The sector in which you are employed establishes whether your employment relationship is regulated by federal or provincial human rights legislation.
Human Rights law applies to all employees, but is governed by specific or federal human rights legislation.
Human rights legislation prohibits discrimination in employment on specified grounds as well as analogous grounds to employees employed in either the federal or provincial sectors.
The various human rights tribunals enforce human rights legislation within their respective jurisdiction; the Courts do not have jurisdiction to enforce human rights legislation. However, the Federal Government, Provincial Governments and governmental agencies are prohibited from discriminating on similar grounds under Section 15 of the Canadian Charter of Rights and Freedoms.
Prohibited grounds of discrimination prohibited by Human Rights legislation
Human rights legislation prohibits discrimination in employment on specified grounds as well as analogous grounds to employees employed in either the federal or provincial sectors. For example, Sections 14 and 14 of the BC Human Rights Code prohibits employers and trade unions from discriminating against an employee on the following grounds:
race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
The Canadian Human Rights Act defines the following prohibited grounds of discrimination: race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
The various human rights tribunals enforce human rights legislation within their respective jurisdiction.
In Seneca College v Bhadauria, the Supreme Court of Canada held that discrimination on prohibited grounds as defined in human rights legislation and, therefore, the courts do not have jurisdiction to enforce human rights legislation. However, the Federal Government, Provincial Governments and governmental agencies are prohibited from discriminating on similar grounds under Section 15 of the Canadian Charter of Rights and Freedoms.
Proving discrimination under Human Rights legislation
In accordance with the Supreme Court of Canada’s decision in Moore v British Columbia, a complainant must prove a prima facie case of discrimination under one of the prohibited grounds in one of the protected areas, e.g., employment, tenancy, etc. To demonstrate prima facie discrimination, a complainant must demonstrate
a) that they have a characteristic protected from discrimination;
b) that they have experienced an adverse impact in a protected area; and
c) that the protected characteristic was a factor in the adverse impact.
Once a prima facie case has been established, the burden shifts to the respondents to disprove or justify the conduct or practice.
Under the BC Human Rights Code, the Respondent will most likely make an application to dismiss the complaint on one or more of the ground enumerated under Section 27.
27 (1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:
(a) the complaint or that part of the complaint is not within the jurisdiction of the tribunal;
(b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;
(c) there is no reasonable prospect that the complaint will succeed;
(d) proceeding with the complaint or that part of the complaint would not
(i) benefit the person, group or class alleged to have been discriminated against, or
(ii) further the purposes of this Code;
(e) the complaint or that part of the complaint was filed for improper motives or made in bad faith;
(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;
(g) the contravention alleged in the complaint or that part of the complaint occurred more than 6 months before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22 (3).
A significant number of the human rights complaints filed are dismissed either because they were filed outside of the statutory time-limit or as a result of an application to dismiss under Section 27 of the BC Human Rights Code.
Consequently, the human rights complaint must be carefully and thoroughly drafted in anticipation that the respondent will file an application to dismiss the complaint.
While a complainant is not required to retain legal counsel to file a human rights complaint, the reality is that a complainant’s chances of successfully demonstrating a prima facie case and defending against an application to dismiss the complaint are improved significantly if one is represented by legal counsel.
Click here for further information about the BC Human Rights Tribunal and its process.
Click here for more information about the Canadian Human Rights Commission.
Click here for more information about the Alberta Human Rights Commission.
Information about the law is not a substitute for legal advice
Legal information provided on our website is not a substitute for legal advice addressing the particular circumstances of your situation. There is no such thing as “one size fits all” in applying the law to the particular circumstances of your case. The information about the law that we provide on our website is intended to be general information only, which we hope will provide you with a basic introduction to the law before you seek legal advice from a lawyer.