Lupus Canada Advokit

Human Rights

Federally, it is the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act that define rights and protect individuals from discrimination.

The Charter (Section 15) says that everyone must be treated equally before the law, without discrimination1. It lists examples of grounds on which discrimination is forbidden, and disability is one of these grounds. The idea behind Section 15 is that the law is intended to bind all individuals equally. No law should benefit (or burden) one person more than any other.

When someone is put at a disadvantage because of some personal characteristic, that is discrimination. When a person or group is denied opportunities, benefits or advantages that are available to others, that is discrimination.

The Charter forms part of the Constitution of Canada, the supreme law of the land, and supersedes any other law, federal or provincial. In principle, no legislation, federal or provincial, may disagree with the Charter.

The impact of federal rights legislation is important for the individual advocate to understand, as the health care sphere, for example, involves many federally administered agencies.

The Human Rights Commission (http://www.chrc-ccdp.ca/)
An employee who has suffered discrimination because of a disability may file a complaint with the Canadian Human Rights. The Commission will determine whether the activities of the employer are under federal jurisdiction or provincial. If it is provincial, the complaint will be referred to the correct agency.

If the Commission finds that the situation is in the federal jurisdiction, the Commission will appoint an investigator to find out if the complaint is valid. An employer is obliged by law to accommodate disabled employees to a certain degree.

Once filed, the complaint is investigated by an agent of the Commission, who tries to negotiate a settlement between the parties. If no settlement can be reached, a report is prepared for the Commission.

The Commission then has several options. It can:

1. Appoint a conciliator to try again to bring the parties to arrive at a settlement; or

2. Send the complaint to the Human Rights Tribunal for review and adjudication; or

3. Dismiss the complaint, usually for lack of evidence that a violation has occurred.

If the complaint is referred to the Human Rights Tribunal, the Commission represents the one who filed the complaint: the complainant.

The Tribunal decides either that the complaint should be dismissed or that the employer must take action to remedy the situation. The Tribunal has the power to determine the remedy.

Generally, the remedy will be an order for the employer to stop the discrimination. This may include creating a program to correct the problem or a plan to prevent any similar situation from happening in the future.

The Commission may also award compensation for lost wages or injured feelings and may order the employer to pay other costs involved in settling the complaint.

Either party may, if not satisfied with the decision of the Tribunal, ask that it be reviewed by a Review Tribunal or the Federal Court.

It is important to remember that the Commission may not take on all cases submitted to it, and if they do, the process can take months, even years, and is very stressful.

1It should be noted that Charter guarantees do have a built-in limitation, permitting a law to discriminate but only as far as a free and democratic society would permit.