Canada: Labour and Employment

1. Human Rights and Employment

Human Rights Legislation in General

Employers that are provincially-regulated are subject to provincial human rights legislation. Federal works and undertakings are subject to the Canadian Human Rights Act. Human rights statutes hold quasi-constitutional status and are typically given large and liberal interpretation in keeping with other social justice legislation.

In general, human rights legislation across Canada provides protections against and the right to be free from discrimination and harassment in employment. These protections can include rights in respect of hiring, terminations, and treatment and preferences of an employer during the course of employment. The language of each statute may differ, but the general prohibition against discrimination in employment focuses on differential, adverse or preferential treatment.

What is Discrimination?

Discrimination is not defined in most human rights statutes, with the exception of Nova Scotia, Quebec and Manitoba. In order to determine what constitutes "discrimination", regard is often had to the Supreme Court of Canada's decision in Andrews v Law Society of British Columbia, (1989) 1 SCR 143, which held that discrimination:

Accordingly, prima facie discrimination can be said to exist where:

1. There is distinction made upon personal characteristics that are protected (more about this below); and
2. The distinction results in disadvantage.

Discrimination may be direct, indirect (sometimes called "adverse effect" discrimination) or systemic.

Intention is not relevant to the determination of whether there has been a breach of human rights legislation. That is, whether or not someone intends to discriminate does not limit liability under the human rights legislation. In clarifying this issue, the Supreme Court of Canada in Ontario (Human Rights Commission) v Simpsons-Sears Ltd., [1985] 2 SCR 536 stated:

Protected Grounds

Not every incident of differential treatment or preference, however, will contravene human rights legislation. Each statute highlights those specific grounds which are protected. For example, Ontario's Human Rights Code includes the following protected grounds in the employment context: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

In British Columbia's Human Rights Code, RSBC 1996, c. 210, the protected grounds in the employment context are: race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age or conviction for a criminal or summary conviction offence that is unrelated to the employment or the intended employment of that person.

Under Saskatchewan's Human Rights Code, SS 1979 c. S-24.1, the enumerated grounds are: religion, creed, marital status, family status, sex, sexual orientation, disability, age, colour, ancestry, nationality, place of origin, race or perceived race and receipt of public assistance.

In Prince Edward Island's Human Rights Act, RSPEI 1988 c H-120, the enumerated grounds that are protected in the employment context are: age, colour, creed, disability, ethnic or national origin, family status, gender expression, gender identify, marital status, political belief, race, religion, sex, sexual orientation, source of income of any individual class of individuals, or because the individual has been convicted of a criminal or summary conviction offence that is unrelated to the employment or intended employment of the individual.

Click here to determine the enumerated or protected grounds in other human rights statutes.

Protected Grounds Explained

Age

Age is defined in most human rights statutes. In some cases, a minimum age is stipulated, but not in others. All human rights' statutes - provincial and federal - have eliminated a maximum age designation. This effectively makes mandatory retirement provisions prima facie discriminatory.

In various human rights statutes, however, a defence may be available to claims of age discrimination where a legitimate and bona fide occupational requirement can be established. The threshold is a high one: the occupational qualification or distinction must have been imposed honestly, in good faith and with the sincerely held belief that the limitation was in the interests of the adequate performance of the work involved, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purposes of the Code.¹

Disability

Disability is broadly defined and interpreted in the human rights context, taking into account the variety of conditions, both visible and invisible, that may result in disadvantage. Human rights' statutes in Canada do not distinguish between physical, mental or intellectual disabilities – all are protected grounds.

For example, in Ontario's Human Rights Code "disability" is defined, as follows:

1. any degree of physical disability, infirmity, malformation or disfigurement that is caused by a bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes, militias, epilepsy, a brain injury, and any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness, or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
2. a condition of mental impairment or a developmental disability,
3. a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language;
4. a mental disorder, or
5. an injury or disability for which benefits for claim are received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.

In Alberta's Human Rights Act, RSA 2000, c. A-25.5, "physical disability" is defined as any degree of physical disability, infirmity, malformation or disfigurement that it caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes epilepsy, paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness, or hearing impediment, muteness or speech impediment, and physical reliance on a guide dog, wheelchair or other remedial appliance or device. "Mental disability" is defined as meaning any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder.

Manitoba's Human Rights Code, CCSM, c. H175 refers to physical or mental disability or related characteristics or circumstances, including reliance on a dog-guide or other animal assistant, a wheelchair, or any other remedial appliance or device.

Claims relating to discrimination or harassment in employment due to disability often relate to claims that an employee's employment was terminated as a result of disability or unwillingness on the part of the employer to accommodate the employee's disability to the point of undue hardship. The duty to accommodate is stipulated in human rights legislation, which provides the test that determines whether a person's right to be free from discrimination in employment due to disability is not infringed.

For example, in Ontario's Human Rights Code, section 17 provides that a person's right to be free from discrimination is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements of his or her job because of disability. However, this is tempered by subsection 17(2), which provides that no Tribunal or court may find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Marital or Family Status

Marital status is typically defined as the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside of marriage.

Family status is protected in all human rights legislation. It is not called "family status" under Quebec's Charter of human rights and freedoms, CQLR, c. C-12, but called "civil status". Many provinces use the same definition - the status of being in a parent-child relationship. There is a growing body of law about what constitutes family status discrimination. Many of these cases deal with the issue of child care or elder care responsibilities. It is now generally the case that child care obligations do fall under the definition of family status. The determination as to whether there is discrimination, however, requires the obligation at issue to speak to the core of the parent and child relationships and actual legal obligations, as opposed to personal choices.²

Race, Colour and Place of Origin

These are all protected grounds under all human rights legislation in Canada.

