Where and How Should I Begin a Complaint?

Your human rights are protected in a number of different pieces of legislation and varying jurisdictions. As a result of a federalized system of government with a division of legislative powers, human rights statutes have been enacted in Canada at the federal, provincial and territorial levels.

Human rights protections are not limited to pieces of federal and provincial legislation. Human rights have been more fundamentally protected after the constitutional revisions of the Constitution Act in 1982, more specifically, the Canadian Charter of Rights and Freedoms. These three main sources of human rights will be described in more detail.

Federal Human Rights Protection

The federal Canadian Human Rights Act applies to federal government departments and agencies, Crown corporations, and federally regulated businesses (i.e., banking, transportation and broadcasting), a simple example would be Canada Post. The federal Canadian Human Rights Act serves as the home statute, or governing legislation, for the Canadian Human Rights Tribunal, which is less formal and less expensive, as well as faster than the full adjudicative court process.

The Canadian Human Rights Tribunal website can be found here and provides a guide for how to initiate a complaint or application. A comprehensive list of their decisions can be found on CanLii free of charge. Their enabling statute, the Canadian Human Rights Act can be found here. The Canadian Human Rights Commission promotes the mandate of the Canadian Human Rights Act and encourages the vision of an inclusive society free from discrimination, their website can be found here.

Provincial Human Rights Protection

All Canadian provinces and territories have their respective human rights codes and tribunals that hear human rights matters. While federal human rights have jurisdiction over federal business, provincial human rights regulate other businesses and service providers. However, both federal and provincial human rights law prohibit discrimination in all aspects of employment; the leasing and sale of property; public accommodation, services, and facilities; membership in labor unions and professional associations and the dissemination of hate propaganda.

The Canadian Human Rights Commission provides an illustrative example, if you had a complaint about a practice at a band office on a First Nations’ reserve, which would fall to a federal human rights tribunal, whereas a complaint against a privately-owned gas station on a First Nations reserve would fall to a provincial human rights tribunal.

Another telling example from Nancy Holmes;

“A landlord of an apartment building in Vancouver refuses to rent to an Aboriginal person. A complaint of discrimination would have to be made to the British Columbia Council of Human Rights, as this is a case of discrimination by a private individual; it is neither sanctioned by law nor by the government. Because private apartment rental is a matter of provincial jurisdiction, recourse would be to the appropriate provincial, as opposed to federal, human rights commission.”

The Canadian Charter of Rights and Freedoms and the Constitution Act (1982)

Section 52(1) of the Constitution Act 1982 states that “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This constitutional primacy in conjunction with Section 15 which guarantees the right to equality and freedom from discrimination fundamentally entrenches human rights protection on a constitutional level.

Section 15 of the Charter states,

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

This list consists of both enumerated grounds and analogous grounds. Enumerated grounds are simply listed within Section 15, such as sex or age. Analogous grounds, are protected grounds that are established in the common law and have been described as “a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity.” Examples of analogous grounds are; citizenship, sexual orientation, marital status and Aboriginality-residence. While human rights legislation is intended to be exhaustive, Section 15 has been interpreted as being open ended.

Human rights legislation prohibits discriminatory practices in both the private and public sectors, but only with respect to certain economic activities, such as employment and publicly available services and accommodation. While the Canadian Charter of Rights and Freedoms applies to any federal, provincial or municipal law or regulation, as well as to any governmental activity.

There are some potential drawbacks from initiating a compliant using the Charter. An individual can only use the Charter to challenge a governmental decision, action or law (such as the Ontario Code) on the grounds that it does not offer the protection to individuals provided by the Charter. Additionally, unlike informal tribunal adjudication, complaints of a Charter infringement or breach must be filed in a Court of the Queens Bench or Superior Court and may be more costly to pursue a claim than at a designated human rights tribunal.