’s definition states that for one to be
discriminated against under the ground of social condition, one must “suffer from social
or economic disadvantage on the basis of his or her source of income, occupation or level
of education.” 133 This closed list would seem to necessarily exclude other potential
factors, such as simply level of income. Conversely, the Northwest Territories definition
does not expressly include “occupation” despite the precedents in both Quebec and
New Brunswick. However, the “broad perspective on the interpretation of ‘social
condition’” 134 advocated by the Panel in Mercer would likely include occupation in the
definition, as it would fall within “any similar circumstance”; indeed, that case
recognized the characteristics of seasonal work as a factor in perpetuating social and
economic disadvantage such as stereotypes, job insecurity and low levels of income.
Lastly, there are differences in the limitations included in the definition. The
Quebec Commission and courts have maintained a fairly broad definition of social
condition with relatively few limitations, although, as discussed above, it has not been
successfully applied to many cases outside the general category of receipt of public
assistance. In contrast to precedent in Quebec, the Northwest Territories statutory
definition expressly excludes a social condition experienced “on a temporary basis”,
although the Mercer decision may appear to indicate that this limitation does not
encompass situations such as the temporary unemployment experienced by a seasonal
worker. More significantly, the New Brunswick legislation includes a statutory
exemption from scrutiny under the NBHRA for “a limitation, specification, exclusion,
denial or preference on the basis of social condition” authorized by an Act of the
Legislature. 135 This exclusion severely limits the scope of the ground of social condition
in the NBHRA.
132
NWTHRA, supra note 124.
NBHRA, supra note 108, s. 2. The NBHRA is divided into a number of different protected areas of
discrimination, each with their own list of protected grounds: employment (section 3), property interests
and housing (section 4), services (section 5), publications (section 6), and professional, business and trade
associations (section 7). Social condition has been added as a protected ground in each section.
134
Mercer, supra note 127 at 27
135
NBHRA, supra note 108, s. 7.01.
133
34
In summary, it is clear that there are a number of different approaches to adopting
social condition as a prohibited ground of discrimination. However, common themes that
run through these examples are that social condition is based on certain common factors,
including income, occupation, and education and that it is aimed at situations of social
and/or economic disadvantage. It is also clear that social condition has the potential to be
much more broadly applied than more narrowly defined grounds recognized in a number
of other jurisdictions, including “source of income” or “receipt of public assistance”.
2.
Compared to “Source of Income” and “Receipt of Public Assistance”
Seven provinces/territories include “source of income” as a ground of
discrimination in their human rights legislation. 136 A further two include the slightly
narrower ground of “receipt of public assistance”. 137 There is a notable degree of
variation with respect to the areas which source of income or receipt of public assistance
(SOI/RPA) applies from province to province. A brief review of each of the provincial
human rights policies on SOI/RPA serves as a natural starting point from which to
consider the distinction between source of income and social condition.
Alberta: 138 The Human Rights, Citizenship and Multiculturalism Act covers
“source of income” which has been defined as lawful income that commonly attracts a
social stigma to its recipients. Such income typically includes social assistance, and
income supplements for seniors. Income that does not result in social stigma is not
protected. 139 In this sense it is more similar to receipt of public assistance, since it would
not cover certain sources of income such as spousal support. It applies to all areas
covered by the Alberta statute.140
British Columbia: 141 The British Columbia Human Rights Code covers “source of
income” only in relation to “tenancy premises”, and thus excludes provision of
goods/services, facilities, employment, etc. However, despite being narrow in
application, it is wide in definition, including all lawful sources of income, such as
employment earnings, welfare assistance, pensions, spousal support, employment
insurance, student loans, grants and scholarships. 142 In Morey v. Fraser Health
Authority 143 , a complainant unsuccessfully tried to bring a claim on the ground of source
of income in the context of employment (i.e., receipt of disability benefits). This is not
136
These include Alberta, British Columbia, Manitoba, Nova Scotia, Prince Edward Island, the Yukon, and
Nunavut. In all of these jurisdictions, the ground is restricted - either explicitly in the Act or through
regulations, guidelines, or judicial interpretation - as ‘lawful’ source of income.
137
These jurisdictions are Ontario and Saskatchewan.
138
Supra note 72. Source of income was added in 1996 following a recommendation by the Alberta
Human Rights and Citizenship Commission in 1994.
139
Alberta, Human Rights and Citizenship Commission, Source of Income: Information Sheet, online:
AHRCC < http://www.albertahumanrights.ab.ca/SourceOfIncome.pdf > (date accessed: April 21, 2008).
140
Supra note 72; this includes employment practices; employment applications, advertisements or
interviews; tenancy; goods, services, accommodation or facilities; statements, publications, notices, signs,
symbols, emblems or other representations; and membership in a trade union, employers' organization or
occupational association.
141
Human Rights Code, R.S.B.C. 1996, c.10.
142
Kilcommins et al., supra note 33.
143
Morey v. Fraser Health Authority , [2004] B.C.H.R.T.D. No. 182, 2004 BCHRT 224.
35
covered in the British Columbia Human Rights Code, but in virtually all the other
provinces.
Manitoba: 144 The Manitoba Human Rights Code covers “source of income” and
examples of application provided by the Manitoba Human Rights Commission include
such sources of income as employment earnings, social assistance, pension, alimony,
child support, employment insurance, student loans, grants and scholarships. 145
Nova Scotia: 146 The Nova Scotia Human Rights Act prohibits discrimination
based on source of income covering all areas to which the Act applies. 147
Ontario: 148 The Ontario Human Rights Code covers discrimination based on
“receipt of public assistance” but only in the area of occupancy of accommodation. This
provision includes the right to enter into an occupancy agreement and also the right to be
free from discrimination in all matters relating to the accommodation. However, this
ground does not currently extend to any of the other areas dealt with by the Ontario
Human Rights Code.
Prince Edward Island: 149 Under the Human Rights Code in Prince Edward Island,
discrimination is prohibited on the basis of “source of income” in the areas of
employment, volunteering, and accommodations, services or facilities available to the
public, membership in professional, business or trade associations and employee
organizations, leasing or selling property, publishing, broadcasting and advertising.
Saskatchewan: 150 The Saskatchewan Human Rights Code covers “receipt of
public assistance”, which is defined as “the receipt of: (i) assistance as defined in The
Saskatchewan Assistance Act; or (ii) a benefit as defined in The Saskatchewan Income
Plan Act. This applies to employment, education, public services, housing, contracts,
publications, professional associations and trade unions.
Yukon: The Yukon Human Rights Code covers “source of income” and applies to
providing goods and services to the public, employment or application for employment,
membership in trade unions or other work-related associations, tenancy or sale of
property, and public contracts. 151
Nunavut: The Nunavut Human Rights Act provides protection against
discrimination based on “lawful source of income” in all the areas covered by the Act. 152
Based on interpretation, the above jurisdictions generally provide for the defence
of “actual ability to pay” in relation to source of income discrimination. That is to say, in
the provision of the accommodations, goods or services covered by the provincial Human
144
Human Rights Code, C.C.S.M., c. H-175, s. 9(2).
Manitoba, Human Rights Commission, Factsheet, online:
<http://www.gov.mb.ca/hrc/english/publications/factsheets/prohib.html> (date accessed: February 4, 2008).
146
Supra note 72, s. 5(1).
147
Ibid. The Act applies to: the provision of or access to services or facilities; accommodation; the
purchase or sale of property; employment; volunteer public service; a publication, broadcast or
advertisement; membership in a professional association, business or trade association, employers
organization or employees organization.
148
Human Rights Code, R.S.O. 1990, c. H.19, s. 2(1).
149
Human Rights Act, R.S.P.E.I. 1988, c. H-12.
150
Human Rights Code, S.S. 1979, c. S-24.1, s. 2(1)(m.1).
151
See Campbell v. Yukon Housing Corp., (2005), CHRR Doc.05-787 (Y.T. Bd. Adj.).
152
S.Nu. 2003, c.12.
145
36
Rights Acts, it is acceptable for the provider to assess someone’s actual ability to pay for
the good/service in question, regardless of their source of income.
The more interesting cases in these jurisdictions involve multiple grounds of
discrimination. For instance, the case of Garbett v. Fisher 153 involved a 16 year old
claimant on social assistance. The awkward pigeon-holing analysis undertaken by the
Tribunal in this case indicates one use to which the ground of ‘social condition’ could
have been put. In Trudeau v. Chung 154 , the complainant was receiving a long-term
disability pension. He was refused an apartment on the basis that he was unemployed and
on sick leave. The status of being unemployed or on sick leave is not a prohibited ground
of discrimination yet it was found that the policy of refusing unemployed tenants had an
adverse impact on the complainant due to his disability.
It seems that these claims would have been a better fit under social condition,
were that ground available to the claimants, since the courts/tribunals in these cases were
forced to decide on the basis of one ground, as opposed to treating the claimant in a more
holistic fashion. As noted by Iding, “Those living in poverty are often members of other
marginalized groups, as poverty is frequently a result of other forms of inequality, such as
those based on race or disability.” 155 The value of social condition as supporting a more
holistic and intersectional approach to discrimination will be explored later in this study.
What is clear from a review of the legislation and jurisprudence on source of
income is that the protection it affords is fairly limited. As such, it fails to address the full
scope of the problems faced by most claimants based on their education, employment,
absence of resources of various kinds, and family origins, or a combination of these
factors. It is clear that the circumscribed protection afforded by ‘source of income’ as a
prohibited ground of discrimination is not particularly effective in responding to the
problem of socio-economic disadvantage, which often manifests itself in more varied and
multifarious ways than simply from where a given individual receives their income. In
addition to providing fuller protection to disadvantaged individuals, it is likely that the
addition of “social condition” into human rights legislation would serve an educational
function. 156 These limited grounds send the message that it is unacceptable to
discriminate against someone based on where they get their income, but does not make it
clear that the factors underlying this situation – oftentimes, their social condition – are
also worthy of concern and redress. This is an educational function which is not
accomplished under the existing “source of income” regime. We will return to this theme
in the later section on arguments in favour of adding social condition to the CHRA.
That source of income is insufficient to rise to the challenges posed by
socio-economic disadvantage is evident in the reform proposals undertaken by many of
the provinces that currently employ it in their human rights regimes, as noted above. 157
That these studies concluded it was preferable to replace source of income/receipt of
public assistance with “social condition”, in addition to the substance of their findings, is
in itself an indicator of the challenges in dealing with the reality of socioeconomic
disadvantage under the current regime.
153
Garbett v. Fisher (1996), 25 CHRR D/379, [1996] O.H.R.B.I.D. No. 12, (Ont Bd. Of Inq.).
Trudeau c. Chung (1992) 16 CHRR D/25 (B.C. H.R.T.).
155
Iding, supra note 43 at para 2.
156
This was also noted in the La Forest Report, supra note 3.
157
See above, Part I.B.2.
154
37
3.
Compared to “Social Origin”
Newfoundland is the only province to include “social origin” as a prohibited
ground of discrimination in its human rights legislation. 158 It applies to accommodations,
services, facilities, or goods, as well as employment and discriminatory publications. The
first and apparently only case to consider this ground of discrimination was Halleran v.
House of Haynes (Restaurant) Ltd (1993) 159 , in which the complainant asserted that her
employer had discriminated against her by repeatedly calling her a “baywoman” in
reference to her origin from a rural Newfoundland community. The term “baywoman” is
a well-known slur in the province. Considering both a dictionary meaning and a broad
and liberal interpretation of remedial legislation, the Tribunal found social origin to have
a fairly common sense meaning, encompassing heritage/ancestry, “beginning or derived
from a source,” 160 and having a geographical component.
It seems clear, then, that social origin is a far narrower ground than social
condition, 161 and it has been recognized in Quebec as being encompassed by social
condition. Insofar as remedying the problems of socio-economic disadvantage discussed
above, social origin in its current jurisprudential incarnation, is even less broad than
“source of income”.
4.
Summary: Definition of Social Condition
In summary, social condition is a much broader concept than source of income or
source of origin, although, in application, there appears to have been little distinction in
the cases based on “social condition” in the Quebec jurisprudence and those cases based
on receipt of social assistance or source of income. As discussed above, in Quebec, social
condition has been used primarily to address discrimination in the tenancy context where
landlords have refused to rent to social assistance recipients, which is a situation equally
covered by the narrower grounds. There is, as of yet, too little precedent in
New Brunswick and the Northwest Territories to evaluate how broadly the definitions are
to be applied.
However, an important distinction is the potential for social condition to cover a
much broader range and/or intersection of characteristics. Thus, it has been recognized as
covering precarious or freelance work in Quebec and seasonal work in the
Northwest Territories. Similarly, the door to recognizing students or level of education as
a social condition has been left open, although not yet the basis for a successful
challenge. The broad, multi-factored definition that has been adopted by the courts in
Quebec and the legislatures in the Northwest Territories and in New Brunswick make it
clear that the purpose of the ground extends beyond what exists in other jurisdictions.
The legislative discussions leading up to the adoption of social condition in these three
jurisdictions make it clear that this breadth and flexibility is precisely why it was chosen.
At the same time, the complexity and uniqueness of the ground itself may result in a
158
Human Rights Code, R.S.N. 1990, c. H-14.
Halleran v. House of Haynes (Restaurant) Ltd, [1993] N.H.R.B.I.D. No. 2 (sub nom House of Haynes
(Restaurant) Ltd. v. Snook (1994), 24 C.H.R.R. D/269).
160
Ibid. at paras 31-33.
161
Iding, supra note 43 at para 4.
159
38
reluctance to accept a broader application than what has currently evolved. As explained
by Alberte Ledoyen:
[TRANSLATION]
Empirical social condition, as established by the experts, refers to a configuration
of several categories and not, unlike most of the other grounds of section 10, to a
duality, the elements of which are directly opposable, such as sex (men/women),
colour (white/non-white), disability (disabled/not disabled) and national origin
(Canadian/foreign). These configurations are constructed, first, by reference to
various theories and issues and, second, based on isolated criteria that cannot
reflect social reality as a whole, social reality thus being reduced to inevitable
theoretical and methodological choices. This is why it is impossible to adopt a
single classification that objectively reflects the reality of social conditions that
can give rise to discrimination. This does not mean that economic and status
conditions are not socially and objectively distinct and do not lead to behaviours
guided by these conditions, but rather that the distinctions have many forms and
can be reduced only with difficulty without distorting the reality they reflect,
making it necessary to envisage several configurations based on the aspect of a
reality an issue requires. With most empirical studies addressing the statistical
relationship between various phenomena, the requirements of quantitative
methods cause reality to be narrowed. This is the main reason for the difficulty of
operationalizing a general configuration of social conditions defined on the basis
of the three indicators of education, occupation and income. 162
In other words, the multiplicity and flexibility that inheres in the ground of social
condition is at once the basis for its broader potential at addressing discrimination based
on socio-economic disadvantage and the basis for reluctance in operationalizing
protections against discrimination based on social condition on a more transformative
scale. While the extremes may be clearly defined – i.e. professionals do not have a
“social condition” and social assistance recipients do – the middle is still in need of some
elucidation. To this end, because of its contextual and relational nature, it is necessary to
examine the application of social condition in actual context by examining the practices
by which claims of discrimination have arisen.
C. Practices Leading to Discrimination based on Social Condition
The definition of social condition is important for understanding the types of
characteristics or socio-economic circumstances that will ground a complaint for
discrimination. Equally important for evaluating the impact of including social condition
in the Canadian Human Rights Act is an understanding of the types of practices in which
discrimination may be found. In this part, we will first look at the provincial/territorial
experience in reviewing in what types of cases discrimination has been found to be
present. Second, we will identify some of the areas of federal jurisdiction where
discrimination on social condition could be found to apply.
162
Supra note 79 at 15.
39
1.
Provincial/Territorial Experiences
A recurrent concern with the addition of social condition is that it raises
uncertainty as to how it may be applied by tribunals and the courts. The La Forest Panel
heard such concerns from, for example, the Canadian Bankers Association and
government departments, such as Citizenship and Immigration Canada. 163 Indeed, the
Panel specifically recommended that complex governmental programs, such as income
tax, immigration and employment insurance programs, be exempted from review under
the CHRA.
However, a review of the provincial/territorial experience, for the most part, does
not justify concerns that the addition of social condition as a ground of discrimination
will open up governmental programs to challenges. Particularly based on the Quebec
experience, there has been very little success in cases other than those between private
actors in the context of a contractual exchange, such as a refusal to lease
accommodations. In these cases, clearly discriminatory attitudes are redressed through
the Quebec Charter, as are seemingly objective standards that may have an adverse effect
on those covered by social condition. However, challenges to employment standards or
governmental programs have rarely been successful.
a) Addressing Discriminatory Attitudes based on Prejudgments and Stereotypes
A key function of human rights codes is to educate and remedy actions based on
discriminatory beliefs or stereotypes. This is true for all grounds of discrimination,
including for social condition where stereotypes may attach to someone based on their
occupation, level or source of income, or other personal characteristics.
[TRANSLATION]
The use of an indicator such as occupation, for example, by the layperson to
uncover another person’s social condition is the result of socio-economic
stereotypes associated with particular occupations. … Some commonly known
occupations suggest low income and/or little or no prestige to the layperson.
Servant, restaurant waiter, gas jockey, mechanic, schoolmarm, beadle, baker are
all professions or occupations that “speak” of social condition. … The points of
reference used to understand social condition are therefore more useful if they
correspond to collective images or (necessarily stereotypical) representations of
the social condition that they signify.
Some economic situations, like a level of income insufficient to live decently,
socially refer to poverty, such as an involuntary, prolonged absence from work
requiring relief or compensation from the government (social assistance,
unemployment benefits, work accident benefits, etc). Some of these situations are
perceived in a particularly negative light given that, in the collective imagination,
they are often associated with a vice (such as laziness or alcoholism) or a lack of
responsibility. 164
163
164
La Forest Report, supra note 3 at 106.
A. Ledoyen, supra note 79 at 30.
40
In the jurisprudence on social condition, the objective of addressing these sorts of
stereotypes and presumptions has formed the basis for most successful cases.
As in cases prior to our 1999 study, a refusal to lease rental accommodations
simply because someone was in receipt of social assistance has been found to be
discriminatory. This is in line with human rights jurisprudence generally that does not
allow freedom of contract to be exercised in a discriminatory manner. In the Quebec
context, the Quebec Charter recognizes a right to property, 165 but tribunals have
consistently held that landlords cannot exercise this right in a discriminatory manner. For
example, in Briand, the Commission noted:
[TRANSLATION]
Landlords have the right to demand the payment of rent. They also have the right
to require tenants to provide a surety for the payment of the rent and even to
ensure that the individuals wishing to rent their apartments have the ability to pay
the rent. … It has been said that the Charter of human rights did not want to force
individuals to give handouts or to help those that are disadvantaged, unhappy, on
social assistance, unemployed or bankrupt, for example. However, one cannot
conclude that the Charter did not want to restrict the right of free contract. To the
contrary, landlords never have the right to discriminate … “property rights cannot
trump equality guarantees.” 166
The courts have thus held that there must be some individual verification of one’s
ability to pay, such as credit checks or references from past landlords, before prejudging
individual capacities. For instance, the Tribunal has noted that refusing to lease to a social
assistance recipient is based on prejudices and stereotypes that those in receipt of public
assistance are unable to meet their financial obligations or less able than those that
receive work income. 167 Moreover, a lessor cannot generalize from past negative
experiences with other social assistance recipients so as to stereotype or prejudge against
the entire group:
[TRANSLATION]
Landlords cannot rely on previous negative experiences they may have had with
renters affected by the same social condition to justify a refusal to lease
accommodation on a prohibited ground. In fact, this would be to make an abusive
generalization, the effect of which would be to attribute the same negative
characteristics to a group of people on the basis of their all belonging to a group
protected by the Charter. 168
165
Quebec Charter, supra note 27, s. 6. Section 6 provides: “Every person has a right to the peaceful
enjoyment and free disposition of his property, except to the extent provided by law.”
166
Briand, supra note 84 at paras. 21-22.
167
See e.g. Huong, supra note 90; Lavigne, supra note 89; Quebec (Commission des droits de la personne
et des droits de la jeunesse) c. Bernier, [2005] JTDPQ No. 2.
168
Reeves, supra note 89. But see Guittard c. Clinique dentaire Forcier, [1998] JTDPQ No. 41, where no
discrimination was found because the refusal of services was not linked to a ground of discrimination;
although the tribunal declined to draw any negative inferences from comments made by a dentist that social
assistance recipients often missed appointments and had bed mouth hygiene: [TRANSLATION] “these are
not prejudices, that is, a hasty generalization of a judgment formed in advance, but the facts as he had
observed them in his practice.”
41
At the same time as requiring landlords to ensure their decisions are based on an
individualized assessment of prospective tenants’ capacity to pay, the obligation is clearly
on the renter to prove their capacity to do so. 169
In Bia-Domingo, the obligation to act on one’s actual ability to pay rather than on
prejudgments was extended to those with a lower income derived from freelance or
precarious work. 170 In Sejko, this reasoning was applied to a contract for purchase, where
the seller refused to sell to a social assistance recipient based on a presumption that she
would cause problems and be more litigious since she had more time as a result of not
being employed. 171 Similarly, in D’Aoust, a credit union’s policy of not lending to social
assistance recipients was discriminatory because it reflected a prejudgment of
unrealiability and assumed she would not respect her financial obligations. 172 However,
the Tribunal implicitly endorsed the refusal by another credit union of the complainant’s
loan application where the refusal was based on an analysis of her level of income.
The vast majority of jurisprudence involving source of income or receipt of public
assistance as a prohibited ground of discrimination also focuses on the provision of rental
housing. Furthermore, the case law recognizes a distinction between actual and perceived
inability to pay; the former being acceptable and the latter not. Successful claimants,
predictably, were found to suffer from discrimination where the refusals of landlords
were based on the negative perceptions of the capabilities and qualities of those receiving
social assistance. For instance, in the case of Spence v. Kolstar, 173 the Manitoban
complainant was denied rental of an apartment on the basis that he was a recipient of
social assistance. The tribunal found that the landlord consistently applied different and
more onerous criteria for such tenants, and furthermore that such criteria presupposed
that tenants receiving social assistance were “unreliable and untrustworthy”. On this
basis, the complainant was successful. A similar case involving a single mother, Willis v.
David Anthony Phillips Properties, 174 involved refusal of accommodation based on the
complainant’s receipt of a “mother’s allowance”. In 409205 Alberta Ltd. v. Alberta
(Human Rights and Citizenship Commission,) 175 the claimant was receiving Alberta
Assured Income for the Severely Handicapped. The Tribunal found that the landlord
singled the claimant out for rental increases in an attempt to end the rent subsidy
payments, and awarded him damages for injury to his dignity and self-respect, in addition
to special damages from the loss of the rent subsidy. The theme running through these
169
Marois et Quebec (Commission des droits de la personne et des droits de la jeunesse) c. Lauréat
Richard inc., [2001] JTDPQ No. 6, finding no discrimination because the social assistance recipient gave
proof of a lower income than she claimed; duty on renter to provide necessary information to justify her
ability to pay and no duty on landlord to simply accept the word of the renter without proof. See also
Quebec (Commission des droits de la personne et des droits de la jeunesse) c. Jean-Paul Desroches inc.,
[2007] JTDPQ No. 28, finding no discrimination for failure to rent to a single mother in receipt of CSST
while on maternity leave because a landlord has the right to ensure potential tenants have the capacity to
pay and she did not provide documentary proof of her capacity.
170
Bia-Domingo, supra note 93.
171
Sejko, supra note 91.
172
D’aoust, supra note 78.
173
Spence v. Kolstar (1985), 7 CHRR D/3593, D/3599.
174
Willis v. David Anthony Phillips Properties (1987), 8 CHRR D/3847.
175
409205 Alberta Ltd. v. Alberta (Human Rights and Citizenship Commission), 2002 ABQB 681, [2002]
A.J. No. 910
42
cases seems to be stereotyping of individuals who recieve various forms of social
assistance. 176
b) Blanket Policies with an Adverse Effect are Discriminatory
The jurisprudence in Quebec has also developed to prohibit what is traditionally
known as adverse effect discrimination. Thus, it has been found to be discriminatory to
base rental decisions on the percentage of one’s monthly income because individuals on
the threshold of poverty will devote a higher percentage of income to shelter. 177
Similarly, it is discriminatory to have a blanket policy requiring a cosigner in receipt of
work income for all recipients of social assistance; in Reeves et Québec (CDPDJ) c.
Fondation Abbé Charles-Émile Gadbois, the Tribunal noted that landlords have a right to
ask for a guarantee in certain circumstances, but it must be based on an individualized
assessment of reliability:
[TRANSLATION]
[B]efore imposing such a requirement, landlords have to make a general enquiry
into a potential renter’s ability to pay to evaluate whether there is a real risk. The
Tribunal is of the opinion that landlords cannot automatically apply a policy
requiring a solvent endorser for all income security recipients without first
verifying the particular circumstances of each request to rent accommodation. 178
A similar approach is endorsed in the New Brunswick Commission guidelines on social
condition. 179
In contrast, educational standards as the basis of hiring decisions have not been
found to be discriminatory. In Québec (Procureur général) c. Choinière, the Superior
Court found no discrimination in a policy that gave preference to college graduates in the
context of a public service competition. 180 Similarly, the court found it was not per se
discriminatory to require a level of education for professional certification in Fleurent c.
Association des courtiers et agent immobiliers du Québec. 181 Fleurent was one of the
very few cases where there was any discussion of accommodation. In that case, certain
college-level courses were mandated by regulation in order to be certified as a “courtier
en immeubles.” The body responsible for certifications permitted an individual, who only
had a grade 12 education and whose certification had lapsed, to take the necessary exams
rather than the courses themselves. The court rejected the individual’s claim of
discrimination based on social condition, after he had twice failed the exams, and took
into account that he was accommodated by being allowed to take the exams as a
recognition of his prior experience.
In general, the Quebec jurisprudence on social condition rarely analyzes
discrimination claims expressly in terms of a duty to accommodate or bona fide
176
Other illustrative cases include Iness v. Caroline Co-operative Homes Inc., [2006] O.H.R.T.D. No. 19
(immigrant mother on social assistance), McEwen c. Warden Building Management Ltd (1993), 26 CHRR
D/129 (mother’s allowance).
177
Brouillette, supra note 78; Whittom, supra note 79, citing sociological expert evidence.
178
Reeves, supra note 89 at paras. 53-54.
179
NBHRC Guidelines, supra note 113.
180
Choinière, supra note 102.
181
Fleurent, supra note 102.
43
justifications. One can infer from the results of the cases discussed above, however, that a
low income or receipt of public assistance is not alone a justification for refusing to
contract with someone based on their social condition. Moreover, it could be concluded
that there is a duty to accommodate in the sense that it is incumbent on lessors or service
providers to make an individualized assessment of one’s capacity to pay and to take steps
to verify references rather than drawing assumptions based on their status or level of
income.
That said, the Quebec Commission has recognized the particular challenges of
uncovering social condition discrimination in the area of housing due to systemic factors
that intersect to create barriers to housing, which has not often appeared to inform the
analysis at the adjudicative level:
[TRANSLATION]
…individuals who are socio-economically disadvantaged are turned away
when it comes to accessing housing: they are refused either bluntly, because they
receive social assistance, for example, or indirectly, through the requirement for a
credit check or endorser, or by being told that the percentage of their income that
they spend on housing is too high, without landlords checking their rent payment
record. This exclusion is often camouflaged by the obligation to complete a rent
application form, which is examined out of view and on the basis of unadvertised
criteria.
The difficulties arising from discrimination in access to housing are also
amplified by the state of the rental market. The options for socially disadvantaged
people have in fact reduced considerably under the weight of various factors,
including a shortage in the stock of affordable housing available on the private
market, consecutive increases in the cost of housing and the proportion of income
required by tenants, the public sector’s failure to provide adequate affordable
housing to satisfy needs, and the failure to adequately satisfy these needs through
other forms of benefits. 182
As a result, those suffering from socio-economic disadvantage need to devote more
energy and resources to finding and keeping housing, with resultant physical,
psychological and financial effects that reinforce and aggravate poverty and its
consequences. This recognition by the Commission would appear to advocate a more
nuanced and accommodative approach to tenancy cases, and social condition cases
generally, in order to recognize the complex systemic barriers and effects that may
underlie human rights complaints.
c) Challenges to Social Programs are Rarely Successful
Despite an established jurisprudence recognizing both “direct” and “indirect”
discrimination based on social condition in areas such as tenancy, the Quebec courts have
tended not to find discriminatory practices when dealing with governmental programs.
For instance, in Lambert c. Québec (Procureur général), the claimant was part of a work
182
Quebec, Commission des droits de la personne et des droits de la jeunesse, Mémoire à la Commission de
l’aménagement du territoire de l’Assemblé nationale: Les interventions dans le domaine du logement: une
Pierre angulaire de la lutte contre la pauvreté et l’exclusion (October 2002) at 9-10.
44
assistance program under which his hourly wage was lower than the minimum wage. 183
Despite recognizing a distinction based on his status as an income assistance recipient,
the Court of Appeal found no discrimination because there was no offence to dignity in
the sense that [TRANSLATION] “the Act relies on stereotypes, or its effect is to
reinforce these stereotypes with respect to certain individuals or groups of individuals.”
Without explicitly structuring its analysis in this way, the Court appeared to feel that the
ameliorative purpose of the law to enhance employability and to reintegrate recipients
into the work force was sufficient to shield it from the purview of the Act for distinctions
based on social condition:
[TRANSLATION]
Far from violating human dignity, the measures are specifically designed to
improve the situation of individuals within Quebec society who are
disadvantaged. These individuals cannot, in the same breath, avail themselves of
the exclusivity of these measures and complain, when they are applied, that they
are not considered, under certain limited aspects, to be regular labour market
employees. 184
Similar results have occurred in challenges to student loan programs, which have
as their object student assistance. 185 While also due to a hesitance to find the status of
student or one’s level of education as a social condition, other challenges have failed
against automobile insurance indemnity rates based on level of education, 186 the
contribution rules to the Quebec Pension Plan, 187 and public service pay scales for
summer students vis-à-vis occasional workers. 188
In Villeneuve c. Québec (Procureur général), 189 a group of doctors who were
general practitioners challenged a government program that hired foreign doctors who
were able to be remunerated at specialist rates depending on their practice areas. While
the court also found that there was no social condition applicable in the case, it went on to
find that the program had no discriminatory purpose or effect because there was no
prejudice to the general practitioners when the program was looked at contextually.
Rather, foreign doctors were subject to many restrictions, chosen exceptionally for
pressing needs in remote regions where resident doctors chose not to practice and were
relatively disadvantaged. While we would not necessarily disagree with the result in this
case, it reinforces the apparent trend to immunize government programs from strict
scrutiny for social condition discrimination, particularly where programs are instituted for
the benefit of the disadvantaged.
183
Lambert, supra note 92.
Ibid. at para. 95.
185
Québec (Procureur général) c. Racine, [2007] J.Q. No. 5715 (CQ), where a shorter prescription period
applying to student loans was not discrimination against students based on their social condition because no
evidence was presented, all students were treated the same, and the program was actually intended to help
students finish their studies. See also Lévesque, supra note 100, where the availability of student aid was a
factor in finding no discrimination for cutting off one’s social assistance on return to school full time.
186
Champagne, supra note 101.
187
Harvey, supra note 103.
188
George c. Québec (Procureur général), [2006] JQ No. 11047 (C.A.).
189
[1998] A.Q. no 5 (C.A.), affirming [1993] A.Q. No. 554 (C.S.).
184
45
In contrast to this line of cases in Quebec, the first and only case currently arising
under the new protection against discrimination based on social condition under the
Northwest Territories Act was a successful challenge to the workers’ disability
compensation scheme. As discussed above, the Adjudication Panel in Mercer found the
policy of refusing to include employment insurance benefits in the yearly income of
seasonal workers to be discriminatory because it adversely affected seasonal workers
reliant on employment insurance for part of their yearly income. As a result, it reinforced
the stereotype that seasonal workers were unemployed and reliant on benefits by choice,
further lowering their self-esteem. The Panel ordered the Workers’ Compensation Board
to amend the policy and to provide an individual remedy. 190
While New Brunswick has not yet considered a case under its new protections
against discrimination based on social condition, it is unlikely that a similar case would
be successful because the New Brunswick Human Rights Act, as discussed above,
explicitly exempts any distinction based on social condition that is authorized by law. 191
2.
