Chapter 2 Human Rights in Canada. Copyright © 2007 by Nelson, a division of Thomson Canada Limited...

Chapter 2 Human Rights in Canada

Copyright © 2007 by Nelson, a divisiCopyright © 2007 by Nelson, a division of Thomson Canada Limitedon of Thomson Canada Limited

22

Summary of Objectives

To survey the origins of Canadian To survey the origins of Canadian human rights legislationhuman rights legislation

To examine areas of the To examine areas of the hospitality industry where hospitality industry where violations may violations may occur – hiring practices, practices occur – hiring practices, practices during employment, and failure of during employment, and failure of duty to accommodateduty to accommodate


33

The Rule of Law Principle Requires that laws be applied Requires that laws be applied

fairly and not arbitrarilyfairly and not arbitrarily

However, a law must be just, in However, a law must be just, in and of itself, before it can be and of itself, before it can be applied justly.applied justly.


44

The Legislation of Human Rights 1948 Universal Declaration of Human 1948 Universal Declaration of Human

Rights – an international agreementRights – an international agreement

1960 Canadian Bill of Rights – applied 1960 Canadian Bill of Rights – applied only to matters of federal jurisdictiononly to matters of federal jurisdiction

Constitution Act (1982) – prevails over Constitution Act (1982) – prevails over any federal or provincial law which is any federal or provincial law which is inconsistent with itinconsistent with it


55

The Charter

Characterizes certain rights and Characterizes certain rights and freedoms as fundamental (section 2)freedoms as fundamental (section 2)

• Freedom of conscience and religionFreedom of conscience and religion

• Freedom of thought, belief, opinion and Freedom of thought, belief, opinion and expression, including freedom of the expression, including freedom of the presspress

• Freedom of peaceful assemblyFreedom of peaceful assembly

• Freedom of associationFreedom of association


66

The Charter 2 Some Charter rights are guaranteed Some Charter rights are guaranteed

only to citizens of Canadaonly to citizens of Canada

• Democratic right to vote or run for Democratic right to vote or run for electionelection

• Mobility right to enter or leave CanadaMobility right to enter or leave Canada

• English or French minority language English or French minority language and education rightsand education rights


77

The Charter 3

Charter rights guaranteed for Charter rights guaranteed for everyone includeeveryone include

• Legal rights:Legal rights:

o Right to life, liberty, security of the Right to life, liberty, security of the personperson

o If arrested, the right to consult a If arrested, the right to consult a lawyer without delaylawyer without delay

o Right to the presumption of Right to the presumption of innocenceinnocence


88

The Charter 4 Other Charter rights guaranteed Other Charter rights guaranteed

for everyone include the for everyone include the following:following:

• Equal protection and benefit of the Equal protection and benefit of the law without discriminationlaw without discrimination

• Official language rightsOfficial language rights


99

The Charter 5 The notwithstanding clause (section The notwithstanding clause (section

33) provides33) provides

• that a statute may operate despite the that a statute may operate despite the fact that it conflicts with Charter section fact that it conflicts with Charter section 2 or sections 7 through 152 or sections 7 through 15

Sunset clause – a declaration that the Sunset clause – a declaration that the statute operates notwithstanding the statute operates notwithstanding the Charter ceases to have effect after five Charter ceases to have effect after five yearsyears


1010

The Charter 6 The Charter of Rights and The Charter of Rights and

Freedoms does not bind Freedoms does not bind individuals or private companies. individuals or private companies. It does apply toIt does apply to

• the federal government,the federal government,

• the provincial governments, andthe provincial governments, and

• their agencies and departments.their agencies and departments.


