Human Rights in BC: Should We Follow Ontario’s Example?

The purposes of our provincial Human Rights Code are to:

1. Foster a society in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia.
2. Promote a climate of understanding and mutual respect where all are equal in dignity and rights.
3. Prevent discrimination prohibited by the Code.
4. Identify and eliminate persistent patterns of inequality associated with discrimination prohibited by the Code.
5. Provide a means of redress for those persons who are discriminated against contrary to the Code.

On August 4, 2017, Premier John Horgan announced that the British Columbia government will be re-establishing a provincial human rights commission to fight inequality and discrimination. This has led to a fair degree of media excitement, but what will it actually mean for human rights protection in BC?

History and Limitations of BC’s Human Rights Regime

This will not be the first time a human rights commission has existed in BC – the first such commission was established in 1973. It was subsequently disbanded in 1984, briefly resurrected in the late 1990s, then disbanded again in 2002. Today, there exists only a human rights tribunal in this province.

So, what’s the difference?

When BC’s Commission existed, it was responsible for education, investigation and compliance, while the Tribunal was responsible for adjudicating complaints. When the Commission was eliminated, the Tribunal’s duties were expanded somewhat.

However, the Tribunal does not have, and has never had, the mandate to engage in preventative or promotional activities – like research, education, or legislation review – that would foster compliance with BC’s Human Rights Code. Instead, its role has long been limited to settling disputes between private parties.

Critics of our current system focus on the reactive nature of the Tribunal – it deals only with complaints after discrimination has occurred. The onus on identifying and reporting human rights violations rests with individuals, who must know their rights and navigate the complaints process.

In a 2011 paper, Heather MacNaughton, then Chair of BC’s Human Rights Tribunal, observed the limitations of BC’s regime:

A tribunal’s adjudicative role prevents it from taking or publicizing a position about human rights issues. A tribunal may only speak through its decisions.

 BC does not have an agency, independent of government, which is responsible for human rights education. Under the BC Code, the responsibility for education falls on the Attorney General’s Ministry which, apart from providing funding to the BC Human Rights Coalition for some educational programs, and providing some general information on its website, does little else to fulfill its statutory mandate. As a result, human rights education in the Province is falling behind some of the other Provinces.

Ontario’s Approach

In contrast to BC, Ontario has adopted a tripartite human rights model, consisting of:

1. A Commission that is responsible for education and advocacy,
2. A Tribunal that is responsible for complaint adjudication, and
3. A clinic that provides legal advice and representation to individuals who have suffered discrimination.

The Ontario Commission has produced valuable reports and guidelines to encourage and support widespread compliance with that province’s Human Rights Code, including a policy position on sexualized and gender-specific dress codes, and policies on workplace testing for drug and alcohol and preventing discrimination based on gender identity and expression.

Kyle Burgis, employment lawyer with Minken Employment Lawyers in Toronto, Ontario, describes the Commission’s policies and guidelines as reliable resources for ensuring compliance with the Ontario Human Rights Code, as well as useful tools in the adjudication of complaints at the Tribunal.

Beyond its published materials, the Ontario Commission also offers online and in-person training on compliance with the Ontario Code.

Looking Forward

Given the effectiveness of the Ontario model and the fact that BC is currently the only Canadian province without a Commission, we welcome the Premier’s commitment to improving human rights education and the prevention of discrimination in this province.

As things stand now, a public consultation process is set to begin in September 2017, with legislation to follow in 2018. With that in mind, here are some thoughts on what should be included in the BC Commission’s mandate:

1. Prevention of discrimination.
2. Public education on human rights protection.
3. Inquiry into broad systemic issues (such as discrimination against employees who are primary caregivers for their children or elderly parents).
4. Development of policies and guidelines to assist employers (e.g. on topics such as accommodating employee absenteeism as a result of mental or physical disability).
5. Advocacy to proactively address discrimination affecting whole groups of people where individual complaints are likely to be ineffective and wasteful of institutional and human resources.
6. Promoting compliance with the BC Human Rights Code.

Like BC’s Attorney General David Eby, we look forward to “building a better BC that is vibrant and full of opportunity” starting with “making sure that everyone feels welcome to be a part of that future.”