Discriminatory Practices with a Social Condition Dimension under Federal
Jurisdiction
In evaluating the question of whether social condition should be added to the
Canadian Human Rights Act, a relevant inquiry is the extent to which protection on this
ground would have applicability in areas of federal jurisdiction. Given the number of
cases that have been based on matters of tenancy and, to a lesser extent, the fact that
social assistance is a matter of provincial jurisdiction, there could be an argument that
social condition has less relevance in the federal arena. However, lower income
individuals face barriers in almost all aspects of society, not simply in the provision of
affordable housing, but also employment, and access to services most others take for
granted. As recognized by the La Forest Panel, there is “ample evidence of widespread
discrimination based on characteristics related to social conditions, such as poverty, low
education, homelessness and illiteracy,” and there is a need for protection from
discrimination based on social condition at the federal level. 192 “Despite facing such
strong barriers to equal participation in society, and despite being harshly stigmatized,
poor people have no legal recourse for discrimination on the basis of poverty or social
condition.” 193
a) Housing and Accommodation: the Federal Role in Housing
While tenancy and accommodation issues are generally matters of a merely local
or private nature in the province, 194 there is clearly a federal role in housing. Section 6 of
the CHRA provides that discrimination is prohibited on an enumerated ground in “the
provision of commercial premises or residential accommodation.” Thus, any commercial
190
Mercer, supra note 127.
NBHRA, supra note 108, s. 7.01.
192
La Forest Report, supra note 3 at 107-8.
193
Iding, supra note 43.
194
Constitution Act, 1867, 30 & 31 Vict. c. 3 (U.K.), s. 92(16) or a matter of property and civil rights under
s. 92(13).
191
46
or residential tenancy matters would come under the purview of the CHRA if it relates to
federal land.
More subtly, the federal government often has an impact on housing matters that
generally fall under provincial jurisdiction. This came to the forefront in the matter of
Canada Mortgage and Housing Corp. v. Iness. 195 In this case, a single mother, who had
immigrated to Canada and was in receipt of social assistance, was subject to a significant
rent increase when the housing co-operative in which she lived changed the way it
calculated the housing charge for social assistance recipients as a result of an operating
agreement with the federal Canadian Mortgage and Housing Corporation [“CMHC”].
The Ontario Court of Appeal held that the terms of the grant by CMHC to the housing
co-operative was a valid exercise of the federal spending power and, thus, the Ontario
Human Rights Code had no jurisdiction over the CMHC in the case. 196
As recognized at the provincial level, the relation between social condition and
housing is particularly important. The Quebec Court of Appeal has noted that:
“[H]ousing, even more than employment, represents a basic need of every individual in
our society [...] one's choice in housing, apart from corresponding to one's means, is
highly personalized.” 197 In other words, simply because one is of limited means does not
mean they should be subject to inadequate housing or to only the housing chosen by the
property owner for social assistance recipients if they have the capacity to pay. 198 In
addition, following an analysis of complaints, the Quebec Commission concluded that
one of the most vulnerable category of persons in relation to discrimination in housing
were those covered by social condition; notably, the group covered by “race, colour, …
ethnic or national origin” was the second most vulnerable group and the Commission
found significant overlap in the characteristics of complaints for these two groups due to
the influence of socio-economic factors arising in both. 199 This is another illustration of
how social condition advances a holistic approach to human rights. Lastly, the
jurisprudence emphasizes the relevance of considering Canada’s international obligations
related to housing when considering claims based on social condition. For instance, in
Quebec (Commission des droits de la personne et des droits de la jeunesse) c. Bernier,
the Tribunal noted: 200
[TRANSLATION]
Housing is a basic need, and discrimination based on one of the grounds listed in
the Charter in the search for and access to such a basic asset is prohibited. At the
international level, the International Covenant on Economic, Social and Cultural
Rights sets out an individual’s right to adequate housing, which must be exercised
195
(2004), 49 C.H.R.R. D/29 (Ont. C.A.).
In Iness, supra note 176, the Ontario Human Rights Tribunal found the housing co-operative itself liable
for discrimination for its actions, including posting notices that singled out social assistance recipients and
failing to take steps to clarify or dispute the terms of the operating agreement with CMHC despite requests
by the complainant.
197
Desroches c. Quebec (Commission des droits de la personne et des droits de la jeunesse), [1997] R.J.Q.
1540 (C.A.).
198
See e.g. J.M. Brouillette, supra note 78, where the Tribunal held the landlord’s policy of renting only
old and not new premises to social assistance recipients discriminatory.
199
Logement: une Pierre angulaire, supra note 182 at 9. In 2001 and 2002, social condition was the basis
of 40% of discrimination in housing cases.
200
Bernier, supra note 167 at paras. 37-38. See also, e.g., Quebec (Commission des droits de la personne
et des droits de la jeunesse) c. Gagné [2003] J.T.D.P.Q. No. 5.
196
47
without discrimination. The Committee on Economic, Social and Cultural Rights,
the body that monitors the implementation of the Covenant, pointed out in its
General comment 4, The right to adequate housing, that:
In the first place, the right to housing is integrally linked to other human
rights and to the fundamental principles upon which the Covenant is
premised. … As both the Commission on Human Settlements and the
Global Strategy for Shelter to the Year 2000 have stated: “Adequate
shelter means ... adequate privacy, adequate space, adequate security,
adequate lighting and ventilation, adequate basic infrastructure and
adequate location with regard to work and basic facilities - all at a
reasonable cost”.
Indeed, the issues of federal jurisdiction over housing, the current lack of protection at the
federal level against discrimination based on social condition, and our international
obligations also intersect in relation to human rights protections for Aboriginal peoples.
b) Section 67 of the Canadian Human Rights Act and Aboriginal peoples
Section 67 of the CHRA currently provides: “Nothing in this Act affects any
provision of the Indian Act or any provision made under or pursuant to that Act.” In
studying this provision, the La Forest Panel noted that the blanket exemption in
section 67 was not appropriate in light of “truly universal values [of equality] that have
been accepted internationally.”201 The Panel recommended that section 67 be repealed
until such time that Aboriginal human rights codes apply under self-governing
agreements. 202 On December 13, 2006, the federal government introduced a bill (Bill C21) to repeal section 67. 203
In our 1999 paper, we discussed the applicability of protection from
discrimination based on social condition to housing matters on reserve lands, over which
the federal Parliament has exclusive jurisdiction. At the time, a Motions Judge of the
Federal Court had found in Laslo v. Gordon Band Council that section 67 should be read
narrowly so as not to apply to the housing policy of a Band Council denying housing to
Aboriginal women and their children who were reinstated with “Indian status” after
having lost it for marrying “non-Indians” before 1985. 204 However, this decision was
subsequently overturned by the Federal Court of Appeal in 2000. 205 The Court of Appeal
determined that the housing decision was by necessary implication a provision made
pursuant to section 20 of the Indian Act, which provides: “No Indian is lawfully in
201
La Forest Report, supra note 3 at 130.
Ibid. at 132. The Panel also recommended an interpretive provision be incorporated in the Act to ensure
that Aboriginal community needs and aspirations are taken into account in interpreting the rights and
defences in the Act in cases involving Aboriginal governments.
203
Bill C-21, supra note 17. Bill C-21 was reported from the House of Commons Standing Committee on
Aboriginal Affairs with a number of amendments on February 4, 2008, including an interpretive clause and
an extended transition period exempting claims against Aboriginal government or band council for
36 months after Royal Assent. As of April 2008, the bill was at report stage and these committee
amendments had not yet been considered by the House of Commons.
204
(1996), 31 C.H.R.R. D/385 (F.C. T.D.).
205
Laslo v. Gordon Band (Council), [2000] F.C.J. No. 1175 (C.A.).
202
48
possession of land in a reserve unless, with the approval of the Minister, possession of the
land has been allotted to him by the council of the band.” This precedent appears to close
the door to human rights protection against discrimination in housing decisions for
Aboriginal people on reserve in light of jurisdictional impediments for provincial human
rights bodies and section 67 of the federal CHRA, unless section 67 is repealed. 206
As noted in our previous paper, Laslo did not directly raise issues of social
condition, although the intersectional nature of the grounds of discrimination on which it
was brought (i.e. sex, race and marital status of the complainant and her husband) would
make it an interesting opportunity to explore the capacity of social condition to cover
multiple discrimination claims. Similarly, as noted by the La Forest Panel:
A disproportional number of people from the First Nations, for example, live in
extreme poverty and have few educational and employment opportunities…Some
barriers related to poverty could be challenged on one or more of the existing
grounds. However, these cases have rarely been successful. They are difficult to
prove because they do not challenge the discrimination directly…Perhaps even
more fundamentally, if a policy or practice adversely affects all poor people or all
people with a low level of education, a ground-by-ground consideration of the
issue can be seen as a piecemeal solution that fails to take into account the
cumulative effect of the problem. 207
In any case, Laslo demonstrates that a role exists for the Canadian Human Rights Act in
the realm of housing if section 67 is repealed as contemplated by Bill C-21.
c) Employment
Employment is clearly one area in which protection from discrimination based on
social condition can be equally applicable between the federal and provincial spheres:
Barriers to employment for the socially and economically disadvantaged do not
differ a great deal between federal and provincial jurisdictions. Educational
requirements set unnecessarily high can create a serious barrier. The unemployed
have more difficulty finding a job than those who are employed. The requirement
that job applicants pay for an aptitude test, or supply tools or expensive uniforms
can also be barriers to employment for the poor. 208
While the provincial case law has not established a successful precedent in the
employment context as related to social condition, it has offered examples of where such
claims could arise. For instance, in Québec (Procureur général) c. Choinière, a challenge
206
Notably, similar results have been found in the context of providing educational services to “status
Indians” in Canada (Canadian Human Rights Commission) v. Canada (Department of Indian Affairs and
Northern Development) (re Prince), [1994] F.C.J. No. 1998 (F.C. T.D.), although s.67 has been found not
to apply to decisions that cannot be directly connected to provisions of the Indian Act in the context of
employment (Bernard v. Waycobah Board of Education, (1999) 36 C.H.R.R. D/51 (C.H.R.T.) and
Bressette v. Kettle and Stoney Point First Nation Band Council (No. 1), [2003] C.H.R.D. No. 38) or in the
provision of social assistance to band members (Ennis v. Tobique First Nation, [2006] C.H.R.D. No. 21 and
MacNutt v. Shubenacadie Indian Band Council, [1998] 2 F.C. 198; aff'd, [2000] F.C.J. No. 702, (2000), 37
C.H.R.R. D/466 (F.C.A.)).
207
La Forest Report, supra note 3 at 108.
208
La Forest Report, supra note 3 at 107.
49
was made to the preference given to college graduates in the context of a public service
competition. 209 Similarly, in George c. Québec (Procureur général), an application was
brought to start a class action challenging policy directives that established different
hiring requirements and pay scales for summer students versus occasional employees in
the Quebec public service. 210 Cases such as these would have equal applicability to hiring
practices in the federal public service. Other examples cited by the La Forest Panel, such
as the purchase of uniforms or tools, have not yet been judicially examined in the
provincial context.
As noted in the New Brunswick Guidelines on Social Condition, the most obvious
or direct forms of discrimination would be prohibited in employment, such as:
o Asking a potential employee during an interview if they have ever been in
receipt of social assistance;
o Asking an applicant’s references about whether the applicant is receiving a
worker’s compensation pension;
o Harassment of an employee whose occupation has a low status or a failure
to investigate allegations of such harassment. 211
Similarly, the Guidelines emphasize that the usual defences would be applicable to
claims of discrimination in the employment context, notably if the employer can establish
that their practices are a bona fide occupational requirement, such as managing
performance and setting expectations with respect to workplace productivity. 212
In light of the goals of human rights codes to promote social inclusion of
vulnerable groups, protection in employment would seem to be particularly important in
the case of social condition. As established above, one’s occupation or lack thereof is a
primary determinant of one’s socio-economic rank or standing. Barriers to participation
in the workforce based on social condition are likely to reinforce the social and economic
disadvantage of the members of these groups. Moreover, in lower-paying, precarious or
less professionalized jobs, the power imbalance between the employer and employee is
likely to be further aggravated, heightening the need for legal protections from
discrimination, whether intentional or based on systemic barriers to inclusion.
d) Private Sector Services: Banking, Telecommunications and Broadcasting
Section 5 of the CHRA provides:
It is a discriminatory practice in the provision of goods, services, facilities
or accommodation customarily available to the general 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. 213
209
Choinière, supra note 102.
George, supra note 188.
211
NBHRC Guidelines, supra note 113 at 6.
212
Ibid. at 7.
213
CHRA, supra note 1, s. 5.
210
50
The CHRA would thus apply to services provided by federal works and undertakings
such as banking, telecommunications, and broadcasting services. 214 Protection for social
condition could apply at the federal level to address discriminatory attitudes in the
context of the provision of such services, 215 as well as more indirect discrimination
practices resulting from seemingly neutral policies in these industries.
In our 1999 paper, we provided a comprehensive overview of major barriers to
accessing banking services for those that may be covered by “social condition,” based on
characteristics such as income, education and receipt of social assistance, as well as age.
According to a study by the Association coopérative d’économie familiale [“ACEF”], 216
excessive identification requirements, which disproportionately impact those with a lower
income who are less likely to have such documents, were imposed to open an account or
to simply cash a cheque. Similarly, requirements for a minimum deposit to open an
account and the holding of deposited funds for a fixed number of days were conditions
imposed on recipients of social assistance by many of the banks surveyed, despite the low
risk associated with government social assistance cheques. More directly, the ACEF
study observed overtly discriminatory attitudes by some banking clerks when dealing
with lower income clients. More systemically, the study demonstrated that banks were
increasingly disappearing from lower income neighbourhoods and moving towards a
higher dependence on computer and phone equipment for electronic commerce, further
aggravating barriers to accessing banking services. As we concluded in 1999:
A key theme running through the barriers to accessibility to banking services
outlined is the arbitrariness of banking policies which bear no relation to
legislative requirements or practical realities. In addition, a further important idea
encouraged by the report is that lower-income persons are potentially profitable to
banks and investment in economically disadvantaged areas would not necessarily
disadvantage a bank. Another key theme is the lack of government intervention to
improve access for lower income persons and the potential impetus such
legislation would provide to banks…The ACEF report makes it clear that the
inclusion of social condition in the Act could resolve much of the discrimination
faced in the banking industry. 217
This conclusion was endorsed by the La Forest Panel 218 and also finds precedent
in the provincial jurisprudence. In Quebec, in D’Aoust c. Vallières, a provincial credit
union was found to discriminate against a social recipient for failing to lend to her based
on a prejudgment that she would not respect her financial obligations.219 The Quebec
Commission has also reported settlements with provincial institutions for imposing
monthly fees on bank accounts with a balance of less than $100 220 or for refusing to issue
214
Constitution Act, 1867, supra note 194 ss. 91(15), 91(29) and 92(10).
See e.g., Sejko, supra note 91, in the context of a purchase contract.
216
Association coopérative d’économie familiale, The Highs and Lows of Access to Banking Services in
Canada: A Report to Industry Canada (Montreal: ACEF, 1996).
217
A.W. MacKay et al., supra note 4 at 63-64.
218
La Forest Report, supra note 3 at 108.
219
D’Aoust, supra note 78.
220
P.G. et Une institution financière, (November 2001), cited in Quebec, Commission des droits de la
personne et des droits de la jeunesse, Rapport d’activités et de gestion 2001 at 88, online:
<www.cdpdj.qc.ca/fr/publications/docs/RA_2001.pdf> (date accessed: January 6, 2008).
215
51
a credit card to a recipient of income security. 221 Similarly, it has been established in the
tenancy context that blanket policies of requiring guarantors or cosignors from social
assistance recipients is discriminatory for not ensuring an individualized verification of
one’s ability to pay. 222
Similar practices in the provision of utilities may also impact lower income clients
and thus have relevance to social condition protection at the federal level. During its
public consultations, the La Forest Panel noted:
We were told that people who are poor experience problems with telephone
services. In its “Terms of Service” published in Telephone Directories, one
company advises that generally, it cannot require deposits from an applicant or
customer at any time unless: (a) the applicant or customer has no credit history
with the company and will not provide satisfactory credit information; (b) has an
unsatisfactory credit rating with the company due to payment practices in the
previous two years regarding the company’s services; or (c) clearly presents an
abnormal risk of loss. These terms were approved by the CRTC. We were told in
a submission of at least one complaint filed with the Commission challenging a
company’s decision to categorize a single mother on welfare, but with a spotless
credit history, as “an abnormal risk of loss” solely because she was unemployed.
According to the submission, the complaint was dismissed by the Commission
because “social condition or receipt of public assistance is not a prohibited ground
of discrimination under the CHRA.” 223
This example starkly demonstrates that, like in the banking sector, decisions related to the
provision of services by utilities are often based on a disconnection from practical
realities in the case of social assistance recipients. Someone receiving social assistance is
essentially guaranteed a set level of income, which should logically support her capacity
to pay and arguably is more secure than work income. An assumption that she poses an
abnormal risk of loss, particularly in spite of a good credit history, evidences a stereotype
on the part of service-providers that social assistance recipients are less reliable or less
responsible with their money than those in receipt of income from work in the labour
market.
A final example of where protection against discrimination based on social
condition may have applicability to services in the federal sector is in broadcasting. In the
case of Front commun des personnes assistées sociales du Québec v. Canada (Canadian
Radio-Television and Telecommunications Commission), a network broadcast a program
that made derogatory comments against persons receiving social assistance. Following a
complaint, the Canadian Radio-Television and Telecommunications Broadcasting
Commission determined it did not meet the high standards of broadcasting required under
the Broadcasting Regulations, but that it could not be found to have contravened the
regulations prohibiting abusive comments because social condition was not a ground
221
Commission des droits de la personne et des droits de la jeunesse pour F. Bouchard et Visa Desjardins,
(December 1998) cited in Quebec, Commission des droits de la personne et des droits de la jeunesse,
Rapport d’activités et de gestion 2001 at 51, online: <www.cdpdj.qc.ca/fr/publications/docs/RA1998.pdf>
(date accessed: January 6, 2008).
222
Reeves, supra note 89.
223
La Forest Report, supra note 3 at 108.
52
listed under that regulation. This decision was upheld by the Federal Court of Appeal,
noting that it would introduce considerable ambiguity and uncertainty to add social
condition, particularly in the context of a penal provision, where such addition was not
contemplated by Parliament or the offender. 224 As a result, the complainant was provided
a very limited remedy for addressing the broadcasting of prejudicial comments against
social assistance recipients. Due to the involvement of the CRTC and the application of
the broadcasting regulations, this case is also related to the relevance of adding social
condition to address public sector policies and programs.
e) Public Sector “Services”
Section 66 of the CHRA provides that “[t]his Act is binding on Her Majesty in
right of Canada”, which makes the CHRA equally applicable to actions of the
government and federal legislation. As noted by the La Forest Panel:
Many statutes and government programs make distinctions based on economic
classification. There are cases where the Tribunal and the courts held that the
concept of “services […] customarily available to the general public” covers a
broad range of governmental activity, including matters such as unemployment
insurance, policing, immigration, employment and research grants, and even
taxation under the Income Tax Act. And…the Supreme Court of Canada has held
that human rights legislation has primacy over other legislation. 225
The provincial human rights case law (discussed above) and the Canadian Charter
jurisprudence (discussed further below) provide a myriad of examples of where social
condition claims may arise in relation to government services. For instance, the
inclusion/deduction system for child support under the Income Tax Act was challenged in
Thibaudeau v. Canada (Minister of National Revenue); while subsequently reversed at
the Supreme Court of Canada, 226 the Federal Court of Appeal had found discrimination
under section15 of the Charter based on the status of being “a separated custodial parent”
or “family status.” 227 The claim itself was brought on the grounds of sex, civil status or
social condition, the complainant arguing that “divorced women have a unique social
condition because of her income and level of education and are in a disadvantaged
position in society.” 228 Other cases have challenged reductions in government benefits, 229
224
[2003] FCJ No. 1609 (Fed. C.A.).
La Forest Report, supra note 3 at 111-12.
226
[1995] 2 S.C.R. 627.
227
[1994] 2 FC 189 (Fed. C.A.).
228
“Social condition” was not directly addressed by the majority judgment, which preferred to decide the
case on other grounds, but note that the dissenting appeal judge decided at para. 97 that there was no
discrimination on social condition because the condition was the result of the discrimination not the cause
and the legislative provision was designed to ameliorate the situation due to divorce or separation. See also
Schaff v. Canada, [1993] T.C.J. (T.C.C.), finding that although poor, single motherhood was a personal
characteristic that could be considered an analogous ground under s.15, there was no discriminatory effect
from the inclusion/deduction system because poverty is not caused by the inclusion-deduction system;
rather, it could create a potential tax advantage.
229
See MacKay v. British Columbia (Ministry of Social Development and Economic Security), [2002]
B.C.J. No. 553 (S.C.), challenging the reduction of social assistance for those receiving Canada Pension
Plan benefits; Falkiner v. Ontario (Ministry of Community and Social Services), [2002] O.J. No. 1771, 59
O.R. (3d) 481 (C.A.), leave to appeal to SCC granted but appeal discontinued Sept. 1, 2004, and Masse v.
225
53
differential treatment under employment assistance programs,230 and challenges to
student loan programs. 231 Similarly, provincial cases challenging the disproportionate
impact of some criminal prohibitions on poor people 232 or the impact of remedy
enforcement on the impecunious 233 could have equal applicability to federal laws.
Notably, very few of these cases have actually been successful in either the
human rights or Charter context. In general, tribunals and courts have found that the
programs in question are intended for ameliorative purposes and thus not discriminatory
under the law or that, in the Charter context, poverty could not be considered to be an
analogous ground. These trends in the jurisprudence raise important considerations for
whether an exemption for government programs would be required if social condition
were to be added to the CHRA, which will be discussed further below. However, for
present purposes, the cases demonstrate the applicability of social condition protection at
the federal level in this area. As the above indicates, there is ample scope for social
condition at the federal level, as well as provincial levels.
f) Discrimination Practices arising from Demographics: Aging “Baby Boomers”
and New Immigrants
Another emerging area of discrimination is the result of demographics: as the
work force ages and “baby boomers” retire, their places in the workplace are increasingly
being occupied by new immigrants. Both these retirees and their immigrant replacements
will face discrimination, not just in relation to enumerated grounds such as age, race or
national origin but also discrimination that is socio-economic in nature that might be
more effectively addressed by the ground of social condition. The types of barriers faced
by both retiring “baby boomers” and new immigrants are likely to be complex and
intersectional in nature and will almost certainly have economic dimensions. Some
retirees will have a difficult time making ends meet on pension income (if they have
pensions) and new immigrants who are either unable to get jobs or are underemployed
will also face significant economic challenges.
In respect to the growing numbers of people who are retiring there is likely to be a
particularly negative impact on women who are less likely than men to have adequate
pensions and are part of the phenomenon that former Justice L’Heureux-Dubé refers to as
the feminization of poverty. 234 This is further evidence of the intersection of various
grounds of discrimination to produce a unique kind of human rights violation, one aspect
of which could be covered by social condition. The retirement of the “baby boomers” in
record numbers will create significant societal dislocations, and the addition of social
Ontario (Ministry of Community and Social Services), [1996] O.J. No. 363 (Gen. Div.), involving the
reduction of social assistance benefits;
230
Lambert, supra note 92.
231
See e.g. Racine, supra note 185.
232
See e.g. R. v. Banks, [2007] O.J. No. 99 (C.A.), upholding [2005] O.J. No. 98 (S.C.J.), leave to appeal
dismissed [2007] S.C.C.A. No. 139, challenging provincial legislation restricting “squeegeeing” for its
impact on poor people.
233
Tupper v. Nova Scotia (Attorney General), [2007] N.S.J. No. 341 (S.C.).
234
Moge v. Moge [1992] 3 S.C.R. 813 at 853, per L’Heureux-Dubé, affirmed in Marzetti v. Marzetti [1994]
2 S.C.R. 765, per Iacobucci for a unanimous Court.
54
condition to the CHRA would provide one additional tool in responding to the resulting
individual and social problems.
In respect to the new immigrants pursuing the jobs vacated by the retiring “baby
boomers” there will be issues related to occupation, educational levels and comparative
qualifications that might well be captured in the concept of social condition. While the
La Forest Report recommends exempting immigration from the reach of social condition,
we think it was more the statutory regime itself governing immigration, rather than
individual manifestations of discrimination in respect to how the laws are applied. We
will return to whether immigration should be removed from the reach of social condition
discrimination in the recommendation section of this study.
Old age pensions and supplementary benefits, “including survivors and disability
benefits irrespective of age”, fall within federal constitutional jurisdiction and this
jurisdiction is to be exercised in conjunction with provincial laws within their
jurisdictions. 235 Furthermore, immigration is a concurrent power shared between the
federal and provincial levels of government and thus would leave some scope for the
application of the Canadian Human Rights Act, as well as provincial human rights
codes. 236
In Hodge v. Canada (Minister of Human Resources Development), 237 a claim for
survivor’s benefits under the Canada Pension Plan (CPP) was denied on the basis that the
claimant fell within the category of “former spouses” not entitled to CPP benefits.
Betty Hodge argued that, as a “separated common law spouse”, she should be compared
to “separated married spouses” and therefore entitled to the CPP benefits. If social
condition or poverty were available as grounds of discrimination under either the
Canadian Human Rights Act or as an analogous ground or discrimination under section
15 of the Charter, perhaps she could have succeeded on that ground or the intersection of
social condition with other grounds. While Ms. Hodge’s age is not indicated in the case,
this is the kind of claim that might well be made by the aged and the inclusion of social
condition would improve their protection.
Both pension schemes and immigration regimes are complex statutory and
regulatory structures, and the application of a new social condition ground of
discrimination would have to be handled with care. There may even be need for special
justifications or partial or temporary exemptions but there is no denying the potential for
social condition discrimination against both aging retirees and new immigrants. How to
handle these changing Canadian demographics and the inherent human rights dimensions
of the change are worthy of serious and speedy consideration by the Canadian Human
Rights Commission and other agencies.
D. Section 15 of the Charter and Social Condition
Since the arrival of the Canadian Charter of Rights and Freedoms in 1982, and in
particular since the section 15 equality provision came into effect in 1985, there has been
a symbiotic and mutually reinforcing relationship between the Charter and human rights
235
Constitution Act, 1867, supra note 194, s. 94A.
Ibid., s. 95.
237
[2004] 3 S.C.R. 357.
236
55
codes. In some cases the human rights codes have been used to enrich and expand the
meaning of section 15 of the Charter and in others the Charter has been used to expand
the scope of human rights codes. Thus, we will examine the section 15 Charter
jurisprudence related to the concept of social condition and the impact of the trends under
the Charter on the question of whether social condition should be recognized as a
prohibited ground of discrimination in the Canadian Human Rights Act. To do so,
however, we will first set the stage with a discussion of the equality law under the
Charter and its links to human rights codes.
1.
Section 15 Jurisprudence
With its very first case on section 15 of the Charter, the Supreme Court of Canada
sent a message that not all distinctions would be offensive to the Charter. However,
unlike the closed lists of grounds in human rights codes, section 15 of the Charter is
more open-ended and allows for protection on analogous grounds as the courts may deem
appropriate as society changes and evolves. This encourages the “living tree”
interpretation of the Constitution. In Andrews v. Law Society of British Columbia, 238 the
Supreme Court of Canada held that the intended beneficiaries of equality were not only
the expressly enumerated groups, but also analogous groups who could be described as
discrete and insular minorities that experience disadvantage in society at large. This
position was most clearly articulated by Justice Wilson in the following passage:
I emphasize…that [the protection of specific groups] is a
determination which is not to be made only in the context of the
law which is subject to challenge but rather in the context of the
place of the group in the entire social, political and legal fabric of
our society. While legislatures must inevitably draw distinctions
among the governed, such distinctions should not bring about or
reinforce the disadvantage of certain groups and individuals by
denying them the rights freely accorded to others.
… [I]t is not necessary in this case to determine what limit, if any,
there is on the grounds covered by s. 15 and I do not do so. 239
In Andrews itself, the Court concludes that citizenship meets the test for an analogous
ground under section 15 of the Charter. It reached this conclusion even though it is not
an immutable characteristic like race or gender (with some exceptions). Of course,
religion is also a mutable characteristic, but one that has been protected as an enumerated
ground of discrimination. In R. v. Turpin, 240 the Court drew the line at province of
residence and reinforced this conclusion in R. v. S. (S.). 241 Unlike citizenship or religion,
province of residence can be changed fairly easily. More importantly, province of
residence was seen as less likely to subject the relevant group to stereotyping and other
238
[1989] 1 S.C.R. 143.
Ibid. at 152-53.
240
[1989] 1 S.C.R. 1296.
241
[1990] 2 S.C.R. 254.
239
56
forms of discrimination. In Corbière v. Canada, 242 “Aboriginality residence” was held to
be an analogous ground because of the disadvantages and stereotyping faced by
off-reserve Aboriginals. How these arguments might relate to the inclusion of social
condition as an analogous ground under the Charter will be explored later.
Building upon Andrews, the Supreme Court has expanded the analogous grounds
to include common law spouses in Miron v. Trudel, 243 and gays and lesbians in Egan v.
Canada 244 and Vriend v. Alberta. 245 In reaching these conclusions, the Court relied upon
the historical disadvantage of these groups. Many other groups who made claims to the
benefits of section 15, such as corporations, were denied. 246
Chief Justice McLachlin (writing as a puisne Justice) in Miron v. Trudel
summarizes the factors that can lead to a finding that a particular basis of discrimination
is an analogous ground under section 15 of the Charter.
One indicator of an analogous ground may be that the targeted group has
suffered historical disadvantage, independent of the challenged distinction:
Andrews, supra, at p. 152 per Wilson J.; Turpin, supra, at pp. 1331-32.
Another may be the fact that the group constitutes a “discrete and insular
minority”: Andrews, supra, at p. 152 per Wilson J. and at p. 183 per
McIntyre J.; Turpin, supra, at p. 1333. Another indicator is a distinction
made on the basis of a personal characteristic; as McIntyre J. stated in
Andrews, “(d)istinctions based on personal characteristics attributed to an
individual solely on the basis of association with a group will rarely
escape the charge of discrimination, while those based on an individual’s
merits and capacities will rarely be so classed” (pp. 174-75). By extension,
it has been suggested that distinctions based on personal and immutable
characteristics must be discriminatory within s. 15(1): Andrews, supra, at
p. 195 per La Forest J. Additional assistance may be obtained by
comparing the ground at issue with the grounds enumerated, or from
recognition by legislators and jurists that the ground is discriminatory: see
Egan v. Canada, supra, per Cory J.
All of these may be valid indicators in the exclusionary sense that their
presence may signal an analogous ground. But the converse proposition –
that any or all of them must be present to find an analogous ground – is
invalid. As Wilson J. recognized in Turpin (at p. 1333), they are but
“analytical tools” which may be “of assistance”. 247
Madam Justice L’Heureux-Dubé, writing in Corbière v. Canada, 248 provides a similar
list of indicators of analogous grounds, but she expressly refers to human rights codes as
242
[1999] 1 S.C.R. 493.
[1994] 2 S.C.R. 418.
244
[1995] 2 S.C.R. 513.
245
[1998] 1 S.C.R. 493.
246
See e.g. Dywidag Systems International, Canada v. Zutphen Brothers Construction, [1990] 1 S.C.R.
705; Aluminum Co. of Canada v. The Queen (1986), 55 O.R. (2d) 522 (Div. Ct). See also P. Hogg,
Constitutional Law of Canada, 3rd ed. (Scarborough: Carswell, 1992).
247
Miron, supra note 243 at paras. 148-149.
248
Corbière, supra note 242.
243
57
one indicator of the kinds of grounds that should be seen as the basis of discrimination.