In some statutes, there are exceptions in the context of special employment programs designed to prevent or eliminate disadvantages suffered by a particular group may be exempted.

Religion and Creed

All jurisdictions prohibit discrimination and harassment on the basis of religion.

Sex, Gender Identity and Gender Expression

Sex discrimination is also prohibited in all jurisdictions in Canada. Gender identity and gender expression are two relatively new additions to human rights statutes. The Ontario Human Rights Commission has recently released its Policy regarding gender identity and gender expression.

Many human rights statutes also include specific provisions regarding sexual harassment. For example, New Brunswick's Human Rights Act, RSNB 2011, c. 171 provides at section 10(2) that no employer, representative of the employer or person employed by the employer shall sexually harass a person employed by the employer or a person seeking employment with the employer.

Similarly, Ontario's Human Rights Code provides at section 7(2) that every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.

Sexual Orientation

Sexual orientation is also protected in all Canadian jurisdictions.

Record of Offences or Convictions

The human rights legislation in Alberta, Manitoba, New Brunswick, Nova Scotia and Saskatchewan have no specific protections for individuals convicted of, or charged with a criminal offence.

Pursuant to the Canadian Human Rights Act, RSC 1985, c. H-6, discrimination on the basis of a conviction for which a pardon has been granted or in respect of which a recorded suspension has been ordered with respect to employment is protected.

In British Columbia's Human Rights Code protection is afforded with respect to discrimination in employment where an individual has been convicted of a criminal or summary conviction offence unrelated to employment or intended employment.

In Ontario's Human Rights Code provides protection against discrimination in employment on the basis of an individual's record of offences. Record of offences is defined as a conviction for:

1. an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or
2. an offence in respect of any Provincial enactment.

Reprisal

In addition to the above grounds, human rights statutes also protect individuals from reprisal.

Ontario's Human Rights Code at section 8 provides:

Human Rights Policies

Many employers have specific policies relating to human rights, discrimination, equal opportunity and harassment. Policies of this nature are helpful in establishing appropriate expectations for individual behaviour and conduct at the workplace.

According to the Ontario Human Rights Commission's Guidelines on Developing Human Rights Policies and Procedures (2008), key components of a comprehensive human rights policy often include:

• a barrier prevention, review and removal plan
• anti-harassment and anti-discrimination policies
• an internal complaints procedure
• an accommodation policy and procedure
• an education and training program

2. Equal Opportunity and Employment Equity

Canada's federal jurisdiction has specific legislation dealing with employment equity. The Employment Equity Act, SC 1995, c. 44, generally establishes an employer's duty to eliminate employment barriers against persons in designated groups and to institute positive practices to ensure the workforce of a federal work or undertaking is representative of the greater Canadian workforce.

The purpose of the Act is to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability, and to correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities.

Employment equity is to be implemented in accordance with section 5 of the Act:

5. Every employer shall implement employment equity by

1. identifying and eliminating employment barriers against persons in designated groups that result from the employer's employment systems, policies and practices that are not authorized by law; and
2. instituting such positive policies and practices and making such reasonable accommodations as will ensure that persons in designated groups achieve a degree of representation in each occupational group in the employer's workforce that reflects their representation in
3. 1. the Canadian workforce, or
   2. those segments of the Canadian workforce that are identifiable by qualification, eligibility or geography and from which the employer may reasonably be expected to draw employees³

The goals of the statute are implemented through the collection of information and the conduct of an analysis of an organization's workforce to determine the degree of the underrepresentation of persons of designated groups in each occupational group in that workforce; and the identification of employment barriers against designated groups.

Employers must also prepare an employment equity plan that:

1. specifies the positive policies and practices being instituted by the employer in the short term for the hiring, training, and promotion and retention of those persons in order to correct any underrepresentation identified by the analysis in 9(1)(a);
2. specifies the short term measures to be taken for the elimination of any barriers identified under the review in 9(1)(b);
3. establishes a timetable for the implementation of the matters referred to in (a) and (b);
4. establishes short term numerical goals for the hiring and promotion of persons in designated groups in order to increase their representation in each occupational group in which underrepresentation has been identified, and sets out measures to be taken in each year to meet those goals;
5. sets out the employer's longer term goals for increasing representation of persons in designated groups and the employer's strategy for achieving those goals; and
6. provides for any other matter that may be prescribed.⁴

Numerical goals are established based upon the following considerations:

1. the degree of underrepresentation in each occupational group;
2. the availability of qualified persons in designated groups within the employer's workforce and in the Canadian workforce;
3. the anticipated growth or reduction of the employer's workforce during the period in respect of which the numerical goals apply;
4. the anticipated turnover of employees within the employer's workforce during the period in respect of which the numerical goals apply; and
5. any other factor that may be prescribed.⁵

Every employer shall, at least once during the period in respect of which the short term numerical goals referred to in paragraph 10(1)(d) are established, review its employment equity plan and revise it.

In conclusion, the Act aims to achieve workplace equality, and actively correct conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities by requiring employers to document, record, and be conscious of their hiring practices and workforce make-up, while also mandating that employers make plans, set goals, and implement specific policies in furtherance of achieving the goal of equality in employment opportunity.

^{1 Etobicoke (Borough) v Ontario (Human Rights Commission), [1982] 1 SCR 202}

^{2 Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII)}

^{3 Employment Equity Act, SC 1995, c. 44, s. 5.}

^{4 Ibid, s. 10.}

^{5 Ibid, s. 10.}