Setting up Shop in Canada? What U.S. Employers Need to Know About Canadian Human Rights Law

Understanding Canadian human rights law is key to ensuring your organization is fully prepared to deal with issues when they arise. In this video, David Alli discusses what U.S. employers need to know about Canadian human rights law (known as “anti-discrimination law” in the United States) and outlines some key differences between Canadian and U.S. laws.

For more information on Human Rights Law in Canada, please visit our dedicated FTR Nexus Topic Page and/or obtain your copy of the “Workplace Law in Canada Resource Guide” by contacting Knowledge Management

Transcript

Hi my name is David Alli, and today I’ll be discussing what U.S. employers need to know about Canadian human rights law.

Anti-Discrimination Law

Human rights law in Canada is generally known as “anti-discrimination” law in the United States.

All jurisdictions in Canada have enacted human rights legislation which may vary in some aspects but which share fundamental characteristics.

Areas of Protection

Human rights legislation in Canada generally prohibits discrimination in contracts, employment, goods, services and facilities, housing, and vocational associations and trade unions.

Human rights protections therefore apply not only in employment contexts, but also in relation to independent contractors.

For example, a breach of the Ontario Human Rights Code has been found where:

A service provider failed to take prompt action to deal with a situation where a customer was racially harassed by another customer

A breach has also been found where:

A landlord failed to give additional notice to tenants as religious accommodation.

Prohibited Grounds

The applicable human rights legislation in each province sets out characteristics upon which discrimination is prohibited, which is known as the “prohibited grounds”.

Across Canada – both federally and provincially – the legislation prohibits discrimination based on race or colour, religion or creed, age, sex or gender, pregnancy, sexual orientation, marital status, family status or disability.

Depending on the jurisdiction, there may be other protected grounds. For example, several jurisdictions prohibit discrimination based on gender identity and gender expression.

Some provinces include source of income as a grounds of discrimination, and some protect political beliefs.

Access to Human Rights Adjudication

Two models of human rights adjudication exist in Canada.

Gatekeeper Model

One model involves human rights commissions which have various roles, including receiving and investigating human rights complaints.

Upon receipt of the complaints, the commissions generally determine whether they should be dismissed, investigated, settled or whether they should be referred to an adjudicative body, such as a Board of Inquiry or Human Rights Tribunal.

This model is often referred to as the “Gatekeeper Model”, as the Commissions determine which complaints shall, or shall not, proceed to adjudication. This model is utilized in all but two provinces and one territory.

Direct Access Model

The second model, is the “Direct Access Model,” which exists in British Columbia, Ontario and Nunavut.

Amendments to the Ontario Human Rights Code in 2008 created the Human Rights Tribunal of Ontario. It has established its own processes and procedures to mediate or adjudicate claims. Complaints are submitted directly to the Tribunal, rather than through the intermediary of a Commission.

The Tribunal receives approximately 3,000 applications per year. Typically, Applications take approximately two years from start to finish, if they don’t settle at mediation or before the decision is rendered.

The Ontario Human Rights Commission remains in place but its primary focus is now on promoting compliance with the Human Rights Code through, for example, public education and policy development.

Timelines

Timelines for filing complaints also vary from jurisdiction to jurisdiction.

For example, in British Columbia, the complaint must be filed within six months of the alleged contravention.

In other jurisdictions (such as Alberta, Ontario, Manitoba, New Brunswick, Nova Scotia, Newfoundland and Labrador, P.E.I., Saskatchewan and in the Federal context) complaints must be filed within one year.

Whereas the time for filing in Quebec, the Northwest Territories and Nunavut is two years. And in the Yukon it is 18 months.

Thanks for listening and please be in touch if you have any further questions about human rights law in Canada.

The content in this video provides general information and should not be relied on as legal advice or opinion. This footage is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

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