Thus, the human rights codes can be used to expand the equality provisions of the
Charter, as well as the other way around. This is part of the symbiotic and mutually
reinforcing nature of these legal instruments which has alarmed critics from the right,
such as Professors F.L. Morton and R. Knopff. 249
The center of the section 15 equality universe is now Law v. Canada (Min. of
Employment and Immigration). 250 Justice Iacobucci, writing for a unanimous Supreme
Court of Canada, formulated a single test for equality focused on the concept of human
dignity. Only distinctions on a personal characteristic (enumerated or analogous grounds)
that offend human dignity fall within the scope of section 15 of the Charter. He defines
human dignity broadly in the following terms:
What is human dignity? There can be different conceptions of what human
dignity means. For the purpose of analysis under s. 15(1) of the Charter,
however, the jurisprudence of this Court reflects a specific, albeit
non-exhaustive, definition. As noted by Lamer C.J. in Rodriguez v. British
Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 554, the equality
guarantee in s. 15(1) is concerned with the realization of personal
autonomy and self-determination. Human dignity means that an individual
or group feels self-respect and self-worth. It is concerned with physical
and psychological integrity and empowerment. Human dignity is harmed
by unfair treatment premised upon personal traits or circumstances which
do not relate to individual needs, capacities, or merits. It is enhanced by
laws which are sensitive to the needs, capacities, and merits of different
individuals, taking into account the context underlying their differences.
Human dignity is harmed when individuals and groups are marginalized,
ignored, or devalued, and is enhanced when laws recognize the full place
of all individuals and groups within Canadian society. Human dignity
within the meaning of the equality guarantee does not relate to the status
or position of an individual in society per se, but rather concerns the
manner in which a person legitimately feels when confronted with a
particular law. Does the law treat him or her unfairly, taking into account
all of the circumstances regarding the individuals affected and excluded by
the law? 251
He goes on in the Law case to re-emphasize that equality is a comparative analysis
(claimant group and comparator group) and an analysis that must be conducted in a
contextual fashion, taking account of the following four context factors:
1. Pre-existing Disadvantage;
2. Relationship Between Grounds and the Claimant’s Characteristics or
Circumstances;
3. Ameliorative Purpose or Effect;
4. Nature of the Interest Affected.
249
F.L. Morton and R. Knopff, The Charter Revolution and the Court Party (Peterborough Ont.:
Broadview Press, 2000).
250
[1999] 1 S.C.R. 497.
251
Ibid.
58
Even using the same test the Supreme Court Justices often fail to agree on the
difficult policy choices inherent in section 15 Charter analysis. The Justices, like
Canadians more generally, do not always agree on the proper scope of equality in
Canada. In Canadian Foundation for Children Youth and the Law v. Canada, the
majority of the Court finds that section 43 of the Criminal Code (allowing reasonable
physical correction of children) does not violate section 15 of the Charter nor offend the
human dignity of the children concerned. 252 In Auton v. British Columbia (A.G.), by
narrowly defining the comparator group, the Court denied government funding for
specific therapies for children with autism. 253 By this device or by engaging in the
interest balancing at the rights violation stage, as the majority did in the Children’s
Foundation, some critics argue that the Court has retreated to a more formal (less
substantive) version of equality. 254 We have explored this Charter evolution in some
detail, as we suggest that the Court is in somewhat of a retreat on equality, leaving the
legislatures and human rights codes in a more important leadership role.
While the form of section 15 of the Charter may differ from human rights
legislation, they do share common purposes and effects. It also seems to us that the
language of human dignity, discrete and insular minority and democratic marginalization
may be useful reference points for who should be protected and included in human rights
codes. We also argue that legislators should be willing to lead on matters of equality and
not merely follow the courts as they have done on matters of gay and lesbian rights.
2.
The Interrelationship Between Human Rights Codes and the Charter
[D]iscrimination in a substantive sense involv[es] factors such as
prejudice, stereotyping, and disadvantage. Of fundamental
importance, …the determination of whether each of these
elements exists in a particular case is always to be undertaken in a
purposive manner, taking into account the full social, political,
and legal context of the claim. 255
The recent history of Canadian human rights jurisprudence has consistently
emphasized a purposive, liberal, and contextual approach to interpretation of the Charter
and federal and provincial human rights codes. One can see the way the courts have used
human rights statutory and constitutional instruments to aid each other in fulfilling the
common purpose of the enactments:
It is clear that the purpose of s.15 [of the Charter] is to ensure
equality in the formulation and application of the law. The
promotion of equality entails the promotion of a society in which
all are secure in the knowledge that they are recognized at law as
252
[2004] 1 S.C.R. 76.
[2004] 3 S.C.R. 657.
254
D. Pothier, “Equality as a Comparative Concept: Mirror Mirror on the Wall, What’s the Fairest of Them
All” (2006) 33 Sup. Ct. L. Rev. (2d) 135 and W. MacKay “In Defence of the Courts: A Balanced Judicial
Role in Canada’s Constitutional Democracy” (2007) 21 N.J.C.L. 184.
255
Law, supra note 250 at para. 30. [Emphasis added.]
253
59
human beings equally deserving of concern, respect and
consideration. It has a large remedial component. 256
The [Ontario Human Rights] Code aims at the removal of
discrimination. This is to state the obvious. Its main approach,
however, is not to punish the discriminator, but rather to provide
relief for the victims of discrimination. 257
In Andrews, the court drew on the substantive definition of equality developed in human
rights jurisprudence as part of its contextual analysis to inform the definition of
discrimination under section 15. 258 Similarly, in Eldridge, the court employed the
language of human rights jurisprudence in imposing the obligation of “reasonable
accommodation …to the point of undue hardship” on governments in the case of adverse
effect discrimination. 259 Most recently, in Meiorin, McLachlin J., as she then was, drew
upon the Charter jurisprudential analysis of the Court when adopting a more unified
approach in assessing discrimination under human rights codes.
In the Charter context, the distinction between direct and adverse
effect discrimination may have some analytical significance but,
because the principal concern is the effect of the impugned law, it
has little legal importance… I see little reason for adopting a
different approach when the claim is brought under human rights
legislation which, while it may have a different legal orientation,
is aimed at the same general wrong as s.15(1) of the Charter. 260
256
Andrews, supra note 238 at 171.
O’Malley, supra note 64 at 551, cited in Andrews in informing the definition of equality for s.15 of the
Charter.
258
Andrews, supra note 238.
259
Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 79.
260
Meiorin, supra note 66 at paras. 47-48.
While the complementarity between human rights legislation and s.15(1) of the Charter was one
of the reasons for adopting a new unified test in Meiorin, supra note 66, the Supreme Court has been fairly
consistent in its recent jurisprudence in distinguishing between the Law and Meiorin tests for the different
contexts of Charter claims and statutory human rights codes respectively, although it often draws on cases
from the other context for elaborating specific human rights principles or applications of those principles to
certain facts: see e.g., B. v. Human Rights Commission (Ontario), [2002] 3 S.C.R. 403 at para. 55, citing
Law in discussing the definition of grounds under human rights legislation; Trinity Western University v.
British Columbia College of Teachers, [2001] 1 S.C.R. 772 at paras.32-35, discussing human rights statutes
in elaborating the value of freedom of religion in the Charter context; Quebec (Commission des droits de la
personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, citing both Charter and
human rights jurisprudence in defining the meaning of “handicap” under the Quebec Charter and noting:
“While there is no requirement that the provisions of the Charter mirror those of the Canadian Charter, they
must nevertheless be interpreted in light of the Canadian Charter”.
However, at the Tribunal level, there has been some debate as to the extent to which the Law test
for discrimination under the Charter should apply in the application of human rights legislation. In Wignall
v. Canada (Department of National Revenue), [2003] F.C.J. No. 1627 (Fed. Ct.), the Federal Court found it
was a reviewable error for the Canadian Human Rights Tribunal to apply the Law test to a complaint of
discrimination under the CHRA; see also Powell v. TD Canada Trust, [2007] F.C.J. No. 1579 (Fed. Ct);
Withler v. Canada (Attorney General), 2006 B.C.J. No. 101 (B.C. Sup. Ct.); and Marakkaparambil v.
Ontario (Health and Long-Term Care), 2007 HRTO 24, rejecting a motion to dismiss a complaint that had
257
60
Human rights legislation and the Charter are fundamentally interconnected in the
goals and purposes they seek to achieve. Human rights codes are seen as
“quasi-constitutional” documents 261 – an aid to ensuring the constitutional goal of social
equality is substantively realized.
Human rights codes are documents that embody fundamental
principles, but which permit the understanding and application of
these principles to change over time. These codes leave ample
scope for interpretation by those charged with that task. The
“living-tree” doctrine, well understood and accepted as a principle
of constitutional interpretation, is particularly well suited to
human rights legislation. The enumerated grounds of
discrimination must be examined in the context of contemporary
values, and not in a vacuum. 262
In this way, human rights codes may be seen as a limb of the “tree” which encompasses
the Charter equality guarantees, which continues to grow and evolve at pace with social
values and an ever changing and evolving Canadian society.
However, although conjoined in a common purpose, the framework of the
Charter differs from the human rights codes in the following aspects:
already been rejected on Charter grounds because the outcome could be different under the Human Rights
Code.
But lower level bodies have applied the Law test in the statutory human rights context. This has
generally been the case where there were concerns that a traditional analysis could unduly interfere with
complex governmental policy: see Gwinner v. Alberta (Human Resources and Employment), (2002), 217
D.L.R. (4th) 341 (Alta. Q.B.), aff’d [2005] 354 A.R. 21 (C.A.), where the Queen’s Bench held that it was
appropriate to apply Law in “some cases”, such as those “where there is a human rights equality challenge
to legislation which sets up a government program of financial support that is alleged to be discriminatory”,
but that the Law third-step dignity analysis could be avoided in most human rights complaints; BC
Government and Service Employees Union v. British Columbia (Public Service Employee Relations
Commission), (2002), 4 B.C.L.R. (4th) 301 (C.A.), finding that the Law test and Charter precedents could
apply as a “cluster of points of reference” rather than as a “strict test” to a collective agreement that was
found to be integrated with the employment insurance scheme; Saskatchewan (Department of Finance) v.
Saskatchewan (Human Rights Commission), (2004), 254 Sask. R. 185 (C.A.), where the Court of Appeal
applied the Law test in a challenge to the disability income plan without any discussion of whether it would
be appropriate; Armstrong v. B.C. (Ministry of Health) (No. 5), 2008 BCHRT 19, where the Tribunal used a
Law analysis to supplement a traditional human rights analysis for situations where there are
“governmental overtones” in areas of complex policy such as the allocation of health care funding services,
relying on Preiss v. B.C. (Ministry of Attorney General), 2006 BCHRT 587; and Lane v. ADGA Group
Consultants Inc., 2007 HRTO 34, where the Tribunal felt it was necessary to rely on the comparator group
directive in the Law test in cases of challenges to government programs. As a result, some Tribunals have
opted to do analyses under both tests: Hogan v. Ontario (Health and Long-Term Care) (2006), 58 C.H.R.R.
317 (Ont. H.R.T.), where the majority and dissenting judgments analyzed the claims under both the
Meiorin and Law tests.
This will be an important analytical question to resolve if social condition is added to the CHRA
as an application of the Law test could have a more restrictive approach to claims of discrimination based
on socio-economic grounds as it has in the Charter context, discussed further in the next section.
261
Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 at 339.
262
Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at 621.
61
To begin with, discrimination in s. 15(1) is limited to
discrimination caused by the application or operation of law,
whereas the Human Rights Acts apply also to private activities.
Furthermore, and this is a distinction of more importance, all the
Human Rights Acts passed in Canada specifically designate a
certain limited number of grounds upon which discrimination is
forbidden. Section 15(1) of the Charter is not so limited. 263
In addition, the “defences” or “justifications” in the Charter and the human rights statutes
vary. While the government may justify a finding of discrimination on policy grounds
under section 1 of the Charter, in human rights codes there will be no finding of
discrimination if the practice is found to be a bona fide justification or within a statutory
exemption. Further, the scope of the codes is limited to areas of accommodation, services
and employment whereas the Charter encompasses all government activity; and,
although both are remedial in purpose, the practical effects of pursuing remedies in each
are quite different.
In terms of remedies, the Charter has the remedial power of striking down or
altering the impugned legislation under section 52 of the Constitution Act, 1982, 264 as
well as broad powers to remedy discriminatory government action on an individual level
under section 24 of the Charter. Similarly, human rights tribunals are also given broad
powers to cease, prevent and redress the discriminatory practice, 265 and at least one
commentator believes they are a better forum for devising effective and creative solutions
to discrimination in that the remedies would be unavailable through the expensive court
process and commission remedies would have a more immediate effect for a greater
number of people. 266 Lastly, and most importantly, the legal status of each document is
fundamentally different. Although there have been numerous times where human rights
statutes have been used to inform the development of section 15, the inclusion of section
15 of the Charter in the Constitution Act, 1982 mandates some conformity between
human rights statutes and the Charter itself. It is a two-way street.
There have been many cases where the Charter has been used to challenge human
rights statutes to ensure the legislation conforms to the values and norms enshrined in the
Constitution. 267 Thus, we will evaluate “social condition” as a potential analogous ground
under section 15 of the Charter and whether there may be a constitutional obligation to
include “social condition” in the CHRA.
3.
Social Condition and Charter Jurisprudence Generally
Different aspects of what may constitute social condition have come before all
levels of courts. Some of these claims have come in the form of section 15 Charter
challenges. However, the Supreme Court of Canada has repeatedly affirmed that it does
263
Andrews, supra note 238.
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
265
CHRA, supra note 1, s. 53(2).
266
Turkington, supra note 53.
267
See e.g. McKinney v. University of Guelph, [1990] 3 S.C.R. 229 and Vriend, supra note 245.
264
62
not perceive the Charter as a vehicle for the protection of economic rights. As stated by
L’Heureux-Dubé in her dissent in Egan v. Canada:
As I note earlier, the Charter is not a document of economic
rights and freedoms. Rather, it only protects “economic rights”
when such protection is necessarily incidental to protection of the
worth and dignity of the human person. 268
The reluctance of the court to engage itself in an allocation of economic rights is justified
by judicial deference to the legislature in matters of complex, socio-economic policy,
leaving the role of determining this policy to elected politicians. This deference to the
legislature is demonstrated in judgments such as R.J.R. MacDonald Inc. v. Canada
(Attorney General) 269 and Eldridge v. British Columbia (Attorney General). 270 In RJR
MacDonald, La Forest J., in dissent, states that:
Courts are specialists in the interpretation of legislation and are,
accordingly, well placed to subject criminal justice legislation to
careful scrutiny. However, courts are not specialists in the realm
of policy-making, nor should they be. This is a role properly
assigned to the elected representatives of the peoples, who have at
their disposal the necessary institutional resources to enable them
to compile and assess social science evidence, to mediate between
competing social interests and to reach out and protect vulnerable
groups. 271
The reluctance of the Supreme Court to interpret the Charter so as to enforce
social and economic rights has been followed by the provincial courts in their
adjudication of Charter challenges. In fact, as will be shown below, the primary
justification for refusing to recognize a particular “social condition” or group as
analogous to an enumerated ground under the Charter has been deference to Parliament
in issues of social and economic policy. For example in Gosselin v. Quebec (Attorney
General), 272 the Quebec Superior Court held that:
[TRANSLATION]
268
Egan, supra note 244 at 544, per L’Heureux Dubé J.:
We can further inform our understanding of the purpose of s. 15 by recognizing what
it is not. The Charter is a document of civil, political and legal rights. It is not a
Charter of economic rights. This is not to say, however, that economic prejudices or
benefits are irrelevant to determinations under s. 15 of the Charter. Quite the
contrary. Economic benefits or prejudices are relevant to s. 15, but are more
accurately regarded as symptomatic of the types of distinctions that are at the heart of
s. 15: those that offend inherent human dignity.
269
[1995] 3 S.C.R. 199.
270
Eldridge, supra note 259.
271
RJR MacDonald, supra note 269 at para. 68. Later in the judgment La Forest J. states: “it is not the role
of this Court to substitute its opinion for that of Parliament concerning the ideal legislative solution to this
complex and wide-ranging social problem.” See also McKinney, supra note 267, per La Forest J.; Egan,
supra note 244, per Sopinka J.; and Andrews, supra note 238, per La Forest J.
272
[1992] R.J.Q. 1657 at 1658 (C.S.), aff’d [1999] R.J.Q. 1033 (C.A.), aff’d [2002] 4 S.C.R. 429. See also
Alcorn v. Canada (Commissioner of Corrections), [1999] F.C.J. No. 330 (T.D.); Clark v. Peterborough
Utilities Commission, (1995) 24 O.R. (3d) 7 (Ont. Gen. Div.); Masse, supra note 229.
63
The Charter does not interfere with parliamentary supremacy …
If they were to be seen as positive obligations, the courts would,
through their approval or disapproval, ultimately decide political
choices… However, the Charter does not grant such a role to the
judiciary. The courts must not substitute their judgment in social
and economic matters for the judgment of legislative bodies
elected for that purpose. 273
When put to the test on appeal in Gosselin, the majority of the Supreme Court
also failed to rise to the challenge of interpreting section 15 of the Charter to address
social and economic disadvantage. 274 Forcing young people to live below the poverty line
by providing low levels of social assistance was not viewed as a violation of their dignity.
The good intentions of the legislators were considered at the first stage of Charter
analysis (the violation stage) and the majority of the Court concluded that there was no
breach of equality. This decision has been criticized as advancing stereotypes about the
young and putting too high a burden on Charter claimants. 275 It also represents a general
retreat on equality whereby conflicting rights are balanced at the violation stage rather
than as part of a section 1 justification. This puts the burden of proof on the claimant
rather than the state and makes it easier to justify Charter violations.
In the Gosselin case the majority of the Supreme Court of Canada was also
troubled by the class action aspect of her claim and put a very high burden of proof upon
Ms. Gosselin that is appropriately criticized in some academic circles. 276 It also appears
that the Court was concerned about mandating the Quebec National Assembly to pay
large sums of money to a group of ill-defined claimants. The case concentrated on age as
the sole ground of discrimination and largely ignored issues of mental disability and
poverty, which were present as well. This runs counter to the trend of taking a more
holistic approach to discrimination complaints and recognizing the intersection of various
grounds of discrimination. The Supreme Court did not seize the opportunity to explore
social condition and or poverty as possible analogous grounds under section 15 of the
Charter. Furthermore, by balancing the competing policy interests at the violation stage
rather than at section 1 reasonable limits stage, the majority of the Supreme Court
signaled a general retreat on equality, to which we referred earlier.
While courts continue to play their traditional roles as protector of the
Constitution, promoter of fair process and preventer of arbitrary action by the state, they
have generally avoided entering the contested domain of social and economic policy.
This hesitance should be reconsidered and judges should be open to expanding their role
in the socio-economic domain – albeit with caution and respect for the other branches of
government. However, to date the Charter has not offered much support on poverty
issues.
Since the advent of the Charter in 1982, and the use of s. 15(1) of the Charter to
both prevent discrimination and promote equality, case law has gradually embraced
various forms of grounds analogous to the enumerated ones explicitly set out in the
273
Gosselin (C.S.), ibid. at 1670.
Gosselin (S.C.C.), ibid.
275
Kim & Piper, supra note 40.
276
Ibid.
274
64
Charter. These grounds have grown from singular in their application, to intersectional,
paving the way for a more holistic approach to equality. The grounds have also expanded
their meaning from narrow to broad, allowing claimants in Eldridge 277 but not in Egan 278
to gain full access to government schemes normally closed to Canadians of their status.
In a series of later cases the Supreme Court did advance the rights of gays and lesbians
including providing access to government finances. The Law test, though continuously
upheld as the standard mode of analysis for section 15(1) claims, has received legitimate
criticism, specifically with regards to comparator analyses in the 2004 cases of Auton v.
British Columbia (Attorney General) 279 and Newfoundland Association of Public
Employees v. Newfoundland. 280
In both these latter cases the Supreme Court was willing to defer to the legislative
branch of government with respect to the expenditure of taxpayers’ money. In Auton, the
Supreme Court concludes that the therapy sought to be funded was untested and outside
the scope of the relevant legislation and disagreed with the comparator ground as defined
by the claimant. 281 In the N.A.P.E. case, the Court was willing to recognize the crisis state
of the government’s financial situation as a reasonable basis for reneging on an agreedupon pay equity settlement for women within the relevant union. 282 These cases clearly
demonstrate the reluctance of the courts to second-guess the elected legislative branches
of governments on matters of economic and social policy. This extends to both a refusal
to read positive economic rights into section 15 (perhaps contrary to the promise of
Eldridge 283 ) and a resistance to social condition or poverty as an analogous ground of
discrimination under section 15 of the Charter.
4.
Social Condition or Poverty as an Analogous Ground
As part of the general test for discrimination under section 15, there must be a
distinction made on a personal characteristic. 284 There are many factors which contribute
to this determination, but there is no strict, conclusive or closed list of indicia.285
However, some common factors include: irrelevancy of the characteristic (similar to
those grounds already included), membership in a group which has suffered historical
disadvantage (discrete and insular minority), immutability of the characteristic, and
general societal disadvantage. 286 Again, none of these are conclusive or mandatory in the
analysis of inclusion as an analogous ground, however, social condition does conform to
many of these factors.
Like other prohibited grounds, social condition may be seen as an “irrelevant”
characteristic by which employment, services and accommodation may be denied. In
Miron v. Trudel, McLachlin J., as she then was, made the following statement:
277
Eldridge, supra note 259.
Egan, supra note 244.
279
Auton, supra note 253.
280
[2004] 3 S.C.R. 381 [hereinafter N.A.P.E.].
281
Auton, supra note 253.
282
N.A.P.E., supra note 280.
283
Eldridge, supra note 259.
284
Andrews, supra note 238.
285
Miron, supra note 243.
286
Andrews, supra note 238.
278
65
[I]n determining whether a particular group characteristic is an
analogous ground, the fundamental consideration is whether the
characteristic may serve as an irrelevant basis of exclusion and a
denial of essential human dignity in the human rights tradition. In
other words, may it serve as a basis for unequal treatment based
on stereotypical attributes ascribed to the group, rather than on the
true worth and ability or circumstances of the individual? 287
In this same decision, now Chief Justice McLachlin also holds that there is no absolute
requirement that an analogous ground be immutable and that it can be temporary or
changeable. The stigma and stereotyping of individuals in poverty or in a certain
occupation often overshadow “the true worth and ability or circumstances” of
individuals.
The stigma of poverty is a special type of stigma which attributes
to the poor a status of being ‘less than human.’” …[P]eople
perceive poverty to be the result of individual characteristics of
people living in poverty…So, for example, a common stereotype
illustrating this stigma would be that of the person on welfare as
lazy and unmotivated, as a spendthrift in need of personal
correction. The assumption is that poverty arises out of lack of
effort and thrift. Therefore, anyone who is poor must be lazy and
irresponsible. This logic stands behind povertyism: the logic
translates incorrect assumptions about poverty into assumptions
about the people who are poor. 288
Further, the widespread nature of stereotypical beliefs has often caused historical
disadvantage to people in the institutionalization and development of stereotypes. 289
Lastly, one’s social condition could be compared to such categories as religion or
citizenship; although not necessarily immutable in the strict sense, it is often a very
difficult individual characteristic to change.
Similarly, Wilson J. in Andrews also identified indicators such as whether the
persons characterized by the trait in question are “lacking in political power”, “vulnerable
to having their interests overlooked and their rights to equal concern and respect
violated”, and “vulnerab[le] to becoming a disadvantaged group” on the basis of the
trait. 290 In this sense, individuals living in poverty are some of the most disadvantaged in
our liberal democracy:
In a welfare state, people in poverty are in heightened contact
with law-making bodies and legal structures. That contact,
however, is not as a participant or as a citizen perceived of as an
equal active member of a social contract. Instead, people in
287
Miron, supra note 243 at 495.
Turkington, supra note 53 at 140-41, citing C.I. Waxman, The Stigma of Poverty: A Critique of Poverty
Theories and Policies, 2nd ed. (New York: Permagon Press, 1983) at 70. [Emphasis added]
289
Turkington, ibid. at 147-68, tracing the “poor laws” from feudal Britain to contemporary Canada.
290
Andrews, supra note 238.
288
66
poverty are subject to the expectations and assumptions, the
beliefs and values of the economically privileged in society. 291
The review of the experiences of the two provinces and one territory that have
adopted social condition, discussed above, reveal a tendency to break down the concept
of social condition into more manageable components; such as occupation, source of
income, and education. While this does help to define and clarify the concept of social
condition, it also has the effect of atomizing the concepts of both social condition and
poverty, making it harder to confront the problems of discrimination in a holistic way.
The Northwest Territories is the only province that expressly refers to poverty as an
aspect of social condition. More often it is seen as the other way around - that social
condition is one aspect of the larger concept of poverty.
Sheila Turkington and others advocate the use of the term poverty rather than
social condition as better capturing the kind of problems and disadvantages faced by the
poor in Canada. 292 However, both legislatures and courts have been reluctant to even
embrace the narrower concept of social condition so the likelihood of adding poverty as a
ground of discrimination, either by way of human rights codes or the Charter seems
remote at the present time. The term poverty would be more holistic perhaps but that is a
future issue and social condition offers a manageable way to solve at least some of the
problems. Is a person incapable of providing for herself the basic necessities of life –
food, shelter and clothing – any less disadvantaged than a person who is unable to
provide the very same necessities for himself or herself solely because of their race? It
may be argued that although legislators and policy makers need to seek out and address
the reasons that give rise to the poverty in the first place, it is not for the courts to do the
same. However, in atomizing poverty, they are no longer addressing the reason for the
discrimination but the circumstances that led up to it. By deferring discrimination cases
that give rise to social and economic policy discourse to legislators, the courts are
essentially leaving the victim with no judicial recourse. It can be argued that it is the
courts’ responsibility to recognize the disadvantages of Canada’s citizens and to give as
equal treatment to individuals with intersectional grounds as to those with grounds
comprised of often impossible to qualitatively define causes. 293 Thus, it is possible for
social condition, appropriately defined, to be considered an analogous ground under the
Charter. 294 However that has not happened to date and from the current vantage point
looks doubtful.
Consistent with this more atomized approach to social condition and poverty the
section 15 Charter cases in this area can be grouped into various categories. We did this
in our 1999 Report to the La Forest Review Panel at some length, and we will not repeat
that here. 295 The categories that we reviewed are as follows:
1. Occupation and Employment Status
2. Income Level and Source of Income
291
Turkington, supra note 53 at 143.
Ibid.
293
Ibid.
294
See also Dartmouth Halifax (County) Regional Housing v. Sparks (1993), 101 D.L.R. (4th) 224
(N.S.C.A.).
295
MacKay, Piper and Kim, supra note 4 at 34.
292
67
3. Residence
4. Prisoners
5. Single mother / sole support parents
As we previously discussed, most of the claims in the above areas did not succeed and
only “Aboriginality residence” in Corbière was upheld at the Supreme Court of Canada
level. 296 Occupation and employment status, 297 income levels, criteria for government
benefits, residence and status as a prisoner, even a poor prisoner, 298 did not result in an
analogous ground of social condition. 299
More success for poverty claimants has been achieved at lower court levels in
respect to multiple grounds of discrimination which include, among other factors, source
of income or status as a single mother. It is important to note, however, that even in the
cases where the claimants succeeded the judges stopped short of finding that social
condition or poverty was a stand alone analogous ground of discrimination. They relied
instead on intersectionality in the particular cases.
The Supreme Court of Canada held in Thibaudeau v. Canada 300 that “level of
income” is not an analogous ground for the purpose of finding discrimination under
section 15 because it is not a personal characteristic. This holding was followed in later
cases such as Guillemette v. Canada, where the plaintiff argued that progressive income
tax rates discriminated against individuals based on their level of income. 301 The court
rejected the argument that since, income level was an analogous ground for the purpose
of affirmative action programs under section 15(2), 302 level of income should also be
recognized as an analogous ground under section 15. 303
When evaluating section 15 claims under the Charter, the courts have rejected
those based on level of income in cases where the plaintiff could allege no real
disadvantage. The Charter was not used to protect claims where an individual in a
situation of economic advantage attempted to use the Charter to obtain tax breaks or
other benefits. However, in instances where plaintiffs sought Charter protection due to
their low income or receipt of social assistance, the courts have provided that protection
296
Corbière, supra note 242. While L’Heureux-Dubé did a wide ranging analysis, the case was not really
tied to economic or social status and she reaffirmed that residence generally is not an analogous ground.
297
Baier v. Alberta, 2007 SCC 31, reiterated that occupation is not an analogous ground.
298
Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, per Gonthier J., dissenting also failed to
recognize Aboriginal prisoners.
299
MacKay, Piper and Kim, supra note 4 at 34.
300
Thibaudeau, supra note 226.
301
Guillemette v. Canada, [1997] T.C.J. No. 589.
302
In this case, the plaintiff referred, in particular, to the Child Tax Credit, the GST Credit, Guaranteed
Income Supplement and Old Age Security payments as evidence that legislation has been enacted with the
purpose of improving the conditions of people who suffer disadvantage on the basis of their level of
income.
303
See also Vosicky v. R. (1996), 96 D.T.C. 6580 (F.C.A.), where Hugessen J. held that the establishment
of different tax rates for different income brackets does not constitute discrimination on a ground
enumerated in s. 15 or on any analogous ground. See also Netupsky v. Canada, [1996] F.C.J. No. 236
(C.A.), where the court found that “it is well established that laws can draw a distinction between persons
as long as it is not based on personal characteristics. No such distinction is made here as the only
distinguishing characteristic involved is relative wealth and income;” Reesink v. Canada, [1998] T.C.J.
No. 100 at para. 17, where Lamarre J. held that “Students who work cannot constitute a group within the
meaning of s. 15 of the Charter as income level is not a characteristic attaching to the individual.”
68
in a limited number of cases. For example, in Federated Anti-Poverty Groups of British
Columbia v. British Columbia (Attorney General), an application to strike a section 15
Charter argument from the plaintiff’s statement of claim was refused by Parrett J. who
concluded:
Applying s. 15 of the Charter, it is clear that persons receiving
income assistance constitute a discrete and insular minority within
the meaning of s. 15. It may reasonably be inferred that because
recipients of public assistance generally lack substantial political
influence, they comprise “those groups in society whose needs
and wishes elected officials have no apparent interest in
attending.” 304
In that case the plaintiff challenged the validity of part 2 of the Guaranteed Available
Income for Need Act, which vested in the Crown an individual’s right to maintenance, in
particular rights to claim, vary or enforce maintenance.
Schaff v. Canada provides another instance where the courts acknowledged
poverty as an analogous ground of discrimination. 305 The plaintiff in Schaff was a female,
single parent living in poverty who challenged the requirement that she include
maintenance payments in her income for the purpose of taxation, pursuant to
section 56(1)(b) of the Income Tax Act. Although the claim ultimately failed since
section 56(1)(b) was found not to be discriminatory, the court held that:
The appellant in my opinion is part of a “discrete and insular
minority” worthy of protection under s. 15 of the Charter. More
specifically, poverty is a personal characteristic that can form the
basis of discrimination. The appellant is a member of a narrower
analogous group found in Thibaudeau, supra. The appellant’s
group is only distinguished by its poverty.” 306
This is a particularly broad statement that has not been picked up and followed in later
cases.
Further recognition of poverty as a personal characteristic, leading to its
characterization as an analogous ground, is found in Dartmouth/Halifax County Regional
Housing Authority v. Sparks. 307 In that case, public housing tenants were unable to avail
themselves of the security of rental tenure which was available to non-public housing
tenants pursuant to sections 10(8)(d) and 25(2) of the Residential Tenancies Act. The
court held that the provisions of the Act violated the Charter, stating in the course of its
judgment that:
Low income, in most cases verging on or below poverty, is
undeniably a characteristic shared by all residents of public
housing…
304
(1991) 70 B.C.L.R. (2d) 325 (S.C.).
Schaff, supra note 228.
306
Ibid. at para 52. [Emphasis added.]
307
Sparks, supra note 294.
305
69
Single mothers are now known to be the group in society most
likely to experience poverty in the extreme. It is by virtue of
being a single mother that this poverty is likely to affect the
members of this group. This is no less a personal characteristic of
such individuals than non-citizenship was in Andrews. To find
otherwise would strain the interpretation of “personal
characteristic” unduly…
The public housing tenants group as a whole is historically
disadvantaged as a result of the combined effect of several
personal characteristics listed in s. 15(1). As a result, they are a
group analogous… 308
Hence, the court found that low income and poverty constitute personal characteristics
worthy of protection under section 15 of the Charter. In the particular circumstances of
Sparks, individuals with a low income, combined with characteristics such as single
motherhood and race, occupied the social condition of “public housing tenant,” as an
analogous ground under section 15 of the Charter.