1111

Provincial and Territorial Human Rights Codes These pieces of legislation have These pieces of legislation have

jurisdiction to regulate the jurisdiction to regulate the conduct of both individuals and conduct of both individuals and private companiesprivate companies


1212

Discrimination

is prohibited when it goes against the is prohibited when it goes against the interests of society as a wholeinterests of society as a whole

If discrimination occurs in the If discrimination occurs in the hospitality industry, it tends to occur hospitality industry, it tends to occur due to poordue to poor

• hiring or firing practiceshiring or firing practices

• employment policiesemployment policies

• harassment policiesharassment policies


1313

Recruitment of Personnel An employment advertisement An employment advertisement

that discriminates on a prohibited that discriminates on a prohibited ground creates dual liability for ground creates dual liability for the discrimination:the discrimination:

• Person or company who placed the Person or company who placed the adad

• Printer or broadcaster who carried Printer or broadcaster who carried the adthe ad


1414

Sexual Harassment

Unwelcome conduct of a sexual nature Unwelcome conduct of a sexual nature that detrimentally affects the work that detrimentally affects the work environment or leads to adverse job-environment or leads to adverse job-related consequences for the victim related consequences for the victim (Janzen v. Platy Enterprises)(Janzen v. Platy Enterprises)

Everyone has the right to be free from Everyone has the right to be free from reprisal or the threat of reprisal for the reprisal or the threat of reprisal for the rejection of the sexual solicitation or rejection of the sexual solicitation or advance.advance.


1515

Clark v. Canada (1994), CCEL (2d) 172 (Fed TD) A female RCMP officer was forced to A female RCMP officer was forced to

resign due to stress and depression resign due to stress and depression arising from her colleagues’ sexual arising from her colleagues’ sexual harassment. The Crown was vicariously harassment. The Crown was vicariously liable becauseliable because

• supervisors had not ended the harassmentsupervisors had not ended the harassment

• there was apathy among the officers to there was apathy among the officers to Clark’s situationClark’s situation

Damages awarded to Clark were $5,000 Damages awarded to Clark were $5,000 for pains and suffering and $88,000 for for pains and suffering and $88,000 for lost income.lost income.


1616

Physical Disability

Employment-related medical Employment-related medical exams during the job application exams during the job application process are prohibited.process are prohibited.

Testing may be done later, on Testing may be done later, on reasonable grounds for a reasonable grounds for a reasonable purpose.reasonable purpose.


1717

Drugs and Alcohol

Dependency is regarded as a handicapDependency is regarded as a handicap

Testing is prohibited during the job Testing is prohibited during the job application processapplication process

Testing is permitted later if the Testing is permitted later if the dependencydependency

• jeopardizes the safety of the employee and/or jeopardizes the safety of the employee and/or othersothers

• is repeatedly causing lateness or absenteeismis repeatedly causing lateness or absenteeism

• is seriously and adversely affecting the is seriously and adversely affecting the behaviour of the employeebehaviour of the employee


1818

Record of Offences

A person convicted of an offence A person convicted of an offence may not be discriminated against may not be discriminated against ifif

• the offence involved a provincial the offence involved a provincial or territorial enactmentor territorial enactment

• the offence was a Criminal Code the offence was a Criminal Code offence but a pardon has been offence but a pardon has been grantedgranted


1919

Duty to Accommodate

Employers must attempt to Employers must attempt to accommodate the religious beliefs of accommodate the religious beliefs of employees.employees.

Job advertisements cannot make the Job advertisements cannot make the ability to work on a day of worship a job ability to work on a day of worship a job requirement.requirement.

Employers must attempt to Employers must attempt to accommodate drug- or alcohol-accommodate drug- or alcohol-dependent employees.dependent employees.


2020

Permission to Discriminate Exceptions to the Human Rights Exceptions to the Human Rights

Code include, among other Code include, among other things, things,

• affirmative action programsaffirmative action programs

• special interest organizations special interest organizations (religious, philanthropic, etc.)(religious, philanthropic, etc.)

• nepotism policies in employmentnepotism policies in employment


2121

Remedies for Human Rights Infringements The Human Rights Commission The Human Rights Commission

may ordermay order

• changes to workplace policieschanges to workplace policies

• financial compensation for the financial compensation for the victimvictim

• reinstatement of the victimreinstatement of the victim

• fines for the employerfines for the employer


2222

Remedies for Human Rights Infringements Courts may provide damages for Courts may provide damages for

wrongful dismissal, breach of wrongful dismissal, breach of fiduciary duty or vicarious fiduciary duty or vicarious liability.liability.

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