Consistent with Schaff and Sparks, which relied on the claimants being single
support mothers in finding an analogous ground, McLachlin J. (as she then was,
supported by L’Heureux-Dubé J.) asserted in her dissenting judgment in Thibaudeau that
“the status of separated or divorced custodial parent constitutes an analogous ground of
discrimination within the meaning of section 15(1) of the Charter.” 309 As
L’Heureux Dubé J. elaborated, the dissolution of a relationship with children often leaves
custodial parents in difficult economic circumstances; in addition, separated and divorced
custodial parents are largely women who are politically invisible, “economically
vulnerable, and socially disempowered”. 310 As a highly vulnerable group, united by
various personal characteristics, this group is appropriate for protection as an analogous
ground under section 15. However, this was not the majority judgment. 311 Notably, in
Schaff v. Canada, 312 the plaintiff ultimately lost her case, although the court did
recognize that a single mother living in poverty was a member of a group constituting an
analogous ground under section 15 of the Charter.
However, despite the (mostly obiter) opinions expressed on social condition or
low income as an analogous ground in the previous judgments, other courts have come to
different conclusions. In Massé where the applicants asked the Ontario court to quash
legislation which reduced social assistance rates by 21%. In spite of strong evidence
which showed that the cuts would cause large-scale suffering, especially with regards to
308
Ibid. at 234.
Thibaudeau, supra note 226 at para 212. The recognition of separated or divorced custodial parents as a
group requiring Charter protection under s. 15 was supported in the dissenting judgment of Corbett J. in
Massé, supra note 229.
310
Thibaudeau, ibid. at para 44.
311
The majority decided Thibaudeau on the basis that the impugned legislative provision did not impose a
burden or withhold a benefit so as to attract the application of s. 15(1) of the Charter.
312
Schaff, supra note 228.
309
70
homelessness and hunger, the court held that social and economic rights cannot be
enforced by the courts. 313
In Clark 314 the court found that section 50(4) of the Public Utilities Act which
allows corporations to “require any consumer to give security for the payment of the
proper charge” did not violate the applicants’ section 15 rights. The plaintiffs were
recipients of social assistance; the legislation applied only to non-landowners since liens
were taken on land as security. The Peterborough Utilities Commission [“PUC”] had
adopted a policy whereby payment of a cash security deposit of two or three months'
average billings was required from a residential tenant who could not show “a
satisfactory payment history or other reasonable assurance of payment of future charges”.
The court held that even though many tenants will be disadvantaged on grounds such as
sex, disability, ethnicity, aboriginal and single mother status, that their disadvantage is
not a result of the PUC policy, but rather of problems in public assistance and cruel
economic conditions. The court found no violation of the plaintiffs’ section 15 Charter
rights, citing Andrews: “[m]uch economic and social policy-making is simply beyond the
institutional competence of the courts; their role is to protect against incursions on
fundamental values, not to second-guess policy decisions.” 315
However, a markedly different approach was taken by the Ontario Court of
Appeal in Falkiner v. Ontario (Ministry of Community and Social Services), where the
Court adopted an intersectional approach to the discrimination claim, looking at the
intersecting characteristics of sex, single parenthood and receipt of social assistance.
Because the respondents' equality claim alleges differential treatment on the basis
of an interlocking set of personal characteristics, I think their general approach is
appropriate. Multiple comparator groups are needed to bring into focus the
multiple forms of differential treatment alleged…
I believe that undertaking different comparisons to assess different forms of
differential treatment is consistent with the Supreme Court's directive to apply the
Law analysis flexibly. This flexible comparative approach reflects the complexity
and context of the respondents' claim and captures the affront to their dignity,
which lies at the heart of a section 15 challenge. I have concluded that the
respondents have received differential treatment on the basis of sex, marital status
and receipt of social assistance. 316
313
Massé, supra note 229 at 46, O’Brien J.: “much economic and social policy is simply beyond the
institutional competence of the courts.”
314
Clark, supra note 272.
315
Ibid., citing Andrews,[1989] 1 S.C.R. 143 at 194. The court also states that land-ownership is not a
personal characteristic, therefore it cannot constitute an analogous ground.
316
Falkiner, supra note 229 at paras. 72-81. This judgment upheld the dissenting view of Rosenberg J. in
[1996] O.J. No. 3737 (Gen. Div.) at para. 85:
They have been subject to invasions of privacy. They have been prosecuted disproportionately.
They have been stigmatized and are often ashamed of their position. They are viewed as parasites
and inferior and deemed personally inadequate and lazy. They have feelings of humiliation and
isolation by the investigations necessary under the spouse-in-the-house rule. A high percentage of
them suffer from depression
See also R. v. Rehberg (1993), 127 N.S.R. (2d) 331, 355 A.P.R. 330 (N.S.S.C.).
71
Specifically on the question of whether receipt of social assistance was an analogous
ground under section 15, the Court overturned the decision of the Divisional Court in
Massé, finding that recognition of receipt of social assistance was appropriate in
furthering the protection of human dignity, particularly in light of the evidence of
historical disadvantage:
[84] Additionally, however, I consider that the respondents have been subjected
to differential treatment on the analogous ground of receipt of social assistance.
Recognizing receipt of social assistance as an analogous ground of discrimination
is controversial primarily because of concerns about singling out the economically
disadvantaged for Charter protection, about immutability and about lack of
homogeneity…These concerns have some validity but I think that recognizing
receipt of social assistance as a ground of Charter protection under s. 15(1) is
justified for several reasons…
[86] Here, the Divisional Court, relying on the record before the Board, found at
para. 86 that there was “significant evidence of historical disadvantage of and
continuing prejudice against social assistance recipients, particularly sole-support
mothers”. This evidence showed:
Single mothers make up one of the most economically disadvantaged
groups in Canada.
Social assistance recipients have difficulty becoming self-sufficient, in
part because of their limited education and lack of employability.
Social assistance recipients face resentment and anger from others in
society, who see them as freeloading and lazy. They are therefore subject
to stigma leading to social exclusion.
All sole support parents are subject to stigmatization, stereotyping and a
history of offensive restrictions on their personal lives, and these
disadvantages are particularly felt by sole support mothers.
Sole support parents on social assistance are politically powerless. 317
The Court of Appeal rejected traditional concerns that social assistance recipients are not
generally an immutable or homogenous group, opting for a more contextual analysis of
the claim. Notably, it referred to the enumeration of receipt of public assistance under
human rights statutes in supporting its finding that receipt of social assistance was an
analogous ground for the purposes of the Charter.
The Ontario Court of Appeal judgment in Falkiner provides a valuable precedent
in this area. Poverty can either be viewed as an amalgamation of a variety of divergent
317
Ibid. at paras. 84-86.
72
characteristics such as sex, race, and other grounds, or it could be more usefully and
accurately viewed holistically, such that when considering an individual’s situation,
account is taken of poverty as a whole, and of the actual situation, and whether that
situation is worthy of redress. Such an approach is not incompatible with a Law-type
section 15 analysis. To recognize poverty as a ground and in a holistic manner, we
suggest, is implicitly sanctioned in the Law test itself, under the contextual factor of
historical disadvantage. Nevertheless, even after the decision in Falkiner, that is not what
the great majority of the courts have concluded on this issue and there are few signs of
change on the horizon for section 15 interpretation in this regard, particularly where there
are no other enumerated or well-established analogous grounds at play, such as single
motherhood.
For instance, in Affordable Energy Coalition (Re) 318 , the claimants were all
economically disadvantaged and consequently unable to afford recently raised monthly
electricity costs. Taking the lead from recent court jurisprudence, poverty was not
recognized as an analogous ground or that poor persons made up an historically
disadvantaged group. Without this ground, the claimants were at a loss for a uniting
factor that allowed them to claim common disadvantage. The Tribunal member writes:
“If a person obtains employment, or receives a gift, they would escape from poverty at no
great difficulty or cost.” It has been shown through countless empirical studies and the
application of common sense that poverty, though mutable, is something that is changed
oftentimes at impossible costs and for many is virtually unchangeable. It is at the very
least constructively immutable and should not be ruled out on that basis. Poverty is a
long-term condition that does not easily admit of drastic change. A comment so wilfully
blind to the plight of such a significant spectrum of the Canadian population
(approximately 10%) shows the great disparity between the case law against adding
social and economic disadvantage as a ground for discrimination under the Charter and
the reality of the poor.
There have also been some provincial cases challenging the disproportionate
impact of some criminal and regulatory provision on the poor. In R. v. Banks 319 there was
an unsuccessful challenge of a provincial law restricting “squeegeeing” as a form of
begging because of its disproportionately negative impact on the poor. Similarly, in
Tupper v. Nova Scotia (A.G.), 320 there was a challenge to a fine provision because of its
impact as a penalty option on the impecunious. In neither of the above cases were the
courts willing to find discrimination on the basis of poverty or social condition.
In summary, the Charter of Rights has not proven to be an effective vehicle for
the advancement and protection of unequal treatment on the basis of social and economic
disadvantage. Not only have courts been reluctant to interpret Charter rights as having
positive socio-economic dimensions (with a few notable exceptions), but the section 15
Charter jurisprudence has shied away from recognizing socio-economic grounds alone as
analogous in the context of negative rights claims (thou shalt not) rather than those
proposing the positive allocations of economic resources. Notwithstanding the bold
flirtation of Justice La Forest with an expansive interpretation of rights in Eldridge, 321
318
(2008) N.S.UARB 11 [N.S. Util. and Rev. Bd.].
Banks, supra note 232.
320
Tupper, supra note 233.
321
Eldridge, supra note 259.
319
73
there is no clear indication that this willingness to consider rights of accommodation for
the disabled would be extended to those who are disadvantaged on the basis of poverty,
purportedly on the basis that to do so would run counter to the many judicial
pronouncements against judicial interference in matters of social and economic policy.
5.
Under-Inclusiveness of Grounds and the Charter
As mentioned earlier, the constitutional status of the Charter makes it
fundamentally different – though not opposed – to human rights statutes. Thus, it is
desirable that the Canadian Human Rights Act conforms to the principles, values and
rights of the Charter. The most recent case advocating this approach is Vriend. 322 In
Vriend, it was found that the exclusion of sexual orientation as a prohibited ground under
the Alberta Individual Rights Protection Act was contrary to section 15 of the Charter
and the equality rights set out therein. In many ways, a possible challenge on the basis of
social condition would mirror the Vriend case.
Firstly, it is the under-inclusiveness of the code which is problematic, as it does
not include “social condition”. The impact of the under-inclusion results in a distinction
created by “law” which violates the very purpose of equality – whether it be equality
before or under the law, or equal protection or benefit of the law. While it is still
undecided whether the government is obligated to take positive action in the redress of
social inequality, 323 it has been made clear in numerous cases that once the government
confers a benefit, it should not do so in a discriminatory manner. “[Section 15 of the
Charter] does require that the government not be the source of further inequality” 324
which could be the effect of excluding social condition as a prohibited ground of
discrimination under the CHRA.
Secondly, the on-going decision by the Parliament to not include social condition
could be seen as a positive “government action” as it was in Vriend when the Alberta
legislature had rejected the inclusion of sexual orientation. Thirdly, the CHRA is part of a
“comprehensive code of human rights provisions”, the exclusion from which could imply
government approval of discrimination on this ground. The impact of the distinction
would be discriminatory since it would withhold access to the CHRA, and thus impose a
disadvantage on one group compared to another.
Lastly, the analysis to be undertaken must be performed in a “substantive” sense –
that is, the comparative analysis of section 15 must consider factors of substantive rather
than formal equality between comparator groups. The Vriend case provides a good
analogy; after rejecting a comparative analysis within prohibited grounds, the Court
addressed the “more fundamental” distinction between homosexuals and heterosexuals:
322
Vriend, supra note 245. Although there have been other cases where provisions of the Act have been
challenged as unconstitutional, such as McKinney, supra note 267 and Re Blainey and Ontario Hockey
Association (1986), 54 O.R. (2d) 513 (C.A.).
323
B. Porter, “Beyond Andrews: Substantive Equality and Positive Obligations After Eldridge and
Vriend”(1998) 9 Constit. Forum 71, at 80-81, discussing the positive obligations on governments ensuing
from international covenants and interpretations of the Supreme Court of Canada judgments in Vriend and
Eldridge.
324
Thibaudeau, supra note 226 at 655. See also Egan, supra note 244; Schachter v. Canada, [1992] 2
S.C.R. 679; and Haig v. Canada, [1993] 2 S.C.R. 995.
74
This distinction may be more difficult to see because there is, on
the surface, a measure of formal equality: gay or lesbian
individuals have the same access as heterosexual individuals to
the protection of the IRPA in the sense that they could complain
to the Commission about an incident of discrimination on the
basis of any of the grounds currently included. However, the
exclusion of the ground of sexual orientation, considered in the
context of the social reality of discrimination against gays and
lesbians, clearly has a disproportionate impact on them as
opposed to heterosexuals. Therefore the IRPA in its
underinclusive state denies substantive equality to the former
group. 325
Thus, it is theoretically possible that, if challenged, a governmental decision to
exclude social condition could be found unconstitutional. The foregoing analysis is
speculative in the sense that there is no judicial or factual context in which to place the
discussion. Indeed, the above analysis suggests that the courts are not inclined to find that
social condition is an analogous ground and therefore human rights codes would be
entitled to exclude it, even in a comprehensive code. What can be inferred, however, is
that the constitutional guarantee of equality strongly encourages the inclusion of groups
vulnerable to discriminatory practices within the CHRA’s protective framework. It does
not, however, extend to all disadvantaged groups. Even if the exclusion of social
condition were to be found as a violation of section 15 of the Charter, the justification
under section 1 would be yet another hurdle to surpass.
6.
Section 1 Justification and Socio-Economic Policy
Section 1 of the Charter allows the government to prove that any limit imposed
on rights and freedoms may be justified in a free and democratic society. A major factor
which influences the standard of proof in this context, is that of socio-economic policy.
The need for flexibility in this area was emphasized by La Forest J. in the first section 15
case, Andrews:
I am convinced that it was never intended in enacting s. 15 that it
become a tool for the wholesale subjection to judicial scrutiny of
variegated legislative choices in no way infringing on values
fundamental to a free and democratic society. Like my colleague,
I am not prepared to accept that all legislative classifications must
be rationally supportable before the courts. Much economic and
social policy-making is simply beyond the institutional
competence of the courts: their role is to protect against
incursions on fundamental values, not to second guess policy
decisions. 326
325
326
Vriend, supra note 245 at para. 82, per Cory J. [Emphasis added.]
Andrews, supra note 238 at 194.
75
The need for flexibility in this area, as a correlative of the separation of government
powers has influenced all future decisions in this area. The most obvious example is
McKinney, where La Forest J. explicitly recognized the need to relax the government
standard of proof under section 1 when dealing with complex, and often contradictory
issues of social and economic policy.
When striking a balance between the claims of competing
groups, the choice of means, like the choice of ends, frequently
will require an assessment of conflicting scientific evidence and
differing justified demands on scarce resources. Democratic
institutions are meant to let us all share in the responsibility for
these difficult choices. 327
And later, he wrote:
By the foregoing, I do not mean to suggest that this Court should,
as a general rule, defer to legislative judgments when those
judgments trench upon rights considered fundamental in a free
and democratic society. Quite the contrary, I would have thought
the Charter established the opposite regime. On the other hand,
having accepted the importance of the legislative objective, one
must in the present context recognize that if the legislative goal is
to be achieved, it will inevitably be achieved to the detriment of
some. Moreover, attempts to protect the rights of one group will
also inevitably impose burdens on the rights of other groups.
There is no perfect scenario in which the rights of all can be
equally protected. 328
The flexible application of section 1 of the Charter in respect to economic and
social matters has again been reasserted in N.A.P.E,. 329 where promised pay equity
payments were rolled back because of financial exigency and the Supreme Court saved
the equality violation. In a careful review of the “rights v. costs debate” Justice Binnie
does acknowledge the relevance of costs in at least abnormal contexts. He also, reaffirms
the importance of deference to the legislature when balancing conflicting rights in
society. The need to defer to the legislative branch in times of financial crisis was
affirmed and while not stating this point, the effect is that equality can and does have
financial limits. This would also be true in respect to social condition discrimination.
These comments are particularly apt regarding the question of social condition.
While legislative protection would undoubtedly be a laudable policy goal, there are
numerous questions to be addressed before such changes could be afforded. The extent,
the method, the objects and implementation – all of these questions would substantially
mitigate against any positive findings by the courts in this area. Further, the
appropriateness of the court in addressing these concerns is also a difficulty. And lastly,
the result would most likely become a piecemeal solution to a complex and wide-ranging
327
McKinney, supra note 267 at 285.
McKinney, ibid. at 314-15.
329
N.A.P.E., supra note 275.
328
76
area of socio-economic policy issues. Thus, the need for a legislative response to social
condition is paramount, not only for practical reasons, but legal, constitutional, and policy
ones as well.
E. Social Condition’s Fit with Other Prohibited Grounds: The Issues of Multiple
Discrimination and Intersectionality
The addition of social condition as a prohibited ground of discrimination provides
the potential of better reflecting the realities of discrimination in that it, in many ways,
offers a means for recognizing the way social and economic disadvantage intersects with
other grounds of discrimination already recognized in the Canadian Human Rights Act.
The value of approaching human rights discrimination in a holistic and intersectional way
has been recognized in academic circles, at least since the pioneering work of Nitya Iyer
(formerly Duclos), building on the work of American commentators in this area. 330 As
she points out, people are complex and have more than one defining characteristic so
trying to pigeon-hole them into one particular enumerated ground of discrimination can
be quite difficult. Furthermore, the kind of discrimination faced by an Aboriginal woman,
as one example, may have its own unique dimensions which are often more than the sum
of sex and Aboriginal discrimination added together. Failing to do an intersectional
analysis can result in disadvantaged individuals falling through the cracks of human
rights protection. As Dianne Pothier correctly observes, the grounds of discrimination
should reflect the real lived experiences of those most likely to be victims of human
rights violations. 331
In a more recent article on the topic Denise Réaume states the case for
intersectionality both clearly and effectively:
Nitya Duclos has effectively illustrated how the pigeonholes that currently
define the prohibited grounds of discrimination can work injustice upon
those who find themselves disadvantaged because of a combination of
enumerated attributes. The itemization of grounds encourages adjudicators
to analyze fact situations through the lens of one alleged ground of
discrimination at a time. In analyzing what is wrong with this approach,
we can illustrate once more the value of going beyond the enumerated
grounds of discrimination as inert categories stating conditions for the
imposition of liability, to articulate principles explaining why
discrimination on these bases is unacceptable. 332
She continues by emphasizing the advantages of this more holistic approach to human
rights:
330
N. Duclos, “Disappearing Women: Racial Minority Women in Human Rights Cases” (1993), 6 Can. J.
women and Law 25 and N. Iyer, “Categorical Denials: Equality Rights and Shaping of Social Identity,
(1994) 19 Queen’s L. J. 194.
331
D. Pothier, “Connecting Grounds of Discrimination to Real people’s Real Experiences” (2001) 13 Can.
J. Women and Law 37.
332
D.G. Réaume, “Of Pigeonholes and Principles: A Reconsideration of Discrimination Law”, (2002) 40
Osgoode Hall L. J. 113 [footnotes omitted].
77
This would make it natural to examine hard cases not by merely looking
for a perfectly fitting pigeonhole, but by examining whether the case in
hand exemplifies the form of harm that statute seeks to protect against.
In other words, focusing on only one of two interacting grounds of
discrimination extends the pigeonholing approach beyond the drafting
style of the statute to our understanding of the harm of discrimination,
preventing adjudicators from seeing the whole wrong and its impact on the
whole person.
Similarly, it is possible that an employer’s policies, while not grounded in
prejudice, could have side effects that disproportionally affect not all
members of a racialized minority or all women, but primarily racial
minority women. Imagine a case in which an educational requirement is
imposed which, because of different social conditions affecting black
women is harder for them than for white women or black men to meet. If
this barrier cannot be justified according to the usual tests, why should it
be allowed to stand once its effect on vulnerable members of society in
restricting opportunity is established? Again, the assumption that the
enumerated grounds are homogenous carries the implication that any
given act will affect all members of a particular category in exactly the
same way. More careful analysis of intersectionality cases demonstrates
the falsity of this premise. If we let these cases be an opportunity for
understanding the subtleties of discrimination and its harmful effects,
rather than an exercise in fitting human beings into prefab categories, they
will often go from being hard cases to being easy ones – from no
discrimination to multiply grounded discrimination. 333
Bruce Porter, the long time and effective advocate of rights for the poor,
illustrates the value that a ground of poverty or social condition could have in advancing
an intersectional and more inclusive approach to human rights analysis.
In the area of sex equality, successful challenges to “spouse in the house”
rules, first in Nova Scotia in the Rehburg case, and more recently in
Ontario in the Falkiner decision, represent important litigation successes
recognizing the intersectionality of poverty and sex discrimination in a
manner that was emphasized by women’s groups in 1985. In the area of
race, the Sparks case in Nova Scotia, finding that the exclusion of public
housing tenants from security of tenure provisions constitutes
discrimination because of race, sex and poverty and extending protections
to conform with section 15, represents, again a leading case internationally
in the area of race, housing and poverty. 334
333
Ibid. at paras. 36, 38 and 42.
B. Porter, “Twenty years of Equality Rights: Reclaiming Expectations”, (2005) 23 Windsor Y.B. Access
Just. 145 [footnotes omitted, but all three cases are cited in the earlier section on Charter equality].
334
78
In addition, the Supreme Court also has judicially noticed the specific
interrelationship between gender and poverty:
In Canada, the feminization of poverty is an entrenched social
phenomenon. Between 1971 and 1986 the percentage of poor
women found among all women in this country more than
doubled. During the same period the percentage of poor among
all men climbed by 24 percent. 335
Indeed, the Court has not been the only authoritative body to recognize the devastating
prevalence of poverty among women.
The United Nations Committee on Economic, Social and Cultural Rights, the
United Nations Committee on Human Rights, and the United Nations Committee on the
Elimination of Discrimination Against Women have all cited Canada for the high rates of
poverty among women, especially single mothers and Aboriginal women. 336 The poverty
rates for women are higher than those of men regardless of demographic category and in
1996, 60.8% of single mothers were living in poverty. 337 In 1985, 47.2% of Aboriginal
families on reserves fell below the poverty line (compared to 14.4% of Canadian families
as a whole) and in 1995, 44% of Aboriginal families off reserves fell below the poverty
line. 338 Lastly, individuals with disabilities are also at greater risk of falling below the
poverty line; in 1991, 21.9% of people with disabilities were below the poverty line
compared to only 12.6% of those without disabilities. 339 This figure also varies according
to gender: 18.2% of men with disabilities fell below the poverty line, whereas 25.1% of
women with disabilities live in poverty. 340 Statistics Canada has also identified that
“[a]mong the unattached, the elderly and women are particularly prone to low
income.” 341 Similarly, although statistics on Aboriginal women specifically are
unavailable, the employment rate, income level, and education level of Aboriginal
peoples are all significantly lower than the general population. 342
335
Moge, supra note 233 at 853, per L’Heureux-Dubé J. [emphasis added], affirmed in Marzetti, supra note
233, per Iacobucci J. for a unanimous court.
336
See United Nations, Committee on Economic, Social and Cultural Rights, Report on the 18th and 19th
Sessions (27 April – 15 May 1998, 16 November – December 1998), UN ECS, 1999, Supp. No. 2, at
paras. 429, 404; National Association of Women and the Law, “UN Human Rights Committee finds social
programme cuts discriminate against women” (12 April 1999), online: PovertyNet
<http://povnet.web.net/NAWLpr-apr12.htm> (date accessed: September 5, 1999); United Nations,
Committee on the Elimination of Discrimination Against Women, “Canada” (1998) 5 I.H.R.R. 519 at
paras. 6, 17, 19, 22, and 27.
337
National Anti-Poverty Organization, The 50th Anniversary of the UN Declaration: A Human Rights
Meltdown in Canada (Geneva: Human Resource Development Canada, 1998) at 22 [hereinafter
“Meltdown"].
338
Ibid, at 22. These statistics emphasize the importance of having grounds to deal with poverty if the Bill
to repeal s. 67 of the CHRA passes and Aboriginal claims increase.
339
Ibid. at 24.
340
Ibid.
341
Ibid.. See also Canada, Statistical Annex to the Third Report of Canada on the International Covenant
on Economic, Social and Cultural Rights (Ottawa: Canadian Heritage, 1997) at 35 [hereinafter Statistical
Annex]. L’Heureux-Dubé J. also recognized the povertization of elderly women in McKinney, supra note
266.
342
Statistical Annex, ibid. at 21.
79
Thus, we have identified at least seven relevant characteristics that tend to
intersect with social condition: age, Aboriginal origin, sex, race or ethnic origin,
disability, family status, and marital status. Certainly, it could be surmised that other
categories or other combinations of characteristics would also affect the social condition
of individuals. 343
However, without adequate protection against discrimination on the basis of
social condition, the risk of individuals “falling through the cracks” remains ever
apparent for claimants who straddle an enumerated category and an unenumerated
ground. For example, a racial minority woman in poverty may face the judgment that her
discrimination stemmed from her socio-economic status, and not her race or sex, and
therefore she is not protected under human rights legislation. Conversely, the problem
identified by Nitya Iyer of “pushing others through the cracks” is equally possible. 344
Currently, claims based on social condition can only be argued if the individual
can “fit” in one of the enumerated grounds (for example, a woman or a visible minority),
but those who do not “own” any of the enumerated characteristics (for example, a white
male living in poverty) are left without a remedy. 345 Thus, the white male would be
“pushed through the cracks” because he would be precluded from bringing a claim under
the current enumerated grounds of the CHRA.
The CHRA does expressly provide that “a discriminatory practice includes a
practice based on one or more prohibited grounds of discrimination or on the effect of a
combination of prohibited grounds.” 346 However, there has been no real judicial
exploration of section 3.1 of the CHRA with its direct statutory encouragement of
intersectionality or at least plurality. It is most often referred to in cases involving more
than one ground where tribunals are attempting to determine the best fit with one or more
of the relevant grounds. 347 This section does not seem to have advanced a holistic
approach to human rights violations to date.
Until recently, intersectionality was not the mode of analysis at the provincial
level any more than the federal. Denise Réaume in her article describes the early situation
in cases involving multiple grounds of discrimination and the tendency towards
pigeon holes in cases like Alexander v. British Columbia 348 , which she describes as
follows:
Aboriginal woman with a physical disability refused service at a bar
because bartender thought she was drunk – The tribunal found for the
complainant, but characterized the discrimination as being solely on the
basis of disability. Here, the worry is that the adjudicator’s tendency to
focus on a single (perhaps the strongest) ground for the complaint means
343
For instance, the poverty of refugees (national origin) has been documented, especially in relation to
individuals with disabilities or single mothers: C. Tie, Draft Statement to the UN Committee on Economic,
Social and Cultural Rights (Geneva: Canadian Council for Refugees, Canadian Council for Churches &
Inter-Church Committee for Refugees, 1998), online: Canadian Non-Governmental Organizations
<http://www.web.net/~ngoun98/interchurch.htm> (date accessed: September 5, 1999).
344
Iyer, supra note 330.
345
Interview with Vince Calderhead about his experiences with Nova Scotia Legal Aid.
346
CHRA, supra note 1, s. 3.1.
347
Lincoln v. Bay Ferries Ltd. [2004] F.C.J. No. 941, [2004] F.C.A. 204 (FCA). [2002] CHRD No. 5 (Can.
Trib.).
348
(1989), 10 CHRR D/5871.
80
that the full flavour of the injury is overlooked. Perhaps the adjudicator
read these facts correctly – perhaps the respondent would have treated
anyone with this disability in the same way, regardless of her race. But it
would scarcely stretch credulity to imagine that the respondent was
influenced by the fact that the complainant was Aboriginal, perhaps
assuming too quickly that she must be drunk because she was Aboriginal.
In focusing exclusively on the disability basis of the complaint, the
tribunal missed an opportunity to examine how much more insulting it is
likely to be to a First Nations person than to others to be treated this way.
In other words, using the enumerated grounds as pigeonholes – as
mutually exclusive logical categories into only one of which a single
individual can fit – obscures a central issue in the case: what harm was
done to the complainant by the respondent’s behaviour? 349
More recently some provincial human rights tribunals have recognized
intersectionality and adopted a more inclusive and holistic approach. One example is
Comeau v. Coté in which a complaint was substantiated on the basis of age and perceived
disability in the employment context. 350 The Tribunal member states:
Although it is difficult to assess how much of the hurt and humiliation was
attributed to the perceived disability and how much to the perception that
his age hampered his performance, I am satisfied that this intersectionality
of prohibited grounds had a greater impact on Mr. Comeau’s dignity,
feelings and self respect than would discrimination on either ground in
isolation. 351
In another case, Baylis-Flannery v. Walter DeWilde (Tri Community
Physiotherapy), 352 the Tribunal found that the intersectionality of discrimination based
upon sex and race exacerbated the complainant’s mental anguish:
[R]eliance on a single axis analysis where multiple grounds of
discrimination are found, [which] tends to minimize or even obliterate the
impact of racial discrimination on women of colour who have been
discriminated against on other grounds, rather than recognize the
possibility of the compound discrimination that may have occurred. 353
Finally in Radek v. Henderson Development Canada Ltd. 354 the complainant
substantiated individual and systemic discrimination on the basis of race, colour, ancestry
and disability. The complainant was an Aboriginal woman living in poverty. In rendering
the decision the Tribunal member recognizes the interconnection of the various grounds
and the links to the unenumerated ground of poverty.
349
D.G. Réaume, supra note 332.
[2003] B.C.H.R.T.D. No. 32, [2003] BCHRT 32.
351
Ibid.
352
Baylis-Flannery v. Walter DeWilde c.o.b. as Tri Community Physiotherapy (No. 2) (2003), 48 C.H.R.R.
D/197 (Ont. H.R.T.).
353
Ibid. at para. 44.
354
Radek v. Henderson Development (Canada) Ltd., [2005] B.C.H.R.T.D. No. 302, 2005 BCHRT 302.
350
81
Ms. Radek has alleged discrimination on the basis of a number of
intersecting grounds: race, colour, ancestry and disability. She is a
middle-aged Aboriginal women with a disability. She is multiply
disadvantaged on a number of grounds protected by the Code. These
grounds cannot be separated out and parsed on an individual basis.
... Ms. Radek is also economically disadvantaged. She has a limited
income. She lives “on disability” and requires subsidized housing. She
lives in the Downtown Eastside. Poverty and economic circumstances are
not prohibited grounds of discrimination under the Code. Nonetheless,
Ms. Radek’s economic circumstances were part of who she was and how
she presented on May 10. They are integrally interrelated with
Ms. Radek’s identity as an Aboriginal, disabled women. 355
It is this interconnection between various grounds of discrimination, including
poverty, that the Supreme Court of Canada was unwilling to explore in Gosselin v.
Quebec (A.G.). 356 The central defining feature of Ms. Gosselin’s situation was poverty
and issues of age and possible disability intersected with that reality. The majority of the
Supreme Court were unwilling to adopt this holistic approach to the case. 357
The complex dynamic of multiple grounds of discrimination can no longer be
ignored or circumvented if adherence to human rights principles is to be maintained. The
inclusion of social condition has the potential of finally rendering visible the heretofore
invisible dynamic of real peoples’ experiences of discrimination. In conjunction with
section 3.1 of the CHRA, the “fit” of social condition with other prohibited grounds is not
only appropriate, but also vital in recognizing and achieving the ameliorative purposes of
human rights. Another advantage of adding social condition, is the recognition that
sometimes overlapping or “compound discrimination” creates a form of discrimination
that is “not a denial that various forms of discrimination can and often do compound each
other so as to increase the overall burden of inequality, but rather that race and gender
may intersect and interact to produce an altogether different form of oppression.” 358 It is
this “altogether different” form of oppression that social condition may be helpful in
addressing.
Discrimination on multiple grounds is a complex dynamic which must be
recognized if human rights principles are to be respected and if human rights legislation
is to be most effective. The inclusion of social condition has the potential to seal some of
the cracks that currently exist in human rights legislative schemes. Thus, the fit with other
grounds would be not only one of novel protection for certain claimants (e.g. the poor,
uneducated white male), but also additional crack-sealing protection for claimants whose
real lived experience, the totality of their characteristics, may not be a neat and clean fit
with the current enumerated grounds. This would add appreciably to the protection
offered under the Canadian Human Rights Act and this is in itself a compelling reason to
add social condition to the CHRA.
355
Ibid. at paras. 463 and 467.
Gosselin, supra note 271.
357
Kim and Piper, supra note 40.
358
Douglas Knopp, “‘Categorical’ Failure: Canada’s Equality Jurisprudence – Changing Notions of
Identity and the Legal Subject”, (1997), 23 Queen’s L.J. 201.
356
82
III. What is the Relationship between Economic and Social Rights and
Social Condition as a Prohibited Ground of Discrimination?
A. International Human Rights Commitments
As discussed in our 1999 paper, Canada has signed and ratified many
international documents and treaties which affirm its commitment to human rights, both
domestically and internationally. While there have been few international developments
since the La Forest Report, international legal obligations and Canada’s distinctive
reputation as a role model and leader in the international community are important factors
to emphasize when considering changes to the domestic scheme of human rights
protection.
The foundational international human rights document is the Universal
Declaration of Human Rights, adopted in 1948, however, we will be focusing on the two
major covenants stemming from this document because of their different legal nature and
effect: (1) The International Covenant on Economic, Social and Cultural Rights; 359 and
(2) The International Covenant on Civil and Political Rights. 360 Although the documents
are partitioned into civil and political rights versus economic, social and cultural rights, it
is very difficult to have one without the other. According to international law scholar,
Craig Scott, all human rights are inherently related; 361 and the categorical separation of
“human rights” presents the danger of reifying “rights” into an objective existence while
losing sight of the “human” element. 362
Before discussing the specific aspects of the Covenants, it is useful to note the
actual effect and power of international documents within the domestic context. Canada
ascribes to what Matthew Craven calls a “dualist” view of international law. 363 In short,
domestic law and international law are seen as divided, and unless treaty provisions are
incorporated and applied as national law, they are of no legal effect in Canada. However,
this is not to say Canada may escape its international obligations under the Covenants.
Articles 2 of both Covenants do impose legal obligations on Canada to comply
with the principles stated therein. 364 By ratifying documents, Canada has shown a
359
ICESCR, supra note 31.
GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966); 999 UNTS 171
(entered into force March 23, 1976, accession by Canada May 19, 1976) [hereinafter ICCPR]
361
C. Scott, “Reaching Beyond (Without Abandoning) the Category of “Economic, Social and Cultural
Rights”” (1999) 21 Hum. Rts. Q. 633 at 634.
362
Ibid.
363
M. Craven, “The Domestic Application of the International Covenant on Economic, Social and Cultural
Rights” (1993) 40 Netherl. Int’l L. Rev. 367 at 373.
364
ICESCR, supra note 31, art. 2 reads in part:
1.
Each State Party to the present Covenant undertakes to take steps, … with a view to
achieving progressively the full realization of the rights recognized in the present Covenant by all
appropriate mean, including particularly the adoption of legislative measures.
2.
The States Parties to the present Covenant undertake to guarantee that the rights
enunciated in the present Covenant will be exercised without discrimination of any kind as to race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth
or other status. [Emphasis added.]
ICCPR, supra note 360, art. 2 reads in part:
360
83
commitment to human rights to the United Nations, the International Community, and the
people of Canada; to contravene these obligations would gravely injure Canada’s
reputation in the International Community as well as the confidence held by the Canadian
electorate in government institutions. The central obligation of the Covenants is a duty to
give effect to the rights within the domestic legal order, with particular regard to the
legislative measures of protection and the creation of effective legal rights of action on
behalf of individuals or groups who feel that their rights are not being fully realized. 365 In
addition, the Supreme Court of Canada has evinced a commitment to interpret human
rights jurisprudence in a manner consistent with Canada’s obligations under the
Covenant. 366 Furthermore, the preamble to the Northwest Territories Human Rights Act,
explicitly states that it is in accordance with the Universal Declaration of Human Rights
as proclaimed by the United Nations. 367
Now that this background has been set, it is necessary to examine the extent of
Canada’s international obligations within the context of including “social condition” as a
ground of discrimination in the Canadian Human Rights Act.
1.
International Covenant on Economic, Social and Cultural Rights
The pertinent sections of the ICESCR to the discussion of social condition are
Article 2 and Article 11:
Article 2
1. Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that
the rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion,
1.
Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory…the rights recognized in the present Covenant, without distinction
of any kind such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth, or other status.
2.
Where not already provided for by the existing legislative or other measures, each State
Party to the present Covenant undertakes to take the necessary steps…to adopt such legislative or
other measures as may be necessary to give effect to the rights recognized in the present
Covenant. [Emphasis added.]
365
United Nations, Committee on Economic, Social and Cultural Rights, General Comment No. 9 (1999), 6
I.H.R.R. 289 at 289-290.
366
See R. v. Sharpe, 2001 SCC 2 at 171 and 175 recognizing that international norms are relevant sources
for interpreting rights domestically; Baker v. Canada, [1999] 2 S.C.R. 817 endorsing the inclusion of the
principles of the International Covenant on the Rights of the Child in interpreting domestic legislation;
Irwin Toy, supra note 75 at 633 interpreting the section 7 guarantee of the Canadian Charter of Rights and
Freedoms in accordance with international instruments.
367
NWTHRA, supra note 124.
84
political or other opinion, national or social origin, property, birth or other
status.
Article 11
1. The States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, and to the continuous
improvement of living conditions. The States Parties will take appropriate
steps to ensure the realization of this right, recognizing to this effect the
essential importance of international co-operation based on free
consent. 368
The social and economic obligations to which Canada has committed itself through the
ratification of the ICESCR are significant. Under Article 2(1), States Parties are obliged
to take positive steps to implement ICESCR rights, through all appropriate means,
particularly through the adoption of legislative measures. As stated in the Limburg
Principles on the Implementation of the International Covenant on Economic, Social and
Cultural Rights, “[a]t the national level States Parties shall use all appropriate means,
including legislative, administrative, judicial, economic, social and educational measures,
consistent with the nature of the rights in order to fulfil their obligations under the
Covenant … [l]egislative measures alone are not sufficient to fulfil the obligations of the
Covenant”. 369 Furthermore, the rights identified in Article 11 oblige States Parties to
recognize a number of social and economic rights, particularly with regards to the right of
everyone to adequate food, clothing, and housing, and the continuous improvement of
living conditions. Read as a whole, the ICESCR requires that Canada confer a number of
positive and negative economic and social rights on its citizens.
In August 2005, Canada presented its fifth report on the implementation of the
ICESCR to the United Nations Committee on Economic, Social and Cultural Rights. 370
This report details many of the programs instituted to reduce poverty in Canada since
1998, the year the Committee addressed concern about the rampant level of poverty in a
country as prosperous as Canada. 371 Since that time, the government of Canada has put in
place a number of initiatives, such as the National Child Benefit, early learning and childcare initiatives, and affordable housing initiatives, which are focused on improving
Canada’s poverty crisis. As stated in the Fifth Report on the ICESCR, these initiatives,
particularly the National Child Benefit, have improved the financial situation of a
368
ICESCR, supra note 31, arts. 2, 11. [Emphasis added.]
The Limburg Principles on the Implementation of the International Covenant on Economic, Social and
Cultural Rights, U.N. Doc. E/CN.4/1987/17, Annex at para. 17 and 18 [hereinafter the Limburg
Principles].
370
Canada, Canadian Heritage, Fifth Report of Canada: The International Covenant on Economic, Social
and Cultural Rights (Ottawa: Minister of Public Works and Government Services Canada, 2005) [emphasis
added] [hereinafter Fifth Report on the ICESCR]
371
United Nations Development Program, Human Development Report 1998, (New York: Oxford
University Press, 1998). At the time, Canada ranked tenth out of seventeen industrialized countries on the
UN’s Human Poverty Index.
369
85
significant number of families previously living below the poverty line. 372 However,
while Canada should be applauded for taking these important steps, it does not appear to
have done enough to address poverty; as of 2007/2008, Canada ranks fourth on UNDP’s
Human Development Index and ranks eighth out of the nineteen selected OECD
countries on the Human Poverty Index. 373 As with many poverty-reducing initiatives,
those instituted by Canada focus heavily on improving the situations of the richest of the
poor, who can most easily be brought out of poverty and reduce the poverty rate. 374
The UN Committee on Economic, Social and Cultural Rights stated in its 2006
report that it “regrets that most of its 1993 and 1998 recommendations (for bringing
Canada in compliance with its obligations under the ICESCR) …have not been
implemented”. The report further condemns Canada for its “restrictive interpretation of
its obligations under the Covenant, in particular its position that it may implement the
legal obligations set forth in the Covenant by adopting specific measures and policies
rather than by enacting legislation specifically recognizing economic, social and cultural
rights.” 375 While the addition of “social condition” as a protected ground of
discrimination under the CHRA will not by itself be enough to realize Canada’s
obligations under the ICESCR, it will address what has been identified by the UN as
something that is lacking from Canada’s human rights legislation.
2.
International Covenant on Civil and Political Rights
In many ways, the ICCPR mirrors the Canadian Charter of Rights and Freedoms
due to its emphasis on civil, political and legal rights such as freedom of association, the
right to a fair trial, and democratic rights. Conversely, human rights legislation can be
seen as the parallel of the ICESCR because of their joint concern over areas such as
employment, accommodations and services, although these statutes tend to focus on antidiscrimination only. 376 However, it is important here to reiterate the interrelatedness of
human rights in both contexts; the ICCPR and the ICESCR intersect in the path to
fulfilling equality goals much in the same way human rights codes and the Charter chart
the progress of equality rights on the Canadian scene. Moreover, Canadian and
international human rights documents are also interconnected, as pointed out by former
Chief Justice Dickson in Reference Re Public Service Employee Relations Act (Alta):
The content of Canada's international human rights obligations is,
in my view, an important indicia of the meaning of the “full
benefit of the Charter's protection”. I believe that the Charter
should generally be presumed to provide protection at least as
great as that afforded by similar provisions in international human
rights documents which Canada has ratified. 377
372
Fifth Report on ICESCR, supra note 370 at 41.
United Nations Development Program, Human Development Report 2007/2008: Fighting Climate
Change: Human Solidarity in a Divided World (New York: Palgrave McMillan, 2007).
374
Wesson, supra note 66 at 109.
375
United Nations Economic and Social Council, Committee on Economic, Social and Cultural Rights,
Concluding Observations on Economic, Social and Cultural Rights Canada, 2006.
376
But see the discussion of the Quebec Charter, infra Part III.D.
377
[1987] 1 S.C.R. 313 at 349.
373
86
Keeping this in mind, articles 2 and 26 of the ICCPR are most pertinent to our
discussion:
Article 2
1. Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction
the rights recognized in the present Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other
measures, each State Party to the present Covenant undertakes to take the
necessary steps, in accordance with its constitutional processes and with
the provisions of the present Covenant, to adopt such laws or other
measures as may be necessary to give effect to the rights recognized in the
present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official
capacity…
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status. [Emphasis added.]
As discussed above, article 2 imposes a legal obligation on the country to undertake
necessary steps to give effect to the rights under the Covenant and to do so without
discrimination. Article 26 reiterates this point. It is notable that the ground enumerated in
both the ICESCR and the ICCPR is termed “social origin” rather than “social condition”,
but, unlike human rights legislation, the grounds in both Covenants are meant to be
illustrative rather than exhaustive by the inclusion of “other status”. 378
Lastly, under the obligations of article 2(3)(a), Canada has a duty to provide an
effective legal remedy to all individuals who feel their rights under the Covenant have
been infringed. Currently, there is no such avenue for people who have experienced
discrimination on the basis of social condition, with the limited exceptions of the
provincial human rights acts of Quebec, New Brunswick, and the Northwest Territories.
The Charter applies only to governmental action and the Supreme Court of Canada has
378
M.C.R. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on
its Development (Oxford: Clarendon Press, 1995) at 168 and 175 (discussing the inclusion of “wealth” as a
substantive ground of discrimination).
87
taken a relatively restrictive approach to rights claims with a socio-economic
dimension. 379 Moreover, the Supreme Court has ruled against developing a tort of
discrimination which consequently precludes a direct judicial remedy. 380 Thus, it appears
Canada is obligated by the equality provisions and its undertaking under articles 2 of the
United Nations Covenants to provide claimants with an effective remedy against
instances of discrimination on the basis of social condition – one method to do so would
be to include social condition as a prohibited ground under the Canadian Human Rights
Act.
3.
Other International Documents
There are numerous international and multi-national instruments which provide
for the protection of human rights. Although Canada is not a party to all of them, the
symbolic importance of these documents is significant for illustrating the existing human
rights norms in the global community. For example, the Organization of American
States’ American Convention on Human Rights includes protection on the grounds of
“social origin…or any other social condition.” 381 Similarly, the Council of Europe
prohibits discrimination on the basis of “social origin…or other status” in its Convention
for the Protection of Human Rights and Fundamental Freedoms. 382 Interestingly, Britain
– from whom Canada inherited its dualist view of international law – has incorporated the
rights under the European Convention in its first Human Rights Act, which came into
force in 1998. 383 Thus, the absence of protection available for those discriminated against
on the basis of their social condition or status within Canada appears to be out of step
with the international equality protections that have been afforded for decades.
4.
Relationship to Domestic Rights
Defining social and economic rights is not a simple matter. There is no all
encompassing definition in the International Covenant on Economic, Social and Cultural
Rights, but rather a collection of rights including education, health, social and economic
supports and other forms of minimal guarantees of economic subsistence. This Covenant
along with its more clearly defined companion, the International Covenant on Civil and
Political Rights, were intended to give effect to the broad guarantees in the Universal
Declaration of Human Rights, adopted by the United Nations in 1948. 384 Some have
379
Though it should be noted that the jurisprudence in the lower courts is conflicted, with most cases
finding that ‘social condition’ was not an analogous ground, and others suggesting that social condition or
“poverty” might be; see e.g. Sparks, supra note 294; Rehberg, supra note 316; and Falkiner, supra note
229, none of which have been heard on appeal to the Supreme Court of Canada, as discussed above.
380
Bhadauria, supra note 62.
381
American Convention on Human Rights, November 22, 1969, O.A.S. T.S. No. 36, 1144 U.N.T.S. 123,
art. 1 (Canada has not signed this Convention but is a party to its forerunner, the American Declaration of
the Rights and Duties of Man which includes in article 2 that “All persons … have the rights and duties
established in this Declaration, without distinction as to race, sex, language, creed or any other factor.”).
382
European Convention for the Protection of Human Rights and Fundamental Freedoms,
September 3, 1953, 213 U.N.T.S. 222, art. 14 [hereinafter European Convention].
383
Human Rights Act (U.K.), 1998, c. 42.
384
Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
88
suggested that the separation of civil and political rights from their economic, social and
cultural cousins distorts the intimate and holistic connection between all these rights. We
agree with this assertion. While the link between “cultural” as well as social and
economic rights makes sense at an international level, it makes less sense in a Canadian
context, where cultural rights may well be a third broad category of rights.
Even if the international commitments did offer more guidance, their
enforceability at the international level is suspect and their impact within Canada indirect
at best. However, since the arrival of the Charter, courts generally, and the Supreme
Court of Canada in particular, have paid more attention to international human rights
commitments and they have often been regarded as persuasive in interpreting the
Canadian Charter of Rights. This view was articulated early in the evolution of Charter
interpretation.
The general principles of constitutional interpretation require that these
international obligations be a relevant and persuasive factor in Charter
interpretation. As this Court stated in R. v. Big M Drug Mart Ltd., [1985] 1
S.C.R. 295, at p. 344. interpretation of the Charter must be “aimed at
fulfilling the purpose of the guarantee and securing for individuals the full
benefit of the Charter’s protection.” The content of Canada’s international
human rights obligations is, in my view, an important indicia of the
meaning of “the full benefit of the Charter’s protection.” I believe that the
Charter should generally be presumed to provide protection at least as
great as that afforded by similar provisions in international human rights
documents which Canada has ratified.
In short, though I do not believe the judiciary is bound by the norms of
international law in interpreting the Charter, these norms provide a
relevant and persuasive source for interpretation of the provisions of the
Charter, especially when they arise out of Canada’s international
obligations under human rights conventions. 385
As encouraging as that sounds it was articulated in the context of civil and political rights
under the Charter and not social and economic ones. Although the right to strike could
certainly be viewed as an economic right as well as the civil right to freedom of
association, the focus was on association. This emphasizes the artificial nature of the
distinction between the different categories of rights within the two International
Covenants and the importance of how a right is categorized.
Internationally, the United Nations Committee on Economic Social and Cultural
rights, in its December 1998 Concluding Observations on Canada’s performance under
the ICESCR, expressed concern about Canada’s record on social and economic rights.
The Committee urged federal, provincial and territorial governments “to expand
protection in human rights legislation […] to protect poor people in all jurisdictions from
discrimination because of social or economic status.” 386 More general concerns about
Canada’s failure to live up to its international commitments in this area were also
385
Reference Re Public Service Employee Relations Act (Alberta), supra note 377 at paras 57-63.
[Emphasis added.]
386
Cited in La Forest Report, supra note 3 at 107.
89
expressed in a series of earlier United Nations Reports under the Covenants and more
recent ones as well. As of yet, the Charter and most human rights codes have not been
vehicles for realizing these commitments, although the Supreme Court has relied on
international documents in evaluating other rights claims under the Charter.
In Suresh v. Canada (Minister of Citizenship and Immigration), the Supreme
Court stated that Canada's international obligations can assist courts charged with
interpreting the Charter's guarantees. 387 Similarly, in Canada (Human Rights
Commission) v. Taylor, the Court extended this principle in reviewing the Canadian
Human Rights Act by looking to international human rights documents and jurisprudence
in determining that the prohibition on hate propaganda was a reasonable limit on freedom
of expression under section 1 of the Charter. 388 This principle was taken a step further in
the case of Health Services and Support -- Facilities Subsector Bargaining Assn. v.
British Columbia, which stated that Canada's adherence to international documents
recognizing a right to collective bargaining also supports recognition of that right in
section 2(d) of the Charter. 389 In that case, the Court cited the ICESCR, the ICCPR, and
the International Labour Organization’s Convention (No. 87) Concerning Freedom of
Association and Protection of the Right to Organize, 390 and found that “the Charter
should be presumed to provide at least as great a level of protection as is found in the
international human rights documents that Canada has ratified.” 391
In light of this recent judgment that the Charter should, where possible, be read so
as to provide at least as great a level of protection as international human rights
documents which Canada has endorsed and ratified, it may be easier in the future for
lower courts, when considering the social condition as an analogous ground of
discrimination under section 15, to cite this precedent in support of the position that
social condition is in fact an analogous ground. Given the Court’s finding with respect to
reading the Charter in accordance with the ICESCR and ICCPR, this seems to be a
persuasive argument. Further developments in this area should be monitored with
interest.
Finally, we should briefly comment on the relationship of these international
documents to the matter at hand. It must be noted that there is a significant difference
between most of the rights enshrined in the ICESCR and the protection afforded by the
addition of social condition as a prohibited ground of discrimination in the CHRA. That
is, the rights in the ICESCR are essentially positive in nature, guaranteeing, inter alia,
rights to food and shelter. It is clear that social condition would not directly encompass
such positive rights, but only provide protection for discrimination based on social
condition – an exercise in negative rights (freedom from discrimination). However, this is
not to say that the addition of social condition would not further the commitments Canada
made when ratifying the ICESCR and ICCPR. Parties to the Covenants pledged to
undertake steps to achieve the rights enshrined therein. To provide protection for
discrimination on the basis of social condition, where no protection existed previously, is
certainly such a step.
387
[2002] 1 S.C.R. 3, 2002 SCC 1 at para. 46
[1990] 3 S.C.R. 892.
389
Health Services, supra note 47.
390
68 U.N.T.S. 17 [hereinafter “Convention No. 87”].
391
Health Services, supra note 47 at para. 71.
388
90
B. Economic and social rights under the Canadian Charter
The Canadian Charter of Rights and Freedoms has had a profound impact on
Canada in its first twenty-five years. However, its impact on social and economic rights
has been small. When there has been a significant social or economic consequence, it has
been incidental rather than direct or intentional. Courts have continued to be deferential
to the elected branch of government on matters of broad social and economic policy,
involving as they do, conflicting social fact evidence and the allocation of scarce
resources and, thus, questions of comparative institutional competence. 392
1.
Comparative Institutional Competence
In broad terms there are three major forums domestically for realizing social and
economic rights – elected legislatures, appointed courts and delegated administrative
tribunals. Even after the Charter, courts continue to be deferential to the elected
legislatures when it comes to both the articulation and implementation of social and
economic policy. This is particularly true if there are issues of conflicting social science
evidence and/or the allocation of scarce resources. 393 The role the courts are willing to
play may also depend upon how they characterize the right in question. In Chaoulli v.
Quebec (A.G.), 394 the majority of the Supreme Court defined access to private health care
as a matter of security of the person and even life, while the dissenters defined the issue
in terms of broad health policy thus falling more appropriately within the political realm.
How the right is categorized is vital to whether it will receive Charter protection.
The limited role of the courts in advancing social and economic rights through the
Charter of Rights should not really be surprising. There are few social and economic
rights in the text of the Charter itself. This means that two of the documents broadest
sections – the guarantees of life, liberty and security of the person (section 7) and equality
(section 15) – have had to be argued as embracing a socio-economic component. These
arguments have been hard to make and have rarely met with success.
The exclusion of express guarantees of economic and social rights in Canada’s
Charter was not accidental. Government drafters steeped in the traditions of
parliamentary supremacy saw matters of social and economic policy as outside the proper
scope of the courts and more appropriate for the legislative branches. What might broadly
be termed as the “left” in Canada was generally opposed to the Charter as promoting an
illusion of rights, and thus did not lobby to have social and economic rights included
within the Charter text. 395 While women, people with disabilities and Aboriginals were
lobbying to be fully included in the Charter text, the advocates of social and economic
rights were largely boycotting the process. The only recourse for judges wanting to read
social and economic rights into the Charter is to broadly interpret sections 7 and 15 of the
document. The section 15 analysis appears in the preceding Part II A and B so we will
now turn to section 7 of the Charter.
392
McKinney, supra note 267, dealing with mandatory retirement in universities, is a clear articulation of
this deferential role for courts.
393
See e.g. McKinney, ibid. and Egan, supra note 244.
394
[2005] 1 S.C.R. 791.
395
See W. Schabas in Canadian Rights and Freedoms: 25 Years under the Charter, Conference
proceedings (Ottawa: Association of Canadian Studies, April 16-17, 2007).
91
2.
Section 7: Chaoulli as the Exception to the Rule
The question of economic rights reared its head early in Charter jurisprudence but
in the context of corporate rights in Irwin Toy v. Quebec (A.G.):
What is immediately striking about [s. 7] is the inclusion of “security of
the person” as opposed to “property” … First, it leads to a general
inference that economic rights as generally encompassed by the term
“property” are not within the perimeters of the s. 7 guarantee. This is not
to declare, however, that no rights with an economic component can fall
within “security of the person.” Lower courts have found that the rubric
of “economic rights” embraces a broad spectrum of interests, ranging
from such rights, included in various international covenants, as rights to
social security, equal pay for equal work, adequate food, clothing and
shelter, to traditional property – contract rights. To exclude all of these at
this early moment in the history of Charter interpretation seems to us to be
precipitous. We do not, at this moment, choose to pronounce upon
whether those economic rights fundamental to human life or survival are
to be treated as though they are of the same ilk as corporate-commercial
economic rights. In so stating, we find the second effect of the inclusion of
“security of the person” to be that a corporation’s economic rights find no
constitutional protection in that section. 396
While closing the door on economic rights for corporations, the Supreme Court left the
window open for “economic rights fundamental to human life or survival.” It is a window
that is still open but also not yet entered. Former Justice Louise Arbour in Gosselin v.
Quebec (A.G.), in a spirited dissent, argued that section 7 should apply to prevent social
assistance falling below the poverty level for young people like Ms. Gosselin.397 The
majority of the Supreme Court did not feel that Gosselin was the case to expand the law
but did not close the Irwin Toy window for a future case.
In the very different context of access to health care in a reasonable time, the
majority of the Supreme Court did take an expansive approach to section 7 of the
Charter, but not under the banner of economic rights but rather the fundamental rights to
life and security of the person. 398 This decision has been much criticized by academics
and even Professor Martha Jackman, who has generally supported a broad role for the
courts in advancing social and economic rights, was forced to rethink her position. 399
However, it has also been described as a positive step towards extending section 7 of the
Charter to embrace economic rights.
396
Irwin Toy, supra note 75 at para. 95.
Gosselin, supra note 272, per Arbour J. Interestingly, Louise Arbour continues her crusade for social
and economic rights for the poor in her new role as United Nations High Commissioner for Human Right
in Geneva.
398
Chaoulli, supra note 394.
399
M. Jackman, “The Last Line of Defence for [Which?] Citizens: Accountability, Equality and the Right
to Health in Chaoulli” (2006) 44 Osgoode Hall L.J. 349.
397
92
… the decision may yet have a surprisingly progressive influence on
Charter jurisprudence. By establishing the connection between
deprivations of the basic necessaries of life and fundamental rights,
Chaoulli may well be the first step through the doors left open in Irwin
Toy and Gosselin … If state obligations to those in need are not foreclosed
under the constitution .. then it is hard to imagine more compelling
settings for elaborating such obligations than in the basic need for health
care and sustenance of those dependent on state support.400
Professor MacKay in a recent article made the following analysis of Chaoulli as
the exception to the normal rule of judicial restraint in respect to section 7 of the Charter.
It is not surprising that the Justices of the Supreme Court of Canada were
so divided in Chaoulli on the issue of private health care, which has
sparked wide public debate. What is more surprising is that a majority of
the Justices were willing to second guess the legislators on this contested
public issue. It is also surprising that the McLachlin group in Chaoulli
were willing to take such a broad approach to section 7. At a time when
the Supreme Court of Canada appears to be retreating from earlier
expansive rulings on equality in section 15 of the Charter, some Justices
appear to be more “activist” in their interpretation of section 7 of the
Charter in both the health care and the national security contexts.
It would appear that the courts are more comfortable in defining the limits
of liberty and security of the person than they are in delineating the scope
of equality in Canadian society…It is also noteworthy that those in
Chaoulli who found a section 7 violation, characterized the rights in issue
as ones of psychological security rather than economic rights. There is
also great emphasis on the fact that the violations of rights must be serious
and on the facts of the Chaoulli case even life threatening.
It would also be fair to say that the Chaoulli case is exceptional in respect
to extending section 7 of the Charter of Rights outside the criminal and
quasi-criminal domains. Even in the domain of liberty and security of the
person the courts have been quite cautious in using the Charter to second
guess the decisions of the elected branch of government. In that sense the
Chaoulli decision is the exception that proves the rule, rather than an
illustration of an activist judicial rule. The way in which the case was
decided reinforces the extent to which the Supreme Court of Canada is
willing to be deferential to the legislature when contested matters of public
policy are at issue. Remember that Madam Justice Deschamps decided the
matter on the basis of the Quebec Charter of Human Rights (a regular
statute) rather than a constitutional document. The rest of the Court split
3/3 on whether there was a constitutional violation. The process if not the
400
L. Sossin, “Towards a Two-Tier Constitution? The Poverty of Health Rights” in Colleen M. Flood, Kent
Roach & Lorne Sossin, eds., Access to Care, Access to Justice: The Legal Debate Over Private Health
Insurance in Canada (Toronto: University of Toronto Press, 2006) 161 at 178.
93
substance of the Chaoulli decision, was respectful to and even deferential
to the elected legislators. 401
Far more typical of the Supreme Court of Canada’s restrained approach to
section 7 of the Charter are the following comments of the late Chief Justice Lamer in
Reference Re ss. 193 and 195 of the Criminal Code (the Prostitution Reference):
[T]he increasing role of administrative law in .. modern society [which has
provided the state with an avenue to regulate and control individual
activity and situations, including social welfare, and has further created
bodies ... that assume control over decisions affecting an individual’s
liberty and security of the person. [Due to the fact that this involves the
restriction of these rights,]... the judiciary has always had a role to play as
guardian of the administration of the justice system. There are also
situations in which the state restricts other privileges or ... “liberties” in the
guise of regulation, but uses punitive measures in cases of non-compliance
... In all these cases, in my view, the ... interests protected by s. 7 would be
restricted, and one would then have to determine if the restriction was in
accordance with the principles of fundamental justice. By contrast, as I
have stated, there is the realm of general public policy dealing with
broader social, political and moral issues which are much better resolved
in the political or legislative forum and not in the courts.
[I]t is my view that work is not the only activity which contributes to a
person’s self-worth or emotional well-being. If liberty or security of the
person under s. 7 of the Charter were defined in terms of attributes such as
dignity, self-worth and emotional well-being, it seems that liberty under
s. 7 would be all inclusive. In such a state of affairs there would be serious
reason to question the independent existence in the Charter of other rights
and freedoms such as freedom of religion and conscience or freedom of
expression.
The rights under s. 7 do not extend to the right to exercise their chosen
profession. 402
Later in New Brunswick (Minister of Health and Community Services) v. G(J), the
late Chief Justice Lamer again emphasizes the need to avoid too broad an interpretation
of section 7 of the Charter. 403 In order to trigger section 7, he concludes that there must
be a state interference which affects an individual interest of fundamental importance or
has a serious and profound effect on a person’s psychological integrity.
[I]t is clear that the right to security of the person does not protect the
individual from the ordinary stresses and anxieties that a person of
reasonable sensibility would suffer as a result of government action. If the
401
MacKay, “In Defence”, supra note 254.
Reference re ss. 193 & 195.1(1)(c) of the Criminal Code (Canada), [1990] 1 S.C.R. 1123, 56 C.C.C.
(3d) 65 (S.C.C.).
403
[1999] 3 S.C.R. 46.
402
94
right were interpreted with such broad sweep, countless government
initiatives could be challenged on the ground that they infringe the right to
security of the person, massively expanding the scope of judicial review,
and, in the process, trivializing what it means for a right to be
constitutionally protected. 404
There are many more cases that could be analyzed, but that is for another day.
The net effect is that the scope of section 7 outside the criminal and quasi-criminal
domains has been quite limited. Thus the guarantee of “security of the person” within
section 7 does not offer much scope for economic and social rights of a positive nature.
Former Justice Louise Arbour (now United Nations Chief Commissioner for Human
Rights) was one of the few Supreme Court Justices who advocated an expansive and
more positive interpretation of section 7 but she now operates at the international rather
than the domestic level.
There are commentators, such as Lynn Iding, 405 who do advocate the Charter as
the best venue for the protection of economic and social rights under sections 7 and 15 of
the Charter but they have not caught the fancy of the judges to date. The best that can be
said is that the Supreme Court has not closed the window that was opened a crack in
Irwin Toy, 406 nor have they made any serious efforts to enter the room through either the
door or the window. Courts are an unlikely venue for implementing Canada’s
international human rights obligations.
Martha Jackman and Bruce Porter argue in their paper for Status of Women
Canada that the positive rights analysis in Eldridge can provide the basis for restructuring
rights under the Canadian Human Rights Act on positive rights regulatory model. 407
Suffice for present purposes to say that we do not see Eldridge or other cases as a likely
foundation for positive or negative social and economic rights in the Charter. That is not
to deny the scope for the advancement of such rights through the Charter, but it is not a
practical vehicle for the protection of social and economic rights in society. The
institutional competence of courts to properly deal with such matters has been frequently
raised by the courts themselves, and is a serious limit on the articulation of socioeconomic rights via the Charter.
C. The Socio-Economic Charter: The Challenge of Constitutional Reform
Recognizing the limits of the Charter of Rights as a vehicle for social and
economic rights, some anti-poverty activists turned to the process of constitutional reform
as a way of advancing their cause. Other than the broad language of some of the rights in
the Charter, such as in sections 7 and 15, there was little in the 1982 round of
constitutional change for those concerned with social and economic disadvantage. Other
parts of the Constitution Act, 1982, such as section 36, were more explicit in their
404
Ibid. at para. 59.
Iding, supra note 43.
406
Irwin Toy, supra note 75 at para. 95. In Gosselin, supra note 272, McLachlin C.J. for the majority leaves
the window open to positive economic and social rights (para. 83) but only Arbour J. is willing to apply
section 7 in this deserving case. The Court’s failure to extend to Ms. Gosselin either the protections of
sections 7 or 15, has been critiqued in Kim and Piper, supra note 40.
407
Jackman & Porter, “Women’s Substantive Equality”, supra note 47.
405
95
reference to matters of economics but no more promising in terms of delivering real
redress to those who suffered from unequal distribution of resources in society.
Section 36 of the Constitution Act, 1982, reads as follows:
36. (1) Without altering the legislative authority of Parliament or
of the provincial legislatures, or the rights of any of them with
respect to the exercise of their legislative authority, Parliament
and the legislatures, together with the Government of Canada and
the provincial governments, are committed to
(a) promoting equal opportunities for the well-being of
Canadians;
(b) furthering economic development to reduce disparity in
opportunities; and
(c) providing essential public services of reasonable quality to
all Canadians.
(2) Parliament and the Government of Canada are committed to
the principle of making equalization payments to ensure that
provincial governments have sufficient revenues to provide
reasonably comparable levels of public services at reasonably
comparable levels of taxation. 408
The above section identifies as an objective the elimination of regional disparities in
Canada and the delivery of social and economic programmes on a basis of equality.
While this is a laudable goal, it is merely an objective rather than a guarantee of rights.
This section also leaves the issue of socio-economic rights with the majoritarian political
process rather than the courts, and thereby reinforces the non-justiciable nature of these
rights. There has been virtually no judicial interpretation or use of this section in the
25 years since it was created. 409 To speak of social and economic rights as objectives and
principles, rather than rights, is to downgrade their level of protection.
The failed Meech Lake round of constitutional amendments did not substantively
address matters of socio-economic rights but focused almost exclusively on the
reconciliation of Quebec with the rest of Canada. However, the next round of
constitutional change in the early 1990s did include arguments for a Socio-Economic
Charter as an express constitutional protection of these rights. In spite of bold claims for
a broad-based and justiciable economic Charter advanced by various interest groups and
academics, 410 the version of the Socio-Economic Charter that survived as part of the
Charlottetown Accord was a non-justiciable Charter that was both general and diluted in
form. The text of this version is presented in Appendix II of our 1999 Study. Even in this
reduced form it failed to pass constitutional muster and was defeated with the rest of the
Charlottetown Constitutional Accord in a national referendum on October 26, 1992. 411
408
Constitution Act 1982, supra note 264, s. 36.
See Reference Re Canada Assistance Plan (BC), [1991] 2 S.C.R. 525.
410
See e.g. M. Jackman “When a Social Charter Isn't: When a Tory majority recommends a social covenant
let the buyer beware” (1992) 70 Constitutional Forum 8.
411
The Charlottetown Accord also had extensive provisions on Aboriginal rights that were defeated. There
are still the Aboriginal and treaty rights constitutionalized in s. 35 of the Constitution Act, 1982. This
section could have significant economic and social dimensions but that is beyond the scope of this study.
409
96
The generalized language of the proposed constitutional amendment is not very
helpful in defining what is meant by social and economic condition. Indeed, the focus of
the exercise was more on the setting of legislative objectives and ideals rather than a
concrete definition of rights. Furthermore, the failure of the Charlottetown Accord sent a
clear message to Canadian politicians that the process of constitutional amendment in
Canada was a difficult, if not impossible one, in the foreseeable future. This is
particularly true for wide-ranging constitutional amendment - such as those proposed and
defeated in the Meech Lake and Charlottetown rounds of constitutional change.
Since the failure of the Charlottetown Accord, multi-lateral constitutional
amendment initiatives have been largely removed from the political agenda. Rather than
going down the rough road of constitutional amendment, governments have embarked
upon a course of co-operative federalism that has resulted in the 1999 Social Accord.
This generally worded document (which we include in Appendix III to our 1999 Study)
seems to further decentralize social and economic policy but offers little or no guidance
as to how we should define social and economic rights or social condition in particular.
D. Economic and Social Rights under the Quebec Charter
Quebec is the only jurisdiction in North America to recognize economic and
social rights as a part in its human rights code, 412 which it does in Chapter IV of the
Quebec Charter under the heading “Economic and Social Rights”. 413 While it has been
noted that some of the enumerated rights in the chapter may be better placed elsewhere in
the Charter - representing [TRANSLATION] “a certain conceptual confusion on the part
of the legislature” 414 – similar to international documents, the Quebec Charter includes a
recognition of rights to education, to an adequate standard of living and to fair conditions
of employment under this heading:
40. Every person has a right, to the extent and according to the standards provided
for by law, to free public education.
45. Every person in need has a right, for himself and his family, to measures of
financial assistance and to social measures provided for by law, susceptible of
ensuring such person an acceptable standard of living.
46. Every person who works has a right, in accordance with the law, to fair and
reasonable conditions of employment which have proper regard for his health,
safety and physical wellbeing.
However, there are three important observations regarding these sections. First, each
section contains an internal limitation to the rights recognized therein; the rights are not
freestanding like in other parts of the Charter, but exist to the extent “provided for by
law”. Second, this part of the Charter is not subject to the non-derogation or precedence
412
P. Bosset, “Les droits économiques et sociaux: parents pauvres de la Charte?” in Quebec, Commission
des droits de la personne et des droits de la jeunesse, Après 25 ans: La Charte québécoise des droits et
libertés (Étude no 5) at 238.
413
Quebec Charter, supra note 27. Notably, the preamble to the Charter expressly recognizes international
human rights obligations.
414
Bosset, supra note 412.
97
clause in relation to other statutes, which applies to other rights, such as the right to
non-discrimination. 415 And third, these rights cannot generally form the foundation of a
complaint to or investigation by the Commission. 416 These substantive and procedural
restrictions to the economic and social rights in the Charter have led them to be referred
to as [TRANSLATION] “the Charter’s poor relations”. 417 At the same time,
commentators have noted the symbolic importance of recognizing social and economic
rights in the Charter at all, even though this recognition has yet to bear out substantial
results in the case law:
[TRANSLATION]
Although economic and social rights do not explicitly take precedence over
statutes, as, in principle, other Charter rights and freedoms do, their inclusion in
such a fundamental document is not purely symbolic. The Charter makes it
necessary to consider the question of the protection of economic and social rights
from a qualitatively different perspective, one that is appropriate to a quasiconstitutional instrument, and not as a mere branch of administrative law.
However, although the recognition of economic and social rights is one of the
elements that make the Quebec Charter an unprecedented, unique legislative
document, this feature has hardly been reflected in case law to date. 418
The Supreme Court of Canada recently considered section 45 – the right to an
adequate standard of living – in Gosselin v. Quebec. 419 Speaking for the majority,
Chief Justice McLachlin found that the wording in section 45 weighed in favour of a
restrictive interpretation of the right so that it would be beyond the purview of judicial
review to examine the adequacy of financial assistance measures provided by law:
These provisions require the state to take steps to make the Chapter IV rights
effective, but they do not allow for the judicial assessment of the adequacy of
those steps…Was s. 45 intended to make the adequacy of a social assistance
415
Section 52 of the Quebec Charter provides:
52. No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38,
except so far as provided by those sections, unless such Act expressly states that it applies despite
the Charter.
416
Section 71 of the Quebec Charter provides:
71. The Commission shall promote and uphold, by every appropriate measure, the principles
enunciated in this Charter.
The responsibilities of the Commission include, without being limited to, the following:
(1) to make a non-adversary investigation, on its own initiative or following receipt of a
complaint, into any situation, except those referred to in section 49.1, which appears to the
Commission to be either a case of discrimination within the meaning of sections 10 to 19,
including a case contemplated by section 86, or a violation of the right of aged or handicapped
persons against exploitation enunciated in the first paragraph of section 48;...
74. Any person who believes he has been the victim of a violation of rights that is within the
sphere of investigation of the Commission may file a complaint with the Commission.
417
Bosset, supra note 412.
418
Quebec, Commission des droits de la personne et des droits de la jeunesse, Mémoire à la Commission
des affaires socials de l’Assemblée nationale: Projet de loi no 112, Loi visant à lutter contre la pauvreté et
l’exclusion sociale (September 2002) at 31 [hereinafter “Mémoire: Projet de loi no 112”].
419
Gosselin, supra note 272.
98
regime’s specific provisions subject to judicial review, unlike the neighbouring
provisions canvassed above? Had the legislature intended such an exceptional
result, it seems to me that it would have given effect to this intention
unequivocally, using precise language…
S. 45 of the Quebec Charter is highly equivocal. Indeed, s. 45 features two layers
of equivocation. Rather than speaking of a right to an acceptable standard of
living, s. 45 refers to a right to measures. Moreover, the right is not to measures
that ensure an acceptable standard of living, but to measures that are susceptible
of ensuring an acceptable standard of living. In my view, the choice of the term
“susceptible” underscores the idea that the measures adopted must be oriented
toward the goal of ensuring an acceptable standard of living, but are not required
to achieve success. In other words, s. 45 requires only that the government be able
to point to measures of the appropriate kind, without having to defend the wisdom
of its enactments. This interpretation is also consistent with the respective
institutional competence of courts and legislatures when it comes to enacting and
fine-tuning basic social policy… 420
The implication of this judgment is that, while the scope of section 45 is quite limited
under the Charter, the provincial government would be required to, at a minimum, have
some measures in place that are “susceptible of ensuring an acceptable standard of
living”. Thus, presumably, the government could not repeal social assistance entitlements
and other benefit programs completely, which is in contradiction to the trend under the
Canadian Charter case law that indicates there is no obligation on governments to
provide programs as opposed to providing programs without discrimination. In addition,
the Chief Justice noted that, despite the exclusion of section 45 and other economic and
social rights from the non-derogation clause in section 52 of the Quebec Charter, a
remedy may still exist for violations, being that of a declaration:
The Quebec Charter is a legal document, purporting to create social and economic
rights. These may be symbolic, in that they cannot ground the invalidation of
other laws or an action in damages. But there is a remedy for breaches of the
social and economic rights set out in Chapter IV of the Quebec Charter: where
these rights are violated, a court of competent jurisdiction can declare that this is
so. 421
However, the dissenting judges in the case took different approaches to the scope
of section 45. Justice L’Heureux-Dubé was the only judge to find that section 45 could
ground an independent claim to a basic level of financial assistance. Justice Bastarache
found that section 45, although it could not result in the invalidation of legislation due to
its exclusion from section 52, could ground an individual remedy if a private actor or
420
Ibid. at paras. 92-93, per McLachlin CJ [emphasis in original]. Compare the reasons of L’HeureuxDubé J., dissenting, finding a violation of s.45 in light of the intention of s.45 to implement Canada’s
international human rights obligations, thus protecting a minimum core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of subsistence needs and the provision of basic services.
421
Ibid. at para. 96. [Emphasis in original.]
99
state official violated section 45 rights. Moreover, section 45, even if non-justiciable,
“still has moral and political force.” 422 Justice Lebel, in contrast, after reviewing the
Quebec case law, found that section 45 is justiciable and can have independent content in
exceptional cases, 423 but primarily operates in conjunction with the section 10 equality
right in order to protect a right of access to measures of financial assistance:
The symbiosis between s. 10 and the other rights and freedoms is a direct result of
the wording of s. 10, which creates not an independent right to equality but a
method of particularizing the various rights and freedoms recognized (Desroches
v. Commission des droits de la personne du Québec, [1997] R.J.Q. 1540 (C.A.), at
p. 1547). Section 10 sets out the right to equality, but only in the recognition and
exercise of the rights and freedoms guaranteed. Accordingly, a person may not
base an action for a remedy on the s. 10 right to equality as an independent right.
However, a person may join s. 10 with another right or freedom guaranteed by the
Quebec Charter in order to obtain compensation for a discriminatory distinction
in the determination of the terms and conditions on which that right or freedom
may be exercised. 424
Similar to the decision of the Chief Justice, Lebel J. also left the door open to the
possibility of section 45 encompassing “a minimum duty to legislate” involving, “at a
minimum, the creation of a legal framework that favours the attainment of social and
economic rights.” 425
The close connection between economic and social rights under Chapter IV and
the section 10 equality right in the Charter has also been emphasized by the Quebec
Court of Appeal. In a case dealing with the right to free public education under
section 40, the Court found that the content of the right in section 40 derived its meaning
from the existing laws regarding education: [TRANSLATION] “[section 40 of the
Charter] cannot add other rights … and can only be virtually enjoyed to the extent of and
according to the standards provided by the Act.” 426 While less clear in the Court of
Appeal judgment, the Superior Court explicitly made a connection between sections 40
and 10: [TRANSLATION] “if section 10, when considered in isolation, cannot benefit
from the effect of the non-derogation provision set out in section 52, it can do so
422
Ibid. at para. 303.
Ibid., per Lebel J., citing Johnson v. Commission des affaires sociales, [1984] C.A. 61, in which the
Court of Appeal relied on s. 45 of the Quebec Charter in holding that a statutory provision declaring a
person who is unemployed because of a labour dispute to be ineligible for social assistance could not be
applied to a striker because, while the legislation was perfectly valid, it resulted in effects not intended by
the legislator. Lebel J. distinguished the Johnson case as follows, at para. 426:
It is difficult to view Johnson as an express recognition of the binding effect of s. 45. For one
thing, it is obvious that the Court of Appeal was influenced by the exceptional circumstances in
the case before it: a worker who had been on probation had been unable to participate in the strike
vote and was not entitled to union benefits. The court was dealing with legislation that was
perfectly valid but that produced effects the legislature had not anticipated.
424
Ibid. at para.248.
425
Ibid. at para. 429.
426
Quebec (Commission des droits de la personne) c. C.S. de St-Jean-sur-Richelieu, [1994] R.J.Q. 1227
(C.A.).
423
100
indirectly when the proceeding in which it is invoked as a main issue also involves the
right to equality, which is protected by the non-derogation provision.” 427
At a practical level, these decisions leave little scope for an independent operation
of social and economic rights under the Quebec Charter, except for perhaps a minimal
duty to legislate or to “take steps” to realize these rights and to do so without
discrimination. In other words, the Quebec Charter requires at least a minimum duty, if
not a minimum content, in relation to economic and social rights, which is at least more
than is recognized in the human rights codes of other Canadian jurisdictions. In addition,
the Charter offers some scope to the Commission to undertake activities for the
promotion of economic and social rights under the Charter, including pointing out
legislation that may be inconsistent with the principles of Charter guarantees. 428 For
example, following an extensive consultation process in 2000, on the occasion of the 25th
anniversary of the Quebec Charter, the Quebec Commission found:
[TRANSLATION]
… have resulted in broad consensus for the strengthening of the social and
economic rights guaranteed by the Charter … An essential component of the
human rights corpus, social and economic rights should no longer be considered
to be the “poor relatives” of the Quebec Charter of which they are undoubtedly
one of the most distinctive aspects. 429
As a result, the Commission recommended that these rights be included in the
non-derogation provision and that the limiting language be replaced with a protection for
[TRANSLATION] “an essential body of rights enforceable against public authorities;” it
concluded that this would create “a more satisfying balance … between the solemn
statement of social and economic rights and the discretion that must necessarily be
awarded to the legislature in this respect.” 430 The Commission suggested that, if there
were concerns regarding the effect of justiciable socio-economic rights on legal order,
then there could be a delay in the coming into force or applicability to laws until the
government has time to review and update effected laws.
427
Quebec (Commission des droits de la personne) c. C.S. de St-Jean-sur-Richelieu, [1991] R.J.Q. 3003
(TDP) at 3037, aff’d [1994] R.J.Q. 1227 (C.A.).
428
See Quebec Charter, supra note 27, s.71:
71. The Commission shall promote and uphold, by every appropriate measure, the principles
enunciated in this Charter.
The responsibilities of the Commission include, without being limited to, the following:…
(6) to point out any provision in the laws of Québec that may be contrary to this Charter
and make the appropriate recommendations to the Government…
The Commission also regularly provides advice to the National Assembly regarding bills under
consideration in relation to their potential impact on Charter rights.
429
Mémoire: Projet de loi no 112, supra note 418 at 38.
430
Ibid. at 39, citing guarantees in Italy, Japan, Spain, Portugal, and South Africa and the fact that the
language has been used to essentially give “carte blanche” to the legislator.
101
IV. What are the Arguments Against Including Social Condition as a
Prohibited Ground of Discrimination in the Canadian Human Rights
Act?
The arguments against social condition can be seen as fitting into one of three
broad categories: practical, definitional, and institutional. We will attempt to highlight
these pragmatic concerns, many of which were also raised in our 1999 paper.
A. Practical Administrative Concerns
1.
Limited Resources and Backlog
The inclusion of social condition as a prohibited ground of discrimination must
take place in the context of the limited resources available to administrative agencies,
such as the Canadian Human Rights Commission. As a consequence of the limited
resources available to it, there may be an impact on the capacity of the Canadian Human
Rights Commission to deal with complaints promptly. The Commission’s funding has
been somewhat reduced from approximately $23.6 million in 2002-2003 to $21.1 million
in 2006-2007. 431 One could argue that the inclusion of a new ground of discrimination,
social condition, would likely lead to a higher volume of complaints and delays in
processing complaints, undermining the fairness, credibility and effectiveness of the
Commission. 432
The 1998 Annual Report of the Canadian Human Rights Commission stated:
“[f]inancial restraint, program cutbacks… all of these make speedy and satisfactory
resolution of complaints a daunting task.” 433 The Auditor General had also expressed
concerns about major delays in processing human rights complaints in a 1998 report (the
most recent addressing the Canadian Human Rights Commission):
10.36 The Commission is required by legislation to deal with
almost all of the complaints it receives and the Tribunal is
required to deal with all complaints referred to it by the
Commission. The responsibilities conferred have increased as a
result of the expansion of the prohibited grounds of
discrimination by courts and Parliament. 434
Therefore, the inclusion of social condition as a prohibited ground of discrimination
could increase the burden on the limited resources of the Human Rights Commission.
431
Canada, Canadian Human Rights Commission, Departmental Performance Report 2006-2007 (2007),
Section III, online: Treasury Board of Canadian Secretariat <http://www.tbs-sct.gc.ca/dpr-rmr/20062007/inst/hrc/hrctb-eng.asp> (date accessed: March 2, 2008) [hereinafter CHRC DPR]
432
Canada, Report of the Auditor General (1998) at paras. 10.58 and 10.38., online: Office of the Auditor
General < http://www.oag-bvg.gc.ca/internet/English/aud_ch_oag_199809_10_e_9316.html > (date
accessed: 2 March 2008) [hereinafter Auditor General’s Report].
433
Canada, Canadian Human Rights Commission, Annual Report 1998 (Ottawa: Minister of Public Works
and Government Services, 1999) at 73.
434
Auditor General’s Report, supra note 432 at para. 10.36. [Emphasis added.]
102
This could result in greater backlog, less efficiency and undermine the Commission’s
reputation, impartiality and fairness.
However, these concerns have largely been allayed. In the most recent Annual
435
Report , the statistics paint a different picture. The following data show that the
Commission’s business model, implemented in 2002, is producing the intended results.
The complaint workload is in check and productivity has substantially increased.
Progress is measured against the year 2002, when the Commission began implementing
refinements to its business model.
Figure 1 – Cases In, Cases Out
Figure 2 – Cases Inventory
435
Canada, Canadian Human Rights Commission, 2006 Annual Report (2006) at 7; online: Minister of
Public Works and Government Services 2007 <http://www.chrc-ccdp.ca/publications/ar_2006_ra/toc_tdmen.asp> (date accessed: 2 March 2008) [hereinafter 2006 Annual Report]
103
Figure 3 – Average Age of Active Caseload
Figure 4 – Cases Two Years or Older
104
Figure 5 – Final Decisions by Type
While these statistics are clearly very positive with respect to backlog and Commission
efficiency, one might still argue the influx of new cases brought about by the added
protection of social condition would deal some reverses to this heartening trend.
However, this seems somewhat unlikely if we consider the experience of
New Brunswick, which added social condition as a prohibited ground in its provincial
human rights legislation in 2005. It is clear that the addition of this new ground and this
novel protection did not lead to a substantial influx of new claims. In 2004-2005 (before
social condition came into effect as an enumerated ground), New Brunswick’s Human
Rights Commission received 237 new complaints. 436 In 2005-2006 (the first year the new
ground was in effect) there were 205 new complaints, with social condition accounting
for 13 complaints, or 4% of this total. 437 In 2006-2007, the Commission received
174 new complaints, with claims under the ground of social condition accounting for just
8 complaints, or 3% of the total. 438 The experience in Northwest Territories is quite
similar, in the first three years of the existence of the Northwest Territories Human
Rights Act, only six out of one hundred thirteen complaints, again less than six percent,
included the ground of social condition. 439 Social condition occupies a similarly low
proportion of cases in Quebec, having in recent years declined to about 4% of new files
opened by the Commission.
436
New Brunswick, Annual Report 2004-2005, Appendix D. online: New Brunswick Human Rights
Commission < http://www.gnb.ca/hrc-cdp/e/docs.htm> (date accessed: March 2, 2008).
437
New Brunswick, New Brunswick Human Rights Commission, Annual Report 2005-2006, Appendix D.
online: New Brunswick Human Rights Commission < http://www.gnb.ca/hrc-cdp/e/docs.htm> (date
accessed: March 2, 2008)
438
New Brunswick, New Brunswick Human Rights Commission, Annual Report 2006-2007, Appendix D,
online: New Brunswick Human Rights Commission < http://www.gnb.ca/hrc-cdp/e/docs.htm> (date
accessed: March 2, 2008).
439
Northwest Territories, Human Rights Commission, Annual Report 2004-2005 (Yellowknife: Northwest
Territories Human Rights Commission, 2005); Northwest Territories, Human Rights Commission, Annual
Report 2005-2006 (Yellowknife: Northwest Territories Human Rights Commission, 2006); Northwest
Territories, Human Rights Commission, Annual Report 2006-2007 (Yellowknife: Northwest Territories
Human Rights Commission, 2007).
105
Table 1: Files related to social condition opened by the Quebec Human Rights
Commission
20062007 440
20052006 441
20042005 442
20022003 443
2001 444
2000 445
1999 446
Employment Tenancy Goods
Access to
Other Total Total
%
and
transportation
complaints
services and public
places
1
11
3
1
16
414
3.9
10
17
4
1
32
728
4.4
6
17
5
3
31
817
3.8
9
33
13
1
56
1226
4.6
5
11
13
71
38
32
16
18
9
1
93
67
57
1058
898
883
8.8
7.5
6.5
3
If the federal experience is similar to that of New Brunswick, the
Northwest Territories and Quebec, and there is no prima facie reason to think it will be
substantially different, the problem of limited resources and backlog is not a serious
impediment to including social condition in the CHRA. Moreover, it is possible that
social condition may consolidate complaints that have been presented under other
grounds or under multiple grounds, as discussed in the section on multiple discrimination
and supported in the literature and case law. 447 However, it may be advisable to increase
440
Quebec, Commission des droits de la personne et des droits de la jeunesse, Rapport d’activités et de
gestion 2006-2007, online : <www.cdpdj.qc.ca/fr/publications/docs/RA_2006_2007.pdf> (date accessed:
January 6, 2008).
441
Quebec, Commission des droits de la personne et des droits de la jeunesse, Rapport d’activités et de
gestion 2005-2006, online : <www.cdpdj.qc.ca/fr/publications/docs/RA_2005_2006.pdf> (date accessed:
January 6, 2008).
442
Quebec, Commission des droits de la personne et des droits de la jeunesse, Rapport d’activités et de
gestion 2004-2005, online : <www.cdpdj.qc.ca/fr/publications/docs/RA_2004_2005.pdf> (date accessed:
January 6, 2008).
443
Quebec, Commission des droits de la personne et des droits de la jeunesse, Rapport d’activités et de
gestion 2002-2003, online : <www.cdpdj.qc.ca/fr/publications/docs/RA_2002_2003.pdf> (date accessed:
January 6, 2008).
444
Quebec, Commission des droits de la personne et des droits de la jeunesse, Rapport d’activités et de
gestion 2001, online : <www.cdpdj.qc.ca/fr/publications/docs/RA_2001.pdf> (date accessed:
January 6, 2008).
445
Quebec, Commission des droits de la personne et des droits de la jeunesse, Rapport annuel 2000,
online : <www.cdpdj.qc.ca/fr/publications/docs/RA_2000.pdf> (date accessed: January 6, 2008).
446
Quebec, Commission des droits de la personne et des droits de la jeunesse, Rapport annuel 1999,
online : <www.cdpdj.qc.ca/fr/publications/docs/RA_1999.pdf> (date accessed: January 6, 2008).
447
See Turkington, supra note 53 at 180: “Adding poverty to the Ontario Human Rights Code is not an
attempt to protect a large group of people currently unprotected by the Code. Adding poverty would
provide a different kind of protection to subgroups of people who are currently only partially protected by
106
the funding to the Commission if social condition were to be added to the CHRA to
ensure not only the timely and effective resolution of cases, but to build the capacity and
expertise of the Commission in this new area.
2.
Overshadowing Other Grounds
As a related argument, the inclusion of social condition as a prohibited ground of
discrimination could overshadow other grounds of discrimination; its inclusion could
monopolize the Commission’s resources towards the resolution of complaints based on
social condition to the detriment of complaints on other established grounds. Such a
situation has happened at the Prince Edward Island Human Rights Commission where
complaints based on the ground of “political belief” have overshadowed complaints on
other grounds.
Though political belief has been included in the P.E.I. Human Rights Code since
its inception, complaints on that ground increased after the provincial election in 1996
from low single digits to over 600 complaints in one year. As the 1996/97 annual
report 448 highlights “[f]ollowing the provincial election on November 18, 1996, a
staggering number of complaints of discrimination on the basis of political belief were
filed… often from government employees who had held a seasonal, contract or term
position for up to ten years or longer.” 449 The Chairperson put the problem into
perspective by pointing out that the P.E.I. Human Rights Commission received 1.5 times
the number of complaints received by the Nova Scotia, New Brunswick and
Newfoundland Commissions combined yet operated on 8% of their budget.
This strange anomaly only occurred that single year, and in every subsequent
year, regardless of elections, complaints on this ground have returned to the single
digits. 450 The overshadowing of other grounds by the ground of political belief in P.E.I.
in 1996/97 was due to particular circumstances including the election and widespread
patronage hirings. Hence it does not provide an accurate reflection of the situation at the
Canadian Human Rights Commission if social condition were added as a prohibited
ground of discrimination. A more accurate comparison would be with New Brunswick,
the Northwest Territories or Quebec (see above). Further, the distribution of complaints
in Quebec by prohibited ground closely matches the distribution in provinces which have
no ground of social condition or which have grounds such as source of income. 451 These
data indicate that concerns about social condition overshadowing current grounds are
largely unfounded.
the Ontario Human Rights Code.” See also Fournier c. Poisson (1980), 1 C.H.R.R. D/15 at D/15
(Que. Prov. Ct.): “First, “social condition” concerns many areas, including those specifically listed in
section 10, including race, sex, sexual orientation, civil status, religion, political convictions, language,
ethnic or national origin.” [hereinafter Fournier].
448
Prince Edward Island, Human Rights Commission, Annual Report 1996/97 (Charlottetown: PEIHRC,
1997).
449
Ibid.
450
Prince Edward Island, Human Rights Commission, Annual Reports 1999-2006 online: PEI Human
Rights Commission < http://www.gov.pe.ca/humanrights/index.php3?number=72437&lang=E> (last
accessed March 2, 2008). There were 40 complaints in 1998/99, 6 in 1999/00, 3 in 2000/01, 8 in 2001/02,
5 in 2002/03, 8 in 2003/04, 5 in 2004/05, and zero in 2005/06.
451
MacKay, Piper, and Kim, supra note 4 at 121-122.
107
3.
Lengthy Litigation
If social condition were included as a prohibited ground of discrimination in the
Canadian Human Rights Act it is possible that more cases would be heard and lengthy
litigation could ensue in relation to the definition or application of the ground. Moreover,
if, as we surmise, the addition of the ground would provide better “fit” for claims based
on multiple grounds, there could be an increase in the number of complaints proceeding
to a hearing to deal with section 3.1 of the CHRA, which has not yet been well-developed
in the jurisprudence. This could increase the amount of time spent at the Tribunal stage if
a hearing is conducted. Despite the statistics from the Canadian Human Rights
Commission’s 2006 Annual Report regarding resolution of complaints, 452 the time it
takes the Tribunal to conduct hearings and render a decision is still a somewhat lengthy
process.
If social condition were included in the Canadian Human Rights Act without a
definition this would certainly increase the scope for lengthy litigation due to the
indeterminacy of the definition. Initially at least, the contest over the definition of social
condition could also increase the probability of requests for judicial review by the parties,
and increase the length of time of these reviews. A lack of a definition of social condition
may also cause complaints that might otherwise be resolved in mediation to proceed to a
hearing since it may be perceived as an opportunity to challenge the Human Rights
Commission. These theories are speculative since there is no empirical data available.
If social condition were included with a definition, however, the potential for
challenges might be somewhat reduced although litigants could still contest the
interpretation of the definition. The length and complexity of this litigation would depend
on the definition adopted in the CHRA (and/or attendant subordinate legislation) and to
some extent perhaps the jurisprudential precedents available in Quebec, New Brunswick
and the Northwest Territories. These considerations are taken into account in our
recommendations section.
B. Problems Concerning Definition
1.
Potential Unintended Effects
Absent a proper definition, or perhaps guidelines to implement the new ground of
social condition, it is possible that the current framework contained in the CHRA would
yield unintended results. Lynne Iding argues:
If social condition analysis was undertaken within the existing
discrimination analysis, social condition protection would be substantive
and far reaching, and would even recognize as indirect discrimination a
refusal to sell, rent or provide based on a person's true inability to pay.
While this might be a noble goal in addressing poverty, it is unlikely and
impractical to expect that human rights legislation will be a tool through
452
2006 Annual Report, supra note 435.
108
which the private marketplace moved from profit motive to
accommodation motive. 453
For example, if a landlord were charging $500/month for rent (a facially neutral
standard), which has an adverse effect on someone on welfare whose housing allowance
is only $300/month, theoretically the claimant could ask the landlord to accommodate her
up to the point of undue hardship, which in this case would be lowering the profit margin,
possibly to zero. A similar argument could be made for all purveyors of the necessities of
life (perhaps even more persuasively in the context of food). This example is illustrative
of the point that the implementation of social condition as a prohibited ground could have
significantly redistributive potential in the marketplace, which is unlikely to be the
intended consequences of its addition in the human rights regime; as a corollary, it could
result in protracted litigation to test the limits of the ground.
The problem of unintended effects was also addressed by the La Forest Panel
454
Report and by the Commission in its 2006 submissions to the United Nations in the
context of governmental programs. It stated: “In defining social condition in a federal
context, it will be important to carefully consider the complexity of social programs, such
as how the social benefit features of the income tax system could be shielded from undue
interference as a result of human rights claims.” 455
While the experience at the provincial level in Quebec and in the Charter context
would weigh against the likelihood of social condition protection being taken to institute
a reordering of the marketplace or of social programs, this argument does weigh in favour
of a definition, guidelines, and/or a carefully crafted limitation that could assist in the
implementation of the ground if it were to be adopted.
2.
Trade-offs in Definition and Vagueness
Even if a definition similar to that developed in Quebec, New Brunswick and the
Northwest Territories is employed when adding social condition as a prohibited ground
of discrimination, the charge could still be levelled that it would be too vague since
criteria like income and education are relative. Unlike concrete terms such as “sex” and
“colour”, this vagueness could lead to an uneven application of the new ground,
compensating claimants in some circumstances, while denying protection in others. This
raises the classic balancing problem in applying laws: predictability versus flexibility.
Fairness demands that claimants and defendants know in advance what would constitute
discrimination on the basis of social condition. However, the ground must not be applied
so mechanically as to leave worthy complainants remediless.
This concern relates to the other trade-off involved in defining social condition. In
order to satisfy the requirement of predictability, the ground must be defined in fairly
concrete terms. If the ground is defined too broadly, it raises concerns about opening the
453
Iding, supra note 43 at para 23.
La Forest Report, supra note 3 at 112.
455
Canada. Submission by the Canadian Human Rights Commission to the United Nations Committee on
Economic, Social and Cultural Rights on the Fourth and Fifth Periodic Reports of Canada under the
International Covenant on Economic, Social and Cultural Rights, April 2006. online: < http://www.chrcccdp.ca/legislation_policies/un_submission_nu-en.asp> (last accessed March 3, 2008).
454
109
floodgates, as well as frivolous claims and abuse of the ground. Conversely, if defined
too narrowly, many of the benefits yielded by the dynamic and flexible nature of social
condition as a ground would be lost, and the protection provided by the CHRA would
become fragmented.
This raises the possibility of alternative approaches, but, while another term such
as “poverty” may have a more common understanding, there still exists little consensus
on its definition or method of measurement. 456 However, an even more narrowly-defined
ground, such as “receipt of public assistance” used in some jurisdictions, would not have
the remedial potential of social condition. For example, it may result in a claimant only
being protected temporarily while actually in receipt of welfare and then losing that
protection when their source of income changed, even though the disadvantages they
suffer might remain the same.
It seems that, to achieve the purposes of the inclusion of social condition
protection, it will inescapably involve a certain flexibility and a recognition that it is a
relative concept incorporating objective and subjective elements. Like other enumerated
grounds that share this trait, such as disability, debate will be ongoing about how to
adequately define it. This issue must be addressed at the definition stage in order to avoid
confusion and protracted litigation, as well as a substantial influx of claims.
3.
Potential Abuse of the Broad Concept
If social condition were included as a prohibited ground of discrimination in the
Canadian Human Rights Act there is also the potential that it could be used by
individuals for whom it was not intended. For instance, the early generation of cases
under the Quebec case-law provided protection for judges, 457 doctors’ levels of
incomes 458 and profit-oriented hospitals. 459 The early definition of social condition in
Quebec did not include recipients of social assistance, 460 heads of a lone parent family, 461
or people with prior criminal convictions. 462 This approach was heavily criticized by
Collard, Senay and Brun and Binette. 463
However, courts and tribunals in Quebec have since adopted the principles used
to interpret human rights codes and section 15 of the Charter to prevent the abuse of
social condition. Especially in Gauthier, which has been followed by all cases dealing
456
La Forest Report, supra note 3, c. 17. See also e.g. D.P. Ross, K.J. Scott and P.J. Smith, The Canadian
Factbook on Poverty 2000 (Ottawa: Canadian Council on Social Development, 2000) at 13, which
describes at least eight different working definitions for measuring “poverty”.
457
Droit de la famille, supra note 87.
458
Guimond, supra note 86. See also Rhéaume c. Association professionelle des optométristes du Québec,
(1986) D.L.Q. 57 (C.S.).
459
Centre hospitalier, supra note 77.
460
Paquet, supra note 88.
461
Fournier, supra note 493.
462
Commission des droits de la personne du Québec c. Cie Price Ltée (1982), J.E. 81-866 (C.S.); Mercier
v. Beauport (Ville) (1981), 3 C.H.R.R. D/648 (Que. C.P.).
463
R. Senay, “Condition sociale, motif prohibé de discrimination selon la Charte des droits et libertés de la
personne” (1979) 39 R. du B. 1030, A. Collard, “La condition sociale: est-ce vraiment un motif de
discrimination?” (1987) 47 R. du B. 188, H. Brun and A. Binette, “L’interprétation judiciaire de la
condition sociale, motif de discrimination prohibé par la Charte des droits du Québec” (1981) 22 C. de D.
681 at 693.
110
with social condition, the court agreed with the Supreme Court of Canada that
[TRANSLATION] “a broad and liberal interpretation most likely to ensure the
attainment of the objects [of human rights legislation]” 464 should be applied to
quasi-constitutional documents. The court cites McIntyre’s decisions from O’Malley:
It is not, in my view, a sound approach to say that according to established
rules of construction no broader meaning can be given to the Code than
the narrowest interpretation of the words employed. The accepted rules of
construction are flexible enough to enable the Court to recognize in the
construction of a human rights code the special nature and purpose of the
enactment, and give to it an interpretation which will advance its broad
purposes. Legislation of this type is of a special nature… and it is for the
courts to seek out its purpose and give it effect. 465
A purposive and contextual approach to the interpretation of social condition has also
been encouraged. 466 Therefore, the risk of social condition being abused is limited given
the clear directives from the Supreme Court of Canada, which inform the interpretation of
all human rights statutes. Moreover, if a statutory definition were adopted to expressly
define the ground as relating to social and economic disadvantage, as has been done in
New Brunswick and the Northwest Territories, this would also address the issue.
C. Institutional Competence
There are several arguments against the addition of social condition as a
prohibited ground of discrimination that centre on the institutional competence of the
statutory human rights regime to deal with the underlying problem of socio-economic
disadvantage.
1.
Human Rights Legislation is the Wrong Venue to Address the Problem
It has been argued in academic discourse surrounding social condition that the
Human Rights Commission is not the best place to address the problem of
socio-economic disadvantage. Lynn Iding argues persuasively that the Canadian Charter
of Rights and Freedoms, in combination with government legislation is the preferable
way to address this issue. “Anti-discrimination legislation in itself might result in only the
limited effect of addressing stereotypes about low income individuals, while doing little
to alleviate poverty itself and its barriers to accessing the necessities of life.” 467 Under
this analysis, the more pressing problem is not discrimination based on stereotypes, but
rather positive rights to the necessities of life, such as food and shelter and, thus, a
Charter right to life’s basic necessities – perhaps included in the section 7 right to
security of the person, or by including social condition or economic disadvantage as an
analogous ground under section 15 – would be the preferable way to attack the problem.
464
Gauthier, supra note 6 at D/317.
O’Malley, supra note 64 at para. 12.
466
Gauthier, supra note 6; Senay, supra note 463.
467
Iding, supra note 43.
465
111
A related argument against the use of human rights legislation is that
socio-economic disadvantage can be much more effectively addressed by
utilizing the very same resources on public policy programs designed to
improve the situation of socially and economically marginalized groups in
society. Not only is adding social condition to federal legislation a
piecemeal solution, it risks the implication that it is a panacea or silver
bullet for the problem of socio-economic disadvantage. This may resonate
particularly strongly for complainants on social assistance who, after
pursuing their claim successfully, are likely to have their damages award
clawed-back from their social assistance benefits.
Implicit in these arguments is the concern that human rights legislation does not
do enough to address the problem of socio-economic equality in general and
discrimination on social condition in particular. This is borne out to some extent by the
experience in Quebec with social condition where the vast majority of successful claims
have been based on receipt of social assistance in the context of housing. In general, as in
the case of the Charter, adjudicative bodies have taken an unambitious approach in
applying the ground of social condition except to the clearest of cases. On this view, the
addition of social condition to the CHRA would do little more than the addition of source
of income as a prohibited ground. 468 Therefore, this approach would do little to realize
the potential of social condition as a vehicle for addressing discrimination claims due to
the generally deferential approach of tribunals and courts in matters with a
socio-economic dimension.
However, neither of these arguments necessarily negates the potential benefits of
including social condition in the Canadian Human Rights Act, but rather advocate more
comprehensive measures for dealing with socio-economic equality. Another way to view
the addition of social condition would be as one piece in a more complex solution. 469
Indeed, as the La Forest Panel expressed, it could be the first step in generating greater
momentum towards other ameliorative activities:
Litigation on this ground should not displace study, education and the need to
look at other means to find solutions to the problems experienced by the people
who are poor. The best way to combat poverty and disadvantage remains private
and public activity aimed at improving the conditions of the socially and
economically disadvantaged. Perhaps the addition of this ground will spark more
of this activity. We hope so. 470
2.
Broad Administrative Discretion
Another institutional argument raised against adding social condition to the
Canadian Human Rights Act is that it would give too much discretionary power to the
Canadian Human Rights Commission and Tribunal. In some respects this argument is a
468
The Commission itself has recently advocated the addition of source of income as a prohibited ground
instead of social condition, see supra note 455.
469
Turkington, supra note 53.
470
La Forest Report, supra note 3 at c. 17.
112
combination of arguments regarding the drain on limited resources and the difficulties
inherent in interpreting and applying a concept as broad and open-ended as social
condition. It also raises the complex issues of comparative institutional competence in
respect of the proper roles for the legislative, executive and judicial branches in
formulating and implementing policy.
Like many of the other arguments that we have examined in this section, we feel
that fears about granting too much discretionary power to the Commission and the
Tribunal have been overstated. The problem of defining and applying the broad concept
of social condition has been explored in the preceding arguments, and in any event, is not
a novel task for the Commission and Tribunal. For instance, contrary to the view of some
commentators, the problems of defining and implementing the rights of the disabled have
not turned either human rights commissions or tribunals into “politically correct
predators”, who are trying to use their powers to remake the world in their own image. 471
Administrative agencies have been increasingly recognized as appropriate bodies
for the definition and implementation of social and economic policy in Canada 472 and the
Commission and Tribunal have experience and expertise in the area, 473 as will be
discussed in the next section. All administrative agencies, including the Commission and
the Tribunal, must operate within their legislative mandates and in accordance with the
rules of jurisdiction and fair procedure. The discretion that can be exercised by the
Commission and the Tribunal is far from unfettered as both are subject to judicial review
and the constraints of their enabling statute. That said, we do recognize a challenge to the
capacity, expertise and preparedness of essentially adjudicative administrative agencies to
address issues of complex socio-economic policy. As the options examined in the
recommendations section reveal, we believe that limits may be placed in the form of both
statutory and regulatory definitions and guidelines, which could address these concerns.
V. What are the Arguments For Including Social Condition as a
Prohibited Ground of Discrimination in the Canadian Human Rights
Act?
A. The purpose of the Act and the Educational and Symbolic Significance of Inclusion
The principle upon which the Canadian Human Rights Act is based is,
... 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
471
M. Crawford, “Human Rights Commissions: Politically Correct Predators?” (1991) 15 Canadian Lawyer
16 would suggest this is a real problem. Such a view was rejected by the Supreme Court of Canada in
Meiorin, supra note 66.
472
Evans, et al., Administrative Law Casebook: Cases, Texts and Materials, 3rd ed. (Toronto: Emond
Montgomery, 1989).
473
Gould, supra note 130.
113
orientation, marital status, family status, disability or conviction for an offence for
which a pardon has been granted. 474
Further, as stated in the La Forest Report, “The Act embodies fundamental values of
Canadians.” 475 The inclusion of social condition as a protected ground of discrimination
would adhere to the principle behind the CHRA and signify to the international
community that Canada recognizes the need for equality protection for those suffering
social and economic disadvantage. As detailed above, those suffering from social and
economic disadvantage are one of the most vulnerable groups in Canadian society,
subject to negative stereotyping, adverse living conditions, and discrimination. Protecting
the ground of social condition in a “quasi-constitutional” 476 document such as the CHRA
will symbolize Canada’s sincere commitment, ensuring that these rights are not
downgraded to mere principles and government objectives. 477 Including social condition
in the CHRA would symbolize that Canada has not forgotten about this oft-marginalized
societal group, and affirm the protection of the poor and socially disadvantaged as one of
Canada’s fundamental values.
The inclusion of social condition will also encourage provincial human rights
commissions and tribunals to more effectively address social and economic equality in
their existing human rights legislation. As noted above, only two provinces and one
territory currently include social condition as a prohibited ground of discrimination in
their provincial human rights acts. The lack of federal legislation on social and economic
equality has led to the “consequent lack of awareness, in the provinces and territories, of
the State party’s legal obligations under the [ICESCR],” 478 one of which is the
implementation of social and economic rights protection in both federal and provincial
legislation. As stated by Martha Jackman and Bruce Porter, “[p]roviding a clear mandate
under the CHRA with respect to social and economic rights would promote … a
collective effort” by the provinces to develop comprehensive policies with respect to the
protection against social and economic discrimination. 479
B. The Canadian Human Rights Commission and Tribunal are the Best Venues for
Protecting Discrimination on the Basis of Social Condition
Contrary to some of the arguments against the inclusion of social condition
canvassed above, we believe that, on balance, the Commission and Tribunal are the best
venues for the protection of social condition for a number of reasons. First, they possess
the judicial and administrative experience and expertise needed to effectively handle the
protection of those discriminated against under social condition. Second, adding social
condition to the jurisdiction of these established governmental bodies is an economically
efficient means to protect the ground compared to, for example, the creation of a new
administrative apparatus for this purpose. Finally, the addition of social condition as a
474
CHRA, supra note 1, s.2. [Emphasis added.]
La Forest Report, supra note 3 at 23
476
Zurich, supra note 261 at 339.
477
Jackman and Porter, "Women's Substantive Equality”, supra note 47 at 23.
478
CESCR, Concluding Observations, supra note 370 at 11.
479
Jackman and Porter, "Women's Substantive Equality”, supra note 47 at 23.
475
114
protected ground under the CHRA will enhance the intersectional and holistic approach
of dealing with human rights discrimination.
1.
Expertise and Experience of the Canadian Human Rights Tribunal and
Commission
Adding the ground of social condition to the CHRA will couple the legal
remedies of the Tribunal with the institutional mechanisms for supporting and promoting
these rights available to the Commission. 480 First, due to the relative economic
accessibility for complainants (who by definition will be predominantly without
resources to fund a court challenge) and the broad powers available to cease, prevent and
redress discriminatory practices, 481 the human rights Tribunal is an ideal forum to create
the legal remedies needed to properly protect the ground of social condition. In fact,
human rights tribunals are often a better forum than courts for devising effective and
creative solutions to discrimination which would be unavailable through the expensive
court process, because they have a more immediate effect for a greater number of
people. 482 Indeed, it was the flexibility and adaptability of administrative agencies that
attracted human rights advocates to the Commission and Tribunal structure as an
improvement over pursuing human rights by way of court prosecutions for breach of
statutes. 483
Second, complementing the remedial and judicial powers of the Tribunal is the
monitoring, investigation and educational functions of the Commission. Part of the
Commission’s mandate is to develop and conduct information and discrimination
prevention programs, 484 and as such the Commission provides a “degree of institutional
support which does not exist in the case of social and economic rights under
federal/provincial/territorial agreements or in relation to the Charter.” 485 This
institutional support is particularly important at the early stages of integrating the
protected ground of social condition into Canadian law. This educational role of the
Commission is in line with the systemic focus on discrimination advocated in the
La Forest Report. Discrimination based on social and economic grounds is a systemic
problem, and is “inherently connected to discriminatory attitudes toward poor people.”486
As stated in the La Forest Report:
(h)uman rights education and promotion is perhaps one of the most
powerful tools for addressing equality issues, particularly in the area of
systemic discrimination which is based on attitudes and assumptions that
are held and acted on, often unknowingly. Giving people this knowledge
480
Ibid. at 23.
CHRA, supra note 1, s.53(2).
482
Turkington, supra note 53.
483
Tarnopolsky, supra note 61. The limits of courts in respect to matters of human rights has also been
emphasized in Bhadauria, supra note 62, Christie, supra note 60 and B. Vitzkelety, “Discrimination, the
Right to Seek Redress and the Common Law: A Century-Old Debate” (1992) 15 Dal. L.J. 304.
484
See Canada, Canadian Human Rights Commission, About, online: CHRC <http://www.chrcccdp.ca/about/default-en.asp>.
485
Jackman and Porter, "Women's Substantive Equality”, supra note 47 at 23.
486
Ibid.
481
115
should be the first step towards eliminating the problem. 487
The Commission is ideally suited to fulfill this educational role since, as was noted by
one commentator, the promotion of public attitudes which respect to the dignity and
equality of discriminated parties is a traditional role of human rights commissions. 488
Lastly, the expertise of human rights agencies has been recognized. 489 In dealing
with a multitude of complaints of discrimination on a daily basis, the Commission and
Tribunal are well-placed to address the inclusion of a new ground of discrimination in a
manner that fulfills the purpose of their enabling statute.
2.
Adding Social Condition is Economical
Adding the ground of social condition to the CHRA, and thereby assigning the
duties of its promotion and protection to the Commission is economical. It is more cost
effective to assign duties to an existing agency, such as the Commission, then to create a
new agency to deal with issues of social condition discrimination. With its existing
infrastructure, funding, and in-house expertise, the Commission has most, if not all, of the
variables needed to administer the protection of the ground of social condition under the
CHRA. This is presumably the same logic that was used in 1995 when the administration
of the Employment Equity Act was assigned to the Commission, and is even more
compelling in this case, as administering the inclusion of social condition under the
CHRA is more in line with the Commission and Tribunal’s present functions and
mandate than was administering the Employment Equity Act in 1995.
3.
The Inclusion of Social Condition will Enhance Intersectionality
As noted above, the theory of intersectionality is that various socially and
culturally constructed categories interact on multiple levels to manifest themselves as
inequality in society. This theory holds that the classic grounds of discrimination do not
act independently of each other, but interrelate to create a system of oppression that
reflects the “intersection” of multiple forms of discrimination.490 This was recognized
when the CHRA was amended in 1998 to affirm with greater certainty that, “a
discriminatory practice includes a practice based on one or more prohibited grounds of
discrimination or the effect of a combination of prohibited grounds.” 491 The benefit of
this amendment is the possibility of an increased holistic approach to complaints, which
would also be advanced by the inclusion of social condition. As stated in the La Forest
Report, “[t]here is an interrelationship between the ground of social condition and other
grounds listed in the CHRA such as race, sex and disability. The severely disabled and
single women are among the poorest in Canada.” 492 The inclusion of social condition will
487
La Forest Report, supra note 3 at 45.
Jackman and Porter, "Women's Substantive Equality”, supra note 47 at 23.
489
See e.g. Bell Canada v. Canadian Telephone Employees Assn., [2003] S.C.J. No. 36.
490
S. Knudsen, Intersectionality-A Theoretical Inspiration in the Analysis of Minority Cultures and
Identities in Textbooks, online: Caught in the Web or Lost in the Textbook.
<http://www.caen.iufm.fr/colloque_iartem/pdf/knudsen.pdf> (date accessed February 29, 2008).
491
CHRA, supra note 1, s.3(1). [Emphasis added.]
492
La Forest Report, supra note 3 at 113.
488
116
encourage an intersectionality analysis under the CHRA and further facilitate a holistic
approach to complaints.
As a result, including social condition may actually consolidate complaints that
have been presented under other grounds or under multiple grounds. This assertion is
supported through the literature and case law 493 and could be found empirically. The
following is a table of the number of complainants filing complaints with the
Commission, the number of grounds cited in those complaints and the approximate
percentage of complainants filing complaints under multiple grounds:
Year
Total Number of
Complainants
Grounds of
Discrimination Cited
2004
2005
2006
828
752
717
989
866
839
Approximate Percentage of
Complainants Filing Under
Multiple Grounds 494
13%
10%
11%
More than one-tenth of all complaints are brought under multiple grounds of
discrimination. Hence, the ground of social condition may aid in naming those
complaints more precisely without increasing the total number of complaints. More
significantly, complaints framed in an intersectional way are likely to better reflect the
realities and experiences of complainants suffering from discrimination. As observed by
the La Forest Panel, the recognition of social condition under the human rights regime
would be particularly useful in dealing with complaints of multiple discrimination
because it can do so in a more comprehensive way and in a manner more accessible to
and respectful of the realities of complainants:
Some barriers related to poverty could be challenged on one or more of the
existing grounds. However, these cases have rarely been successful. They are
difficult to prove because they do not challenge the discrimination directly. Such
a case may require complex expert testimony about the economic status of the
group affected, since it may be necessary to show a disproportionate effect on a
particular group. Evidence can be even more difficult to obtain if the case
involves the interaction of multiple grounds. Perhaps more fundamentally, if a
policy or practice adversely affects all poor people or all people with a low level
of education, a ground-by-ground consideration of the issue can be seen as a
piecemeal solution that fails to take into account the cumulative effect of the
problem. 495
493
Turkington, supra note 53 at 180: “Adding poverty to the Ontario Human Rights Code is not an attempt
to protect a large group of people currently unprotected by the Code. Adding poverty would provide a
different kind of protection to subgroups of people who are currently only partially protected by the
Ontario Human Rights Code.” See also Fournier, supra note 447 at D/15: First, “social condition”
concerns many areas, including those specifically listed in article 10, including race, sex, sexual orientation,
civil status, religion, political convictions, language, ethnic or national origin.”
494
Calculated by subtracting the number of grounds filed under from the number of complainants, dividing
that number by 1.5 (conservatively assuming that half of all multiple grounds complaints are filed under 2
grounds, and half are filed under 3 grounds), and dividing that by the total number of complaints.
495
La Forest Report, supra note 3 at 109-10.
117
C. The Limited Charter Role to Date and the Role of Human Rights Statutes in
Influencing the Recognition of Analogous Grounds under the Charter
As discussed above, there has thus far been limited success in recognizing social
condition or related characteristics such as poverty as an analogous ground of
discrimination under the Charter. Should the ground of social condition be added as a
protected ground of discrimination under the CHRA, the legislative recognition of the
ground could inform jurisprudential developments in the Charter field, both in the
application of equality rights under section 15 of the Charter and in consideration of
broader socio-economic claims. As stated by Martha Jackman and Bruce Porter,
One of the difficulties in advancing social rights claims under the Charter
has been the lack of human rights jurisprudence to guide the courts on
applying equality rights in a manner that is consistent with social and
economic rights. Including social and economic rights in the CHRA will
promote the development of an equality jurisprudence that can be carried
over to Charter claims within the social and economic sphere. 496
The inclusion of social condition under the CHRA will further develop the living
tree that is Canadian equality and human rights legislation, not only expanding the
equality guarantees of the CHRA, but in turn informing and enhancing the
guarantees enshrined in the Charter.
Furthermore, if the ground of social condition is not added to the CHRA, yet is
found to be an analogous ground of discrimination under the Charter, it is possible that
the courts will instruct the legislature to add it, as omitting to do so could be seen as the
CHRA itself violating section 15 of the Charter. 497 Obviously, this is the least desirable
method of amending the CHRA, and in the interest of preempting its forced inclusion by
the courts, the legislature would be wise to voluntarily amend the CHRA to include the
ground of social condition.
D. Practical Benefits to the Lives of Individuals Living in Poverty and the Benefits of
Statutory Human Rights Regimes
Poverty continues to be one of Canada’s foremost problems. In a country as
prosperous as ours, the fact that over one-tenth of the population lives in poverty, is
alarming. Compound this with the consistent evidence that those living in poverty are
subject to widespread discrimination 498 and it is clear that those living in poverty are in
desperate need of an adjudicative body to which they can seek redress. Adding the
ground of social condition in the CHRA will not only provide an economical system of
remedy for those in need of its protection, it will also make a symbolic statement that
Canada does not tolerate discrimination against one of the most vulnerable of its citizen
groups.
The practical benefits of adding social condition to the CHRA are numerous. First
and foremost, this addition will ensure that there is a means to challenge stereotypes and
discrimination of the poor. Second, the addition will serve as an important educational
tool both to private and public actors. As stated in the La Forest Report, it will “send out
496
Jackman and Porter, "Women's Substantive Equality”, supra note 47 at 23.
Vriend, supra note 44.
498
La Forest Report, supra note 3 at 107.
497
118
a signal about assumptions and stereotypes to be taken into account by policymakers.” 499
Third, as stated above, the CHRA is meant to embody Canada’s core values. The
exclusion of social condition in the current version of the CHRA implicitly endorses the
idea that there is nothing wrong with discriminating against Canada’s poor by either
perpetuating negative stereotypes or failing to account for their particular circumstances.
Fourth, the inclusion of social condition will not only aid in remedying individual cases
of discrimination, but will help allay the devastating psychological impact of widespread
stereotyping and discrimination that has been attested to by complainants at the
provincial level. Lastly, the knowledge that the government acknowledges the plight of
the economically and socially disadvantaged and is willing to help alleviate it is of
important symbolic value to those burdened by poverty.
E. International Obligations
As described above, Canada is party to a number of international human rights
obligations, including the ICESCR and ICCPR, which it has not fulfilled. By not
fulfilling its international obligations, Canada is damaging its reputation as a leader in
human development, and opening itself up to challenges at the international and domestic
levels. The inclusion of social condition in the CHRA would go toward fulfilling the
recommendations of international human rights bodies that have gone unimplemented for
years. A legislative inclusion would be consistent with Canada’s undertaking under
article 2 of the ICESCR to “guarantee that the rights enunciated in the present Covenant
will be exercised without discrimination of any kind as to…social origin… or other
status” “with a view to achieving progressively the full realization of…rights” 500 and its
obligations of article 2(3)(a) of the ICCPR to provide an effective legal remedy to all
individuals who feel their rights under the Covenant have been infringed. 501 Currently,
there is no such avenue at the federal level for people who have experienced
discrimination on the basis of social condition.
The addition of social condition to the CHRA, while not enough to wholly fulfill
Canada’s international social and economic obligations, will send a message to the
international community that Canada is serious about making a long-term commitment to
addressing poverty. Conversely, by keeping the status quo and electing not to add social
condition, Canada is sending the message that social and economic disadvantage is not
worthy of being afforded even “negative right” protection.
F. Proposed Reform and Support by Government and Related Agencies
As canvassed in Part I, various Canadian bodies, including the La Forest Panel,
have now advocated including social condition in the CHRA. These recommendations
are highly persuasive given the practical experience, research, expertise, and authority of
the issuing bodies. In particular, the Senate and the Canadian Human Rights Commission
have both advocated the inclusion of social condition. Other human rights commissions
have supported the same change provincially and territorially, with both New Brunswick
and Northwest Territories now including the ground under their human rights acts. The
499
Ibid. at 110.
ICESCR, supra note 31, art.2.
501
ICCPR, supra note 360, art.2.
500
119
voices of academics, organizations and interest groups have also been raised in support of
expanding human rights protections.
VI. What is the Best and Most Feasible Option for Adding Social
Condition to the Canadian Human Rights Act?
Nearly a decade ago, the La Forest Review Panel made the critical
recommendation that social condition be added as a prohibited ground under the
Canadian Human Rights Act. In our 1999 Report to the La Forest Review Panel, we
explored a range of options for how this could be achieved on a somewhat equal footing,
although we did ultimately make our preferences clear. 502 We now have the benefit of the
Report from the Review Panel, 503 more cases from Quebec and the provincial additions
of social condition to the human rights codes in New Brunswick and the Northwest
Territories. On the basis of this additional information and evolution in our own thinking,
we address the important question of options with a renewed perspective and a new
recommendation. In this section, we will address the options that we do not believe are
appropriate or feasible at this time, and then turn to a discussion of our recommended
approach.
A. Rejected Options
1.
Not Include Social Condition (Status Quo)
One option would be to do nothing. While there are reasons that could support
such a conclusion (many of which are reviewed in Part IV), such a recommendation
would be a reaffirmation of the status quo. Such a course of action would not respond to
the arguments in favour of including social condition such as those outlined in Part V of
this study. In particular, it would not be responsive to the recommendation of the United
Nations Committee on Economic, Social and Cultural Rights that Canada expand its
human rights legislation to include protection against discrimination on the basis of
“social and economic status”. 504
The Canadian Charter of Rights and Freedoms could be an alternative venue in
the Canadian legal landscape for redressing discrimination on the basis of social and
economic condition. However, social condition is not one of the enumerated grounds
under section 15 of the Charter and would have to be added by way of an analogous
grounds analysis. While those suffering from social and economic disadvantage may well
be the kind of discrete and insular minority who lack meaningful access to the
majoritarian political process and thus need protection against discrimination, the courts
have been reluctant to extend their Charter mandate to embrace the shaping of social and
economic policy in Canada.
The limits of the Charter in respect to social and economic rights are explored in
Parts II.D and III.B. of this study, concluding that the potential breadth of sections 7 and
15 of the Charter will not in most cases overcome the reluctance of the courts to become
502
MacKay, Piper and Kim, supra note 4.
La Forest Report, supra note 3.
504
Supra note 370. The International Labour Organization’s Committee of Experts has also recommended
Canada expand its human rights protection, supra note 22.
503
120
engaged in matters of social and economic policy. When this analysis is combined with
the high cost of pursuing Charter litigation, it is our conclusion that sections 7 and 15
protections are not realistic alternatives to express statutory protection in the human
rights codes. There are also issues of comparative institutional competence, which make
flexible administrative structures more appropriate for dealing with these kinds of issues
than the courts. 505
As discussed in Part III.C of this study, the prospects of a Socio-Economic
Charter 506 by way of a constitutional amendment are also remote. The failure of the
Charlottetown Accord has dampened any enthusiasm for wide-based constitutional
reform. Furthermore, the proposals in the Charlottetown Accord were very modest in
nature and would have added little real protection for people who are disadvantaged
because of their social condition in society. The more recently adopted Framework to
Improve the Social Union 507 is even more general and uninformative. Therefore, the
process of constitutional reform offers little potential for changing the status quo in
respect to social and economic rights in the foreseeable future.
2.
Rewrite the CHRA to include Analogous Grounds
A potentially far-reaching option would be to rewrite the prohibited grounds
section of the Canadian Human Rights Act in the same form as section 15 of the Charter
of Rights. This would mean that there would be an open-ended section on prohibited
grounds that contains a list of grounds but leaves open the possibility for the addition of
analogous grounds through adjudication. The enumerated part of the section could be
either the existing list of grounds under the Act; the enumerated grounds under the
Charter or an extended list of grounds that could expressly include social condition,
source of income, poverty or some other formulation.
Donna Greschner and Mark Prescott in a report completed for Status of Women
Canada (and submitted to the La Forest Review Panel) analyze variations on the
analogous grounds option. 508 These variations include both a non-discrimination and
positive guarantee of equality formulation of the Charter analogous grounds approach,
the open-ended group membership approach contained in the Manitoba Human Rights
Code 509 and the unreasonable cause approach adopted in British Columbia between
1972-1984. 510 What all of these formulations share is an open-ended wording that would
allow social condition to be added to the prohibited grounds by way of interpretation.
Greschner and Prescott reject this option for reform for many reasons. Among the
reasons were: a concern about tying human rights codes too closely to the Charter; a loss
of focus by commissions which may act to obscure general acts of unfairness; the dangers
505
As discussed in Part III.D. of this study on economic and social rights in the Quebec Charter, even when
economic and social rights are recognized statutorily, there is very little openness on the part of
adjudicators to read much substantive content into these rights.
506
MacKay, Piper and Kim, supra note 4, Appendix II.
507
Ibid., Appendix III.
508
D. Greschner and M. Prescott, “Should the CHRA Mirror the Charter?” in Status of Women Canada,
Women and the Canadian Human Rights Act: a collection of policy research reports. (Ottawa: Status of
Women Canada, 1999) 1.
509
Supra note 144.
510
Human Rights Code, S.B.C. 1973 (2nd session), c. 119.
121
of being flooded with complaints; and the negative consequences of commissions getting
too far ahead of public opinion and producing a backlash. As support for their skepticism
about this option, the authors include summaries of the negative experiences of Manitoba
and British Columbia with their versions of the open-ended provisions in Appendices C
and D of their report. The proposed text of the analogous grounds amendments is
included in Appendix B of the Greshner and Prescott report.
We share many of the concerns expressed by Greschner and Prescott about this
option. The experiences in Manitoba and British Columbia suggest that social condition
is not likely to be found as an analogous ground, despite open-ended wording. This is
particularly true where the interpretation of the Charter of Rights has not to date included
social and economic condition as an analogous ground of discrimination. There are also
some dangers in having the Canadian Human Rights Act mirror the Charter, as the effect
is to apply the Charter to the private as well as the public sector. This leads Greschner
and Prescott to conclude that the effect of adopting this option might be to stifle the
evolution of both human rights codes and the Charter. On balance, the disadvantages to
the analogous grounds option appear to outweigh any advantages.
3.
Include Social Condition without a Statutory Definition
Another possible option is to follow the lead of the Quebec legislators, and
include social condition as a prohibited ground in the Canadian Human Rights Act with
no statutory definition. This option has the virtue of flexibility and leaves room for the
concept of social condition to grow and evolve. Such evolution could occur as a result of
interpretation by human rights tribunals and the courts or the elaboration of the term at
the administrative level through guidelines or policy directives. The absence of a
statutory definition does not mean that there will be no definition at all.
Critics of this option suggest that it is a form of legislative “cop-out”, which
merely passes the onerous task of defining the contested concept to the executive and
judicial branches of government. In addition, this option creates uncertainty about what
Parliament has really added to the CHRA; the intent of the legislature is left in doubt.
Would it not be better for Parliament to clarify its own intent, than to have administrators,
Tribunal members and judges speculate about the true legislative intent? We think that it
is better for Parliament to define, and our preference for some form of statutory definition
(even if minimal in form) is supported by the Quebec experience of adding social
condition with no statutory definition. The experiences of the courts in Quebec can be
used to determine the appropriate manner to introduce social condition into the Canadian
Human Rights Act. In particular, Quebec case law demonstrates some of the advantages
and disadvantages of including social condition in a statute without a legislative
definition.
Commentators attributed much of the earlier failure of the courts to give social
condition a definition that would serve the population for which it was intended to a lack
of a statutory definition. In 1981, Brun and Binette diplomatically evaluated three reasons
(only two of which are relevant here) why the courts were failing to use “social
condition” to protect complainants in discrimination actions. These were:
[TRANSLATION]
122
A) The novelty and ambiguity of an expression that the legislature has not
defined …, and
B) To put it bluntly, a particular ideology on the part of the judiciary, which
sometimes unceremoniously manifests itself. 511
Similar concerns were reflected six years later by André Collard when he stated:
[TRANSLATION]
It should also be acknowledged that the limiting character of the list in
article 10 prevented the judiciary from indirectly doing what it could not
do directly by considering social condition to be a catch-all that could
have made it possible to punish all forms of discrimination.
It is therefore up to the Quebec legislature to realize this and to express
itself in the way that it can: through legislative change. 512
The Quebec experience suggests that the lack of a statutory definition has, in
some cases, frustrated the implementation of the prohibition against social condition
discrimination on the front lines of human rights. Even attempts to clarify and codify
prior interpretations of social condition at the policy level have not filled the void left by
the statutory omission. Considerable time and expense has been directed to the definition
of social condition in Quebec and it has not always been applied in a manner that protects
the individuals meant to be served by human rights codes. In this regard, including social
condition without a statutory definition has some of the same problems as the analogous
grounds approach discussed above.
4.
Include Positive Economic and Social Rights in the CHRA
The addition of social and economic rights as positive rights would be a
significant and far reaching way to protect social condition under the Canadian Human
Rights Act. While provisions allowing for affirmative action or equity programs are a
form of positive rights, they are often presented as a defence to conduct that what would
otherwise be discriminatory. In general, the Canadian Human Rights Act, similar to the
legislation at provincial and territorial levels, has been structured around negative
prohibitions of discrimination. The imposition of affirmative duties have occurred in
exceptional cases such as the Action Travail de Femmes Case 513 and pay equity cases or
monitoring under the Employment Equity Act, 514 but such situations are not the norm.
This positive rights option, which would move the Act beyond its normal
structure, is persuasively argued by Martha Jackman and Bruce Porter in their report to
511
Brun & Binette, supra note 463 at 687.
A. Collard, supra note 463 at 192.
513
Action Travail des Femmes v. Canadian National Railway Co., [1987] 1 S.C.R. 1114.
514
Employment Equity Act, S.C. 1995, c. 44.
512
123
Status of Women Canada (which was submitted to the La Forest Review Panel). 515
Jackman and Porter advocate the addition of social condition to the prohibited grounds of
discrimination, as well as the inclusion of positive guarantees to specific social and
economic rights. The relevant section of their “Model Social and Economic Rights
Amendment” reads as follows:
1. (1) Everyone has a right to adequate food, clothing, housing,
health care, social security, education, work which is freely
chosen, child care, support services and other fundamental
requirements for security and dignity of the person.
(2) These rights shall be interpreted and applied in a manner
consistent with Canada’s human rights treaty obligations and the
fundamental value of promoting equality and alleviating social
and economic disadvantage.
As expressly stated in section 1(2) quoted above, the domestic social and economic rights
are to be interpreted so as to be consistent with Canada's international obligations. In this
respect, the option outlined by Jackman and Porter would be the one that is most
responsive to the criticisms of Canada made by the United Nations Committee on
Economic, Social and Cultural Rights. This broad remedial option is also the one that
would best address the systemic components of social condition discrimination by
defining rights in a positive way and putting obligations on the federal government to
respond to the problem. There is also recognition in the authors’ proposed amendments of
possible justifications open to the government when defending claims of discrimination.
What Jackman and Porter are proposing is a combination of a complaint-driven
model based upon prohibited grounds, including social condition, and a regulatory model
concerned with the delivery of positive social and economic rights. These rights would be
administered by a Social Rights Sub-Committee of the Canadian Human Rights
Commission and a Social Rights Sub-Panel of the Human Rights Tribunal, each having
special expertise in dealing with matters of social and economic rights.
While this is an extension of the traditional roles played by the Commission and
the Tribunal, it is not without precedent. The role of the Canadian Human Rights
Commission in administering the Employment Equity Act, as a separate statute, or in
implementing pay equity and accessibility standards for the disabled under the Canadian
Human Rights Act, provides some foundation upon which to build.
It is a progressive proposal that addresses not only the gap between international
commitments and domestic realities but also the need to respond in an affirmative
manner to the systemic problems of discrimination based on poverty. There are some
clear resource implications in adopting this option but there are also many negative
resource implications in continuing the cycle of poverty - which takes both an economic
and human toll.
We reject this option not because it lacks merit, but rather because it would
involve a regulatory redesign of the Commission and Tribunal structures that goes well
beyond the mandate of our study. There are also some unanswered questions about the
institutional competence of even a redesigned Commission structure to rise to the
515
Jackman and Porter, "Women's Substantive Equality”, supra note 47 at 43. Relevant sections of their
proposal are included in Appendix VII to our 1999 Report.
124
challenge of enforcing positive economic and social rights. There is considerable merit to
this more holistic approach to attacking poverty that has the potential to get to the root
causes of the problem. What poor people need more than freedom from negative
stereotypes and prejudicial attitudes and actions is more resources to escape the cycle of
poverty. However, these protections are clearly not mutually exclusive. Thus, we
recommend the inclusion of protection from discrimination on the basis of social
condition as a feasible measure that can be implemented in the short-term and also that
the incorporation of positive economic and social rights into the CHRA be the topic of a
future research study by the Commission.
Even the La Forest Panel, with a far more expansive mandate than ours and much
more experience and expertise, recommended against the inclusion of economic and
social rights in the CHRA and made the following observations on the matter:
The Panel is of the view that the direct enforcement of social and
economic rights in Canada through Tribunal orders would require a
substantial extension that we do not think is feasible at this time. However,
we think that the Commission could play a useful role by monitoring and
reporting on these rights.
...
We are concerned about the breadth of the issues — legal, constitutional
and political — that would be raised by the addition of social and
economic rights to the Act that were enforceable by Tribunal order.516
The La Forest Panel did nonetheless make a recommendation in respect to an educational
and monitoring role for the Canadian Human Rights Commission in respect to Canada’s
international human rights commitments.
Recommendation:
130. We recommend that the Commission should have the duty to
monitor and report to Parliament and the United Nations Human
Rights Committee on the federal government’s compliance with
international human rights treaties, included in its legislation.
Provincial and territorial human rights commissions, in
consultation with the Commission, may wish to comment on
matters within their respective jurisdictions. 517
This seems like a small but positive step in the right direction as the Canadian
Commission in conjunction with the provincial commissions would be well suited to this
educational task, which is a logical extension of its current statutory mandate in
section 27 of the Canadian Human Rights Act. Furthermore, the Continuing Committee
of Human Rights Officials, which was set up in 1988 to monitor Canada’s international
human rights commitment, seems to have more of a reporting than educational role.
There may be an important role for the Commission in respect to positive economic and
social rights and living up to Canada’s international human rights obligations. While the
516
517
La Forest Report, supra note 3 at 115-16.
Ibid. at 116.
125
likely role would be educational and symbolic at this stage, it could evolve into a
reference to monitoring Canada’s international commitments in section 2 of the CHRA
and ultimately a non-justiciable package of positive economic and social rights, in line
with the approach taken in Quebec.
While we do not recommend the inclusion of such rights at this time, it is an
important option worthy of future study by the Commission. It may be timely to embark
on such a study as the Canadian Human Rights Commission is cautiously reclaiming a
more significant role at the international level and has reasserted its partnership with
provincial human rights commissions by rejoining the Canadian Association of Statutory
Human Rights Agencies (CASHRA) in Yellowknife in June 2007. The links between
social condition as a ground of discrimination and economic and social rights in more
positive terms was also recognized by the La Forest Panel. It is time to act on social
condition and embark upon more study of the Commission’s role (if any) in respect to
positive economic and social rights.
B. Recommended Option for Including Social Condition as a Prohibited Ground of
Discrimination under the Canadian Human Rights Act
As indicated above, we recommend that social condition should be added as a
prohibited ground of discrimination under the Canadian Human Rights Act. This would
be an important step in advancing human rights protection at the federal level, where
there currently exists a gap for protecting individuals from discrimination based on social
and economic disadvantage.
Notably, in recommending that social condition be added to the CHRA, the
Review Panel also noted the intersection between social condition and the enumerated
grounds of discrimination in the CHRA:
We were asked to consider whether social condition should be added as a
prohibited ground of discrimination in the Act. None of the current
grounds are specifically economic in nature. However, we certainly came
to understand the close connection between many of the current grounds
and the poverty and economic disadvantage suffered by those who share
many of the personal characteristics already referred to in the Act. 518
As we observed earlier in this study, not only do many groups protected by the CHRA
also experience discrimination based on social condition, but the grounds intersect in a
way that produces multi-dimensional discrimination. This in itself is a good reason to add
social condition to the CHRA and the La Forest Panel also appears to reinforce that
conclusion.
While recognizing that social condition is not the same as poverty, the La Forest
Panel recognizes that both concern classes of individuals in disadvantaged social and
economic situations. 519 The Panel also recognized that the existing grounds of
discrimination are often inadequate to respond to the economic dimensions of the adverse
treatment experienced by these groups.
518
519
Ibid. [Emphasis added.]
Ibid. at 107.
126
Many of these factors, such as low income and lack of education, are also
barriers facing groups characterized by other grounds, such as race and
disability. A disproportionate number of people from the First Nations, for
example, live in extreme poverty and have few educational and
employment opportunities.
Some barriers related to poverty could be challenged on one or more of
the existing grounds. However, these cases have rarely been successful.
They are difficult to prove because they do not challenge the
discrimination directly. 520
The La Forest Panel also concludes that matters such as poverty, education and illiteracy
can be as much an element of a person’s identity as sex or religion.
Some might say poverty and illiteracy are less likely to form part of an
individual’s identity than sex or religion. On the other hand, our research
shows that the persistence of such factors and the way they shape social
and economic relationships suggest they are a part of one’s identity or
perceived identity. 521
The La Forest Panel concluded with the following six recommendations on social
condition:
Recommendations:
124. We recommend that social condition be added to the prohibited
grounds for discrimination listed in the Act.
125. We recommend that the ground be defined after the definition
developed in Quebec by the Commission des droits de la personne
and the courts, but limit the protection to disadvantaged groups.
126. We recommend that the Minister recommend to her Cabinet
colleagues that the government review all programs to reduce the
kind of discrimination we have described here and create programs
to deal with the inequalities created by poverty.
127. We recommend that the Act provide for exemptions where it is
essential to shield certain complex governmental programs from
review under the Act.
128. We recommend that the Act provide that both public and private
organizations be able to carry out affirmative action or equity
programs to improve the conditions of people disadvantaged by
their social condition, and the other grounds in the Act.
129. We recommend that the Commission study the issues identified by
social condition, including interactions between this ground and
other prohibited grounds of discrimination and the appropriateness
of issuing guidelines to specify the constituent elements of this
ground. 522
520
Ibid. at 108.
Ibid. at 110.
522
Ibid. at 113.
521
127
We are in general agreement with these recommendations, as we are also of the opinion
that the addition of social condition, due to its intersectional nature and purposive
content, would provide important equality protections, which are not adequately
addressed in the CHRA currently. However, for the same reason, it is important that
social condition protection be implemented in a practical and measured manner to ensure
sufficient certainty and broad acceptance of this new ground. Thus, we do have some
different ideas about how to define social condition in the statute and how to handle
defences, justifications, exemptions and delayed applications to certain areas, as will be
explored in the following sections.
1.
Include Social Condition with a Statutory Definition
Because social condition is perceived as a broad and somewhat ambiguous term,
we conclude that including social condition as a prohibited ground of discrimination
should be accompanied by some form of statutory definition of the term. Social condition
is a contested concept more akin to the prohibited ground of disability (which is defined
in section 25 of the CHRA) than it is to the more delineated grounds of discrimination
such as race, gender, ethnic origin or colour. It is also more open to conflicting
interpretations than some of the newer grounds, such as conviction for which a pardon
has been granted or sexual orientation.
The experiences of Quebec in litigating the proper definition of social condition
support the need to have some form of statutory definition. This has been explored in
detail in Part II and will not be repeated here. There is some danger in a statutory
definition in that it can freeze the evolution of the concept and make it less responsive to
changing societal conditions. This leads us to conclude that a minimal statutory definition
is desirable but that too much detail at the statutory level might be counterproductive.
In the Senate debates on Bill S-11, a definition was proposed although the bill
was defeated. The proposed definition reads as follows: “social condition includes
characteristics relating to social or economic disadvantage”. 523 This economical
definition serves many valuable purposes. It emphasizes that the term social condition
has an economic as well as a social component and, in that respect, is broader than a term
such as social origin. By referring to the term disadvantage, it also focuses on groups who
have not fared well in the current structure and fits with the purposive approach to the
interpretation of human rights statutes.
Another message that is sent by even a minimal statutory definition is that the
matter is important enough to be defined in the statute itself rather than being left to the
more flexible, but less entrenched form of regulations, guidelines or policy directives. It
also allows for the elaboration of the statutory definition by subordinate legislation but
anchors this process in the statute itself. Having this official recognition in the statute is a
matter of symbolic significance to the people who suffer from social and economic
disadvantage and are likely to need the protection of the provision.
The difference between a statutory definition and a policy directive on definition
is not just a symbolic one. Policy directives or even guidelines under section 27 of the
Canadian Human Rights Act have no binding effect on courts and are not determinative
523
Bill S-11, supra note 19.
128
for tribunals. The useful elaboration of what is meant by social condition in the 1994
policy directive from the Quebec Human Rights Commission has had little practical
impact or guidance, but has rather merely served to codify past judicial interpretations.
Thus, while a policy elaboration of a statutory definition may be useful it is not a real
substitute for including at least a skeletal definition in the statute itself.
Since the proposed statutory definition is minimal in nature, there may be a need
for further elaboration by way of subordinate legislation. This could serve the purpose of
giving greater clarity to the concept of social condition, while still allowing flexibility
and room to adapt to changing conditions. One form that such clarification could take is
the identification of factors that the Commission and the Tribunal could take into account
in determining whether a particular fact situation raises an issue of social condition.
We will not precisely define the elaboration of the statutory definition at the
executive level but will make some suggestions by drawing upon the New Brunswick
and Northwest Territories models that were discussed earlier. The definition in the
New Brunswick Human Rights Act reads as follows:
“social condition”, in respect of an individual, means the condition of
inclusion of the individual in a socially identifiable group that suffers from
social or economic disadvantage on the basis of his or her source of
income, occupation or level of education; 524
Along with the inclusion of “social condition” as a ground of discrimination, section 1(1)
of the Northwest Territories Human Rights Act includes a definition of the term:
“social condition”, in respect of an individual, means the condition of
inclusion of the individual, other than on a temporary basis, in a socially
identifiable group that suffers from social or economic disadvantage
resulting from poverty, source of income, illiteracy, level of education or
any other similar circumstance; 525
The Northwest Territories definition is the broader and more inclusive one because it
refers specifically to poverty and illiteracy and leaves room for further expansion by the
term “or any other similar circumstance.” It thus holds the best potential for advancing
the conditions of the poor and coming closer to meeting Canada’s international human
rights obligations. However, this section does not include occupation as the
New Brunswick one does and, for clarity and consistency with both the New Brunswick
and Quebec experiences, we would suggest that it be added to the Northwest Territories
definition for this executive level elaboration at the federal level.
The reference in the Northwest Territories definition to not covering a temporary
status is consistent with the position advocated by the La Forest Panel.
We believe the ground of social condition should be designed to protect
persons whose situation of poverty is ongoing rather than persons who
may temporarily find themselves in that condition. 526
524
NBHRA, supra note 108.
NWTHRA, supra note 124.
526
La Forest Report, supra note 3 at 111.
525
129
While we have some concern with the exclusion of all “temporary” situations at this
definitional level, it would still be up to the Commission and Tribunal to determine where
to draw the line between a temporary or on-going status, on complex matters such as
poverty. For instance, we would endorse the approach taken by the Northwest Territories
Adjudication Panel to the concept of “other than on a temporary basis” in the Mercer
case, discussed above; a literal reading of the concept could have led the Panel to find
that periods of unemployment due to the nature of seasonal work was “temporary”, but
the Panel instead looked at the socio-economic context of seasonal work in finding that it
was “other than on a temporary basis.” 527 Furthermore, because this definition is not in
statutory form it can be more easily changed than the minimal definition in the statute
itself.
An important remaining question is what body should be charged with the
elaboration of the definition. One option is to follow the approach adopted in respect to
the definition of “undue hardship” for purposes of accommodation under section 15 of
the Canadian Human Rights Act. In accordance with section 15(3) of the CHRA, it is the
Governor in Council (Cabinet) who is authorized to prescribe standards for assessing
undue hardship in the form of regulations. The later subsections emphasize the need to
devise these regulations in a broad public process that involves extensive consultation. A
variation on this model would be to designate the relevant Minister, rather than the whole
Cabinet, as the person to make the regulations. A further variation is that the regulation
maker – be it Cabinet or the relevant Minister – should only make the regulations on the
recommendation of the Canadian Human Rights Commission. There are precedents
within the current CHRA for all of these variations.
Giving the power of elaboration to the Cabinet or the relevant Minister ensures a
high level of political accountability but also runs the danger of interfering with the
perceived status of the Commission or the Tribunal as agencies that are independent and
at arms length from government. By virtue of being regulations, they would also be
binding on the Commission, the Tribunal and even the courts - if they were so
formulated. Elaboration in the form of regulations would also be less flexible than that in
the form of guidelines or policies developed by the Commission. Another option would
be to have the Commission elaborate the definition either in the form of non-binding
policy or guidelines enacted pursuant to section 27 of the CHRA. However, our
preference is for regulations rather than guidelines.
The question of where the definition of social condition is fleshed out in detail
raises important political issues of control and accountability. On the question of whether
the control should rest with the Cabinet or the Commission itself or somewhere in
between, our personal compromise preference is for regulations to be initiated at the
recommendation of the Commission. However, we do urge that the process be anchored
in a minimal statutory definition as the proper foundation for the process.
The New Brunswick experience also offers guidance on how Commission
guidelines might be used to give further interpretive guidance to the meaning and
application of social condition. The New Brunswick Guideline on Social Condition
explicitly states that the grounds of discrimination are to be interpreted consistently with
Canada’s and New Brunswick’s obligations under the Charter of Rights and the
527
Notably, the New Brunswick Guidelines cite “unemployment” as an example of a temporary status that
could be recognized as a social condition: NBHRC Guidelines, supra note 113.
130
International Covenant on Economic, Social and Cultural Rights. 528 We applaud this and
recommend it at the federal level.
The NBHRC Guideline further states that the interpretation of the ground of social
condition should follow the Quebec case law on this ground. Like the La Forest Panel,
the NBHRC Guideline advocates that judicial bodies interpret the ground in accordance
with the Quebec case of Gauthier 529 , stating that the NBHRA definition of “social
condition”,
...contains an objective element and a subjective element. The objective
element is the occupation, source of income or level of education of a
person. The subjective element is society’s perception of these objective
facts. 530
Furthermore, the NBHRC Guideline follows a number of Quebec cases in its issuance of
the following directive:
According to court and tribunal decisions, only one of the above factors
(source of income, occupation or level of education) need be present in
order for discrimination on the basis of social condition to occur, but any
combination of these factors is also sufficient. A person’s social condition
may be the person’s actual social status, or merely a perceived social
condition upon which discrimination is based. Social condition may also
be a temporary condition, such as unemployment. 531
These kinds of matters concern the application of the definitions at both the
statutory and regulation levels and are in our view, appropriate for Commission
guidelines under section 27 of the CHRA. We thus recommend that guidelines in line
with the ones discussed (albeit not necessarily in precisely the same terms), be adopted
by the Canadian Human Rights Commission. Social condition is thus defined and
elaborated in descending levels of detail at the statute, regulations and guidelines levels.
This should give comfort to those who are concerned about what social condition means
and how it will be applied.
528
NBHRC Guideline, supra note 113.
Gauthier, supra note 6.
530
NBHRC Guideline, supra note 113 at 3.
531
Ibid. at 4. The reference to temporary condition would have to be squared with the exclusion of
temporary status in the regulation definition in the Northwest Territories model.
529
131
2.
Do Not Include Additional Defences or Justifications
Under the current Canadian Human Rights Act, the major justifications for claims
of discrimination are set out in section 15. In common parlance, these are often referred
to as defences but they are more accurately justifications in that once a respondent has
established one of the justifications listed in section 15 then there is deemed to be no
discriminatory practice – thus there is nothing to defend. Section 15 contains broad
justifications, such as bona fide occupational qualifications and bona fide justifications,
which can apply to most cases and also contains more specific justifications applying to
particular situations, such as age or pensions. In addition, section 16 of the CHRA
provides a justification for programs or practices that promote affirmative action. Social
condition should be added as a ground here as well.
The question is whether the existing justifications are adequate to deal with social
condition or whether there needs to be new ones to respond to the potentially broad
application of the proposed additional ground of discrimination. Before turning to this
question, it is important to note that as a result of the 1998 amendments to the Canadian
Human Rights Act, section 15(2) requires that a respondent establish accommodation up
to the point of undue hardship in order to establish a bona fide occupational requirement
or a bona fide justification. Other than the statutory factors of health, safety and cost,
section 15(3) designates the Governor in Council (Cabinet) as the body responsible for
defining undue hardship in the form of regulations.
As Martha Jackman and Bruce Porter indicate in their report for Status of Women
in Canada (submitted to the Review Panel) these broad general justifications can be
applied to social and economic rights with only small modifications. 532 The critical
passage from their report reads as follows:
The permissible defences to a complaint that a social or economic
right has been denied on a prohibited ground of discrimination
should be stated explicitly under the CHRA. Section 15(1) of the
Act now provides that a practice will not be found discriminatory
if there is a reasonable and bona fide justification for it. For a
practice to be deemed to have a reasonable and bona fide
justification under s. 15(2), “it must be established that
accommodation of the needs of an individual or a class of
individuals affected would impose undue hardship on the person
who would have to accommodate those needs, considering health,
safety and cost.”
In the case of private respondents, the “reasonable and bona fide”
standard applied to discriminatory practices in other areas would
also apply to discrimination in relation to social and economic
rights. In the example mentioned above, of a challenge to lending
restrictions that disproportionately deny mortgages to women, the
banks may be required to alter their credit restrictions or to
develop housing loan programs for low-income women, where
532
Jackman and Porter, "Women's Substantive Equality”, supra note 47 at 75-76. They were discussing the
even more expansive positive social and economic rights as well as social condition.
132
such measures would not impose an “undue hardship.” The
standard for undue hardship with respect to private respondents is
an evolving one. It is significant, however, that in its decision in
Central Okanagan School District No. 23 v. Renault, the Supreme
Court of Canada explicitly rejected the de minimus economic test
applied by the United States Supreme Court in Trans World
Airlines Inc. v. Hardison. The Court stated that “the use of the
term “undue” infers that some hardship is acceptable; it is only
“undue” hardship that satisfies this test.” Boards of inquiry have
taken this to mean that, in order to remedy discrimination,
substantial expenses may be imposed on private respondents,
relative to the resources available to them.
In the case of government respondents, however, the issue of cost
as a defence to discrimination is more complex, not only because
government resources are virtually unlimited, but because
governments are generally balancing competing demands in
making any social or economic policy choice. Neither the
Canadian Human Rights Tribunal nor the courts have squarely
addressed the cost justification under s. 15(2) of the CHRA with
respect to governments’ obligations under the Act. As an
employer, the government will likely be held to the same
standards as the private sector. It is more difficult to assess the
notion of “undue hardship” with respect to broader obligations of
governments to address disadvantage through social programs
and other measures. 533
For present purposes, we are using the excerpt to make the point that the current
justifications under the CHRA can be applied to discrimination based upon social
condition. While some modifications in analysis may be needed, the general justifications
and concepts – such as bona fide justifications, accommodation, and undue hardship –
can be applied in respect to the proposed additional ground.
Another existing justification which could be useful in the social condition
context is section 15(1)(e) of the Canadian Human Rights Act which allows the
Commission to create justifications in addition to those set out in the statute. Such
justifications would, of course, have to be consistent with those in the statute and would
have the limited binding effect discussed earlier. Nonetheless, such guidelines could
provide an effective means of tailoring justifications to the unique situations that may
arise from the addition of social condition. It seems appropriate that the Commission, as
the front line agency, be the one to devise specific justifications in response to special
circumstances around the inclusion of social condition, rather than to speculate presently
about potential problems which may or may not arise.
Our view is that the existing justifications can anticipate potential difficulties with
the inclusion of social condition. This position is fortified by the Quebec and Northwest
533
Ibid. at 75 [footnotes omitted]. Of course, we are only recommending the addition of social condition
and not positive economic and social rights at this time.
133
Territories experience. Under these human rights statutes, defences considered in claims
of discrimination on social condition are no different from defences used for
discrimination based on other grounds.
In our 1999 Report to the La Forest Panel, we recommended adding an additional
justification in the form of a Charter style reasonable limits clause. There are precedents
for this in Alberta 534 and Nova Scotia 535 . However, this position was not adopted by the
La Forest Panel nor the legislators in New Brunswick and the Northwest Territories. The
effect of adopting such a justification would weaken the protection of human rights
generally and does not appear to be necessary. With the advantage of the wisdom of
others and sober second thought, we now recommend against including a reasonable
limits kind of justification in favour of considering delayed implementation in limited
cases as explored next.
3.
Include Time Delays for Public Programs or Legislative Acts
Because Canada has many complex statutory and administrative programs that
make economic distinctions, there is an understandable concern about the litigation that
might be triggered by adding social condition as a ground of discrimination. This was a
point clearly recognized by the La Forest Panel as follows:
The Panel is concerned that the addition of this ground may lead to
considerable litigation over complex government programs and an overall
reluctance by government to initiate social programs.
We could see challenges against many laws and programs, including tax
and immigration laws, employment insurance and training programs, on
the ground that they discriminate against the socially and economically
disadvantaged. 536
With this problem in mind the Panel recommended that Cabinet review all programs with
a view to reducing social condition discrimination and the creation of programs to
respond to the inequalities created by poverty. 537 More particularly, the Panel advocated
exemptions from the ground of social condition discrimination for certain complex
governmental programs, as identified by the government. 538 The La Forest Report does
identify income tax and immigration as two likely candidates for exclusion from review
on the basis of social condition because of the complex economic structures implicit in
these regimes. The immigration example as a target for an exemption was supported by
Citizenship and Immigration Canada when the Department took part in the Panel’s
hearings, as the following quote indicates.
The immigration program strives for a balance between humanitarian,
family reunification and economic objectives. ‘Social condition,’ if
adopted as a ground of discrimination [...] could bring the CHRA into
534
Alberta Human Rights Citizenship and Multiculturalism Act, supra note 72.
Nova Scotia Human Rights Act, supra note 72, s. 6(f)(ii).
536
La Forest Report, supra note 3 at 112.
537
Ibid. at 113 (Recommendation 126).
538
Ibid. at 113 (Recommendation 127).
535
134
conflict with the economic objectives of the Immigration Act— that is to
select and admit people to Canada that can contribute to the country’s
social and economic well-being [...] If the costs of immigration are seen to
exceed the benefits, support for immigration overall could diminish.
(Citizenship and Immigration Canada). 539
We agree that the problem identified by the La Forest Review Panel is a real one
that must be addressed and the internal examination of programs and the creation of new
ones is an excellent idea, which we fully endorse. In respect to the exemption of
government sectors subject to a periodic review as recommended by the Panel, we
suggest a modified solution that calls for a delayed application similar to how section 15
of the Charter of Rights was brought into effect.
It does make sense to have federal government agencies determine which
programs, legislative schemes, benefit structures and services are likely to be most
significantly affected by the addition of social condition to the CHRA. Under the
La Forest Report recommendation, these areas (such as the Income Tax Act and the
Immigration and Citizenship Act) are then to be exempted subject to a periodic review,
during which the agency must make a case to continue the exemption. This is consistent
with deference to the legislative branch on matters of economic and social policy but
does require them to justify the continuance of the exemption.
We recommend that as part of the agencies’ reviews suggested by the La Forest
Panel, agencies under the direction of the Cabinet make their cases not for an exemption
from the social condition regime, but rather for a delay in its application to the particular
agencies. The agencies can also make their case for a delay covering a period of time
between one and five years. During this time the agencies are to put their houses in order
and any extension to the delay would require proof of exceptional circumstances. These
delay periods for particular agencies would be granted by Cabinet in the form of
regulations.
In New Brunswick, the scope for the exemption of particular programs and
legislative schemes is even broader than the one outlined in the La Forest Report. In
section 7.01 of the New Brunswick Human Rights Act 540 it states:
Despite any provision of this Act, a limitation, specification, exclusion,
denial or preference on the basis of social condition shall be permitted if it
is required or authorized by an Act of the Legislature.
This New Brunswick approach is simply too broad in providing a blanket exclusion, and
a delay in the coming into force of the new human rights provision offers a compromise
position between this legislative exemption and the executive level exemption advocated
by the La Forest Report. It also re-establishes the principle that the provisions of the
CHRA apply to everyone under federal jurisdiction in both the public and private sectors.
The only question is when it comes into effect. The Commission by way of guidelines
and working with the government agencies should assist the relevant bodies in putting
their houses in order.
539
540
Ibid. at 106.
NBHRA, supra note 108.
135
The private sector covered by the CHRA may feel unfairly treated if there is no
delay option for them and we recommend that once the provision is added to the CHRA it
will only come into effect in the private sector after one year. Furthermore, the
Commission should issue some detailed guidelines to assuage the concerns of the private
sector (such as banks) that emphasize the position taken in the case law requiring service
providers to undertake objective individualized assessments, rather than adhering to
blanket policies that may be based on assumptions and stereotypes. The more
comfortable people are with the shape and parameters of social condition, the more
comfortable they will be in having it apply to them. The Commission needs to play a
supportive role in this transition period, similar to their role on other matters such as pay
equity and employment equity.
One source of comfort for those concerned about the impact of adding social
condition is that the experience to date (mainly Quebec) has been quite careful and
cautious and has not strayed far from protecting on the basis of source of income.
Furthermore, attacks upon benefit schemes and complex social services based on social
condition have not met with much success to date. These limits are explored in more
detail in Part II of this study. Thus, we advocate only delay provisions by way of
regulations rather than renewable or permanent exemptions.
VII.
Concluding Thoughts
There continues to exist a significant problem of poverty in Canada and one of its
manifestations is in the form of social condition discrimination. The response of the
legislative, executive and judicial branches of the Canadian state has not been adequate,
in our view, and the addition of the ground of social condition to the CHRA in a
controlled and defined way will be one more tool in advancing the rights and interests of
those on the margins of Canadian society. Poverty and social condition discrimination
require a multi-pronged approach and a human rights code that includes social condition,
is only one prong, but an important one. Parliament can position the Commission to take
a lead in this important area and we hope and urge that Parliament has the courage to do
so.
136
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